Mr. Kevin D. Sagis
President
Paragon Astronautics
543 South York Street
Denver, Colorado 80209
Dear Mr. Sagis:
This responds to your letter, dated June 10, 2000,
requesting clarification of the applicability of the
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)
to a non-profit corporation that manufactures and transports
various rocket propulsion elements and subsystems for
use in education and youth awareness activities.
You state that these rocket propulsion elements and
subsystems have been developed for the corporation's
"own use" and are not being transported in commerce
because they are not "hazardous cargo transported via
motor carrier an a commercial trade activity." You also
refer us to a July 26, 1994 letter that states that
the HMR do not apply to integral parts of a motor vehicle,
such as fuel systems and equipment.
Federal hazardous materials transportation law, codified
at 49 U.S.C. 5101 et seq., defines "commerce"
to mean "trade or transportation in the jurisdiction
of the United States between a place in a state or a
place outside of the state; or that affects trade or
transportation between a place in a state and a place
outside of the state." 49 U.S.C. 5102(1). Historically,
we have considered commerce to include all private --
that is, non-governmental -- transportation of a hazardous
material except for transportation in a personal vehicle
for the personal use of an individual.
A corporation is a legal entity, separate from its
shareholders or employees. In general, we regard the
activities of a corporation to be its "business" regardless
of whether the corporation charges fees, either from
persons inside or outside the corporation, to finance
its activities.
Thus, the fact that your corporation is established
as a non-profit entity is not relevant to the determination
of whether it performs activities "in commerce." A non-profit
corporation may engage in commercial activities to the
same extent as a for-profit company. For example, if
your corporation offers hazardous materials for transportation
to a commercial carrier, then the corporation is offering
hazardous materials for transportation "in commerce"
and is subject to all applicable requirements of the
HMR. Further, if your corporation charges fees to finance
its youth awareness programs, then the corporation is
performing activities in commerce, and any transportation
of hazardous materials related to those activities,
then the corporation is performing activities in commerce,
and any transportation of hazardous materials related
to those activities is subject to the HMR. In addition,
if your corporation employs paid staff to conduct any
of its activities, then the corporation is performing
activities in commerce, and any transportation of hazardous
materials related to those activities is subject to
the HMR.
The July 26, 1994 letter you cite is not relevant
to your situation. Your rocket propulsion elements and
subsystems are being transported as cargo by or on behalf
of the corporation. A rocket is not a transportation
vehicle until it has been launched. Thus, rocket propulsion
elements and subsystems are not integral parts of the
transportation vehicle prior to launch of the rocket.
For these reasons, it is the opinion of this office
that the HMR apply to your corporation's activities
as an offeror or transporter of hazardous materials.
I hope this information is helpful. If you have further
questions, please do not hesitate to contact this office.
Sincerely,
Edward H. Bonekemper, III
Assistant Chief Counsel
Hazardous Materials Safety and
Research and Technology Law
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