Interpretation Response #11-0040 ([U.S. Department of Energy Office of Packaging and Transportation] [Mr. James M. Shuler Manag])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: U.S. Department of Energy Office of Packaging and Transportation
Individual Name: Mr. James M. Shuler Manag
Location State: DC Country: US
View the Interpretation Document
Response text:
August 25, 2011
Mr. James M. Shuler
Manager, DOE Packaging Certification Program
U.S. Department of Energy
Office of Packaging and Transportation
EM-45, CLOV-2047
1000 Independence Ave., SW
Washington, DC 20585
Ref. No. 11-0040
Dear Mr. Shuler:
This responds to your letter dated February 16, 2011, regarding the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the Department of Energy"s (DOE) National Nuclear Safety Administration (NNSA) response asset teams including, but not limited to, the Radiological Assistance Program (RAP), the Nuclear Radiological Advisory Teams (NRAT), the Accident Response Group (ARG), and the Joint Technical Operations Teams (JTOT), when performing its Nuclear/Radiological Detection, Search and Consequence Management mission (NRDSCM)-directed activities.
In your letter, you state the DOE/NNSA Federal response asset teams are made up of both government and contractor employees who work under the direction of the Lead Federal Agency (LFA) (typically the Department of Homeland Security (DHS) or the Federal Bureau of Investigation (FBI)). Additionally, you state the DOE/NNSA government and contractor personnel, in the performance of their official duties, routinely transport regulated hazardous materials in DOE vehicles, across state lines, and on public or private property or highways. You ask whether the HMR apply differently to DOE/NNSA government personnel and government contractor personnel response asset team activities.
For contract employees, the answer is yes. In general, any person who transports a hazardous material in commerce or causes a hazardous material to be transported in commerce is subject to the Federal hazardous material transportation law (Federal hazmat law), 49 U.S.C. §§ 5101-5127, and the HMR. 49 U.S.C. § 5103(b). The term "commerce" means transportation that is or affects interstate trade or traffic. 49 U.S.C. § 5102(l). Thus, a "person" who, under government contract, transports or causes a hazardous material to be transported in commerce is subject to the HMR (see § 171.1(b)). The "[t]ransportation of a hazardous material in a motor vehicle, aircraft, or vessel operated by a Federal, state or local government employee solely for noncommercial federal, state or local government purposes" is not subject to the HMR (see § 171.1(d)(5)) (emphasis added).
The HMR do not apply to transportation that is entirely on private property and neither follows, nor crosses, a public way. Property is regarded as private if public access is legally and actually restricted from the area where transportation occurs (see § 171.1(d)(4)). Additionally, transportation of a hazardous material for national security reasons under the conditions specified in § 173.7(b) is not subject to the HMR.
I trust this satisfies your inquiry. Please contact us if we can be of further assistance.
Sincerely,
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
171.1