Fissile Excepted/Fissile Exempt Guidance: Question & Response

This guidance applies only to DOE and DOE Contractors

The primary Department of Transportation (DOT) and Nuclear Regulatory Commission (NRC) Federal Regulations referenced in this DOE guidance are:

49 CFR 172.101 HAZARDOUS MATERIALS TABLE
49 CFR 172.203 Additional description requirements, para. (d) Radioactive material
49 CFR 173.403 Definitions (fissile ​material),
49 CFR 173.419 Authorized packages—oxidizing Class 7 (radioactive) materials.
49 CFR 173.453 Fissile materials - ​exceptions,

10 CFR 71.4 Definitions (fissile ​material),
10 CFR ​71.15 Exemption from classification as ​fissile ​materials

The following question to the DOE Packaging Certification Program (PCP) and PCP's response is intended to provide guidance to DOE elements and their contractors. 

Question - A transportation specialist has raised concerns about our standard package (DOT 7A 5 gallon drum) due to terminology in §173.419 relating to a shipment we’re trying to complete.  The shipment is a fissile-excepted (a few mg of enriched uranyl nitrate).  §173.419 says we can use the package as long as the contents are “not fissile”.  Our understanding is that ‘fissile excepted’ meets the meaning of ‘not fissile’ when it comes to using this package per 49 CFR 173.  Can you or someone on your staff concur/disagree with our interpretation, or can you suggest another authority that can help with this determination? 

Response - If the material meets the definition of fissile material, per §173.403, then the contents are by definition fissile material; however, “… Certain exceptions for fissile materials are provided in §173.453.” 

Fissile material that meets at least one of the paragraphs (a) through (f) of §173.453 are excepted from the requirements of Subpart I—Class 7 (Radioactive) Materials for fissile materials, including the requirements of §§173.457 and 173.459, but are subject to all other requirements of Subpart I—Class 7 (Radioactive) Materials.

The requirements in §173.419 are for the package (packaging & contents), and explicitly prohibit fissile material.  

 §173.419   Authorized packages—oxidizing Class 7 (radioactive) materials, (a) states, “An oxidizing Class 7 (radioactive) material, as referenced in the §172.101 table of this subchapter, is authorized in quantities not exceeding an A2 per package, in a DOT Specification 7A package provided that—

 (1) The contents are:

(i) Not fissile;

Your contents are fissile (i.e., fissile materials), albeit fissile excepted, so PCP's guidance is you couldn’t use a DOT Specification 7A package authorized for oxidizing Class 7 (radioactive) materials. 

The requirements in §173.418 for “Authorized packages” and in  §173.421 for “excepted packages” conditionally allow fissile material:

§173.418   Authorized packages—pyrophoric Class 7 (radioactive) materials … DOT Specification 7A packagings … Contents of the package must be—(a) In solid form and must not be fissile unless excepted by §173.453;

§173.421   Excepted packages for limited quantities of Class 7 (radioactive) materials. … (e) The package does not contain fissile material unless excepted by §173.453;

PCP staff checked the DOT website for official interpretations related to §§173.419 and 173.453 and found nothing there that would support your position.  There are no formal DOT interpretations related to §173.419, so if you wanted an official interpretation from DOT, DOE would need to request it per DOE Order 460.1D.

 Finally, §172.203(d)(6) requires “For a package containing fissile Class 7 (radioactive) material:

(i) The words “Fissile Excepted” if the package is excepted pursuant to §173.453 of this subchapter; or otherwise

(ii) The criticality safety index for that package

The definition of fissile materials in the NRC regulation 10 CFR 71.4 is consistent with DOT's definition in 49 CFR 173.403. The NRC regulation (§71.4) addresses "... Certain exclusions from fissile material controls are provided in §71.15.", whereas, the DOT (§173.403) addresses "... Certain exceptions for fissile materials are provided in §173.453."  In addition, NRC §71.15 is Exemption from classification as ​fissile ​materials whereas, §173.453 is Fissile materials - ​exceptions.   The essential requirements are the same to meet the Exemption from classification as ​fissile ​materials and the Fissile materials - ​exceptions. 

Updated January 29, 2020