U.S. Department of Energy, Richland Operations Office — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh St., S.W. FEB 2 8 2003 Washington, D.C. 20590 Mr. Steven H. Wisness Director, Office of Site Services Ref. No.: 02-0055 Richland, Washington 99352 Dear MI. Wisness: This responds to your letter regarding the applicability of the Hazardous Materials Regulations (HIMK; 49 CFR Parts 171-180) to security force personnel contracted by the Department of Energy (DOE) for the protection of Federal assets under DOE control. You state that, in performance of their duties, the security force personnel also provide law enforcement support to other local, state, and Federal agencies. You inquire whether the contractor would be subject to the HMR when transporting weapons and explosives in ready-to-fire mode in the performance of their duties. I apologize for the delay in responding and any inconvenience it may have caused. The answer is yes. In general, any person who transports hazardous material in commerce or causes hazardous material to be transported in commerce is subject to the Federal hazardous U.S.C. § 5103(b). Thus, a "person" who, under government contract, transports or causes a material transportation law (Federal hazmat law), 49 U.S.C. §§ 5101-5127, and the HMR. 49 hazardous material to be transported in commerce is subject to the HMR; see § 171.1(b). The term "commerce" means transportation that is or affects interstate trade or traffic. 49 U.S.C. § 5102(1) Consequently, 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. Also 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, Hotle 2. Mithel Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards 171.1 020055#

Page 2Stevens Department of Energy $171:1 Richland Operations Office ATES ORAN P.O. Box 550 Richland, Washington 99352 Training 02-OSS-0079 FEB 0 4. 2002 02-0055 Mr. Edward Mazzulo Office of Materials Standards Research and Special Programs Administration U.S. Department of Transportation 400 Seventh Street, SW Washington, D.C. 20590 Dear Mr. Mazzulo: REQUEST FOR CLARIFICATION The U.S. Department of Energy (DOE), Richland Operations Office (RL) is requesting a written clarification concerning the applicability of Subchapter C - Hazardous Materials Regulations to off-Hanford Site activities, as it relates to security forces contracted by RL for the protection of the Hanford Site, Federal Building, and other DOE holdings. contracted Protection Technology Hanford (PTH) as a direct subcontractor since March 1, 1999. RL, through Fluor Hanford Inc., the primary management contractor for Project Hanford, has PTH is responsible for management, operation, and integration of all safeguards and security services of the Hanford Site, including the Hanford Patrol. We previously contacted James Jones, Chief, Approvals Branch, concerning the use and responsibilities of Hanford Patrol. Mr. Jones was given a brief description of the site, area north of the WYE barricade (the controlled access area, public access areas of northern Richland, and for the Hanford Patrol. The Hanford Patrol has various site security responsibilities including the downtown area where the Federal Building is located. We explained that PTH is responsible physical protection of the Hanford Site, Federal Building, and other DOE properties and rederal tread of investanfoon trols activities ma state, are anderad Pati es resuding utsid ederal Bureau of investigation. the state of Washington. We discussed with Mr. Jones the basis for the Hanford Patrol to be armed and carry ammunition Hazardous Materials Regulations. Mr. Jones said that authority must come down through and explosives in patrol/security vehicles in a ready mode without regard to Subchapter C - government channels, whether it is federal, state, or local government. Mr. Jones stated that deputizing of security personnel by county and local government was typical. The county or Local government is then responsible for the security service, and can set the rules and revoke the authority, if necessary. In the case of DOE security forces such as the Hanford Patrol, Mr. Jones said that if a contractor was working under contract for DOE and the contract explicitly defined#

Page 3: Mr. Edward Mazzulo FEB 0 4 2002 02-OSS-0079 -2- the contractor's duties and responsibilities for security, the contractor, in this case PTH, would in patrol vehicles, unpackaged and in the ready mode. It would also include the dog training nave proper authority. This would include movement of weapons, ammunition, and explosive activities and the use of explosives necessary for other patrol training, if identified by DOE as part of their contractual responsibilities. DÓE is ultimately in control and responsible for security operations. responsibilities for direction and oversight in these matters. We request that a clarification letter We concur with Mr. Jones' assessment of our status and assure that RL is fully aware of its from DOT be provided to RL. We request the letter include an interpretation that PTH is exempt from Subchapter C - Hazardous Materials Regulations, including transport of ammunition and explosives while in performance of their security duties off of the Hanford Site, in support of other law enforcement authorities. In essence, these activities are not in commerce. If you have any questions, please contact Dennis Claussen, of my staff, on (509) 372-0938. Sincerely, OSS:DWC cc: J. H. Portsmouth, DESNW#