[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Rules and Regulations]
[Pages 58841-58843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22145]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171 and 173

[Docket No. RSPA-99-6283 (HM-230)]
RIN 2137-AD40


Hazardous Materials Regulations; Compatibility With the 
Regulations of the International Atomic Energy Agency; Correction; 
Final Rule

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 Sec.  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 
A<INF>2</INF> quantity when in a packaging which meets the requirements 
of Sec. Sec.  173.24, 173.24a, and 173.410. The current wording 
specifies that the shipment must be less than or equal to an 
A<INF>2</INF> 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.

[[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. Sec.  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.


0
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]

0
1. On page 55116, in Sec.  171.11, in paragraph (d)(6)(i), correct the 
reference ``Sec.  173.203(d)(10)'' to read ``Sec.  172.203(d)(10)''.

[[Page 58843]]

PART 173--[CORRECTED]

0
2. On page 55116, in Sec.  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:


Sec.  173.403  Definitions.

* * * * *
    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 A<INF>2</INF> 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 A<INF>2</INF>; and
* * * * *

0
3. On page 55117, in the first column, in Sec.  173.411, correct 
paragraph (b)(2)(ii) to read as follows:


Sec.  173.411  Industrial packagings.

* * * * *
    (b) * * *
    (2) * * *
    (ii) A significant increase in the radiation levels recorded or 
calculated at the external surfaces for the condition before the test.
* * * * *

0
4. On page 55118, in the third column, in Sec. 173.427, correct 
paragraph (b)(4) to read as follows:


Sec.  173.427  Transport requirements for low specific activity (LSA) 
Class 7 (radioactive) materials and surface contaminated objects (SCO).

* * * * *
    (b) * * *
    (4) In a packaging which meets the requirements of Sec. Sec.  
173.24, 173.24a, and 173.410, but only for domestic transportation of 
an exclusive use shipment that is less than an A<INF>2</INF> 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