{"operation":"document","citation":"CHI-93-002","title":"U.S. Department of Energy — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1993-06-03","effective_on":null,"summary":"CHI-93-002 response to U.S. Department of Energy concerning 173.7.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-93-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-93-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-93-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-93-002.pdf","body":"<<<PAGE 1>>>\n\nUS Department\nof Tronsportat1on\nResearch and\nSpecial Programs\nAdministration JUN 3 1 993\nOffice of lhe\nChief Counsel\n400 Seventh St . S W\nWashington . DC 20590\nMs. Jo Ann Williams\nOff ice of Chief Counsel (GC-12)\nU.S. Department of Energy\nWashington, D.C. 20585\nDear Ms. Williams:\nOn April 15, 1993, at a meeting attended by representatives of\nthis off ice, the Federal Highway Administration, the Department\nof Energy (DOE) and the University of California, we discussed\nthe application of the Hazardous Materials Transportation Act\n(HMTA), 49 App. u.s.c. SS 1801 et seq., to hazardous materials\ntransportation at the Los Alamos National Laboratory (LANL).\nThis meeting followed an inquiry to the Research and Special\nPrograms Administration (RSPA) from the University's LANL\nCounsel, Ellen M. Castille. Specifically, Ms. Castille\ninquired whether the HMTA and its implementing regulations,\n49 C.F.R. Parts 171-180 (the Hazardous Materials Regulations\nor HMR), apply to the transportation of hazardous materials\nby the University in its capacity as operator, under contract\nto the DOE, of the LANL.\nThis letter sets out the jurisdictional framework of the HMTA\nas it applies to hazardous materials transportation by Federal\nagencies and their contractors. Although RSPA exercises\nrulemaking authority unde. r the HMTA with respect to all\nhazardous materials transportation in commerce, enforcement\nauthority over land-based transportation is shared with the\nFederal Highway Administration and the Federal Railroad\nAdministration.\nThe HMTA, as amended by the Hazardous Materials Transportation\n'Uniform Safety Act, Pub. L. No. 101-615, 104 Stat. 3244 (1990),\napplies to \"any person\" who transports hazardour materials in\ncommerce. 49 App. u.s.c. S 1804(a) (3). The term \"person\"\nincludes any:\ngovernment or Indian tribe when it offers\nhazardous materials for transportation in\ncommerce or transports hazardous materials\nin furtherance of a commercial\nenterprise ....\n............\n\n<<<PAGE 2>>>\n\n2\nIsL.. at S 1820(11). Hazardous materials transportation by a\nFederal, State or local government agency or an Indian tribe,\nthen, is subject to regulation under the HMTA when that\ntransportation is \"in furtherance of a commercial enterprise.\"\nRSPA defines this term by its converse: governmental\ntransportation is nQt in furtherance of a commercial enterprise\nwhen it is carried out (l} by government personnel and (2) for\na governmental purpose.\nThe sphere of \"governmental purpose\" cannot be delineated, in\nthe abstract. When the activity in conjunction with which\nthe transportation occurs is constitutionally mandated or\nauthorized, when it is a traditional \"sovereign\" activity or\none falling within the police power, or when its benefits\naccrue to the public as a whole, it is likely to fall within\nthe realm of the governmental purpose. The purpose is more apt\nto be deemed non-governmental if there is a conscious purpose\nto generate a prof it, if the activity is undertaken by a public ·\ncorporation with limited liability, or if the activity competes\nwith, or displaces, the private sector. Each case must be\nconsidered on its facts.\nWhen the transporter is not the Federal Government itself, but\na Federal contractor, the HMTA provides:\nAny person who, under contract with any\ndepartment • • • of the Federal government,\ntransports, or causes to be transported or\nshipped, a hazardous material • • • shall\nbe subject to and comply with all\nprovisions of [the HMTA], all orders and\nregulations issued under (the HMTA], and\nall other substantive and procedural\nrequirements of Federal, State and local\ngovernments and Indian tribes (except such\nrequirements that have been preempted by\nthis chapter or any other Federal law}, in\nthe same manner and to the same extent as\nany person engaged in such activities that\nare in or affect commerce is subject to\nsuch provisions, orders, regulations, and\nrequirements. '\nI\n49 App. u.s.c. S 1818. This provision, added to the statute by\nthe 1990 amendment, merely clarified existing law. See H. Rep.\nNo. 101-444 (Part 2), 101 Cong., 2d Sess. 43 (1990) (\"It is the\nCommittee's firm position that (section 1818] simply restates\nexisting law.\"). The provision means that a Federal contractor\ncannot claim sovereign immunity and does not share in the\n\n<<<PAGE 3>>>\n\n3\nexception from HMTA jurisdiction conferred on the governmental\nagency itself. Therefore, the contractor's transportation\nactivity is subject to HMTA regulation if that activity is \"in\ncommerce.\"\nRSPA accords the \"in commerce\" requirement its accepted\nmeaning. See 49 App. u.s.c. S 1802(2) (defining transportation\nin \"commerce\" as transportation that is or affects interstate\ntrade or traffic). Thus, the HMTA does not apply to trans-\nportation that is entirely on private property and neither\nfollows nor crosses a public way. Analogously, transportation\nby a Federal contractor is not in commerce if it takes place\nentirely on Federal property to which there is no general\npublic right of access, or if public access legally is denied\nduring the period of transportation.\nWere the University of California not itself a government\nagency, its transportation of hazardous materials in the\nperformance of its contractual duties would be subject to the\nHMTA, to the extent transportation occurred on public roads.\nHowever, because the University is a governmental body, its\nhazardous materials transportation as the operator of the Los\nAlamos National Laboratory, on public roads or not, is not\nsubject to the HMTA, provided that transportation is by\ngovernment personnel and for a governmental purpose.\nGovernmental bodies, as well, are exempt from the registration\nand fee requirements of 49 C.F.R. Subpart 107.600, even where\nthey transport hazardous materials in commerce. 49 C.F.R.\nS 107.606. And where transportation otherwise would be subject\nto the HMTA, it may be excepted from regulation by a specific\ncode provision(~, 49 C.F.R. SS 173.7(b) and 177.806(b),\nexcepting certain national security shipments of Class 7\nradioactive materials).\nWhere the University's hazardous materials transportation, or\nsome part of it, is exempted from HMTA jurisdiction, the\nUniversity and DOE still may find it desirable. to agree, or\nDOE may choose to require, that transportation shall be in\naccordance with HMR standards. such a course may be sensible,\nparticularly given that it may not always be clear where the\nline between governmental and non- governmental purpose lies.\nThis decision, however, would be one not of the application\nof the HMTA, but rather of contractual obligations owed to\nthe DOE by the University apart from HMTA or U.S. Department\nof Transportation jurisdiction. If the HMR did not otherwise\napply, the University's agreement, voluntary or through\ncontract, to comply with the HMR would not invoke U.S. DOT\nenforcement jurisdiction.\n- - -\n..\n\n<<<PAGE 4>>>\n\n,,;;, 4\nI trust this guidance is of assistance to you. Please feel\nfree to call me at 202-366-4400 if you have any further\nquestions on this matter.\nSincerely,\nEdward H. Bo ekemp r, III\nAssistant Chief Counsel\nHazardous Materials Safety &\nResearch and Technology\nLaw\ncc: Ellen M. Castille\nLarry G. Blalock\nPaul Brennan","truncated":false,"body_characters":7218}