{"operation":"document","citation":"08-0213","title":"FedEx Express — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2008-12-18","effective_on":null,"summary":"08-0213 response to FedEx Express concerning 171.15.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0213.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0213.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0213","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2008/080213.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\nDEC 1 8 2008\n1200 New Jersey Ave., SE\nWashington, DC 20590\nMr. Scott A. Mugno\nManaging Director\nCorporate Safety, Health and Fire Prevention\nFedEx Express\n3670 Hacks Cross Road\nBuilding G7 2\"d Floor\nMemphis, TN 38 125-8800\nRef. No.: 08-021 3\nDear Mr. Mugno:\nThis responds to your August 18,2008 request for clarification of the incident reporting\nrequirements specified in the Hazardous Materials Regulations (HMR; 49 CFR Parts 17 1 -\n180). Specifically, you ask if an immediate notification to the National Response Center\n(NRC) is required if a package of radioactive material is damaged during transportation but\nthe radioactive material itself has not been released fiom its inner packaging, which provides\nshielding, and the damage does not result in radioactive contamination or excessive radiation\nexposure.\nThe answer is yes. Section 17 1.15 requires the person in physical possession of a Class 7\n(radioactive) material package to immediately notify the NRC by telephone as soon as\npractical when fire, breakage, spillage, or suspected radioactive contamination occurs\ninvolving a Class 7 (radioactive) material. \"Breakage\" is clearly differentiated in the HMR\nfiom the terms \"spillage\" and \"suspected radioactive contamination\" by the use of the word\n\"or.\" Therefore, if a radioactive material package is broken, even if the inner packagings\nremain intact, an immediate notification of the NRC is required.\nI hope this answers your inquiry.\nSincerely,\nSusan Gorsky\nActing Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nScott A. Mugno\nManag~ng D~rector\nCorporate Safety\nHealth and Flre Prevent~on\n3870 Hacks Cross Road Telephone 901.434.9587\nBuild~ng G, 2nd Floor Fax 901.434.9771\nMemphis. TN 38125-8800 samugno@fedex com\nExpress\nAugust 18,2008\nMs. Susan Gorsky, Acting Chief\nStandards Development\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n1200 New Jersey Avenue SE\nWashington, D.C. 20590\nDear Ms. Grosky:\nRE: 49 CFR 171.15(b)(2)\nAn interpretation of 49 CFR 171.15(b)(2) is requested to clarify if an immediate report to the\nNational Response Center is only required when a radioactive material package is damaged to\nthe extent that radioactive material has been released which may result in contamination or\nexcessive radiation exposure.\nPursuant to 49 CFR 171.15(b)(2) an immediate telephone report is required to the National\nResponse Center when during the course of transportation there is fire, breakage, spillage, or\nsuspected contamination occurs involving a radioactive material.\nConsider a radioactive material package which as been damaged or comes open during the\ncourse of transportation, but the radioactive material contents remain in their shielding or primary\ninner containers. Radioactive material has not been released, there is no radioactive\ncontamination and there is no excessive radiation exposure. Clearly there is no fire, no spillage\nand no suspected radioactive contamination.\nThe question concerns the interpretation of breakage. What broke? The outer package may\nhave had a tear or dent or broke open, but the inner shielded containers did not break and were\nnot breached, thereby resulting in no release of radioactive material, no contamination and no\nexcessive radiation exposure.\nIs this an immediate reportable incident? If so, then it is a report of a package failure, a package\nhandling failure or an accident which is certainly not commensurable with the other reporting\ncriteria in 171.15(b), a person is killed, a person is injured requiring admittance to a hospital, the\ngeneral public is evacuated for one hour or more, a major transportation artery or facility is closed\nor shut down for one hour or more, or the operational flight pattern or routine of an aircraft is\naltered.\nThe purpose of the immediate telephone report to the National Response Center appears to be\nso that appropriate federal, state and local agencies can be notified of a significant incident to\nprotect the public and provide response as indicated. Clearly no such action is required in this\ninstance.\n\n<<<PAGE 3>>>\n\nWhen a call is made to the National Response Center the introductory messages states:\n\"If this is regarding an actual or potential release of hazardous material, an oil\nspill, maritime security or a railroad incident please stay on the line and the next\navailable watchstander will be with you momentarily.\"\nThus, it appears that the subject incident does not meet the criteria for reporting since there was\nno actual or potential release of radioactive material. Also, Slide 5 in the NRC 101 Slide Show on\nthe National Response Center website states that a primary function of the National Response\nCenter is the Collection and Dissemination of RadiologicalIBiological Releases (emphasis\nadded).\nAgain the subject incident is not applicable since there was no radiological release.\nThe requirement to immediately report to the Department of Ttansportation fire, breakage,\nspillage or suspected radioactive contamination occurring involving shipment of radioactive\nmaterials first appeared November 4, 1971, 36 FR 210200, notice of final rule making to become\neffective on December 31, 1971. Review of that Federal Register notice and the preceding notice\nof proposed rulemaking, July 9, 1971, 36 FR 12913, clearly indicates that the focus of the\nrulemaking was on radioactive contamination and excessive radiation exposure, and not the\nfailure of a packaging system when it did not result in radioactive contamination or excessive\nradiation exposure. Fire relates to melting of the inner container usually lead which in turn leads\nto potential excessive radiation exposure, melting of the primary container, usually a glass or\nsyringe vial, which then leads to loss of primary containment of the radioactive material resulting\nin potential contamination. Spillage directly refers to the release of radioactive material and\npotential contamination andlor potential excessive radiation exposure.\nTelephone reports to the National Response Center, although stating no assistance required,\nresult in numerous calls from many agencies who have no concept of what has been reported\nnor what their role should or is expected to be. Typically each telephone report to the National\nResponse Center results in approximately five to fifteen calls from various agencies. These calls\nare unnecessarily time consuming and unwarranted. As examples the last telephone report\nmade to the National Response Center resulted in one call asking if the report was a drill and the\nother asking if the Memphis Fire Department had remediated the spill. Also updates to a reported\nincident are not accepted by the National Response Center.\nThe term \"breakage\" in the reporting criteria is extremely subjective, lacks precision and is subject\nto significant variance. It is requested that the Office of Hazardous Materials Standards issue an\ninterpretation which removes the ambiguities in the 'breakage\" criteria and base the reporting\nrequirements on definitive criteria, such as release of the radioactive material from its shielded\nand primary inner container which may result in radioactive contamination andlor excessive\nradiation exposure.\nIt is also requested that appropriate revision of 171.15(b)(2) be address in the earliest possible\nrulemaking.\nThink Safe&, Act Safely, Be Safe,\n&45.674F\nScott A. Mugno\nManaging ~irector\nCorporate Safety, Health and Fire Prevention\nFedEx Express\n\n<<<PAGE 4>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave., SE\nWashington, DC 20590\nDEC 1 8 2008\nMr. Lloyd A. Gray\nChairman\nGovernment and Industry Affairs Committee\nNondestructive Testing Management Association\nP.O. Box 470338\nCelebration, FL 34747\nRef. No.: 08-0213\nDear Mr. Gray:\nThis responds to your August 22,2008 request for clarification of the incident reporting\nrequirements specified in the Hazardous Materials Regulations (HMR; 49 CFR Parts 17 1 -\n180). Specifically, you ask if an immediate notification to the National Response Center\n(NRC) is required if a package of radioactive material is damaged during transportation but\nthe radioactive material itself has not been released from its inner packaging, which provides\nshielding, and the damage does not result in radioactive contamination or excessive radiation\nexposure.\nThe answer is yes. Section 171.15 requires the person in physical possession of a Class 7\n(radioactive) material package to immediately notify the NRC by telephone as soon as\npractical when fire, breakage, spillage, or suspected radioactive contamination occurs\ninvolving a Class 7 (radioactive) material. \"Breakage\" is clearly differentiated in the HMR\nfrom the terms \"spillage\" and \"suspected radioactive contamination\" by the use of the word\n\"or.\" Therefore, if a radioactive material package is broken, even if the inner packagings\nremain intact, an immediate notification of the NRC is required.\nI hope this answers your inquiry.\n/L- djb(j Susan Gorsky\nActing Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 5>>>\n\nNONDESTRUCTIVE TESTING MANAGEMENT ASSOCIATION\nPO Box 4 7 0 3 3 8 Celebration, FL 34747 Telephone 985.785.5271 Fax 321-939-0277\nAugust 22,2008\nMs. Susan Gorsky, Acting Chief\nStandards Development\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n1200 New Jersey Avenue SE\nWashington, D.C. 20590\nDear Ms. Gorsky:\nRE: 49 CFR 171.15(b) (2)\nPlease allow me to introduce myself and the organization I am representing. NDTMA is an\norganization designed to address and communicate issues which are relevant to our industry.\nThis association was formed to provide a forum for the open exchange of managerial, technical,\nand regulatory information critical to the successful management of non-destructive testing\n(NDT) personnel and activities. As a board member, I sit as Chairman of the Government and\nIndustry Affairs Committee, (GIAC).\nOur membership includes a large majority of the industrial radiography companies in the United\nStates, and involves the shipping and transportation of different types of radionuclides in\nexposure devices and over packs (shipping containers).\nAfter the Order for Increased Controls of Radionuclide's of Concern (EA-05-090) was issued by\nthe USNRC in December 2005, it became the responsibility of the licensee to verify and confirm\nthe carriers we use for shipping our radioactive materials, met the requirements imposed by the\nOrder. We subsequently discovered a very limited number of trucking companies could or would\nprovide the industry with the necessary confirmation letter acknowledging and accepting the\ncomponents outlined in the Order. In early 2006, it became apparent that FedEx would be the\nprimary carrier for shipments of radioactive materials relative to our industry needs because of\ntheir commitment to the NRC Order.\nAs stated in Mr. Mugno's letter to you dated Au ust 18,2008, FedEx has immediate concerns\nrelevant to the verbiage used id-~as do the membership of NDTMA and\nGIAC .\n\n<<<PAGE 6>>>\n\nOur concern is the potential for negative impact on our industry if carriers such as FedEx are\nexposed to a potential scenario i.e. \"breakage\" identified under this part. It is certainly not\nunusual for items of any nature to be broke during shipment, but in this case, if the outer\ncontainer is damaged or broke, it doesn't necessarily indicate a situation where radioactive\nmaterials are of an immediate danger to the public.\nGIAC respectfully request a detailed interpretation of 49 CFR 17 1.15 (b) (2) and clarification as\nto the extent which any breakage or damage occurring to the container in which no radioactive\ncontamination or radiation exposure exists.\nBest Regards,\nLloyd A. Gray, Chairman\nGovernment and Industry Affairs Committee\nlgray@,acuren.coin\n\n<<<PAGE 7>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave.. SE\nWashington, DC 20590\nMr. Lawrence W. Bierlein\nGeneral Counsel\nRadiopharmaceutical Shippers and Carriers Conference\n1 101 3oth Street, N.W.\nSuite 500\nWashington, DC 20007\nRef. No.: 08-02 1 3\nDear Mr. Bierlein:\nThis responds to your August 27,2008 request for clarification of the incident reporting\n. requirements specified in the Hazardous Materials Regulations (HMR; 49 CFR Parts 17 1 -\n180). Specifically, you ask if an immediate notification to the National Response Center\n(NRC) is required if a package of radioactive material is damaged during transportation but\nthe radioactive material itself has not been released from its inner packaging, which provides\nshielding, and the damage does not result in radioactive contamination or excessive radiation\nexposure.\nThe answer is yes. Section 171.15 requires the person in physical possession of a Class 7\n(radioactive) material package to immediately notify the NRC by telephone as soon as\npractical when fire, breakage, spillage, or suspected radioactive contamination occurs\ninvolving a Class 7 (radioactive) material. \"Breakage\" is clearly differentiated in the HMR\nfrom the terms \"spillage\" and \"suspected radioactive contamination\" by the use of the word\n\"or.\" Therefore, if a radioactive material package is broken, even if the inner packagings\nremain intact, an immediate notification of the NRC is required.\nI hope this answers your inquiry.\nSincerely,\n1'\nSusan Gorsky\nActing Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 8>>>\n\nRadiopharmaceutical Shipperr and Carriers Ccanfemnse\nG E N E W WLINSEL & SE\nLawrence W. Bierlein, Esq.\nAttorney At Law\nPh: 202-625-8355\n1101 3ot\"treet, N,W.\nSuite 500\nWashington, D.C. 20007\nA U ~ U S ~ 27,2008 T m m e J ~ ~ 4 e 4 / 7 1 . IC\nH ~ z c l ~ d o u s ~ c c f c r h 1s\nDr. Ted Willke\nAssociate Administrator for\nHazardous Materials Safety\nPipeline & Hazardous Materials Safety Administration\nU.S. Department of Transportation\nWashington, DC 20590\nAttn: Standards\nRe: Interpretation of Sec. 171.15,\nImmediate notice of certain hazardous\nmaterials incidents\nDear Dr. Willke:\nThe Radiopharmaceutical Shippers & Carriers Conference (RSCC) is the only group\ncombining the interests of both the manufacturers and the transporters of radioactive materials\nfor urgent medical needs. Included among our membership is Federal Express, and we have\nreceived a copy of Scott Mugno's letter of August 18 to Susan Gorsky in Standards\nDevelopment.\nRSCC shares the concern expressed in that letter, with unnecessary immediate reporting.\nWhen the reporting requirements first were implemented, it was recognized that certain incidents\nwere sufficiently dire to alert a range of people as well as the political levels of the Department.\nNecessarily these incidents were of a nature requiring immediate action and immediate\nawareness on the part of an increasingly wider array of federal, State, and local entities.\nA properly required report triggers a number of responsive actions, as outlined in the\nFederal Express letter.\nThe reporting obligation falls to the carrier handling the material, and must be done when\n\"Fire, breakage, spillage, or suspected contamination occurs involving a radioactive material.\"\nThe terms such as fire, breakage and spillage must be read in the context of contamination\n\n<<<PAGE 9>>>\n\nsuspected by the reporting carrier. If the carrier is aware of issues involving the package but\nknows that there is no contamination, it would be irresponsible to trigger all of the actions\nprompted by an immediate incident report.\nWe ask that this section be interpreted to cover only those incidents of fire, breakage, or\nspillage as a result of which the carrier has reason to suspect that there may be radioactive\nmaterials contamination, and not to cover incidents when the carrier knows no contamination has\noccurred.\nWe believe such an interpretation is consistent with the original intent of the immediate\nnotification provision, and would provide a measure of practicality in the process.\nPlease let me know if you have any questions on this request for interpretation.\nSincerely,\nLawrence W. Bierlein\nRSCC General Counsel\ncc: Scott Mugno, Federal Express Co.","truncated":false,"body_characters":16408}