PHMSA Response Letter

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Office of the Chief Counsel

Ms. Susan H. Denny
Director
Transportation Management Program
Office of Technology Development
Department of Energy
Washington, DC 20585

Dear Ms. Denny:

I am responding to your March 25 request for a definition of "public highway" in the context of the Hazardous Materials Transportation Act (HMTA), 49 App. U.S.C. 1801 et. seq., and the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-180, issued under the HMTA.  Because the applicability of the HMTA depends upon the existence of "transportation in commerce" rather than whether there is transportation on public highways.

On November 16, 1990, the HMTA was amended by the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA), Public Law 101-615.  Section 3 of the HMTUSA added a definition of "person" to 49 App. U.S.C. 1802 that makes it clear that government agencies offering hazardous materials for transportation in commerce or transporting hazardous materials in furtherance of a commercial enterprise are subject to the HMTA.  It states:

The term ‘person’ means… government, Indian tribe, or agency or instrumentality of any government or Indian tribe when it offers hazardous materials in furtherance of a commercial enterprise, but such term does not include (a) the United States Postal Service, or (B) for the purposes of sections 110 and 111 [penalties and specific relief, respectively] of this title, any agency or instrumentality of the Federal Government.

Also, section 20 of the HMTUSA added 49 V.S.C. App. 1818 to provide that the HMTA applies to contractors with, among others, the Federal Government. It states:

Any person who, under contract with any department, agency, or instrumentality of the executive, legislative, or judicial branch of the Federal government, transports, or causes to .be transported or Shipped, a hazardous material… shall be subject to and comply with all provisions ofthis title, all orders and regulations issued under this title, and all other Substantive and procedural requirements of Federal, State and local governments and Indian tribes (except any such requirements that have been preempted by this title or any other Federal law), in the same manner and to the same extent as any person engaged in such activities that are in or affect commerce is subject to such provisions, orders, regulations, and requirements.

Therefore, the Department of Energy (DOE) is required to comply with the HMR when it offers hazardous material for transportation or transports them in commerce. DOE, however, is not required to comply with the HMR when it offers or transports hazardous materials in a Government vehicle because those DOE activities are presumed to be for a governmental purpose and thus not in commerce.

DOE's contractors however, must comply with the HMR even when the transportation is in a Government vehicle -- unless the transportation is not in commerce (a prerequisite to the applicability of the HMTA and the HMR).

Transportation by contractor on (across or along) roads outside of Government properties generally is transportation in commerce. Transportation by contractors on Government properties requires close analysis to determine whether it is in commerce. If a road is used by members of the general public (including dependents of Government employees) without their having to gain access through a controlled access point, transportation on (across or along) that road is in commerce. On the other hand, if access to a road is controlled at all times through the use ofgates and guards, transportation on that road is not in commerce.

One other means of preventing hazardous materials transportation on Government property from being in commerce is to temporarily block access to the section of the road being crossed or used forthat transportation. The road would have to be blocked by persons having the legal authority to do so, and public access to the involved section of road would have to be effectively precluded.

The following discussion applies the general principles to the situations described in your letter.

Example 1: Road A is located on DOE-owned property and is maintained by DOE. Speed enforcement by a DOE contractor. The road has unrestricted public access, but there are signs stating that persons are entering DOE property.  Analysis: Road A has unrestricted public acesss, and, therefore, transportation on or across it is subject to the HMR.

Example 2: Road B traverses a DOE site, but it is maintained by the State. Speed enforcement is by the state. The DOE cannot unilaterally block the road. There is unrestricted public access, except for times when DOE/State Police physically block public access in order to make special shipments. Analysis: Because there is unrestricted public access to Road B, transportation on or across it is subject to the HMR. However, effective blocking of Public access (as described above) by DOE or State officials would avoid application of the HMR.

Example 3: Road C connects two DOE sites, is owned by the city and is maintained by DOE under a legal agreement. Speed enforcement is by the city. The public has unrestricted access. Analysis: Road C is not on Government property; thus, the HMR would apply.

Example 4: Road D is on DOE-owned property and is maintained by DOE.  Speed enforcement is by a DOE contractor. The road is posted with a sign restricting usage to those on official government business, but there are no physical barriers. Analysis: Because there is public access to Road D, the HMR would apply there. The result could be changed either by effectively blocking public access or by controlling public use at all times through the use of gates and guards.

As indicated above, transporting a hazardous material across a road or doing so along a road both are subject to the HMR unless the section of the road involved is removed from commerce by one ofthe above-described actions.

I trust that this information will be useful to you in providing guidance to your operating contractors. Please advise me if additional information or clarification is desired.

Sincerely,

Judith S. Kaleta
Chief Counsel