{"operation":"document","citation":"09-0220","title":"Airspeed Press — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-04-29","effective_on":null,"summary":"09-0220 response to Airspeed Press concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0220.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0220.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0220","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090220.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation 1200 New Jersey Avenue, SE\nWashington, DC 20590\nPipeline and Hazardous Materials\nSafety Administration\nAPR 2 9 20m\nMr. Steven Lindblom\nAirspeed Press\n79 Old Denny Hill Road\nWarner, NH 03278\nReference No. 09-0220\nDear Mr. Lindblom:\nThis is in response to your September 25, 2009 e-mail to the Hazardous Materials Information\nCenter of the Pipeline and Hazardous Materials Safety Administration (PHMSA). You ask\nPHMSA to clarify the definitions of \"commerce\" and \"transport\" or \"transportation\" under\nthe Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You state you believe\nthem to mean the same thing. You also state you are working on a book about scuba tanks\nand are requesting this clarification to assist you with explaining to your readers when these\ntanks are and are not subject to the HMR in transportation.\nUnder Federal hazardous materials transportation law (Federal hazmat law), \"transports\" or\n\"transportation\" is defined as \"the movement of property and loading, unloading, or storage\nincidental to the movement.\" Federal hazmat law also defines \"commerce\" as \"trade or\ntransportation in the jurisdiction of the United States between a place in a State and a place\noutside of the State; that affects trade or transportation between a place in a State and a place\noutside of the State; or on a United States-registered aircraft.\" See 49 U.S.c. 5102(1) and\n(13). PHMSA also interprets \"in commerce\" to mean trade or transportation in furtherance of\na commercial enterprise. This interpretation is based in part on the Federal hazmat law's\ndefinition of \"person\" as including \"a government, Indian tribe, or authority of a government\nor tribe that-(i) offers hazardous material for transportation in commerce; (ii) transports\nhazardous material to further a commercial enterprise; or (iii) designs, manufactures,\nfabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or\npackaging component that is represented, marked, certified, or sold as qualified for use in\ntransporting hazardous materials in commerce.\" See 49 U.S.c. 5102(9); see also 49 CFR\n§ 171.8.\nTherefore, (1) an individual who transports his/her own scuba tank for personal, noncommercial\nuse (e.g., recreation, sport fishing) is not subject to the HMR; (2) a scuba\n\n<<<PAGE 2>>>\n\ninstructor who transports scuba tanks for use by his students as part of their instruction is\nsubject to the HMR; and (3) a boat repair facility that uses scuba tanks as part of its\nexamination of a boat's hull and repair operations is subject to the HMR when it transports\nthe scuba tanks.\nI hope this satisfies your request.\nSincerely,\nq {;1?~ /di ,\nSusan Gorsky (j\nRegulations Officer\nOffice of Hazardous Materials Standards\n2\n\n<<<PAGE 3>>>\n\n48 CFR 171 Questions Page I of I\nDrakeford, Carolyn (PHMSA) .fJ1nt61lS0h\nFrom: INFOCNTR (PHMSA)\n~ Ill. I\nSent: Friday, September 25,20099:09 AM\nTo: Drakeford, Carolyn (PHMSA)\n~ t 11 ~\nSubject: FW: 48 CFR 171 Questions AppllecJJo; I,/y\nFrom: Airspeed Press [mailto:airspeedpress@airspeedpress.com]\nSent: Thursday, September 24, 2009 4:20 PM bQ-Ot-LO\nTo: PHMSA HM InfoCenter\nSubject: 48 CFR 171 Questions\nOffice of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH-IO)\n1200 New Jersey A venue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Sirs:\nWe are working on a book on scuba tanks, and find there is a lot of confusion about when a cylinder\ncomes under DOT jurisdiction, that we would like to be able to clear up in the book as authoritively as\npossible so we would appreciate a Letter of Interpretation if possible.\nOur understanding is that a cylinder only falls under DOT jurisdiction when it is both being\n\"transported\" and \"in commerce\". 171.1 says quite clearly (d) Functions not subject to the requirements\no/the HMR. The/ollowing are examples ofactivities to which the HMR do not apply:\n(6) Transportation ofa hazardous material by an individual for non-commercial purposes in a private\nmotor vehicle, including a leased or rented motor vehicle.\nA number of letters of interpretation echo this, as in \"The HMR govern the safe transportation of\nhazardous materials in intrastate, interstate andforeign commerce. \"In commerce\" excludes from\nregulation the transportation ofhazardous materials in a private vehicle where the material is for\npersonal use. Thus, a cylinder utilized by a non-commercial customer for personal use is not governed\nby the HMR. /I\nHowever, 49CFR171.8 however defines commerce as \"trade or transportation in the jurisdiction ofthe\nUnited States within a single state; between a place in a state and a place outside ofthe state; or that\naffects trade or transportation between a place in a state and place outside ofthe state \".\nThis would seem to negate the previous quotes, as it in essence says commerce and transport are the\nsame thing, so that anything being transported is automatically \"in commerce\". Can these be\nreconciled?\nSincerely,\nSteven Lindblom\nAirspeed Press\n79 Old Denny Hill Rd\nWarner NH 03278\n9/25/2009","truncated":false,"body_characters":5063}