{"operation":"document","citation":"CHI-92-002","title":"Nuclear Regulatory Commission — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1992-10-13","effective_on":null,"summary":"CHI-92-002 response to Nuclear Regulatory Commission concerning 173.7.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-92-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-92-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-92-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-92-002.pdf","body":"<<<PAGE 1>>>\n\n0 S Deponrnenl\no f Tronspononon\nResearch and\nSpecial Programs\nAdministration\n:\" . ~ .\n·\n-\n.... \"\". . . . '\nMartin G. Malsch, Esq.\nDeputy General Counsel for\nLicensing and Regulation\nNuclear Regulatory Commission\nWashington, D.C. 20555\nOCT I 3 1 992\nDear Mr. Malsch:\nI am responding to your August 26, 1992 letter concerning\nwhether the Hazardous Materials Transportation Act (HMTA) , 49 App. u.s.c. § 1801 et seq., requires Department of Energy\n(DOE) contractors to comply with Nuclear Regulatory Commission\n(NRC) packaging and transportation regulations.\n- - -\n..\nThe HMTA was amended significantly in 1990 by the Hazardous.\nMaterials Transportation Uniform Safety Act (HMTUSA), Pub. L.\nNo. 101-615, 104 Stat. 3244 (1990). A new provision, codified\nat 49 App. u.s.c. § 1818, states:\nAny person who, under contract with any department\n. of the Federal government, transports, or\ncauses to be transported or shipped, a hazardous\nmaterial . . . shall be subject to and comply with\nall provisions of this chapter, all orders and\nregulations issued under this chapter, and all\nother substantive and procedural requirements of\nFederal, State, and local governments and Indian\ntribes (except any such requirements that have\nbeen preempted by this chapter or any other\nFederal law) , in the ~ame manner dnd to the same\nextent as any person engaged in such activities\nthat are in or affe ct commerce is subject to such\nprovisions, orders, regulations, and requirements.\n/ I\nThis provision simply denies sovereign immunity to government /\ncontractors, and its legislative history indicates that it does\nnot represent a change in the law. As cited in your letter:\nSection (20) adds a new section [120) to the [HMTA].\nNew section [120) clarifies that contractors with the\nFederal Gove:z;-.r:unent are subject to the same · regulat io ns\n\n<<<PAGE 2>>>\n\ngoverning the transportation of hazardous mat ~ ~ial as\n,- :• any other shipper or carrier. The Committee firml y\nstates that this amendment is to remove any lingering\ndoubt on this point. It is the Committee's firm\nposition that this simply restates existing law. (H.\nRept. No. 101-444 (Part 2), 101 Cong., 2d Sess. 43\n(1990))\nTherefore, agencies' pre-HMTUSA regulatory prerogatives remain\nunchanged. This provision requires government contractors to\ncomply with legal requirements applicable to them; however, it\ndoes not require them to comply with requirements from which\nthey are excluded or exempted, nor does it require regulatory\nagencies to apply all their requirements to any or all\ngovernment contractors.\nFor example, there are several regulatory exceptions in the\nHazardous Materials Regulations (HMR) (49 C.F.R. Parts 171-\n180) which frequently are used by DOE contractors. Thus, under\n49 C.F.R. §§ 173.7(b) and 177.806(b), national security\nshipments of Class 7 (radioactive) materials made by or under --\nDOE or Department of Defense direction or supervision, and\nescorted by personnel specifically d e signated by or under the\nauthority of either agency, are not subject to the HMR.\nSimilarly, DOE, its contractors, and . others are excepted from\ncompliance with certain HMR packaging requirements when they\nuse packagings made by or under DOE's direction for the\ntransportation of Class 7 materials. 49 C.F.R. § 173.7(d). To\nqualify for this exception, the packagings must be evaluated,\napproved, and certified by DOE against packaging standards\nequivalent to those specified in 10 C.F.R. Part 71. These\npackages also must be marked and prepared for shipment in a\nmanner equivalent to the HMR's requirements for Nuclear\nRegulatory Commission (NRC)-approved packagings.\nJust as the Research and Special Programs Administration is not\nrequired by the new statutory provision to apply any or all\nportions of the HMR to government contractors, the NRC is not\nrequired to apply any or all of its regulations to governmen t\ncontractors. For example, NRC need not expand the applicabi-\nlity of its packaging and transportation regulations beyond\nthe certificate holders and licensees now covered by its\nregulations. 10 C.F.R. § 71.0(c). To the extent government\ncontractors fall within those categories, they are subject to , ~\nthe NRC regulations; however, government contractors which are\nn ot certificate holders or licensees need not comply.\n~ . .. -.\n,,.1·\n.., ...\n2\n\n<<<PAGE 3>>>\n\nIn a ummary, 49 App. u.s.c. 1818 does not require that D OE\ncontractors comply with NRC transportation regulations which\nare not applicable to them . It only requires that DOE\ncontractors comply with those NRC regulations which are\napplicable to them. This provision also does not require NRC\nto change its regulations to apply them to all government\ncontractors.\nIf you have any questions concerning this matter, please\ncontact me at 202-366-4400.\nSincerely,\nudith s. Ka eta\nChief Counsel\n3","truncated":false,"body_characters":4844}