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MEMORANDUM

Date: October 22, 2002

To: NOAA ECS Program

From: Meggan Engelke-Ros

Attorney

Office of General Counsel for Environmental Compliance

Re: Applicability of DOT Regulations Regarding Hazardous Materials and Commercial Driver's License to NOAA Employees and Contractors

I. ISSUE

Do the DOT regulations regarding Hazardous Materials⁽¹⁾ and Commercial Drivers Licenses⁽²⁾ apply to NOAA employees engaged in NOAA business or to contractors hired by NOAA to carry out NOAA business?

II. HAZARDOUS MATERIALS REGULATIONS

These regulations have been interpreted by the DOT as not applying to government employees engaged in government business.⁽³⁾ Federal contractors are not included in this exemption either explicitly⁽⁴⁾ or by interpretation.⁽⁵⁾

COMMERCIAL DRIVER'S LICENSE

The regulations that relate to the issuance of commercial driver's license do not speak directly to the question of whether or not there exists an exception for Federal employees engaged in Federal business and there do not seem to be any interpretive letters directly on point. However there are several indications that these regulations do apply to Federal employees.

The first, and strongest, support for this conclusion is that the language of the regulations specifically includes Federal employees in its definition of employee and the US Government in its definition of employer.⁽⁶⁾

The second is that the DOT's Handbook on the Commercial Driver's License Program cites a specific waiver, granted by the Federal Highway Administrator, for all active duty military drivers.⁽⁷⁾ This suggests both that, absent the waiver, these regulations would be applicable to active duty military personnel and that, without such a waiver, these regulations apply to Federal employees.

Finally, a telephone call to the CDL Program office confirmed this.⁽⁸⁾

Confusion on this issue has focused on the definition of "in commerce." In several letter interpreting the Hazardous Material regulations, the DOT has taken the position that "in commerce" means "in furtherance of a commercial pursuit."

However, the DOT has interpreted this phrase much more broadly with regard to the CDL regulations to include transportation on roads used by the general public.⁽⁹⁾ This broad interpretation is consistent with the language of the CDL regulations⁽¹⁰⁾, the statute⁽¹¹⁾, as well as Supreme Court decisions interpreting the commerce clause of the U.S. Constitution.⁽¹²⁾ This broader definition, which embraces everything that actually or potentially impacts transportation between States, includes all transportation on public roads regardless of whether or not it is in furtherance of any commercial pursuit.

CONCLUSION

From the available statutory, administrative and judicial the conclusion can be drawn that the Hazardous Materials Regulations are applicable to NOAA Contractors engaged in NOAA business, but not to NOAA employees so engaged. The Commercial Drivers License regulations are applicable to both NOAA employees and NOAA contractors.

This memo has not addressed the issue of Hazardous Materials shipped by common carriers such as UPS and Federal Express as that issues is outside the scope of this memo.

1. 49 CFR §§ 171-180.

2. 49 CFR § 383 et seq.

3. DOT Letter to Steven G. LaPoint, Department of the Army, January 26, 2001; DOT Letter to Timothy W. Stern, Department of the Air Force, May 27, 1999.

4. 49 CFR § 171.1 (b).

5. DOT Letter to Steven G. LaPoint, Department of the Army, January 26, 2001.

6. 49 CFR § 383.5.

7. Federal Motor Carrier Safety Administration, U.S. Department of Transportation, "Commercial Driver's License Program (SDL/CDLIS), http:// www.fmsca.dot.gov/safetyprogs/cdl.htm.

8. Telephone call to Federal Motor Carrier Safety Administration Hotline 1-888-DOT-SAFT, August 21, 2002.

9. DOT letter to Thomas K. Teynor, Department of Energy, December 12, 1997.

10. 49 C.F.R. § 383.5 ("Commerce means (a) any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside the United States and (b) trade, traffic and transportation in the United States which affects and trade, traffic, and transportation described in paragraph (a) of this definition.)(emphasis added).

11. 49 U.S.C. § 5102(1) ("..."commerce" means trade or transportation in the jurisdiction of the United States -. (A) between a place in a State and a place outside of the State; or (B) that affects trade or transportation between a place in a State and a place outside of the State.")(emphasis added).

12. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) and numerous others.