In its Hazardous Materials Regulations (HMR), the Pipeline and Hazardous Materials Safety Administration within the U.S. Department of Transportation (USDOT/PHMSA) frequently uses the word “person”. e.g., “person who offers or offeror” or “each person who imports…” But don’t think how you understand the word is how USDOT/PHMSA defines and regulates it.

“Person” is defined at 49 CFR 171.8:

Person means an individual, corporation, company, association, firm, partnership, society, joint stock company; or a government, Indian Tribe, or authority of a government or Tribe, that offers a hazardous material for transportation in commerce, transports a hazardous material to support a commercial enterprise, or designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. This term does not include the United States Postal Service or, for purposes of 49 U.S.C. 5123 and 5124, a Department, agency, or instrumentality of the government.

So, what’s it mean?

A person may be any of the following:

• Individual – That’s you and me.
• Any of the following business arrangements:
  • Corporation
  • Company
  • Association
  • Firm
  • Partnership
  • Society
  • Joint stock company
• But not just people and businesses. Also government entities:
  • Government or authority of a government.
  • Indian Tribe or authority of an Indian Tribe.

If, they perform any one of the following functions subject to the HMR:

• Offer a HazMat for transportation in commerce. – This is the person who offers or offeror (aka: the shipper) of the HazMat. This could be an individual, government, or business if the transport is done by, 0r for, a business (i.e., in commerce).
• Transports a HazMat to support a commercial enterprise. – This is the carrier of the HazMat. Notice, this does not include a person transporting a HazMat for a non-commercial enterprise, e.g., a government employee transporting a HazMat for government business.

Read: The Government Employee Exemption to the USDOT Hazardous Materials Regulations

• Does any of the following for a package, container, or packaging component intended to be used for HazMat transportation.
  • Designs
  • Manufactures
  • Fabricates
  • Inspects
  • Marks
  • Maintains
  • Reconditions
  • Repairs
  • Tests

“Person” does not include the following:

• The United States Postal Service – USPS has its own regulations for the transport of HazMat.
• A Department, agency, or instrumentality of the government, but only for the purposes of 49 U.S.C. 5123 and 5124.

This seems to exclude all government from the definition of person, but that is not so. Instead, this language only excludes the Federal government (the term “government used here applies solely to the Federal government (09-0089)) from civil and criminal penalties (49 U.S.C. is for civil penalties and 5124 is for criminal) for violation of the HMR. USDOT/PHMSA has the authority to penalize non-Federal government entities for violations of the HMR.

Q: So if a Department, agency, or instrumentality of the government is not a “person” that means its operations are not subject to the HMR, correct?

A: Not so fast. The HMR apply to the commercial transportation of hazardous materials. As provided in §171.1, the HMR apply to any government department, agency, or instrumentality that offers hazardous materials for transportation in commerce or transports hazardous materials in commerce. A government jurisdiction or agency that transports hazardous materials for its own purposes, using its own personnel, is not engaged in transportation in commerce, and thus, the HMR do not apply. However, if the purpose of the transportation is commercial or if the government entity utilizes contract personnel to prepare the hazardous materials for transportation or offers hazardous materials for transportation to commercial carriers, then the HMR apply. (09-0089)

Confused? My HazMat Employee training can help.