{"operation":"document","citation":"CHI-04-006","title":"U.S. Department of Agriculture — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-01-14","effective_on":null,"summary":"CHI-04-006 response to U.S. Department of Agriculture concerning 171.2, 171.8, 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-006","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-04-006.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nRoom 8407\n400 Seventh Street, S.W.\nResearch and\nWashington, D.C. 20590\nSpecial Programs\nAdministration\nOffice of the\nChief Counsel\nPhone: (202) 366-4400\nFax: (202) 366-7041\nJAN 14 2004\nMr. Wesley Throop\nProject Engineer\nForest Service\nU.S. Department of Agriculture\nMissoula Technology & Development Center\n5785 Highway 10 West\nMissoula, MT 59808-9361\nDear Mr. Throop\nThank you for your December 3, 2003 memorandum to our office in which you asked for\nclarification whether State requirements on the transportation of hazardous materials apply to\nUnited States government agencies and their personnel. In further telephone conversations with\nFrazer Hilder of my staff, you have stated that the general policy of the Forest Service is to\ncomply with the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-180, when your\nagency's employees transport hazardous materials, but that there are occasions when compliance\nwith the HMR is impractical. You also advised that representatives of the California Highway\nPatrol have taken the position that, when the Forest Service is not in compliance with the HMR,\nit must comply with the California requirements (which must be consistent with the HM),\nunless the Forest Service holds an DOT exemption that contains alternative requirements.\nWe agree with your general understanding that a governmental agency and its employees are not\n\"persons\" subject to the Federal hazardous material transportation law (49 U.S.C. § 5101 et seq.)\nand the HMR when they transport hazardous materials for a government (non-commercial)\npurpose. This principle applies to all levels of government, Federal, State, and local. It follows\nfrom the definition of a \"person\" in 49 U.S.C. § 5102(9) and 49 C.F.R. § 171.8. For this reason,\nit is unnecessary for the Forest Service or any other governmental agency to obtain an exemption\nfrom the HMR in order to transport hazardous materials (for a government purpose) in a manner\ndifferent than prescribed in the HMR.\nWe also conclude that a State may not subject a Federal agency or its employees to State\nrequirements on the transportation of hazardous materials when the Federal agency and its\nemployees are not subject to the HMR. The application of State requirements to a Federal\nagency, when it is not subject to the Federal hazardous material transportation law or the HMR,\n\n<<<PAGE 2>>>\n\n2\nwould be an \"obstacle\" to accomplishing and carrying out the Federal hazardous material\ntransportation law and the HMR. As enforced or applied to a Federal agency and its employees,\nthe State requirement would be preempted by 49 U.S.C. § 5125(a)(2) -- or § 5125(b)(1) if the\nState requirement concerns one of the subjects listed in the latter section. However, these same\nconsiderations may not exist in the event that a State wishes to make its own agencies and their\nemployees subject to State requirements for transporting hazardous materials.\nYou have also indicated that you understand that the Federal hazardous material transportation\nlaw and the HMR apply to the transportation of hazardous materials by a government contractor,\neven when the government contractor uses a government-owned vehicle to perform that\ntransportation. See 49 U.S.C. § 5126(a) and 49 C.F.R. § 171.2(b). In that situation, a\ngovernment contractor is also subject to State requirements that do not conflict with the Federal\nhazardous material transportation law and the HMR. Of course, a government contractor is\nentitled to transport hazardous materials in compliance with any exceptions in the HMR\n(including the provisions in 49 C.F.R. § 173.6 on materials of trade) and any DOT exemption to\nwhich the contractor is a party.\nI hope that this information is helpful. If you have further questions, you may contact me or Mr.\nHilder at the above address, by telephone at 202-366-4400, or by fax at 202-366-7041.\nSincerely,\nJase Solemay\nJoseph Solomey\nAssistant Chief Counsel for\nHazardous Materials Safety and\nEmergency Transportation Law\nCC:\nMr. Paul Horgan\nCalifornia Highway Patrol","truncated":false,"body_characters":4086}