Public Utilities Commission of Ohio — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 1200 New Jersey Avenue, SE Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration Mr. Tom Forbes MAY 2 7 2016 Public Utilities Commission of Ohio Transportation Department Field Supervisor Enforcement Division 180 East Broad Street, Ste. 421 Columbus, OH 43215 Reference No. 16-0002 Dear Mr. Forbes: This letter is in response to your January 2, 2016 e-mail requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to agricultural operations as prescribed in § 173.5(a)(2). In your request, you indicate that an Ohio Inspector recently stopped a farmer with a leaking cargo tank containing diesel fuel. You would like to know if the shipment is exempt from the HMR. Your questions are paraphrased and answered below. Q1. What is the meaning of the phrase "is specifically authorized by a State statute or regulation in effect before October 1, 1998"? Al. The phrase "is specifically authorized by a State statute or regulation in effect before october 1, 19g in or restion me Site in which it's tansported. The curent State law or regulation must have come into effect before July 1, 1998. It is important to note that this exception only applies to "local roads." According to the Federal Highway Administration, "Local Roads in rural areas typically serve very low density, dispersed developments with relatively low traffic volume.... Local Roads are often classified by default. In other words, once all Arterial and Collector roadways have been identified, remaining roadways are classified as Local Roads" (See "Highway Functional Classification Concepts," 2013 Edition.) Q2. Must a State statute or regulation exist to authorize the use of § 173.5(a)(2)? You enclosed a copy of Ohio Revised Code, Title [49] XLIX Public Utilities, Chapter 4921: MOTOR CARRIER AUTHORITY AND PERMITTING, 4921.02 Definitions, and Chapter 4923: MOTOR CARRIER OPERATIONS, 4923.02, Definitions.#

Page 2A2. The answer to your question is no. This provision, 49 CFR § 173.5, independently excepts shipments of "other than a Class 2 material" from the requirements of 49 CFR Parts 171 - 180 and from any state law that came into effect after July 1, 1998. I hope this information is helpful. Please contact us if we be of further assistance. Sincerely, plenn Foster T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division#

Page 3Edmonson $173.15 & Packaging General Dodd, Alice (PHMSA) 16-0002 From: Geller, Shelby CTR (PHMSA) Sent: To: Monday, January 04, 2016 4:40 PM Hazmat Interps Subject: FW: Interpretation Request Attachments: 1998 Ohio Statute.pdf Dear Shante and Alice, Forwarded is a request for a formal letter of interpretation. Thanks, Shelby From: tom.forbes@puc.state.oh.us [mailto:tom.forbes@puc.state.oh.us] Sent: Saturday, January 02, 2016 3:12 PM To: PHMSA HM InfoCenter Subject: Interpretation Request Cc: tom.forbes@puc.state.oh.us; joseph.turek@puc.state.oh.us Dear Sir or Madame: I am requesting a written interpretation of the Hazardous Materials regulations. Specifically 173.5(a)(2) what is meant by the phrase "is specifically authorized by a State statute or regulation in effect before October 1, 1998." The regulation states: 173.5 Agricultural operations. (a) For other than a Class 2 material, the transportation of an agricultural product over local roads between fields of the same farm is excepted from the requirements of this subchapter. A Class 2 material transported over local roads between fields of the same farm is excepted from subparts G and H of part 172 of this subchapter. In either instance, transportation of the hazardous material is subject to the following conditions: (1) It is transported by a farmer who is an intrastate private motor carrier; and (2) The movement of the agricultural product conforms to requirements of the State in which it is transported and is specifically authorized by a State statute or regulation in effect before October 1, 1998. Ohio had a State statue in place in 1998 that excepted farmer from all motor carrier safety and hazardous materials regulations while in intrastate commerce. Does this exception allow a farmer moving agriculture products other than class 2 over local roads between fields of the same farm to utilize the exception in 173.5(a) or did their need to be a State statue specifically authorizing this for the except in 173.5(a) to be utilized. In 2013 Ohio changed it statue stating farm moves had to comply with the hazardous materials regulations they continue to be exempt from the motor carrier safety regulation in intrastate commerce An Ohio Inspector recently stopped a cargo tank operated by a farmer between fields of the same farm transporting diesel fuel in a cargo tank. The diesel fuel was leaking from the cargo tank and had no hazard communications on the package and no shipping paper. We need to understand if this shipment is exempt from the hazardous materials regulations based on 173.5(a) and the attached 1998 Ohio statue 4923.02(A)(6). Thank you for your assistance on this matter. 1#

Page 4Tom Forbes Public Utilities Commission of Ohio Transportation Department Field Supervisor Enforcement Division 180 E. Broad Street, STE 421 Columbus, Ohio 43215 Cell (614) 519-2811 Office (614) 644-0296 PUCO.ohio.gov This message and any response to it may constitute a public record and thus may be publicly available to anyone who requests it. -----#

Page 5PUCO-PRIVATE MOTOR CARRIERS 4923.02 C.J.S. Motor Vehicles §$ 16, 44 et seq. OJur 3d: 5, Appellate Review § 496; 7, Auto- mobiles and Other Vehicles § 254; 13, Car- riers § 8, 99; 77, Public Transit § 212 4923.02 Definitions As used in sections 4923.01 to 4923.17 of the Revised Code: (A) "Private motor carrier" or "contract carrier by motor vehicle" includes or copartnership, their lessees, legal or personal representatives, trustees, or every corporation, company, association, joint-stock association, person, firm, under section 4921.02 of the Revised Code, when engaged in the business of receivers or trustees appointed by any court, not included in the definition such transportation service, for hire, in or by motor-propelled vehicles of any private carriage of persons or property, or both, or of providing or furnishing kind, including trailers, over any public highway in this state, but does not include any corporation, company, association, joint-stock association, per- son, firm, or copartnership, their lessees, legal or personal representatives, trustees, or receivers or trustees appointed by any court: owner or operator of motor vehicles employed or used by a private motor (1) Engaged or proposing to engage, directly or indirectly, as a private carrier, or by a motor transportation company as defined in section 4921.02 of the Revised Code; or both, exclusively within the territorial limits of a municipal corporation or (2) Insofar as they are engaged in the transportation of persons or property, within such limits and the territorial limits of municipal corporations immedi- ately contiguous to such municipal corporations; business or in hotel busses operating to and from hotels; (3) Engaged in the transportation of persons in taxicabs in the usual taxicab from school sessions or school events; (4) Engaged in the transportation of pupils in school busses operating to or public convenience and necessity for the transportation of persons, in the (5) Engaged, as a motor transportation company holding a certificate of party trips to or from any point within the county or counties in or through carriage of persons in emergency or additional motor vehicles on charter service, provided that such use of such emergency or additional motor vehicle which such motor transportation company provides regular route scheduled is reported and the tax paid as prescribed by the public utilities commission by general rule or temporary order; (6) Engaged in the transportation of farm supplies to the farm or farm products from farm to market; (7) Engaged in the operation of motor vehicles for contractors on public road work; (8) Engaged in the transportation of newspapers; (9) Engaged in the transportation of crude petroleum incidental to gather- ing from wells and delivery to destination by pipe line; (10) Engaged in the towing of disabled or wrecked motor vehicles; 489#

Page 64923.02 PUBLIC UTILITIES hearse or ambulance; (11) Engaged in the transportation of injured, ill, or deceased persons by sand or shredded bark mulch) or shredded bark mulch; (12) Engaged in transportation of compost (a combination of manure and when any fee charged each person so transported is in such amount as to (13) Engaged in the transportation of persons in a ridesharing arrangement such purpose. recover only the person's share of the costs of operating the motor vehicle for trailer, semitrailer, motor bus, or any other self-propelled vehicle not operated (B) "Motor vehicle" includes any automobile, automobile truck, tractor, or driven upon fixed rails or tracks. notor vehicles under a special contract for the exclusive use of each suc C) "Charter party trip" means the carriage of persons in one or mor tions between the same termini, and which operation shall in no event vehicle for each trip, which contract shall not provide for continuing opera- become regular. The limitations of section 4921.18 and any other sections of the Revised Code as to the seating capacity of such emergency or additional char philes operated by a motor transportation company ey oradio a of the Revised Code. (D) "Ridesharing arrangement" has the same meaning as in section 4921.02 (1988 H 708, eff. 4-19-88; 1982 H 406; 1981 H 53; 1973 H 941; 129 v 1706; 1953 H 1; GC 614-103) Historical and Statutory Notes 118 v 407, § 1; 117 v 349, § 1; 115 v Pt 2, 96; Pre-1953 H 1 Amendments: 119 v 163: 115 v 254 Cross References Contract carriers by motor vehicle, enforce- Changes by city transit company, 4921.24 Motor transportation companies, certificate of ment of rules and laws by state highway regular roule bus service, conditions, Contract carriers by motor vehicle, registra- patrol, 5503.02 4905.80 tion as hazardous materials carriers, Ohio Administrative Code References Definitions. innis required, Ac 9012-55 and regula- Library References WESTLAW Topic No. 48A. Automobiles C- 60. OJur 3d: 13, Carriers § 8 C.J.S. Motor Vehicles §§ 16, 44 et seq. Am Jur 2d: 13, Carriers § 8, 9 490#

Page 7PUCO-MOTOR TRANSPORTATION COMPANIES 4921.02 4921.02 Definitions As used in sections 4921.01 to 4921.32 of the Revised Code: (A) "Motor transportation company," or "common carrier by motor vehi- tion, person, firm, or copartnership, and their lessees, legal or personal repre- cle," includes every corporation, company, association, joint-stock associa- sentatives, trustees, and receivers or trustees appointed by any court, when property, or the business of providing or furnishing such transportation serv- engaged or proposing to engage in the business of transporting persons or ice, for hire, whether directly or by lease or other arrangement, for the public over any public highway in this state. All laws regulating the business of motor in general, in or by motor-propelled vehicles of any kind, including trailers, transportation, their context notwithstanding, apply to such motor transporta- company," as so used, does not include any person, firm, copartnership, vol- tion company or common carrier by motor vehicle. "Motor transportation untary association, joint-stock association, company, or corporation, wherever organized or incorporated: section 4923.02 of the Revised Code; (1) Engaged or proposing to engage as a private motor carrier as defined by the transportation of persons or property, operated exclusively within the (2) Insofar as they own, control, operate, or manage motor vehicles used for territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous to such municipal corporation; (3) Insofar as they are engaged in the transportation of persons in taxicabs in the usual taxicab service or in hotel busses operating to and from hotels; from school sessions or school events; (4) Engaged in the transportation of pupils in school busses operating to or products from farm to market or to food fabricating plants; (5) Engaged in the transportation of farm supplies to the farm or farm (6) Engaged in the distribution of newspapers; (7) Engaged in the transportation of crude petroleum incidental to gather- ing from wells and delivery to destination by pipe line; (8) Engaged in the towing of disabled or wrecked motor vehicles; hearse or ambulance; (9) Engaged in the transportation of injured, ill, or deceased persons by (10) Engaged in the transportation of compost (a combination of manure and sand or shredded bark mulch) or shredded bark mulch; when any fee charged each person so transported is in such amount as to (11) Engaged in the transportation of persons in a ridesharing arrangement recover only the person's share of the costs of operating the motor vehicle for such purpose. arrying property or persons and for being drawn by a separate motor-pro (B) "Trailer" means any vehicle without motive power designed or used for used for carrying property or persons wholly on its own structure, or so elled vehicle, including any vehicle of the trailer type, whether designed o1 421#

Page 84921.02 PUBLIC UTILITIES designed or used that a part of its own weight or the weight of its load rests upon and is carried by such motor-propelled vehicle. state, whether within or without the corporate limits of a municipal (C) "Public highway" means any public street, road, or highway in this corporation. tation company usually or ordinarily operates, provides, or proposes to oper- D) "Fixed termini" refers to the points between which any motor transpor- ate or provide motor transportation service. any motor transportation company usually or ordinarily operates, provides, or (E) "Regular route" refers to that portion of the public highway over which proposes to operate or provide motor transportation service. is conducted or provided any other operation of any motor vehicle by a motor (F) "Irregular route" refers to that portion of the public highway over which transportation company transporting property. motor vehicle where such transportation is incidental to another purpose of a (G) "Ridesharing arrangement" means the transportation of persons in a volunteer driver, and includes ridesharing arrangements known as carpools, vanpools, and buspools. tion service is provided or furnished by such motor transportation company, Whether or not any motor-propelled vehicle is operated or such transporta- between fixed termini or over a regular route, or over an irregular route, or questions of fact. The finding of the public utilities commission on such ques- tions is a final order which may be reviewed as provided in section 4921.17 of the Revised Code. The commission has jurisdiction to receive, hear, and deter- upon not less than fifteen days' notice of the time and place of such hearing mine such questions upon complaint of any party, or upon its own motion, and of the matter to be heard. (1981 H 53, eff. 7-1-82; 1973 H 941; 129 v 1706; 1953 H 1; GC 614-84) Historical and Statutory Notes 18 277117 349-113 482: 111 512: 11 re-1953 H 1 Amendments: 118 v 407 v 19; 110 v 211 Cross References Moment of sple in as by seat, enforce. Private detoned, 492, zidesharing arrange- otor transportation companies, registrati patrol, 5503.02 Motor transportation company, defined, hazardous materials carriers, 4905.1 4905.03 4953.04 Prentic of carrage train, 0f permi 422#