{"operation":"document","citation":"09-0089","title":"Mr. Bob Craig — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-04-02","effective_on":null,"summary":"09-0089 concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0089.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0089.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0089","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090089.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nAPR - 2 2010 1200 New Jersey Ave., S.E.\nWashington, D.C. 20590\nOffice of\nChief Counsel\nMr. Bob Craig\n298 Pin Oak Trail\nNew Caney, Texas 77357\nRef. No. 09-0089\nDear Mr. Craig:\nThis responds to your January 12, 2009 letter concerning the definition of \"person\" in the\nFederal hazardous materials transportation law (Federal hazmat law; 49 USC 5101 et seq.)\nand the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Please accept our\napology for our delay in responding. Your questions are paraphrased and answered as\nfollows:\nQ1. Does the second use of the term \"Government\" in the definition of \"person\" in\n§ 51 02(9)(B)(ii) of Federal hazmat law refer only to the U.S. Federal government or to other\ngovernment entities that offer hazardous materials for transportation in commerce?\nAI. As used in § 5102(9)(B)(ii) of Federal hazmat law, the term \"Government\" means the\nFederal government.\nQ2. Does the U.S. Department of Transportation (DOT) have the authority to penalize\nstate, local, tribal, territorial, or foreign governments for violations of the HMR?\nA2. The HMR apply to the commercial transportation ofhazardous materials. As\nprovided in § 171.1, the HMR apply to any government department, agency, or\ninstrumentality that offers hazardous materials for transportation in commerce or transports\nhazardous materials in commerce. A government jurisdiction or agency that transports\nhazardous materials for its own purposes, using its own personnel, is not engaged in\ntransportation in commerce, and thus, the HMR do not apply. However, if the purpose of the\ntransportation is commercial or if the government entity utilizes contract personnel to prepare\nthe hazardous materials for transportation or offers hazardous materials for transportation to\ncommercial carriers, then the HMR apply. DOT has the authority to penalize non-Federal\ngovernment entities for violations of the HMR.\n\n<<<PAGE 2>>>\n\n2\nQ3. Is a government contractor, including a contractor utilized by a Federal department,\nagency or instrumentality, subject to penalties for violations of the HMR?\nA3. Yes.\nJ eph Solomey\nAssistant Chief Counsel\nHazardous Materials Safety Law Division\n\n<<<PAGE 3>>>\n\nl{fJ.ll1 +J re\nJanuary 12, 2009\n~ 'I(.8\nfsf11·'\nOffice of the Chief Counsel beF;() ,'f-Ions\nUSDOT PHMSA\nAttention: PHC-10\nEast Building, 1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\n09-008~\nGreetings,\nPlease address the following questions dealing with the definition of person found in the\nHazardous Materials Transportation Law and the Hazardous Material Transportation\nReg u lations.\nIn the definition of \"person\" agencies, departments, and instrumentalities of the\ngovernment are excluded 'from penalty provisions of the HMT Law. With this in mind I\nask;\n1. Numerous PHMSA opinions refer to local, county/parish, 'state, and Indian tribes\nas governmental entities. Does the second use of the term \"government\" in the\ndefinition of person (HMT Law Sec. 5102(9)(B)(ii» refer only the US Federal\nGovernment or to other government bodies which offer HM in commerce as well?\nPlease provide citation for reference.\n2. If the term \"government\" refers to only the US Federal Government, does the\nUSDOT have the authority to penalize local, county/parish, state, Indian tribes,\nterritories, and foreign governments if hazardous materials are offered into\ncommerce with HMR violations? Are these governmental bodies subject to\npenalty as they are subject to the regulations? The question arises as the\ndefinition which brings them under regulation could exclude them 'from penalty.\n3. An instrumentality is defined as a means by which an action is accomplished.\nTherefore, a contractor is an instrumentality. This being the case, is a\ngovernment contractor subject to penalty if hazardous materials are offered into\ncommerce with HMR violations?\nThank you.\nBob Craig\n298 Pin Oak Trail\nNew Caney, Texas, 77357\nPh. 281-399-8378","truncated":false,"body_characters":4015}