{"operation":"document","citation":"11-0040","title":"U.S. Department of Energy Office of Packaging and Transportation — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-08-25","effective_on":null,"summary":"11-0040 response to U.S. Department of Energy Office of Packaging and Transportation concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0040.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0040.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0040","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110040.pdf","body":"<<>>\n\nu.s. Department 1200 New Jersey Avenue SE\nof Transportation Washington, DC 20590\nPipeline and Hazardous\nMaterials Safety\nAdministration\nAUG 2 G 2011\nMr. James M. Shuler\nManager, DOE Packaging Certification Program\nU.S. Department of Energy\nOffice of Packaging and Transportation\nEM-45. CLOV-2047\n1000 Independence Ave., SW\nWashington, DC 20585\nRef. No. 11-0040\nDear Mr. Shuler:\nThis responds to your letter dated Febmary 16, 2011. regarding the applicability of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the Department of\nEnergy's (DOE) National Nuclear Safety Administration (NNSA) response asset teams\nincluding, but not limited to. the Radiological Assistance Program (RAP). the Nuclear\nRadiological Advisory Teams (NRAT), the Accident Response Group (ARG). and the\nJoint Technical Operations Teams (JTOT), when performing its Nuclear/Radiological\nDetection. Search and Consequence Management mission (NRDSCM)-directed activities.\nfn your letter. you state the DOE/NNSA Federal response asset teams are made up of both\ngovernment and contractor employees who work under the direction of the Lead Federal\nAgency (LFA) (typically the Department of Homeland Security (DHS) or the Federal\nBureau of Investigation (FB!)). Additionally, you state the DOE/NNSA government and\ncontractor personnel, in the performance of their official duties, routinel y transport\nregulated hazardous materials in DOE vehicles, across state lines, and on public or private\nproperty or highways. You ask whether the HMR apply differently to DOE/NNSA\ngovernment personnel and government contractor personnel response asset team activities.\nFor contract employees, the answer is yes. in general, any person who transports a\nhazardous material in commerce or causes a hazardous material to be transported in\ncommerce is subject to the Federal hazardous material transportation law (Federal hazmat\nlaw), 49 U.S.C. §§ 5101-5127. and the HMR. 49 U.S.C. § 5103(b). The term \"commerce\"\nmeans transportation that is or affects interstate trade or traffic. 49 U .S.c. § 51020).\nThus. a \"person\" who. under government contract, transports or causes a hazardous\nmaterial to be transported in commerce is subject to the HMR (see § 171.1 (b)). The\n\"[ t jransportation of a hazardous material in a motor vehicle. aircraft, or vessel operated by\na Federal. state or local government employee solely for noncommercial federal, state or\n\n<<>>\n\nlocal government purposes\" is not subject to the HMR (see § 171.1 (d)( 5) ) (emphasis\nadded).\nThe HMR do not apply to transportation that is entirely on private property and neither\nfollows, nor crosses, a public way. Property is regarded as private if public access is legally\nand actuall y restricted from the area where transportation occurs (see § 171.1 (d)( 4)).\nAdditionally, transportation of a hazardous material for national security reasons under the\nconditions specified in § 173.7(b) is not subject to the HMR.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<>>\n\n~i y'e(}~\n'41'71.1\nDepartment of Energy\nWashington, DC 20585 A ppl iC:lA-~:ti!!J\nFebruary 16,2011 11-0010\nCharles E.Betts, Director\nOffice of Hazardous Material Standards\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nEast Building, Attn: PHH-I0\n1200 New Jersey Ave. SE\nWashington D.C. 20590-0001\nDear Charles Betts\nThe U.S. Department of Energy (DOE), including the National Nuclear Safety Administration\n(NNSA), requests an interpretation concerning the applicability ofthe Hazardous Material\nRegulations to DOE response asset team activities. The attached \"Request for Interpretation\non Applicability ofHazardous Materials Regulations to U. S. Department ofEnergy Federal\nResponse Asset Teams Transportation for Analysis\" provides the supporting documentation\nfor this request. This supporting documentation also includes a copy ofthe Federal Motor\nCarrier Safety Administration (FMCSA) letter on May 24, 2004 which provided the FMCSA\ninterpretation ofa similar DOE request for interpretation.\nAn electronic copy ofthis letter and the supporting documentation is being sent to\ninfocntr@dot.gov .\nIf you have any questions, please feel free to me at 301-903-5513.\nSincerely\nJames M. Shuler\nManager, DOE Packaging Certification Program\nU.S. Department of Energy\nOffice ofPackaging and Transportation\nEM-45, CLOV-2047\n1000 Independence Ave., SW\nWashington, DC 20585\nEnclosure\ncc: Stephen O'Connor, EM-45\n*\nPrinted with soy ink on recycled paper\n\n<<>>\n\nRequest for Interpretation on Applicability ofthe Hazardous Materials Regulations to U.S.\nDepartment ofEnergy Federal Response Asset Teams Transportation of Samples for Analysis\nIntroduction\nThe Department ofEnergy (DOE), including the National Nuclear Safety Administration\n(NNSA), is seeking a position on the applicability ofthe Hazardous Materials Regulations to\nDOE response asset teams within DOE including, but not limited to the Radiological Assistance\nProgram (RAP), the Nuclear Radiological Advisory Teams (NRAT), the Accident Response\nGroup (ARG), and the Joint Technical Operations Teams (JTOT), when performing their\nNuclear/Radiological Detection, Search and Consequence Management mission (NRDSCM)directed\nactivities. The DOEINNSA Federal response asset teams consist ofa blending ofboth\nDOEINNSA employees and DOEINNSA contractor employees who are under the direction of\nthe Lead Federal Agency (LF A) requesting their assistance, usually the Department ofHomeland\nSecurity (DHS) and/or the Federal Bureau oflnvestigation (FBI).\nBasis\nDOEINNSA is required to maintain a response capability that currently consists ofDOEINNS A\nemployees and direct contract employees who together make up the DOE technical expert and\nconsequence management asset that supports requests by and under the direction of LF As in\nradiological and or nuclear detection search efforts.\nIn 2004 the DOE approached the Federal Motor Carrier Safety Administration (FMC SA)\nregarding the operation ofCommercial Motor Vehicles for these response assets and the\napplicability ofthe FMCSA regulations. In the response from FMCSA, dated May 24, 2004\n(attached), it was determined that the DOE teams were covered by the exemption for government\ntransportation under 49 CFR 390.3(f)(2). The rationale was that ...\"the contract workers who\nserve on DOE's emergency response teams are so completely embedded in governmental\norganizations controlled and managed by Federal personnel that they are functionally\nindistinguishable from government employees.\"\nActivities\nUpon request ofan LF A, usually DHS or the FBI, or the Federal Radiological Monitoring and\nAssessment Center (FRMAC), DOE provides technical experts to the LFA. The DOE technical\nexperts are a mix ofDOE and DOE contractors who are deployed representing DOE and are\nunder the direction and control ofthe LF A and DOE.\nIn the course ofconducting Radiological and/or Nuclear Detection and Search Operations and\nFRMAC operations, DOE technical experts collect samples of materials that are evidence that\nmust be analyzed as part oftheir activities.\nThe DOE response team sampling activities include the collection and movement of samples\nsuch as contamination smears, grain, feed, water, soil, vegetation, and discreet suspected items.\nThese samples are then transported back to either a centralized staging area or a mobile field\nlaboratory set up to allow for initial screening and analysis ofmaterials to determine ifthe initial\ndetection and search missions have been effective in determining the location, and possibly the\nidentification, ofradioactive materials. The technical expertise, equipment, and protocol for\n\n<<>>\n\ntaking and handling necessary samples will vary depending on the request, mission, and/or\nexpected response actions.\nThe response asset teams also move operating nuclear and radiation detection equipment in the\nconduct oftheir mission to support an LF A's request for Radiological and/or Nuclear Detection,\nSearch or Consequence Management\nThe travel involved in conducting these activities can be to locations where there are no\nroadways and access is only by offroad vehicles, on private roadways, or on public roadways.\nUnder certain circumstances the roadways may be closed to public access by law enforcement or\nemergency response personnel depending on the type and location ofan event.\nThere are four (4) main activities performed by the Federally directed DOE response asset teams:\nTraining: Upon request and coordination with an LF A, DOE will prepare radioactive source\nmaterial and nuclear/radiological detection instrumentation, which are moved either by shipping\nusing commercial carrier or by the DOE asset team in Government vehicles, to an approved\nlocation for storage and then later used as part ofthe training activities. During training\nactivities the radioactive source material may be placed in locations approved by the LFA and\nDOE to allow for \"live\" material detection and search training. In conducting detection and\nsearch activities some instrumentation that would meet the definition of a hazardous material\nmust be utilized during transportation, unpackaged as part ofthe operation ofthe equipment (it is\nintended to be used while in motion), for the equipment to function properly.\nDetection: During a detection mission, the Federally directed DOE response asset teams are\ngenerally in a fixed location in the conduct oftheir activities. In this mode there are times when\ntransportation of instrumentation will need to occur as part ofthe detection mission. Ifmalicious\nmaterial is detected and isolated in the field by DOE technical experts, they will securely\npackage the material as directed and agreed upon by the LFA's requirements for preservation of\nevidence. In conducting this task DOE technical experts will be focused on containment and\nutilizing appropriate radiological protection to reduce potential dose to as low as reasonably\nachievable to protect the safety ofthe immediate workers and public. Once material is packaged,\nthe LF A will direct when and how the material is to be placed into a mode oftransport and who\nwill transport the material, under the direction and supervision of the LF A, to a location\ndesignated by the LF A.\nSearch: During a search mission the Federally directed DOE response asset team are not in a\nfixed location, but rather are moving from one location to another. In this mode they may have\nto collect evidence samples from different locations and return to a central collection point or\nmobile laboratory facility to achieve screening ofthe materials they have collected. In the event\na source material is located, it may be necessary for the Federally directed DOE response asset\nteams to perform initial containment ofthe material to ensure that immediate personnel and\npublic safety are protected and the material may need to be transported to another location\ndeemed appropriate, by the LFA, to ensure the physical security ofthe material while preserving\nthe health and safety ofthe public. At this fixed location, which will vary depending on the\ngeographical location of the discovery, and the resources available to support the retention ofthe\nmaterial and ensure its physical security, the material then will be packaged according to the\nLFA procedures to ensure evidence integrity, and prepared for shipment to a final destination in\na compliant packaging. These tasks are usually completed by the DOE technical experts.\n\n<<>>\n\nConsequence Management: Under Federal direction the DOE response asset team's\nConsequence Management activities include both the Detection and Search missions above\nbeing performed, after an event releases radioactive material to the environment, as part ofthe\nmission to determine the extent and location ofradioactive material contamination and exposure\nto the general public. In performing this task, samples ofdifferent media must be taken to make\naccurate public health determinations based on analysis that cannot be performed in the field to\nthe accuracy needed. These include collection ofgrain, vegetation, water, soil, milk, feces, air\nand smear samples ofsurfaces at different locations. These samples may not meet the definition\nofa hazardous material if taken from an area outside the highest concentrations, but there may be\na need to take samples, as directed by the LF A, from an area within in the highest contamination\ndeposition areas. In these cases there is no way to determine accurately in the field ifthe\nmaterials meet the definition ofa hazardous material. Samples taken are packaged according to\na criteria set forth by the LF A and the NuclearlRadiological Incident Annex to the National\nResponse Plan (NRP) required by Homeland Security Presidential Directive (HSPD) 5, which\naddresses the response ofFederal agencies to terrorist incidents involving both nuclear or\nradioactive materials (Incidents ofNational Significance), and accidents or incidents involving\nsuch material that mayor may not rise to the level ofan Incident ofNational Significance.\nAuthority\nThese DOE response asset team activities are conducted under the NuclearlRadiological Incident\nAnnex to the NRP, or under authority ofthe Home Security Act of2002, The Post-Katrina\nEmergency Management Reform Act of2006, The Captain of the Port Authority (33 CFR 1),\nU.S. Customs Authority (19 USC), Emergency Federal Law Enforcement Assistance Act,\nWeapons ofMass Destruction Act 18 U.S.C. Section 2332a, Atomic Energy Act of 1954,\nDefense Against Weapons ofMass Destruction Act, National Nuclear Security Administration\nAct of 2000, HSPD-5: Management ofDomestic Incidents, HSPD-7: Critical Infrastructure,\nPrioritization, and Protection, HSPD-8: National Preparedness, HSPD-17IHSPD-4: National\nStrategy for Combating Weapons ofMass Destruction, NSPD-43IHSPD-14: Domestic Nuclear\nDetection, NSPD-46IHSPD-15 and its Annexes and Appendices: United States Policy and\nStrategy for the War on Terror, National Implementation Plan for the War on Terror, National\nResponse Framework, Maritime Operational Threat Response, Aviation Operational Threat\nResponse.\nQuestions for which DOE Request Interpretation\nIn general these questions are for the interpretation of49 CFR 171.1 Applicability ofHazardous\nMaterial Regulations (HMR) to persons andfunctions and more specifically to 49 CFR 171.1(d)\nFunctions not subject to the requirements ofthe HMR, and mainly 49 CFR 171(d)(5) concerning\nFederal and 49 CFR 171.1(d)(6) which address \"non-commercial purposes\" and how these apply\nto the activities described above when they are performed by both DOE and DOE contractors\nunder Federal directions.\nQ: Are DOE response asset teams mission activities as directed by a Lead Federal Agency noncommercial\nactivities in the context of49 CFR 171.1(d)(6)?\nQ: 49 CFR 171.1(d)(5) excludes movement by Federal, State and Local government employees\nwhen moving for Federal, State and Local government purposes. Is this exclusion applicable to\nDOE response asset teams?\n\n<<>>\n\nQ; Ifthe DOE response teams are moving material on roadways that are closed to public access\nby Law Enforcement or Emergency Management Agency personnel, is that movement in\ncommerce?\nQ: Ifthe DOE response teams are moving material on roadways that are closed to public access\nby Law Enforcement or Emergency Management Agency personnel, is that movement noncommercial\nin the context of49 CFR 171.1 (d)( 6)?\nQ: Ifdirected by a Federal, State or Local Law Enforcement Officer to move a hazardous\nmaterial from one location to another, would that movement, when performed by a DOE\nresponse asset team, be movement in commerce?\nQ: Ifdirected by a Federal, State or Local Law Enforcement Officer to move a hazardous\nmaterial from one location to another, would that movement, when performed by a DOE\nresponse asset team, be non-commercial transportation?\nQ: Ifa DOE response asset team is operating covertly with unmarked vehicles while conducting\nits response mission under the direction ofthe Lead Federal Agency, would movement of\nmaterials be non-commercial?\n\n<<>>\n\nIal002\nU.S. Department\nofTrcnsporration\nFecleroJ Moto\"Carrier MAY 24 2004\nsafety Adminisbmion\nAdministralor 400 SQwnth St., S.W.\nWashington, D.C, 20590\n.Refer To: MC-C.C\nMs. ElIaB.McNeil\nTransportation Emergency Management Specialist\nOffi,ce \\)fTtausportation, EM-ll\nu.s. Department of:Energy\n19901 Germantown Road\nGetmantown, MD20874\nDearMs, McNeil:\nI, ' ••\n_.... ____\n• ~ .,\n,Y'OIfa:sKeO the Feaerai Motor rJarner'Safuty\"Adniinisti-a.tfon~h~therth~-~~hicl~ ana TnD~ St&teand local'authorities during.,a'potentl'al\"or'actuaJ . :\n-~ ..... ~ 1;, -i' ,t ... • • ..- \", .. _\"': • t., ,~. ~ I' .. /\" -\nradiologic~e:rnergeucy. ~o.Qg other:thi,n.gs,. these teams proVldeinPDltonilg and',' .,.'\n~5eSsm.enfortljE!sc.enearid' advise on.5tep$tb.atooula be taken ,totnintm;ze·hazafds. Uutess\nthe intrldent'tiivolvf$n:i.ateriaiscowned by DO~ a team is dispatcbed only at the request of\nFederal, Tribal, State or looalofficials.\nl\"'t~ ~\nUnder a Memorandum ofAgt'e¢men1: between the Department ofHwneland Security (DUS)\nand DOE signed onFePtuatY 28. 2Q03, DRS will assume OP,erational control ofARG and\nRAP team$ that are sunttnoned toa nOD-DOE facility in connection with an actual or\nt.b.reatened:tetrorist attack, m~or disaster. or other emergency.-\n. .... . '..... ~ .­'\nTbe teams are composed ofDOE empl~y~ and indiVidual eontraotors, all chosen (or in the\nease ofcou.tractors. hireq) for speoi:fic kinds ofteehnical ex:pertise.Theoperation.alleader of\na particular team may be either a POE employee or a eontraptor, but all ofthe teams are .\ncontrqUed and managed byOOE personnel, sometimes under the further supervision ofDHS\nemployees.\n+ \"J j.\nTIietruoksQperated by; the.teams ~II,~lY, thouih DOt,always, Ilave ·gfOSS vehicle or\" ,'. '\ncombinatiolJ:'~eight ratitms ofJQ.OOlpound$::or more., The ;v:elUtl~ are.owiled b:VD<;lE and\ntruirkea hU:~. (Jpvermn.entJ\n; ~d\"Foromcia1, useO:nIy\" in accotdance Witlf41-C:F.R:.. 102.\n34.1'10; TIiey have'U.S. Governnlent ~~ensp plates. Training aocO'unts for about halfofthe\nmileage genenited by th~se vehicles~ ;real responses for the otherhalf. DOE's emergebcy .\nresponse teams Cl'OssState lines with some frequency. ' .\n\n<<>>\n\n~003\n2\n~h driver has the driver's license required by bis Ot her home State for that type oftruck.\nSomevehicles caxry cylinders ofcompressed·oxygen for self·contained breatmng apparatus,\nbutllbtinquantities that require p1acatding. Only one team operates vehicles subject to 49\nC.F.It. Part 383; these drive18 hold ct)DllD.ercial drivers' licenses and participate in the drug\nand aicoho1 testing programs requited by 49 C.P.It. Part 382.\nmligbt.oftbis infonnation,weconclucle tl$ DOE's emersency response teams are covered\nby the exemption for government traD.5portation in § 390.3(1)(2), Al:thougb: the ibpctiOI\\$ of\nDOE teams mew many ways compar~le to those ofemergency response vehicles~ the mote\nsalient fact is.tbat they 8l'e simply government teams ope.r:atinggovemm.ent-c)wned trucks for\ngovernmental purposes. COllttaCtoIS employed. by a. Feden;ll OT State agency are not\nneoeS$8tily ex.em~ under § ~90.3(OO).Qt,rt the cont@ct wol'kers who serve on DOE's\nemergencyresponseteamsare\"so~JetelfembeddedingpvemmentaJ ~j~ons .\n__, _,.._ -~. -. .\n¢~lJeet-EUtd :managedi:ly'Fed,etat~1Iiirt1iii ~ctloua11y indistitlguishable\nfrom gover.mnem employees. DOB's emergency response teams -RAP, NRAT~ MG,\nITOr and. any similar teams thatJl,lay later be established..... are therefore exempt from the\nFMCSRsunder 49 C.F.R..390.3(f)(2).\nI hqpe thi~ infu.utIationi$help:ful. Ifyou need additional information 01 assistance contact\nCharles Medalen at 202..366·0834.","truncated":false,"body_characters":20518}