U.S. Department of Energy Office of Packaging and Transportation — Hazardous Materials Safety Interpretation

Page 1u.s. Department 1200 New Jersey Avenue SE of Transportation Washington, DC 20590 Pipeline and Hazardous Materials Safety Administration AUG 2 G 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 Febmary 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. fn 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 (FB!)). Additionally, you state the DOE/NNSA government and contractor personnel, in the performance of their official duties, routinel y 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. § 51020). 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 jransportation 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#

Page 2local 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 actuall y 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#

Page 3~i y'e(}~ '41'71.1 Department of Energy Washington, DC 20585 A ppl iC:lA-~:ti!!J February 16,2011 11-0010 Charles E.Betts, Director Office of Hazardous Material Standards U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration East Building, Attn: PHH-I0 1200 New Jersey Ave. SE Washington D.C. 20590-0001 Dear Charles Betts The U.S. Department of Energy (DOE), including the National Nuclear Safety Administration (NNSA), requests an interpretation concerning the applicability ofthe Hazardous Material Regulations to DOE response asset team activities. The attached "Request for Interpretation on Applicability ofHazardous Materials Regulations to U. S. Department ofEnergy Federal Response Asset Teams Transportation for Analysis" provides the supporting documentation for this request. This supporting documentation also includes a copy ofthe Federal Motor Carrier Safety Administration (FMCSA) letter on May 24, 2004 which provided the FMCSA interpretation ofa similar DOE request for interpretation. An electronic copy ofthis letter and the supporting documentation is being sent to infocntr@dot.gov . If you have any questions, please feel free to me at 301-903-5513. Sincerely James M. Shuler Manager, DOE Packaging Certification Program U.S. Department of Energy Office ofPackaging and Transportation EM-45, CLOV-2047 1000 Independence Ave., SW Washington, DC 20585 Enclosure cc: Stephen O'Connor, EM-45 * Printed with soy ink on recycled paper#

Page 4Request for Interpretation on Applicability ofthe Hazardous Materials Regulations to U.S. Department ofEnergy Federal Response Asset Teams Transportation of Samples for Analysis Introduction The Department ofEnergy (DOE), including the National Nuclear Safety Administration (NNSA), is seeking a position on the applicability ofthe Hazardous Materials Regulations to DOE response asset teams within DOE 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 their Nuclear/Radiological Detection, Search and Consequence Management mission (NRDSCM)directed activities. The DOEINNSA Federal response asset teams consist ofa blending ofboth DOEINNSA employees and DOEINNSA contractor employees who are under the direction of the Lead Federal Agency (LF A) requesting their assistance, usually the Department ofHomeland Security (DHS) and/or the Federal Bureau oflnvestigation (FBI). Basis DOEINNSA is required to maintain a response capability that currently consists ofDOEINNS A employees and direct contract employees who together make up the DOE technical expert and consequence management asset that supports requests by and under the direction of LF As in radiological and or nuclear detection search efforts. In 2004 the DOE approached the Federal Motor Carrier Safety Administration (FMC SA) regarding the operation ofCommercial Motor Vehicles for these response assets and the applicability ofthe FMCSA regulations. In the response from FMCSA, dated May 24, 2004 (attached), it was determined that the DOE teams were covered by the exemption for government transportation under 49 CFR 390.3(f)(2). The rationale was that ..."the contract workers who serve on DOE's emergency response teams are so completely embedded in governmental organizations controlled and managed by Federal personnel that they are functionally indistinguishable from government employees." Activities Upon request ofan LF A, usually DHS or the FBI, or the Federal Radiological Monitoring and Assessment Center (FRMAC), DOE provides technical experts to the LFA. The DOE technical experts are a mix ofDOE and DOE contractors who are deployed representing DOE and are under the direction and control ofthe LF A and DOE. In the course ofconducting Radiological and/or Nuclear Detection and Search Operations and FRMAC operations, DOE technical experts collect samples of materials that are evidence that must be analyzed as part oftheir activities. The DOE response team sampling activities include the collection and movement of samples such as contamination smears, grain, feed, water, soil, vegetation, and discreet suspected items. These samples are then transported back to either a centralized staging area or a mobile field laboratory set up to allow for initial screening and analysis ofmaterials to determine ifthe initial detection and search missions have been effective in determining the location, and possibly the identification, ofradioactive materials. The technical expertise, equipment, and protocol for#

Page 5taking and handling necessary samples will vary depending on the request, mission, and/or expected response actions. The response asset teams also move operating nuclear and radiation detection equipment in the conduct oftheir mission to support an LF A's request for Radiological and/or Nuclear Detection, Search or Consequence Management The travel involved in conducting these activities can be to locations where there are no roadways and access is only by offroad vehicles, on private roadways, or on public roadways. Under certain circumstances the roadways may be closed to public access by law enforcement or emergency response personnel depending on the type and location ofan event. There are four (4) main activities performed by the Federally directed DOE response asset teams: Training: Upon request and coordination with an LF A, DOE will prepare radioactive source material and nuclear/radiological detection instrumentation, which are moved either by shipping using commercial carrier or by the DOE asset team in Government vehicles, to an approved location for storage and then later used as part ofthe training activities. During training activities the radioactive source material may be placed in locations approved by the LFA and DOE to allow for "live" material detection and search training. In conducting detection and search activities some instrumentation that would meet the definition of a hazardous material must be utilized during transportation, unpackaged as part ofthe operation ofthe equipment (it is intended to be used while in motion), for the equipment to function properly. Detection: During a detection mission, the Federally directed DOE response asset teams are generally in a fixed location in the conduct oftheir activities. In this mode there are times when transportation of instrumentation will need to occur as part ofthe detection mission. Ifmalicious material is detected and isolated in the field by DOE technical experts, they will securely package the material as directed and agreed upon by the LFA's requirements for preservation of evidence. In conducting this task DOE technical experts will be focused on containment and utilizing appropriate radiological protection to reduce potential dose to as low as reasonably achievable to protect the safety ofthe immediate workers and public. Once material is packaged, the LF A will direct when and how the material is to be placed into a mode oftransport and who will transport the material, under the direction and supervision of the LF A, to a location designated by the LF A. Search: During a search mission the Federally directed DOE response asset team are not in a fixed location, but rather are moving from one location to another. In this mode they may have to collect evidence samples from different locations and return to a central collection point or mobile laboratory facility to achieve screening ofthe materials they have collected. In the event a source material is located, it may be necessary for the Federally directed DOE response asset teams to perform initial containment ofthe material to ensure that immediate personnel and public safety are protected and the material may need to be transported to another location deemed appropriate, by the LFA, to ensure the physical security ofthe material while preserving the health and safety ofthe public. At this fixed location, which will vary depending on the geographical location of the discovery, and the resources available to support the retention ofthe material and ensure its physical security, the material then will be packaged according to the LFA procedures to ensure evidence integrity, and prepared for shipment to a final destination in a compliant packaging. These tasks are usually completed by the DOE technical experts.#

Page 6Consequence Management: Under Federal direction the DOE response asset team's Consequence Management activities include both the Detection and Search missions above being performed, after an event releases radioactive material to the environment, as part ofthe mission to determine the extent and location ofradioactive material contamination and exposure to the general public. In performing this task, samples ofdifferent media must be taken to make accurate public health determinations based on analysis that cannot be performed in the field to the accuracy needed. These include collection ofgrain, vegetation, water, soil, milk, feces, air and smear samples ofsurfaces at different locations. These samples may not meet the definition ofa hazardous material if taken from an area outside the highest concentrations, but there may be a need to take samples, as directed by the LF A, from an area within in the highest contamination deposition areas. In these cases there is no way to determine accurately in the field ifthe materials meet the definition ofa hazardous material. Samples taken are packaged according to a criteria set forth by the LF A and the NuclearlRadiological Incident Annex to the National Response Plan (NRP) required by Homeland Security Presidential Directive (HSPD) 5, which addresses the response ofFederal agencies to terrorist incidents involving both nuclear or radioactive materials (Incidents ofNational Significance), and accidents or incidents involving such material that mayor may not rise to the level ofan Incident ofNational Significance. Authority These DOE response asset team activities are conducted under the NuclearlRadiological Incident Annex to the NRP, or under authority ofthe Home Security Act of2002, The Post-Katrina Emergency Management Reform Act of2006, The Captain of the Port Authority (33 CFR 1), U.S. Customs Authority (19 USC), Emergency Federal Law Enforcement Assistance Act, Weapons ofMass Destruction Act 18 U.S.C. Section 2332a, Atomic Energy Act of 1954, Defense Against Weapons ofMass Destruction Act, National Nuclear Security Administration Act of 2000, HSPD-5: Management ofDomestic Incidents, HSPD-7: Critical Infrastructure, Prioritization, and Protection, HSPD-8: National Preparedness, HSPD-17IHSPD-4: National Strategy for Combating Weapons ofMass Destruction, NSPD-43IHSPD-14: Domestic Nuclear Detection, NSPD-46IHSPD-15 and its Annexes and Appendices: United States Policy and Strategy for the War on Terror, National Implementation Plan for the War on Terror, National Response Framework, Maritime Operational Threat Response, Aviation Operational Threat Response. Questions for which DOE Request Interpretation In general these questions are for the interpretation of49 CFR 171.1 Applicability ofHazardous Material Regulations (HMR) to persons andfunctions and more specifically to 49 CFR 171.1(d) Functions not subject to the requirements ofthe HMR, and mainly 49 CFR 171(d)(5) concerning Federal and 49 CFR 171.1(d)(6) which address "non-commercial purposes" and how these apply to the activities described above when they are performed by both DOE and DOE contractors under Federal directions. Q: Are DOE response asset teams mission activities as directed by a Lead Federal Agency noncommercial activities in the context of49 CFR 171.1(d)(6)? Q: 49 CFR 171.1(d)(5) excludes movement by Federal, State and Local government employees when moving for Federal, State and Local government purposes. Is this exclusion applicable to DOE response asset teams?#

Page 7Q; Ifthe DOE response teams are moving material on roadways that are closed to public access by Law Enforcement or Emergency Management Agency personnel, is that movement in commerce? Q: Ifthe DOE response teams are moving material on roadways that are closed to public access by Law Enforcement or Emergency Management Agency personnel, is that movement noncommercial in the context of49 CFR 171.1 (d)( 6)? Q: Ifdirected by a Federal, State or Local Law Enforcement Officer to move a hazardous material from one location to another, would that movement, when performed by a DOE response asset team, be movement in commerce? Q: Ifdirected by a Federal, State or Local Law Enforcement Officer to move a hazardous material from one location to another, would that movement, when performed by a DOE response asset team, be non-commercial transportation? Q: Ifa DOE response asset team is operating covertly with unmarked vehicles while conducting its response mission under the direction ofthe Lead Federal Agency, would movement of materials be non-commercial?#

Page 8Ial002 U.S. Department ofTrcnsporration FecleroJ Moto"Carrier MAY 24 2004 safety Adminisbmion Administralor 400 SQwnth St., S.W. Washington, D.C, 20590 .Refer To: MC-C.C Ms. ElIaB.McNeil Transportation Emergency Management Specialist Offi,ce \)fTtausportation, EM-ll u.s. Department of:Energy 19901 Germantown Road Getmantown, MD20874 DearMs, McNeil: I, ' •• _.... ____ • ~ ., ,Y'OIfa:sKeO the Feaerai Motor rJarner'Safuty"Adniinisti-a.tfon~h~therth~-~~hicl~ ana <irivers used by the U.S. Depamnent ofEnergy's (DOE) Office ofEmergency Response are exempt from the Federal Motor CarriCl;' Safety RegulatioDs(FMCSRs). either under 49 C.Rlt. 390.3(f)(2). dealillg with transportation performed by government, or under § 390.3(£)(5), conee:mingfiN trucks and rescue vehicles. l"oureported that DOE maintains several emergency ~nk teams: the Radiolo~cal Assistance Program (RAP). Nuclear Rad~logical Advisory:reams (NRATj,the AcCjdep.t. R.eSp~nse~q~ (MG)~ ,andJ9irit Technical.Operations Teams:(JT0T).. 'Tf:i~se j~~'~ ttainedto·as~Fedent.'-> TnD~ St&teand local'authorities during.,a'potentl'al"or'actuaJ . : -~ ..... ~ 1;, -i' ,t ... • • ..- ", .. _"': • t., ,~. ~ I' .. /" - radiologic~e:rnergeucy. ~o.Qg other:thi,n.gs,. these teams proVldeinPDltonilg and',' .,.' ~5eSsm.enfortljE!sc.enearid' advise on.5tep$tb.atooula be taken ,totnintm;ze·hazafds. Uutess the intrldent'tiivolvf$n:i.ateriaiscowned by DO~ a team is dispatcbed only at the request of Federal, Tribal, State or looalofficials. l"'t~ ~ Under a Memorandum ofAgt'e¢men1: between the Department ofHwneland Security (DUS) and DOE signed onFePtuatY 28. 2Q03, DRS will assume OP,erational control ofARG and RAP team$ that are sunttnoned toa nOD-DOE facility in connection with an actual or t.b.reatened:tetrorist attack, m~or disaster. or other emergency.- . .... . '..... ~ .­' Tbe teams are composed ofDOE empl~y~ and indiVidual eontraotors, all chosen (or in the ease ofcou.tractors. hireq) for speoi:fic kinds ofteehnical ex:pertise.Theoperation.alleader of a particular team may be either a POE employee or a eontraptor, but all ofthe teams are . contrqUed and managed byOOE personnel, sometimes under the further supervision ofDHS employees. + "J j. TIietruoksQperated by; the.teams ~II,~lY, thouih DOt,always, Ilave ·gfOSS vehicle or" ,'. ' combinatiolJ:'~eight ratitms ofJQ.OOlpound$::or more., The ;v:elUtl~ are.owiled b:VD<;lE and truirkea hU:~. (Jpvermn.entJ ; ~d"Foromcia1, useO:nIy" in accotdance Witlf41-C:F.R:.. 102. 34.1'10; TIiey have'U.S. Governnlent ~~ensp plates. Training aocO'unts for about halfofthe mileage genenited by th~se vehicles~ ;real responses for the otherhalf. DOE's emergebcy . response teams Cl'OssState lines with some frequency. ' .#

Page 9~003 2 ~h driver has the driver's license required by bis Ot her home State for that type oftruck. Somevehicles caxry cylinders ofcompressed·oxygen for self·contained breatmng apparatus, butllbtinquantities that require p1acatding. Only one team operates vehicles subject to 49 C.F.It. Part 383; these drive18 hold ct)DllD.ercial drivers' licenses and participate in the drug and aicoho1 testing programs requited by 49 C.P.It. Part 382. mligbt.oftbis infonnation,weconclucle tl$ DOE's emersency response teams are covered by the exemption for government traD.5portation in § 390.3(1)(2), Al:thougb: the ibpctiOI\$ of DOE teams mew many ways compar~le to those ofemergency response vehicles~ the mote salient fact is.tbat they 8l'e simply government teams ope.r:atinggovemm.ent-c)wned trucks for governmental purposes. COllttaCtoIS employed. by a. Feden;ll OT State agency are not neoeS$8tily ex.em~ under § ~90.3(OO).Qt,rt the cont@ct wol'kers who serve on DOE's emergencyresponseteamsare"so~JetelfembeddedingpvemmentaJ ~j~ons . __, _,.._ -~. -. . ¢~lJeet-EUtd :managedi:ly'Fed,etat~1Iiirt1iii ~ctloua11y indistitlguishable from gover.mnem employees. DOB's emergency response teams -RAP, NRAT~ MG, ITOr and. any similar teams thatJl,lay later be established..... are therefore exempt from the FMCSRsunder 49 C.F.R..390.3(f)(2). I hqpe thi~ infu.utIationi$help:ful. Ifyou need additional information 01 assistance contact Charles Medalen at 202..366·0834.#