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Exemption
of Government Entities Casing Scientific - Regulatory Communique Re: Infectious Substance Shipments & Limits of Government
Hospital Exemption from Federal hazardous materials transportation regulations
(Title 49 Code of Federal Regulations).
[Federal Register: August 14, 2002 (Volume 67, Number 157)] [Rules and Regulations]
Enclosed are two letters of interpretation written by officials at the U.S. Department of Transportation ("DOT") as well as a public notice of Federal authority over intrastate hazmat shipments. These letters to U.S. Congressman Ronald V. Dellums and (separately) to the California Environmental Protection Agency, help to explain the responsibilities of government institutions when they ship hazardous materials, or hazardous waste, that require use of any public streets and highways in intrastate or interstate transportation. The types of shipments that are typically considered hazardous include: (1) transport of untreated medical waste to a remote incineration or treatment facility, (2) shipment of hazardous chemicals, (3) shipment of Infectious Substances, and (4) shipment of certain radioactive waste materials from medical research or clinical procedures. Government entities generally have an exemption from the federal hazardous materials regulations ("hazmat regulations"), but these exemptions exist only in special circumstances. Government facilities, including most county hospitals, State sponsored medical schools, domestic military hospitals, veterans hospitals, Indian hospitals, and government research facilities, are entitled to the exemption from the ground transport regulations that are enforced under the authority of the U.S. Department of Transportation. Summary All "hazmat" shipments by air issued by government institutions are absolutely covered by the federal regulations. Local ground shipments using commercial or private carriers are also fully subject to Federal transportation regulations. Exemptions apply only where your hospital employees, in pursuit of a government purpose, transport the hazardous materials. Any shipment by government employees that is delivered to an airport for further transport by air, is not exempt and is therefore fully subject to the Federal requirements. In some cases, the question concerning government exemption may appear blurred by the fact that a third party courier or reference laboratory employee enters a government or private laboratory and takes possession of the specimens for transport to another laboratory. Any of these specimens known to contain an Infectious Substance are fully regulated by Title 49. In other words, the government exemption is lost, and the responsible party is the shipper, in this case, the government hospital, under Title 49.
U.S. DEPARTMENT OF TRANSPORTATION Electronic Version: http://www.dot.gov/affairs/index.htm
FOR IMMEDIATE RELEASE RSPA 01-97 Wednesday, January 8, 1997 Contact: Bill Vincent or Patricia Klinger Telephone: (202) 366-4831 DOT Extends Hazardous Materials Regulations to Intrastate Transportation; Implemented in October 1998
The U.S. Department of Transportation s Research and Programs Administration (RSPA) today issued a final rule that will improve transportation safety by extending regulations for transporting hazardous materials (hazmat) to intrastate transportation. The regulations previously applied only to hazmat transportation crossing state lines. Reflecting President Clinton s and Transportation Secretary Federico Peña s commitment to safety and innovative regulatory reform, the final rule includes certain exceptions that provide regulatory relief to farmers, individuals and small businesses. In addition, the rule rules provide for a gradual transition, which will enable small businesses to comply more easily with the new regulations. This rule improves safety while providing common sense regulatory exceptions to reduce the costs of compliance for individuals and small businesses, said Research and Special Programs Administrator Dr. D. K. Sharma. Uniform national standards for hazardous materials transportation make it easier for people to comply with the rules. The exceptions are for certain types and quantities of hazardous materials transported and used as materials-of-trade by carriers in the conduct of business such as welding, plumbing and lawn service. For example, plumbers who carry drain cleaners or propane stoves will be able to continue so long as they comply with state regulations. The final rule generally allows farmers to continue complying with existing state law. However, it contains requirements that will enable emergency responders to recognize the presence of hazardous materials in the event of an incident. In addition, temporary exceptions are provided for continued use in some states of certain cargo tank motor vehicles, which have capacities of less than 3,500 gallons, and which are used exclusively for intrastate transportation of flammable liquid petroleum products.
[Official Letter of Interpretation from U.S. Department of Transportation] Office of Chief Counsel US Department 400 Seventh St. S.W. Resource and Special September 26, 1994 Michael Shepard, Esquire RE: Application of Federal Hazardous Material Transportation Law to the Dear Mr. Shepard: In your August 25, 1994 letter to Research and Special Programs Administration Chief Counsel Judith Kaleta, the California Environmental Protection Agency, Department of Toxic Substances Control (CaDTSC), requests guidance on whether the Hazardous Materials Transportation Act (HMTA) applies to the University of California when it transports hazardous waste from one location to another on its campuses. Ms. Elyse Axell, University Counsel, has submitted the University’s views in a September 1, 1994 letter, a copy of which she has mailed to you. On July 5, 1994, the President signed H.R. 1758 into law, thereby codifying the former HMTA. Formerly at 49 APP. U.S.C. Sections 1801 et seq., the provisions of the Federal hazardous material transportation law (Federal hazmat law) now appear at 49 U.S.C. Sections 5101-5127. Hazardous material transportation by a governmental body is subject to Federal hazmat law if it meets two criteria. First, the transportation must be in commerce. 49 U.S.C Section 5103 (a), (b). Second, it must be "to further a commercial enterprise." 49 U.S.C. Section 5102 (9). As the CaDTSC correctly cites this office’s prior interpretations, government transportation is not to further a commercial enterprise if it is conducted (1) by governmental personnel and (2) for a governmental purpose. The CaDTSC and the University specify that the transportation in question is transportation in commerce, that is, on roads of general public access. You further specify that transport is carried out by University personnel. Accordingly, the applicability of Federal hazmat law turns on whether the University’s hazardous waste transportation is for a governmental purpose. The CaDTSC contends that transportation is not for a governmental purpose when it is pursuant to a commercial enterprise, and that an enterprise is commercial if it is in competition with the private sector. It asserts that the University is engaged in the "major commercial activity of higher education," in competition with private universities, and therefore is engaged in a commercial enterprise. The University responds that it is not engaged in a commercial enterprise. It points to the University’s status as a branch of sovereign function of public education." It contends that competition with the private sector is not determinative of a commercial purpose, and that even if it were, private universities are not in competition with the University: while private universities offer "education," the University of California offers "public education." As this office has indicated previously, the sphere of "governmental purpose" cannot be delineated in the abstract. That the University system is established in the State Constitution as a branch of State government with a not-for-profit mission is strong evidence of a governmental purpose. In our view, competition with the private sector, in the sense that both private and public institutions seek students from among the same universe of individuals, does not in itself make the California university system a commercial enterprise. If the university system is established by constitution for the pursuit of a legitimate, fundamental public good – the University’s activity within the scope of its constitutional mandate is a governmental purpose. On the basis of the general facts provided, we conclude that the University’s transportation of its own hazardous waste, by its own personnel, is not to further a commercial enterprise and, therefore, is not subject to Federal hazmat law. The CaDTSC suggests that risks from hazardous waste transportation by the University are equivalent to those from transportation by private universities, and accordingly that the two should be regulated to the same extent. The Federal statute, however, directs that they shall be regulated differently, and we cannot ignore that command. This interpretation concerns only Federal hazmat law, and does not speak to the applicability of other Federal laws or regulations to the transportation you describe. In addition, the limited reach of the Federal law does not prevent the State of California, acting under its own authority, from regulating hazardous material transportation in areas outside of Federal hazmat jurisdiction. As well, the University may choose voluntarily to operate in accordance with Federal hazmat regulations. I trust this response is helpful to you. For your further guidance, I enclose copies of recent related letters from this agency to U.S. Representative Ronald V. Dellums and California Deputy Attorney General Sandra Goldberg. If you have further questions, please feel free to telephone me, or Mr. Charles Holtman of my staff, at (202 366-4400. Sincerely, {Signed} Edward H. Bonekempter, III Assistant Chief Counsel for Hazardous Materials Safety and Research & Technology Law [Original signed copies are available upon request]
[Official Letter of Interpretation from the U.S. Department of Transportation]
The Administrator US Department 400 Seventh St. S.W.
Research and June 1, 1994 The Honorable Ronald V. Dellums Dear Congressman Dellums: Ms. Jackie Lowey, Special Assistant to the Deputy Secretary, has referred to me your letter concerning Department of Transportation (U.S. DOT) regulation of hazardous waste transportation. The Research and Special Programs Administration (RSPA) is the agency within the U.S. DOT with primary responsibility for implementing the Hazardous Materials Transportation Act, 49 App. U.S.C. Section 1801 et seq. (HMTA). Hazardous waste, as defined by the U.S. Environmental Protection Agency, is a hazardous material subject to the HMTA and its implementing regulations. Your letter indicates that the University of California, in operating a waste transfer station, is transporting hazardous waste on roads adjoining residential areas. A neighborhood group asserts that this is forbidden by State and Federal regulations. You ask whether there is U.S. DOT jurisdiction over this transportation and, if so, how it is regulated by the agency. The HMTA and its regulations apply to hazardous materials transportation by a State government when that transportation is "in furtherance of a commercial enterprise." 49 App. U.S.C. Section 1802 (11). If the transportation is carried out (1) by University of California personnel and (2) for a governmental purpose, it is not subject to the HMTA. If the University, for example, employs contractors to operate the transport vehicles or transports waste for others pursuant to commercial arrangements, its transportation would be subject to the HMTA. If the University’s transportation is in furtherance of a commercial enterprise, it nevertheless is not subject to the HMTA and regulations unless it also is in commerce. 49 App. U.S.C. Section 1804 (a) (3). Transportation is in commerce unless it takes place entirely on roadways to which there is no general public right of access, or to which public access legally is denied during the period of transportation. If by these standards, the hazardous waste transportation by the University of California is transportation in commerce in furtherance of a commercial enterprise, the HMTA and its regulations apply. However, these regulations, set forth at 49 C.F.R. Parts 171 – 173, 177 – 178 and 180, pertain solely to matters such as packaging the waste, marking and placarding the waste and the vehicle, and vehicle operation. Except for certain radioactive materials, the regulations contain no route prohibitions or restrictions. Commercial motor vehicles transporting hazardous materials requiringplacarding also are subject to the Federal Motor Carrier Safety Regulations (FMCSR), 49 C.F.R. Parts 390 – 397, enforced by the Federal Highway Administration (FHWA). Section 397.9 (a) of the FMCSR requires a motor vehicle containing hazardous materials to avoid "heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys" unless "there is no pracicable alternative." We are aware of no other Department of Transportation regulations pertaining to the routing of motor vehicles carrying hazardous wastes. The HMTA permits States independently to establish and enforce their own hazardous materials routing restrictions, consistent with the standards set forth in the HMTA. On August 31, 1992, the FHWA published a notice of proposed rulemaking to establish comprehensive procedural and substantive requirements for State hazardous materials routing regulations. A final rule has not yet been issued. If we can be of further assistance in this matter, please contact me or Ms. Patricia Klinger, who handles our congressional inquiries, at (202) 366 4831. Sincerely, {Signed} Ana Sol Gutierrez Acting Administrator [Original signed copies are available upon request]
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