{"operation":"document","citation":"07-0008","title":"U.S. Department of Energy — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2008-01-29","effective_on":null,"summary":"07-0008 response to U.S. Department of Energy concerning 171.1, 173.3.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0008.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0008.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0008","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2007/070008.pdf","body":"<<<PAGE 1>>>\n\n. U.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMr. Dennis Ashworth\nDirector\nOffice of Transportation\nOffice of Environmental Management\nU.S. Department of Energy\nWashington, DC 20585\nRef. No. 07-0008\nDear Mr. Ashworth:\nThis responds to your January 9,2007 letter and, in further reference to our February 28,\n2003 response, regarding the applicability of the Hazardous Materials Regulations (HMR;\n49 CFR Parts 171 - 1 80) to security force personnel contracted by the Department of Energy\n(DOE) for the protection of Federal assets under DOE control. Your letter suggests two\ntransportation scenarios: (1) transportation of weapons in ready-to-fire mode on public\nhighways in accordance with an approved DOE contingency plan and to assist, if requested,\nlocal, state and federal law enforcement agencies; and (2) transportation of unloaded\nweapons and explosives in bulk on public highways to be used for training purposes at an\noffsite location. Your questions are summarized and answered as follows:\nQ1. What are the applicable requirements, if any, when our contracted officers are carrying\ntheir loaded firearms while on duty, which includes security patrols in a vehicle on private\nproperty and public property, including highways?\nA1 . It is our understanding that Section 16 1 .k of the Atomic Energy Act of 1954, as\namended, authorizes DOE employees, contractors and subcontractors (at any tier) to carry\nfirearms and to make arrests without warrants while in the discharge of their official duties.\nThe HMR apply to the commercial transportation of hazardous materials (see 171.1).\nTransportation of a weapon by a dully authorized security officer is not commercial\ntransportation when the officer is performing authorized duties. Thus, transportation of a\nloaded firearm by a security officer in a DOE or personal vehicle during routine patrols of\nplant facilities, including patrols on public roads around the facility, is not subject to HMR\nrequirements.\n42. What are the applicable requirements, if any, when our contracted employees transport\nthese unloaded firearms and explosives in bulk to a range for qualification, which includes\ntraveling in a vehicle on private property and public property, including highways?\nA2. When transported as cargo by motor vehicle over public roads, such as delivery from a\nDOE facility to a range for qualification, the bulk explosives are subject to all requirements\n\n<<<PAGE 2>>>\n\nof the HMR applicable to such transportation. We note that the DOE Explosives Safety\nManual (DOE M 440.1 - 1 A, dated 01 -09-06) provided with your letter reflects that policy for\nDOE security contractor forces.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\n-\nSusan Gorsky\nRegulations officer\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nDepartment of Energy\nWashington, DC 20585\n'JAN 0 9 2007\nMr. Edward T. Mazzullo, PHH- 10\nDirector, Office of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\nAttention: DHM- 10\n400 7th Street SW,\nWashington, D.C. 20590-0001\nDear Mr. Mazzullo:\nThe purpose of this letter is to request an interpretation of the applicability of\nSubchapter C- Department of Transportation (DOT) Hazardous Materials\nRegulations (HMR) to off site hazardous material (HAZMAT) transportation\nactivities performed under the Department of Energy (DOE) approved\ncontingency plan, by the security forces contracted by DOE for the protection of\nits facilities and laboratories within the United States of America.\nBackground\nOn February 28,2003, in response to the request from our Richland Operations\nOffice (see attachment 1) with regard to the applicability of HMR (49 CFR Parts\n171 -180) to the security related offsite HAZMAT transportation activities of the\nsecurity forces contracted by DOE, you opined that the transport of weapons and\nmunitions by the contract security personnel must comply with HMR. You stated\nin your letter that contractor security force personnel would be subject to the\nHMR while transporting weapons and munitions while in the performance of their\nduties and in a ready response mode when required to travel on a \"public\nhighway.\"\nCurrent Situation\nThe DOE contracted security personnel are responsible for the protection of DOE\nsites, facilities and other installations in accordance with sites' Safeguards and\nSecurity programs, DOE directives, and federal, state, and local govenunent\nregulations. The DOE approach to the management of the safeguards and\nsecurity program is described in the policy, DOE P 470.1, Integrated Safeguards\nand Security Management Policy and two manuals DOE M 470.4- 1, Safeguards\nand Security Program Planning and Management dated 08-26-2005 and DOE M\n470.4-3, Protective Force, dated 08-26-2005.\n@ Prirlted with soy ink on recycled paper\n\n<<<PAGE 4>>>\n\nDOE sites have cooperative agreements with local, state and federal law\nenforcement agencies (LEAS) to assist with site law enforcement functions. In\napplicable LEA routine andlor response support during contingency may require\nsite security personnel to respond using public roads within or outside the site\narea while transporting weapons and munitions in the government owned patrol\nvehicles.\nNeed for Clear Interpretation of HMR Applicability\nThe DOE Explosives Safety Manual (DOE M 440.1- 1 A, dated 01-09-06) requires\nthat all DOE activities be conducted in a manner that protects the safety of the\npublic and provides a safe and healthful workplace for employees. The DOE\nconsiders bulk transportation of munitions by security contractor forces, e.g. cases\nof grenades to a range for training purposes, to be \"in commerce\" and subject to\nthe HMR (placarding, packaging, etc). However, the DOE maintains that\ntransport of weapons and munitions by contractor security force personnel, in\naccordance with the 10 CFR 85 1 rule and Section 161K of the Atomic Energy Act\nof 1954 as amended, as prescribed in an approved contingency plan, should not be\nsubject to the HMR.\nIn our opinion, placarding a patrol vehicle when used in support of LEA a n d or in\naccordance with approved contingency plan, to indicate the types of explosives in\nthe vehicle is considered to be security vulnerability. Packaging in accordance\nwith HMR requirements would be extremely difficult and would adversely affect\nthe response posture, e.g. the tactical vest with a munitions load. In performance\nof security duties under the approved contingency plans, security patrols are often\nrequired to travel on \"public highways\" that abut or cross DOE installations.\nWe request that you revisit this issue and we provide you the following additional\ninformation for your consideration:\n1. 10 CFR 85 1, Department of Energy Worker Safety and Health Program,\nstates that \"contractors must comply with the policy and requirements\nspecified in the DOE Explosives Safety Manual 440.1 - 1 A, Contractor\nRequirements Document (See attachment 2), January 9,2006.\"\n2. The DOE Explosives Safety Manual, Section 16.0, Transportation, 16.1,\nEquipment and Operations, subsection d, states that \"Section 161K of the\nAtomic Energy Act of 1954, as amended and Title 18 USC, Chapter 40,\nSection 845 governs security and emergency vehicles carrying explosives\nin support of approved contingency plans.\"\n3. 10 CFR 85 1, Firearms Safety, states that \"contractors must ensure that the\ntransportation, handling, placarding, and storage of munitions conform to\nthe applicable DOE requirements.\" The requirements are delineated in the\nDOE Explosives Safety Manual.\n\n<<<PAGE 5>>>\n\nThe carrying of weapons and munitions while on a security patrol, in a ready\nresponse mode in accordance with an approved contingency plan, is analogous to\na federal or municipal law enforcement agency effort. Although DOE security\ncontract personnel are not normally deputized by a local law enforcement agency,\nthey do have powers of detention, arrest and use of deadly force as prescribed in\nSection 16 1K of the Atomic Energy Act o f 1954 as amended.\nWe therefore ask that you reconsider your previous interpretation. If you need\nadditional information, please contact me at (202) 586-8548, or Mr. Ashok\nKapoor at (202) 586-8307, (e-mail: ashok.kapoor@hq.doe.gov).\nSincerely,\nDennis Ashworth\nDirector\nOffice of Transportation\nOffice of Environnemental Management\nEnclosures\nAttachment 1 : Correspondence between DOE and DOT in 2002-2003\nAttachment 2: Excerpts from DOE Explosive Safety Manual\ncc: Dae Chung, EM-63\nAshok Kapoor, EM-63\nAllan Herrbach, NNSAISC\nDennis Claussen, DOE/RL\nM. Daugherty, EM 3.1","truncated":false,"body_characters":8741}