{"operation":"document","citation":"15-0106","title":"Mr. Daniel Zirzow — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2016-02-11","effective_on":null,"summary":"15-0106 concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0106.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0106.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0106","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/150106.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials. Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nFEB 1 I 2016\nMr. Daniel Zirzow\n5287 Broad Blvd.\nN. Ridgeville, OH 44039\nRefNo.: 15-0106\nDear Mr. Zirzow:\nThis responds to your email request for clarification of the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180) applicable to the transportation of display fireworks. Your\nemail describes three different transportation scenarios and you ask whether they are\nconsidered in commerce for the purposes of the HMR.\nScenario 1: A licensed individual transports Division 1.3 display fireworks to a private\nresidential property, such as a farm, for non-commercial purposes. You ask\nwhether such transportation is subject to the HMR.\nResponse 1: The answer is no. As provided by§ 171.l(d)(6), the transportation of a\nhazardous material by an individual for non-commercial purposes in a private\nmotor vehicle, including a leased or rented motor vehicle, is not subject to the\nHMR.\nScenario 2: A commercial entity, such as a restaurant or winery, compensates a fireworks\nclub monetarily for the staging of a fireworks display on its property. The\nfireworks club does not compensate the employee who provides the display.\nFurther, the restaurant or winery does not charge admission to view the\ndisplay.\nIf a fireworks club or organization stages a fireworks display at a commercial\nestablishment, is transportation of the display considered in commerce for the\npurposes of the HMR? If so, does transportation of the fireworks display to the\nproperty require a driver with a Hazardous Materials Endorsement on a\nCommercial Driver's License (CDL)? Would it matter ifthe commercial\nestablishment compensated a club member individually for the display or the\nfireworks club directly?\n1\n\n<<<PAGE 2>>>\n\nResponse 2: The answer is yes, the scenario you describe is considered in commerce for the\npurposes of the HMR. Historically, PHMSA interprets \"in commerce\" to\nmean trade or transportation in furtherance of a commercial enterprise. This\ninterpretation is based in part on the Federal hazmat law's definition of\n\"person\" as including \"a government, Indian tribe, or authority of a\ngovernment or tribe that (i) offers hazardous material for transportation in\ncommerce; (ii) transports hazardous material to further a commercial\nenterprise; or (iii) designs, manufactures, fabricates, inspects, marks,\nmaintains, reconditions, repairs, or tests a package, container, or packaging\ncomponent 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\nalso 49 CFR § 171.8.\nBecause any amount of a Division 1.3 explosive on a transport vehicle requires\nplacarding, a driver is required to have a Hazardous Materials Endorsement on\nhis or her CDL in accordance with the Federal Motor Carrier Safety\nRegulations at 49 CFR 383.93. Lastly, the type and level of monetary\ncompensation and to whom it is rendered for services performed in this\nscenario is irrelevant as the transportation of the display fireworks is ultimately\nfor the furtherance of a business enterprise and not solely for non-commercial\npurposes.\nScenario 3: A commercial entity such as a sporting event or an RV park/campground\ncompensates a fireworks club monetarily (at cost) for the staging of a\nfireworks display ort its property. The fireworks club does not compensate the\nemployee who stages the display. Further, the sporting event or an RV\npark/campground may charge admission to view the display.\nUnder this scenario, if a fireworks club or organization stages a fireworks\ndisplay at a commercial establishment, is transportation of the display\nconsidered in commerce for the purposes of the HMR? If so, does\ntransportation of the fireworks display to the property require a driver with a\nHazardous Materials Endorsement on a CDL?\nResponse 3: See the response for Scenario 2.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n2\n\n<<<PAGE 3>>>\n\nDodd, Alice (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nGeller, Shelby CTR (PHMSA)\nThursday, April 16, 2015 3:38 PM\nHazmat Interps\nsituation.\nFW: request for interpretation letter regarding transportation of 1.3 in \"non-commerce\"\nDear Shante and Alice,\nAttached is a formal letter of interpretation. Mr. Zirzow spoke with Adam Lucas on 4/15/2015.\nThanks,\nShelby\nFrom: danzirzow@aol.com [mailto:danzirzow@aol.com]\nSent: Wednesday, April 15, 2015 5:27 PM\nTo: PHMSA HM InfoCenter\nSubject: request for interpretation letter regarding transportation of 1.3 in \"non-commerce\" situation.\nEarlier today I called and spoke to Adam at the Hazardous Materials Information Center and he suggested I request an\ninterpretation on an issue.\nThe issue deals with jurisdiction or application of DOT Hazmat requirements in transportation of 1.3 fireworks. I was\nprovided 49 CFR 171.1 (d) (6) stating exemption of the rules for individual in private vehicle in non-commercial purposes.\nThe issue is what constitutes in-commerce versus non-commerce.\nIf an individual (fully licensed through ATF and local authorities to purchase, is permitted, and display 1.3 fireworks) at a\nprivate residential property, like a farm, transports 1.3 they are exempt.\nHowever, there are other scenarios I am specifically aware of.\nIf a local fireworks club states they are \"non-commerce\" and do not pay their employees labor to provide a show on\ncommercial property, is this now in-commerce?\nFor example, \"Club Pyro\" receives money to purchase 1.3 fireworks and they display at a local restaurant or winery. The\nwinery or restaurant does not charge an admission to view the display, Is this in-commerce and needs the 1.3 to be\ntransported by a licensed Hazmat endorsed COL driver to the property? Does it matter if the business directly pays a club\nmember for the donation or whether they pay the club directly?\nSecond scenario, \"Club Pyro\" receives money (\"donation to purchase fireworks, reimburse gas costs, but no labor paid) to\ndisplay 1.3 fireworks at a commercial establishment which charges admission (sometimes in normal course of business)\nto view the display as part of entertai.nment. Two examples would be a sporting event (auto racing facility, minor league\nbaseball, etc) and a RV park/campgrounds? In this scenario would the display now be considered in-commerce and\nrequire the a COL w/ Hazmat rated driver and placards?\nWould like clarification of \"Commerce\". What triggers the classification: zoning of property, an admission charged,\nwhether individuals performing labor of shooting the fireworks are compensated money regardless of shoot site?\nThe 2 scenarios are real events I know have occurred in the past.\nThank you for your time.\nDaniel Zirzow\n1\n\n<<<PAGE 4>>>\n\n5287 Broad Blvd.\nN. Ridgeville, OH 44039\n2","truncated":false,"body_characters":6984}