Airspeed Press — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 Pipeline and Hazardous Materials Safety Administration APR 2 9 20m Mr. Steven Lindblom Airspeed Press 79 Old Denny Hill Road Warner, NH 03278 Reference No. 09-0220 Dear Mr. Lindblom: This is in response to your September 25, 2009 e-mail to the Hazardous Materials Information Center of the Pipeline and Hazardous Materials Safety Administration (PHMSA). You ask PHMSA to clarify the definitions of "commerce" and "transport" or "transportation" under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You state you believe them to mean the same thing. You also state you are working on a book about scuba tanks and are requesting this clarification to assist you with explaining to your readers when these tanks are and are not subject to the HMR in transportation. Under Federal hazardous materials transportation law (Federal hazmat law), "transports" or "transportation" is defined as "the movement of property and loading, unloading, or storage incidental to the movement." Federal hazmat law also defines "commerce" as "trade or transportation in the jurisdiction of the United States 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 a place outside of the State; or on a United States-registered aircraft." See 49 U.S.c. 5102(1) and (13). PHMSA also interprets "in commerce" to mean trade or transportation in furtherance of a commercial enterprise. This interpretation is based in part on the Federal hazmat law's definition of "person" as including "a government, Indian tribe, or authority of a government or tribe that-(i) offers hazardous material for transportation in commerce; (ii) transports hazardous material to further a commercial enterprise; or (iii) 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 materials in commerce." See 49 U.S.c. 5102(9); see also 49 CFR § 171.8. Therefore, (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#

Page 2instructor 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. I hope this satisfies your request. Sincerely, q {;1?~ /di , Susan Gorsky (j Regulations Officer Office of Hazardous Materials Standards 2#

Page 348 CFR 171 Questions Page I of I Drakeford, Carolyn (PHMSA) .fJ1nt61lS0h From: INFOCNTR (PHMSA) ~ Ill. I Sent: Friday, September 25,20099:09 AM To: Drakeford, Carolyn (PHMSA) ~ t 11 ~ Subject: FW: 48 CFR 171 Questions AppllecJJo; I,/y From: Airspeed Press [mailto:airspeedpress@airspeedpress.com] Sent: Thursday, September 24, 2009 4:20 PM bQ-Ot-LO To: PHMSA HM InfoCenter Subject: 48 CFR 171 Questions Office of Hazardous Materials Standards U.S. DOT/PHMSA (PHH-IO) 1200 New Jersey A venue, SE East Building, 2nd Floor Washington, DC 20590 Dear Sirs: We are working on a book on scuba tanks, and find there is a lot of confusion about when a cylinder comes under DOT jurisdiction, that we would like to be able to clear up in the book as authoritively as possible so we would appreciate a Letter of Interpretation if possible. Our understanding is that a cylinder only falls under DOT jurisdiction when it is both being "transported" and "in commerce". 171.1 says quite clearly (d) Functions not subject to the requirements o/the HMR. The/ollowing are examples ofactivities to which the HMR do not apply: (6) Transportation ofa hazardous material by an individual for non-commercial purposes in a private motor vehicle, including a leased or rented motor vehicle. A number of letters of interpretation echo this, as in "The HMR govern the safe transportation of hazardous materials in intrastate, interstate andforeign commerce. "In commerce" excludes from regulation the transportation ofhazardous materials in a private vehicle where the material is for personal use. Thus, a cylinder utilized by a non-commercial customer for personal use is not governed by the HMR. /I However, 49CFR171.8 however defines commerce as "trade or transportation in the jurisdiction ofthe United States within a single state; between a place in a state and a place outside ofthe state; or that affects trade or transportation between a place in a state and place outside ofthe state ". This would seem to negate the previous quotes, as it in essence says commerce and transport are the same thing, so that anything being transported is automatically "in commerce". Can these be reconciled? Sincerely, Steven Lindblom Airspeed Press 79 Old Denny Hill Rd Warner NH 03278 9/25/2009#