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###### Department of Transportation

###### Research and Special Programs Administration 

          - 49 CFR Parts 171 and 173 
          - [Docket No. RSPA-99-6283 (HM-230)] 
          - RIN 2137-AD40 

# AGENCY:

Research and Special Programs Administration (RSPA), DOT. 

# ACTION:

Final rule. 

# SUMMARY:

                        RSPA is correcting errors in a final rule in this docket, published in the                         **Federal Register**                         on September 13, 2004, that amended requirements in the Hazardous Materials Regulations (HMR) pertaining to the transportation of radioactive materials based on changes contained in the International Atomic Energy Agency (IAEA) publication, entitled “IAEA Safety Standards Series: Regulations for the Safe Transport of Radioactive Material,” 1996 Edition, No. TS-R-1.                     

# DATES:

*Effective Date:*                         This final rule is effective on October 1, 2004.                     

# FOR FURTHER INFORMATION CONTACT:

Dr. Fred D. Ferate II, Office of Hazardous Materials Technology, (202) 366-4545, or Charles E. Betts, Office of Hazardous Materials Standards, (202) 366-8553; Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001. 

# SUPPLEMENTARY INFORMATION:

## I. Background 

On January 26, 2004, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-230 (69 FR 3632) amending requirements in the HMR pertaining to the transportation of radioactive materials based on changes contained in the IAEA publication entitled “IAEA Safety Standards Series: Regulations for the Safe Transport of Radioactive Material,” 1996 Edition, No. TS-R-1. On September 13, 2004, we published a final rule (69 FR 55113) that made corrections to the January 26, 2004 final rule. 

This document corrects editorial and technical errors in the September 13, 2004 final rule which have come to our attention. 

## II. Section-by-Section Review 

### Part 171 

#### Section 171.11 

In paragraph (d)(6)(i), we are correcting a typographical error. 

### Part 173 

#### Section 173.403 

                    In § 173.403, we are correcting certain inadvertent omissions in the definition for                     *“Low Specific Activity (LSA) material.”*

#### Section 173.411 

Paragraph (b)(2)(ii) is corrected to retain the wording that currently appears in the HMR, which was inadvertently changed in the September 13, 2004 final rule. 

#### Section 173.427 

                    Paragraph (b)(4) is corrected to specify that, for domestic transportation, exclusive use shipment of Low Specific Activity (LSA) material and Surface Contaminated Object (SCO) must be less than an A2                     quantity when in a packaging which meets the requirements of §§ 173.24, 173.24a, and 173.410. The current wording specifies that the shipment must be less than or equal to an A2                     quantity.                 

## III. Regulatory Analyses and Notices 

### A. Executive Order 12866 and DOT Regulatory Policies and Procedures 

This final rule is not a significant action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is not a significant action under the Regulatory Policies and Procedures of the Department of Transportation. The revisions adopted in this final rule do not alter the cost-benefit analysis and conclusions contained in the Regulatory Evaluation prepared for the January 26, 2004 final rule. The Regulatory Evaluation is available for review in the public docket for this rulemaking. 

### B. Executive Order 13132

                    This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements, but does not propose any regulation that has direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.                           ( print page 58842)    

The Federal hazardous material transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are: 

(1) The designation, description, and classification of hazardous material; 

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material; 

(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents; 

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or 

(5) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. 

This final rule addresses the classification, packaging, marking, labeling, and handling of hazardous material, among other covered subjects and preempts any State, local, or Indian tribe requirements not meeting the “substantively the same” standard. This rule is necessary to incorporate changes already adopted in international standards. If the amendments adopted in this final rule were not made, U.S. companies, including numerous small entities competing in foreign markets, will be at an economic disadvantage. These companies would be forced to comply with a dual system of regulation. The amendments are intended to avoid this result. 

                    Federal hazardous materials transportation law provides at 49 U.S.C. § 5125(b)(2) that, if the Secretary of Transportation issues a regulation concerning any of the covered subjects, the Secretary must determine and publish in the                     **Federal Register**                     the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of our January 26, 2004 final rule, including the effective date of Federal preemption is October 1, 2004. Because this final rule makes editorial corrections, the effective date of Federal preemption of this final rule is also October 1, 2004.                 

### C. Executive Order 13175

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply and a tribal summary impact statement is not required. 

### D. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Polices 

                    The Regulatory Flexibility Act (5 U.S.C. 601*et seq.*) requires an agency to review regulations to assess their impact on small entities unless the agency determines a rule is not expected to have a significant economic impact on a substantial number of small entities. The corrections contained in this final rule will have little or no effect on the regulated industry. Based on the assessment in the regulatory evaluation, to the January 26, 2004 final rule, I hereby certify that, while this rule applies to a substantial number of small entities, there will not be a significant economic impact on those small entities. A detailed regulatory flexibility analysis prepared for the January 26, 2004 final rule is available for review in the docket.                 

This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. 

### E. Paperwork Reduction Act 

This final rule imposes no new information collection requirements. 

### F. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. 

### G. Unfunded Mandates Reform Act 

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule. 

### H. Environmental Assessment 

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The Nuclear Regulatory Commission (NRC) prepared an environmental assessment (EA) of “Major Revision to Packaging and Transportation of Radioactive Material Regulations,” Final Report, March 2002, on its final rule which addresses issues also raised in this rulemaking. On the basis of this EA, we find that there are no significant environmental impacts associated with this final rule. A copy of the environmental assessment prepared by the NRC is available for review in the docket. 

### I. Privacy Act 

                    Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the                     **Federal Register**                     published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit                     *http://dms.dot.gov.*

# List of Subjects 

### 49 CFR Part 171

      - Exports
      - Hazardous materials transportation
      - Hazardous waste
      - Imports
      - Incorporation by reference
      - Reporting and recordkeeping requirements

### 49 CFR Part 173

      - Hazardous materials transportation, packaging and containers
      - Radioactive materials
      - Reporting and recordkeeping requirements
      - Uranium

                        In consideration of the foregoing, we are making the following corrections to FR Doc. 04-20549, appearing on page 55113 in the                         **Federal Register**                         of Monday, September 13, 2004:                     

# PART 171—[CORRECTED] 

1. On page 55116, in § 171.11, in paragraph (d)(6)(i), correct the reference “§ 173.203(d)(10)” to read “§ 172.203(d)(10)”. 

      ( print page 58843)    

# PART 173—[CORRECTED] 

2. On page 55116, in § 173.403, in the definition for “ *Low Specific Activity (LSA) material*,” correct the introductory paragraph, and paragraphs (1)(iii), (3)(i) and (3)(ii) to read as follows:                     

§ 173.403 

* * * * *

*Low Specific Activity (LSA) material*                             means Class 7 (radioactive) material with limited specific activity which satisfies the descriptions and limits set forth below. Shielding material surrounding the LSA material may not be considered in determining the estimated average specific activity of the package contents. LSA material must be in one of three groups:                         

(1) * * * 

                            (iii) Radioactive material other than fissile material, for which the A2                             value is unlimited; or                         

* * * * *

(3) * * * 

(i) The radioactive material is distributed throughout a solid or a collection of solid objects, or is essentially uniformly distributed in a solid compact binding agent (such as concrete, bitumen, ceramic, etc.); 

                            (ii) The radioactive material is relatively insoluble, or it is intrinsically contained in a relatively insoluble material, so that, even under loss of packaging, the loss of Class 7 (radioactive) material per package by leaching when placed in water for seven days would not exceed 0.1 A2; and                         

* * * * *

3. On page 55117, in the first column, in § 173.411, correct paragraph (b)(2)(ii) to read as follows: 

§ 173.411 

* * * * *

(b) * * * 

(2) * * * 

(ii) A significant increase in the radiation levels recorded or calculated at the external surfaces for the condition before the test. 

* * * * *

4. On page 55118, in the third column, in §173.427, correct paragraph (b)(4) to read as follows: 

§ 173.427 

* * * * *

(b) * * * 

                            (4) In a packaging which meets the requirements of §§ 173.24, 173.24a, and 173.410, but only for domestic transportation of an exclusive use shipment that is less than an A2                             quantity.                         

* * * * *

Issued in Washington, DC, on September 24, 2004 under authority delegated in 49 CFR Part 1. 

Samuel G. Bonasso, 

Deputy Administrator, Research and Special Programs Administration. 

[FR Doc. 04-22145 Filed 9-30-04; 8:45 am] 

BILLING CODE 4910-60-P