United States Department of Agriculture — Hazardous Materials Safety Interpretation

Page 1Deputy Administrator United States Department of Agriculture Animal and Plant Health Inspection Service Veterinary Services Jamie L. Whitten Building, Room 317E 1400 Independence Ave, SW Washington, DC 20250 Reference No. 18-0071 Dear Dr. Shere: This letter is in response to your April 20, 2018, letter and May 14, 2018, email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to animal waste. You explain that the Animal and Plant Health Inspection Service (APHIS) is the lead Federal agency responsible for animal disease response in the United States. You note that the remains of diseased animals occasionally cannot be managed onsite and must be transported under APHIS control and authority to an offsite disposal or treatment facility. Therefore, you seek clarification that the requirements found in § 173.134(b)(13)(iv) would except APHIS operations when managing animal waste at animal husbandry sites. Your understanding is correct. According to § 173.134(b)(13)(iv), animal waste generated in animal husbandry or food production that meets the definition of a Division 6.2 hazardous material is not subject to the HMR as a Division 6.2 infectious material, unless it is regulated medical waste. Furthermore, if these materials do not meet any other hazard classification, they are not subject to the HMR. Please note that hazardous materials transported by a government entity in vehicles operated by government personnel for noncommercial purposes are not subject to the HMR (see § 171.1(d)(5)). However, if a government entity (e.g., APHIS) contracts a third party to transport a hazardous material on their behalf, the government exception would no longer apply and government operations would be categorized as transportation for commercial purposes and subject to the HMR. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Chief, Standards Development Branch Standards and Rulemaking Division#

Page 2Ikeya, Can you please log this in as a letter of interp and assign it to me please. This is the letter from USDA that I mentioned. V/r Mr. Yul Brenner Baker Jr. Transportation Specialist (Standards and Rulemaking Division) Office of Hazardous Materials Safety (OHMS) Pipeline and Hazardous Materials Safety Administration (PHMSA) E21-351 Office number: 202-493-0867 From: Miller, Lori P -APHIS [mailto:Lori.P.Miller@aphis.usda.gov] Sent: Monday, May 14, 2018 11:43 AM To: Baker, Yul (PHMSA) <yul.baker@dot.gov> Cc: McKenna, Thomas S - APHIS <Thomas.S.McKenna@aphis.usda.gov>; Johnson, Todd E - APHIS <Todd.E.Johnson@aphis.usda.gov> Subject: FW: REQUEST FOR SIGNATURE: DOT exemption letter Hi, Yul. Attached is the signed letter that was sent. Please let me know if you need anything. Thanks for all your help! Lori Lori P. Miller, PE Senior Staff Officer/Environmental Engineer United States Department of Agriculture Animal and Plant Health Inspection Service Veterinary Services Science, Technology and Analysis Services 4700 River Road, Unit 41, Room 5D-03.2 Riverdale, MD 20737 Phone: 301 851 3512 FAX: 301 734 7817 E-mail: lori.p.miller@aphis.usda.gov<mailto:lori.p.miller@aphis.usda.gov> 1#

Page 3sender and delete the email immediately. From: Lee, Paula J - APHIS Sent: Monday, May 14, 2018 11:40 AM To: Miller, Lori P - APHIS <Lori.P.Miller@aphis.usda.gov> Cc: Levesque, Ashley - APHIS <Ashley.Levesque@aphis.usda.gov> Subject: RE: REQUEST FOR SIGNATURE: DOT exemption letter Lori, Please see attached letter. Sincerely, Paula Paula Lee Executive Administrative Assistant Office of the Deputy Administrator Animal Plant Health Inspection Service, Veterinary Services US Department of Agriculture 1400 Independence Ave, SW, Room 318E Washington DC 20250 Phone: 202-799-7150 Email: Paula.J.Lee@aphis.usda.gov From: Levesque, Ashley - APHIS Sent: Monday, May 14, 2018 11:10 AM To: Lee, Paula J - APHIS <Paula.J.Lee@aphis.usda.gov> Subject: FW: REQUEST FOR SIGNATURE: DOT exemption letter Paula - Can you please send Lori a scanned copy of the letter? Thank you! Ashley Levesque Deputy Chief of Staff 2#

Page 4From: Miller, Lori P - APHIS Sent: Monday, May 14, 2018 10:46 AM To: Levesque, Ashley - APHIS <Ashley.Levesque@aphis.usda.gov> Cc: Romano, Maria G - APHIS <Maria.G.Romano@aphis.usda.gov>; Teachman, Mark E - APHIS <Mark.E.Teachman@aphis.usda.gov> Subject: REQUEST FOR SIGNATURE: DOT exemption letter Hi, Ashley. Regarding the DOT exemption letter that Dr. Shere signed several weeks ago, DOT has not yet received it. Could you kindly send me a scan of the signed letter? Thanks very much. Lori Lori P. Miller, PE Senior Staff Officer/Environmental Engineer United States Department of Agriculture Animal and Plant Health Inspection Service Veterinary Services Science, Technology and Analysis Services 4700 River Road, Unit 41, Room 5D-03.2 Riverdale, MD 20737 Phone: 301 851 3512 FAX: 301 734 7817 E-mail: lori.p.miller@aphis.usda.gov<mailto:lori.p.miller@aphis.usda.gov> <image002.jpg>https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/topics?gsp=USDAAPHIS 1>Click here to subscribe to the VS Animal Health Stakeholder Registry<https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/topics?qsp=USDAAPHIS 1> This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and 3#

Page 5Deputy Chief of Staff Veterinary Services USDA - Animal Plant Health Inspection Service 1400 Independence Ave, SW, 320-E Whitten Washington, DC 20250 Ashley.Levesque@aphis.usda.gov Office: 202-799-7151 Cell: 202-868-3777 From: Lee, Paula J - APHIS Sent: Monday, April 23, 2018 11:30 AM To: Levesque, Ashley - APHIS <Ashley.Levesque@aphis.usda.gov> Subject: RE: REQUEST FOR SIGNATURE: DOT exemption letter Ok. This letter has just went out in the mail. Paula From: Levesque, Ashley - APHIS Sent: Monday, April 23, 2018 10:31 AM To: Lee, Paula J - APHIS <Paula.J.Lee@aphis.usda.gov> Subject: FW: REQUEST FOR SIGNATURE: DOT exemption letter Hey can you send that letter out hard copy please? Thank you!!! Ashley Levesque Deputy Chief of Staff Veterinary Services USDA - Animal Plant Health Inspection Service 1400 Independence Ave, SW, 320-E Whitten Washington, DC 20250 Ashley.Levesque@aphis.usda.gov Office: 202-799-7151 Cell: 202-868-3777#

Page 6Thanks again, Maria From: Levesque, Ashley - APHIS Sent: Monday, April 23, 2018 8:22 AM To: Romano, Maria G - APHIS <Maria.G.Romano@aphis.usda.gov> Subject: Re: REQUEST FOR SIGNATURE: DOT exemption letter Hey Maria - Jack signed it and I sent the mini memo to OA. I was waiting to see if we received any feedback from OA prior to sending the signed letter. However, since we've not heard anything we can go ahead send this. Do you want our office to send it hard copy or do you want us to just forward you the scanned signed copy? Ashley Levesque Deputy Chief of Staff Veterinary Services USDA - Animal Plant Health Inspection Service 1400 Independence Ave, SW, 320-E Whitten Washington, DC 20250 Ashley. Levesque@aphis.usda.gov Office: 202-799-7151 Cell: 202-868-3777 On Apr 20, 2018, at 10:36 AM, Romano, Maria G - APHIS <Maria.G.Romano@aphis.usda.gov> wrote: Hi Ashley - do you have an update on the DOT letter discussed during STAS time this week? Thank you! Maria From: Levesque, Ashley - APHIS Sent: Wednesday, April 18, 2018 9:05 AM To: Romano, Maria G - APHIS <Maria.G.Romano@aphis.usda.gov> Subject: Re: REQUEST FOR SIGNATURE: DOT exemption letter Got it! I'll let you know if we need to do more coordinating on this one or not. Thank you. Ashley Levesque Deputy Chief of Staff 5#

Page 7and attached is the letter requiring Dr. Shere's signature. Do you recommend that this letter also go through LPA? Let me know if you need anything additional from us. Thank you in advance, Maria Information from Veterinary Services Dr. Jack Shere, Deputy Administrator April 18, 2018 Veterinary Services seeking exemption from the Department of Transportation Action: None In 2015, the Department of Transportation (DOT) contacted Veterinary Services (VS) regarding a report that the Animal and Plant Health Inspection Service (APHIS) allegedly illegally transported infected carcasses. DOT did not reveal who reported it, but suggested we submit a request for a special permit so they could officially rule on our procedures. VS submitted the request, and in response, DOT determined that the hazardous material transport rules did not apply to APHIS' response operations because 49 CFR 173.134 (b)(13)(iv) exempts animal waste generated by animal husbandry or food production unless it's regulated medical waste; and according to 49 CFR 173.134 (a)(5), APHIS-generated waste does not meet the definition of medical waste in this context. In order to document the exemption, the DOT lawyers recommended we write a letter requesting interpretation so they could formally respond to it and publically post the interpretation. As a result, VS has written a letter to the DOT to request an official interpretation of DOT's regulation on shipping and packaging requirements. The exemption includes placarding of trucks during transport of infected carcasses for disposal during an APHIS emergency response. Once DOT responds to APHIS' letter requesting interpretation and verification that APHIS is exempt from the regulation, DOT will post the interpretation on the DOT public website. 6#

Page 9317E 1400 Independence Dear Mr. Kelley, Ave, SW 20250 Washington, DC This letter is to request verification that 49 CFR 173 requirements do not apply to the Animal and Plant Health Inspection Service's (APHIS) response operations. 49 CFR 173.134 (b)(13)(iv) exempts animal waste generated by (202) 799-7146 animal husbandry or food production unless it's regulated medical waste; and according to 49 CFR 173.134 (a)(5), APHIS-generated waste does not meet the definition of medical waste in this context. APHIS is the lead federal agency for animal disease response in the U.S. One response strategy is to euthanize affected animals and dispose of the remains, in accordance with APHIS standards. In some instances, the remains cannot be managed onsite. In those situations, the remains are transported under APHIS control and authority to an offsite disposal or treatment facility. Based on APHIS' interpretation of 49 CFR 173, the response activities are a result of animal husbandry; and therefore, APHIS is exempt from the regulation. Ginather United States Department of Agriculture Animal and Plant Health Inspection Service Veterinary Services An Equal Opportunity Provider and Employer#