{"operation":"document","citation":"21-0049","title":"Wisconsin State Patrol — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-08-19","effective_on":null,"summary":"21-0049 response to Wisconsin State Patrol concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0049.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0049.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0049","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/75751/210049.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nAugust 19, 2021\nMr. Christopher Caldwell\nWisconsin State Patrol\n911 W. North Street\nDeForest, WI 53532\nReference No. 21-0049\nDear Mr. Caldwell:\nThis letter is in response to your May 3, 2021, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to a driver transporting small\nquantities of gasoline for personal use in an employer’s commercial vehicle. Specifically, you\nask for clarification on several past letters of interpretation (LOI) that you believe are in conflict\nwith one another, including LOI No. 03-0223, LOI No. 11-0007, and LOI No. 11-0306.\nThe Pipeline and Hazardous Materials Safety Administration (PHMSA) has reviewed LOI No.\n03-0223, LOI No. 11-0007, and LOI No. 11-0306. We confirm the answer provided in LOI No.\n11-0007, which states that non-commercial transportation of hazardous materials is not subject to\nthe HMR. Furthermore, in a final rule titled “Applicability of the Hazardous Materials\nRegulations to Loading, Unloading, and Storage”—which was published on October 30, 2003,\nand had a delayed effective date of June 1, 2005 [HM-223; 68 FR 61905; 69 FR 70902]—we\nrevised § 171.1 to clarify the applicability of the HMR to transportation functions and added a\ndefinition for “commerce” in § 171.8. PHMSA believes that the LOIs issued after publication of\nthe HM-223 final rule better clarify the meaning of the term “non-commercial” transportation\nunder the HMR.\nFinally, the transportation of a hazardous material by motor vehicle for personal use of the driver\nis generally not subject to requirements in the HMR. Please note that such transportation may be\nsubject to other Federal, State, or local requirements, which include the requirements of the\nFederal Motor Carrier Safety Administration (FMCSA).\n\n<<<PAGE 2>>>\n\nPHMSA will consider rescinding LOI No. 03-0223.\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\n\n<<<PAGE 3>>>\n\nWolcott\n21-0049\nFrom: Foster, Glenn (PHMSA)\nTo: Date: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA)\nSubject: Request for Clarification\nMonday, May 10, 2021 9:50:38 AM\nGood morning, Alice and Kenetha.\nPlease check in the below as a request for a LOI and assign it to the next Specialist in the rotation.\nThanks,\nGlenn\nFrom: Foster, Glenn (PHMSA)\nSent: Monday, May 10, 2021 9:48 AM\nTo: Caldwell, Christopher M - DOT <Christopher.Caldwell@dot.wi.gov>\nSubject: RE: Request for Clarification\nGood morning, Mr. Caldwell.\nWe looked into this issue and determined your particular scenario requires a formal response\nthrough an Interp. Don’t worry about submitting an additional request as I can use your email to\nstart the process. Please feel free to send me any other information you want to add.\nThanks,\nGlenn\nFrom: Caldwell, Christopher M - DOT [mailto:Christopher.Caldwell@dot.wi.gov]\nSent: Monday, May 3, 2021 3:40 PM\nTo: Foster, Glenn (PHMSA) <Glenn.Foster@dot.gov>\nSubject: Request for Clarification\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nMr. Foster,\nSo, we recently had an inquiry related to the applicability of the HMRs when it comes to transporting\npersonal property. In this case, a company driver is transporting a small gas container with gasoline\nin it. He has purchased this gasoline for his personal use in a state in which it costs less than the\nstate in which he lives. He then transports it in/on the commercial vehicle he is operating to the\nlocation where he stores his vehicle. He transfers it from the CMV to his personal vehicle and takes\nit home to fill up his personal equipment. The question is: Is this movement/transportation subject\nto the HMRs while be transported using the commercial motor vehicle?\nLooking over the Interps, I found 03-0223 which seems to indicate that his transportation in/on the\nCMV constitutes commerce. However, I cannot find how to get him into the regs since PHMSA has\n\n<<<PAGE 4>>>\n\nstated additionally that commerce has to be in furtherance of a commercial enterprise as noted in\nInterp 09-0220. While there is trade or transportation between states, I cannot say that this\nmovement affects trade or transportation between states therefore not meeting the definition of\ncommerce as defined in 171.8.\nI then found Interp 11-0007 and Interp 11-0306 which seem to reinforce that this type of\ntransportation, even though on/in a CMV, is not subject to the HMRs. They both go on to state “Any\nhazardous materials that the driver is transporting on behalf of the motor carrier is subject to the\nHMR.”\nThere is some debate as to whether this type of movement under these circumstances would be\nregulated. I say No but there are plenty that say Yes and would require shipping papers, ERGs, etc\nthat may come along with it. My argument is that if it is subject to the HMR then it would meet the\nqualifications for an Undeclared HM shipment and would therefore be subject to the reporting\nrequirements listed in Inspection Bulletin 2020-03.\nIf I need to submit a formal letter, please advise of the proper address to submit this request. I did\nmake my initial inquiry with Jessica Stiles from the Midwest Service Center and she referred me to\nyou.\nThanks.\nInsp. CM Caldwell\nWI State Patrol\nMotor Carrier Investigation Unit\n608-846-8500x 3382","truncated":false,"body_characters":5662}