Request for Interpretation of Applicability of DOT Regulations to NRC-Licensed State or Federal Entities
See the memorandum from W. J. Olmstead to L. I. Cobb dated April 11, 1985, and the memo from L. I. Cobb to J. H. Joyner (and others) dated April 16, 1985.
It is an OELD opinion that federal, state, and other governmental entities transporting NRC-licensed material are not regulated by DOT but they are subject to the requirements of 10 CFR 71.5 (b). For Agreement State-licensed material, regulatory authority appears to be vested in the various states.
The University of Missouri raised the question with Region III as to whether it was exempt from NRC requirements for transportation of radioactive material. NRC requirements in 10 CFR 71 incorporates DOT regulations for transportation of radioactive material by reference to certain specific sections of 49 CFR Parts 171, 172, 173, 174, and 176.
On a number of occasions DOT has stated that its regulations did not apply to purely governmental, non-business activities. However, OELD has stated, among other things, that federal, state, and other governmental entities transporting NRC-licensed material are subject to 10 CFR 71.5 (b).
This section refers to specific DOT rules that apply to NRC licensees. One area which has not been addressed is transportation of Agreement State-licensed material by a government entity. Subsection 274b of the Atomic Energy Act of 1954, as amended, authorizes the NRC to enter into agreements with the individual States providing for the discontinuance of the regulatory authority of the NRC under chapters 6, 7, and 8, and section 161 the Act with respect to byproduct, source, and special nuclear material in quantities not sufficient to from a critical mass.
In conclusion, since federal, state, and other governmental entities transporting NRC-licensed material are not regulated by DOT, they are subject to 10 CFR 71.5 (b). The provisions of 71.5 (b) require these governmental entities to "conform to the standards and requirements of the DOT" referenced in 71.5 (a). Where NRC-licensed material is involved, IE has the authority pursuant to 10 CFR 71.5 to require that governmental entities comply with the provisions of 71.5 (a). Where the licensed material involved is Agreement State-licensed material, the regulatory authority appears to be vested in the various states.
Regulatory references: 10 CFR 71
Subject codes: 12.2, 12.9, 12.17