Nuclear Regulatory Commission — Hazardous Materials Safety Interpretation

Page 10 S Deponrnenl o f Tronspononon Research and Special Programs Administration :" . ~ . · - .... "". . . . ' Martin G. Malsch, Esq. Deputy General Counsel for Licensing and Regulation Nuclear Regulatory Commission Washington, D.C. 20555 OCT I 3 1 992 Dear Mr. Malsch: I am responding to your August 26, 1992 letter concerning whether the Hazardous Materials Transportation Act (HMTA) , 49 App. u.s.c. § 1801 et seq., requires Department of Energy (DOE) contractors to comply with Nuclear Regulatory Commission (NRC) packaging and transportation regulations. - - - .. The HMTA was amended significantly in 1990 by the Hazardous. Materials Transportation Uniform Safety Act (HMTUSA), Pub. L. No. 101-615, 104 Stat. 3244 (1990). A new provision, codified at 49 App. u.s.c. § 1818, states: Any person who, under contract with any department . of the Federal government, transports, or causes to be transported or shipped, a hazardous material . . . shall be subject to and comply with all provisions of this chapter, all orders and regulations issued under this chapter, and all other substantive and procedural requirements of Federal, State, and local governments and Indian tribes (except any such requirements that have been preempted by this chapter or any other Federal law) , in the ~ame manner dnd to the same extent as any person engaged in such activities that are in or affe ct commerce is subject to such provisions, orders, regulations, and requirements. / I This provision simply denies sovereign immunity to government / contractors, and its legislative history indicates that it does not represent a change in the law. As cited in your letter: Section (20) adds a new section [120) to the [HMTA]. New section [120) clarifies that contractors with the Federal Gove:z;-.r:unent are subject to the same · regulat io ns#

Page 2governing the transportation of hazardous mat ~ ~ial as ,- :• any other shipper or carrier. The Committee firml y states that this amendment is to remove any lingering doubt on this point. It is the Committee's firm position that this simply restates existing law. (H. Rept. No. 101-444 (Part 2), 101 Cong., 2d Sess. 43 (1990)) Therefore, agencies' pre-HMTUSA regulatory prerogatives remain unchanged. This provision requires government contractors to comply with legal requirements applicable to them; however, it does not require them to comply with requirements from which they are excluded or exempted, nor does it require regulatory agencies to apply all their requirements to any or all government contractors. For example, there are several regulatory exceptions in the Hazardous Materials Regulations (HMR) (49 C.F.R. Parts 171- 180) which frequently are used by DOE contractors. Thus, under 49 C.F.R. §§ 173.7(b) and 177.806(b), national security shipments of Class 7 (radioactive) materials made by or under -- DOE or Department of Defense direction or supervision, and escorted by personnel specifically d e signated by or under the authority of either agency, are not subject to the HMR. Similarly, DOE, its contractors, and . others are excepted from compliance with certain HMR packaging requirements when they use packagings made by or under DOE's direction for the transportation of Class 7 materials. 49 C.F.R. § 173.7(d). To qualify for this exception, the packagings must be evaluated, approved, and certified by DOE against packaging standards equivalent to those specified in 10 C.F.R. Part 71. These packages also must be marked and prepared for shipment in a manner equivalent to the HMR's requirements for Nuclear Regulatory Commission (NRC)-approved packagings. Just as the Research and Special Programs Administration is not required by the new statutory provision to apply any or all portions of the HMR to government contractors, the NRC is not required to apply any or all of its regulations to governmen t contractors. For example, NRC need not expand the applicabi- lity of its packaging and transportation regulations beyond the certificate holders and licensees now covered by its regulations. 10 C.F.R. § 71.0(c). To the extent government contractors fall within those categories, they are subject to , ~ the NRC regulations; however, government contractors which are n ot certificate holders or licensees need not comply. ~ . .. -. ,,.1· .., ... 2#

Page 3In a ummary, 49 App. u.s.c. 1818 does not require that D OE contractors comply with NRC transportation regulations which are not applicable to them . It only requires that DOE contractors comply with those NRC regulations which are applicable to them. This provision also does not require NRC to change its regulations to apply them to all government contractors. If you have any questions concerning this matter, please contact me at 202-366-4400. Sincerely, udith s. Ka eta Chief Counsel 3#