Scope and Applicability:
The transportation in commerce of hazardous materials (HazMat) within the U.S. are subject to the Hazardous Materials Regulations (HMR) of the Pipeline and Hazardous Materials Safety Administration within the U.S. Department of Transportation (USDOT/PHMSA).
What is meant in the Hazardous Materials Regulations of USDOT/PHMSA by “in commerce” when establishing the applicability of the HMR?
Let’s begin at the beginning. The very first sentence of the HMR at 49 CFR 171.1 reads, “Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.) directs the Secretary of Transportation to establish regulations for the safe and secure transportation of hazardous materials in commerce,…” So, right from the start we are informed the regulations apply solely to HazMat “in commerce”, but what does that mean?
Commerce is defined at §171.8:
Commerce means trade or transportation in the jurisdiction of the United States within a single state; between a place in a state and a place outside of the state; that affects trade or transportation between a place in a state and place outside of the state; or on a United States-registered aircraft.
So let’s break that down.
Commerce means trade or transportation…
Notice the definition is not limited just to transportation but also includes trade.
…in the jurisdiction of the United States…
Naturally.
The following are four options where the trade or transportation may take place within U.S. jurisdiction.
(Option 1) …within a single state;
The trade or transportation takes entirely within a single state.
(Option 2) …between a place in a state and a place outside of the state;
The trade or transportation takes place between two or more states.
(Option 3)…that affects trade or transportation between a place in a state and a place outside of the state;
This increases the applicability of the HMR to include not only trade or transportation but activities (trade or transportation) that affect trade or transportation between two or more states.
(Option 4)…or on a United States-registered aircraft.
The trade or transportation takes place on a U.S.-registered aircraft anywhere in the world.
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The definition helps, but it doesn’t clearly limit the terms applicability solely to a business nor does it clearly state it is not applicable to a non-business entity like a private homeowner. For that clarification we must refer to USDOT/PHMSA letters of interpretation. Several examples are provided below. Only the relevant text from the LOIs are displayed.
LOI 11-007:
A driver who transports his/her own personal belongings (e.g., battery operated cell phones, medical devices and GPS devices, gas cans, etc.) for personal, non-commercial use is clearly not in commerce. Therefore, in the scenario you describe, those personal belongings are not subject to the HMR. However, any hazardous material that the driver is transporting on behalf of the motor carrier is in commerce and subject to the HMR.
LOI 09-0220:
PHMSA also interprets “in commerce” to mean trade or transportation in furtherance of a commercial enterprise.
And…
(1) an individual who transports his/her own scuba tank for personal, noncommercial use (e.g., recreation, sport fishing) is not subject to the HMR; (2) a scuba instructor who transports scuba tanks for use by his students as part of their instruction is subject to the HMR; and (3) a boat repair facility that uses scuba tanks as part of its examination of a boat’s hull and repair operations is subject to the HMR when it transports the scuba tanks.
LOI 11-0306:
As a general matter, the transportation of a hazardous material by motor vehicle for personal use of the driver is not subject to requirements in the HMR – although it may be subject to other Federal, State, or local requirements.
LOI 22-0003:
The HMR apply to the transportation of hazardous materials in commerce, i.e. in support of a commercial enterprise.
LOI 19-0017:
The transportation of a hazardous material by a private individual for non-commercial personal use is not considered transportation in commerce. Therefore, the requirements of the HMR are not applicable to fillers or private individuals for the use, recharging, or transportation of SCUBA cylinders by private individuals for personal use.
However…
Do not rely on the answer given in LOI 03-0223 as it has been supplanted by changes to the regulations made by the HM-223 final rule. USDOT/PHMSA is considering rescinding this LOI but has not yet done so.
Q: What if the HazMat is transported by a government agency? Is that still considered to be “in commerce”?
A: HazMat transported by a government entity in vehicles operated by government personnel for non-commercial purposes are not subject to the HMR. However, if a government entity contracts a third party to transport a HazMat on their behalf, the exemption would no longer apply.
Read: The Government Employee Exemption to the Hazardous Materials Regulations
And, if you’re interested in any more…
The HMR’s definition of a person at §171.8 includes, “…an individual, corporation,…government, Indian tribe,…that offers a hazardous material for transportation in commerce, transports a hazardous material to support a commercial enterprise, or designs, manufactures, inspects,…a packaging…qualified for use in transporting hazardous material in commerce.
Read: What – or Who – is a Person According to USDOT/PHMSA?
Conclusion:
If you want the simple answer just leave it with this from LOI 22-0003: “The HMR apply to the transportation of hazardous materials in commerce, i.e. in support of a commercial enterprise.”
If you want the complicated answer go back and read this article again.
