46214 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Rules and Regulations

List of Subjects in 47 CFR Part 90

Business and industry, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 90 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

1. The authority citation for Part 90

continues to read as follows:

Authority; Secs. 4, 251–2, 303, 309,

and 332, 48 Stat. 1066, 1082, as

amended; 47 U.S.C. 154, 251–2, 303,

309 and 332, unless otherwise noted.

2. Section 90.739 is revised to read as

follows:

§ 90.739 Number of systems authorized in

a geographical area.

There is no limit on the number of

licenses that may be authorized to a

single licensee.

[FR Doc. 97–23187 Filed 8–29–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Parts 172, 174, 175, 176 and

177

[Docket No. RSPA–97–2850 (HM–169B)]

RIN 2137–AD08

Hazardous Materials: Withdrawal of

Radiation Protection Program

Requirement

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Direct final rule.

SUMMARY: RSPA is removing Radiation

Protection Program regulations and

related modal provisions that require

the development and maintenance of a

written radiation protection program for

persons who offer, accept for

transportation, or transport radioactive

materials. This action is necessary to

address difficulties and complexities

concerning implementation of and

compliance with the requirements for a

radiation protection program, as

evidenced by comments received from

the radioactive material transportation

industry and other interested parties.

DATES: This final rule is effective

September 30, 1997, unless an adverse

comment or notice of intent to file an

adverse comment is received by

September 30, 1997. RSPA will publish

in the Federal Register a document

confirming the effective date of this

direct final rule.

ADDRESSES: Address comments to the

Dockets Unit (DHM–30), Research and

Special Programs Administration, U.S.

Department of Transportation,

Washington, DC 20590–0001.

Comments should identify the Docket

(HM–169B) and be submitted in five

copies. Persons wishing to receive

confirmation of receipt of their

comments should include a selfaddressed stamped postcard showing

the docket number. The Docket Unit is

located in Room 8421 of the Nassif

Building, 400 Seventh Street, SW.,

Washington, DC 20590–0001. Public

dockets may be viewed between the

hours of 8:30 a.m. and 5 p.m., Monday

through Friday, except Federal holidays.

Comments may also be submitted by Email to ‘‘rules@rspa.dot.gov.’’ In every

case, the comment should refer to the

Docket Number set forth above.

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;

RSPA, U.S. Department of

Transportation, 400 Seventh Street SW.,

Washington, DC 20590–0001.

SUPPLEMENTARY INFORMATION:

On September 28, 1995, RSPA

published a final rule in the Federal

Register under Docket No. HM–169A

(60 FR 50292). The changes made in

Docket HM–169A were part of RSPA’s

ongoing effort to harmonize the

Hazardous Materials Regulations (HMR;

49 CFR 171–180) with international

standards and to improve radiation

safety for workers and the public during

operations involving the transportation

of radioactive materials.

One of the substantive rules in Docket

HM–169A was a requirement to

establish a written radiation protection

program (RPP). The RPP requirements

are found in subpart I of 49 CFR part

172. The RPP implementation

provisions for rail, air, vessel and

highway are found in §§ 174.705,

175.706, 176.703, and 177.827,

respectively. The RPP requirement

applies, with certain exceptions, to each

person who offers for transportation,

accepts for transportation, or transports

Class 7 (radioactive) materials. The

effective date of the RPP requirement is

October 1, 1997. Following publication

of the September 28, 1995 final rule,

many comments were received

concerning technical difficulties in

implementing the RPP requirements.

Subsequently, on April 19, 1996, RSPA

published in the Federal Register a

request for comments on the

implementation of the RPP

requirements (Notice 96–7; 61 FR

17349). In Notice 96–7, RSPA stated its

intention to develop guidance for the

radioactive material industry to

facilitate compliance with the RPP

requirements. RSPA received 23

comments in response to Notice 96–7.

Several commenters cited modal

differences as a factor which makes

application of the RPP regulations

difficult. Examples given include

difficulties in tracking doses to workers

involved in shipping radioactive

material by rail because of multiple

transfers from one company to another

of rail cars during transport, or to ship

crews because of ships being registered

under foreign flags, or because often

their operations are carried out in

foreign ports. Several commenters stated

that dose to personnel involved in bulk

or containerized transport of radioactive

material by highway, rail, or vessel is

usually much lower than for non-bulk

shipments.

Additional comments pointed to

ambiguities in the regulations that make

honest efforts to develop RPP plans

uncertain as to their adequacy. Some of

the ambiguities cited are that the

regulations do not make clear whether

the 200 transport index (TI) threshold to

qualify for an exception is to be applied

over an entire company or at each site;

that concepts such as ‘‘approved by a

Federal or state agency’’ and

‘‘occupationally exposed hazmat

worker’’ are vague; and that the

requirement to monitor occupationally

exposed hazmat workers appears to be

too inclusive and may be interpreted to

extend even to those workers whose

doses would be expected to be below

the limit of detection of the dosimeters.

Most commenters noted the practical

impossibility of being able to assure

compliance with the requirements cited

in the regulations for dose and dose rate

limits for members of the general public,

and the uncertainty as to which persons

are included in the category of ‘‘general

public.’’

Several commenters cited

inconsistencies with other regulations.

For example, in contrast to the HMR,

the Nuclear Regulatory Commission

(NRC) regulations and Environmental

Protection Agency (EPA) guidelines do

not include a quarterly occupational

dose limit, or a weekly dose or a dose

rate limit for members of the public; the

HMR criteria for determining whether

monitoring is required differ
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Rules and Regulations 46215

appreciably from those in the

International Atomic Energy Agency

(IAEA) regulations; the HMR annual

limit for members of the public is

different from that of the NRC and the

IAEA regulations; the HMR

recordkeeping requirements are

different from the NRC’s; and the HMR

require monitoring of occupationally

exposed hazmat workers, while the NRC

requires monitoring adult workers with

personal dosimetry only if their annual

dose is likely to exceed 5 mSv.

Commenters stated that there are also

internal inconsistencies in the present

RPP requirements. For example, one

commenter noted that entities with an

RPP are required to comply with the

stated limits for dose to members of the

general public, while entities which

qualify for an exception are not.

Another commenter indicated that the

monthly limit of 0.5 mSv for a declared

pregnant worker renders irrelevant the

additional stated limit of 5 mSv during

the term of pregnancy.

Commenters also stated that

implementation of the RPP

requirements would force affected

shippers and carriers to adopt the most

conservative approach, leading to

unnecessarily high costs and potentially

serious disruption of the market.

In addition to the comments received,

RSPA also received five petitions, three

of which were characterized as petitions

for reconsideration, but which are

considered as petitions for rulemaking

because they were received after the

thirty day period in 49 CFR 106.35. A

discussion of the petitions follows.

Two different parts of Lockheed

Martin (Energy Research Corporation

and Energy Systems, Inc.), Los Alamos

National Laboratories, and the Oak

Ridge Operations Office of the

Department of Energy requested that

implementation of the RPP requirement

be postponed, and that an exception to

the RPP requirement be allowed for lessthan-truckload (LTL) non-exclusive use

shipments of radioactive material.

The Radiopharmaceutical Shippers

and Carriers Conference requested

amendments to various paragraphs of

the RPP requirement. These included

restricting the 0.02 mSv/hour (2 mrem/

hour) limit to members of the public

and other non-occupationally exposed

individuals to those radioactive material

transportation activities which occur at

fixed facilities; changing the threshold

to qualify for an exception from 200 TI

to 1000 TI; and applying the 1000 TI

threshold exception for each fixed

facility. It was requested, also, that

regulations be clarified by specifically

stating that certification by the

American Board of Health Physics is not

the only acceptable criterion as

evidence of competency of the evaluator

referred to in 49 CFR 172.803(d)(ii).

Finally, it was requested that the

wording ‘‘200 TI’’ be changed to ‘‘1000

TI’’ and ‘‘worker’’ changed to

‘‘occupationally exposed hazmat

employee’’ in 49 CFR 172.805(d); and

that the effective date of October 1, 1997

be postponed until appropriate

guidance is available.

The Nuclear Energy Institute

petitioned RSPA to rescind the public

radiation measurement requirement in

49 CFR 172.803(b)(2).

RSPA agrees that several of the

comments discussed above have merit,

and has attempted to resolve those

concerns by formulation of a guidance

document. However, RSPA has decided

that not all of the concerns can be

resolved through guidance, and new

rulemaking is required in order to

adequately address these and other

comments. Because the necessary

rulemaking actions cannot be taken

before the October 1, 1997 effective date

of the RPP requirements, RSPA has

determined that the current RPP

requirements in Subpart I of Part 172,

and §§ 174.705, 175.706, 176.703 and

177.827 should be withdrawn. The

disposition of the five petitions for

rulemaking will be decided at a later

date. However, the arguments presented

have been considered along with the

other comments received.

RSPA notes that many shippers of

radioactive material, specifically those

who are Department of Energy

contractors or NRC or Agreement State

licensees, are already subject to a RPP

requirement. RSPA also continues to

believe that some form of RPP

requirement should be established in

the HMR, to provide a formal and

structured framework for ensuring

radiation safety during radioactive

material transportation activities.

Until the September 28, 1995 final

rule under Docket HM–169A, the HMR

had not generally required hazmat

employers involved in the transport of

radioactive materials to specifically

consider the radiation safety of their

workers and to take steps to improve

that safety, if necessary. Rather, the

HMR have sought to minimize radiation

hazards to workers and the public by

including requirements on: (1)

Packagings designed and tested to

contain radioactive materials under

normal conditions of transportation and

under accident conditions; (2) hazard

communication requirements, such as

shipping paper information, labels, and

markings; (3) limitations on permissible

rates of external radiation and package

contamination; and (4) segregation and

separation of packages from passengers

and hazmat employees. This system has

worked well, but it can be improved.

Accordingly, RSPA will continue to

review criteria, such as those adopted

by the IAEA Safety Series Standards

Series No. ST–1, that could form the

basis of a revised RPP requirement.

RSPA may propose in a future

rulemaking the establishment of a

revised RPP requirement, to provide

such a formal and structured

framework.

This direct final rule is issued under

the procedures set forth in 49 CFR

106.39. Because this direct final rule

removes regulatory requirements that

otherwise would be effective on October

1, 1997, this direct final rule is effective

September 30, 1997, without the

customary 30-day delay following

publication and unless RSPA receives

an adverse comment by September 30,

1997. Interested parties should refer to

§ 106.39(c) for a discussion of what

constitutes an adverse comment.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule is not considered a

significant regulatory action under

section 3(f) of Executive Order 12866

and was not reviewed by the Office of

Management and Budget. This rule is

not considered significant under the

regulatory policies and procedures of

the Department of Transportation (44 FR

11034, February 26, 1979). This rule

provides relief to persons who offer for

transportation, accept for transportation,

or transport Class 7 (radioactive)

materials by eliminating the need to

develop and maintain a radiation

protection program.

RSPA did not prepare a regulatory

evaluation that specifically addressed

the issue of withdrawing requirements

for a radiation protection program.

However, the regulatory evaluation

proposed in support of the final rule

issued under Docket HM–169A (60 FR

50292; September 28, 1995) estimated

annual costs attributed to radiation

protection program requirements in the

amount of $6.6 million. RSPA did not

have sufficient data to quantify

estimated benefits derived from the

radiation protection program

requirements.

Comments submitted in response to

RSPA’s effort to develop regulatory

guidance for development,

implementation, and maintenance of an

effective radiation protection program

conforming to requirements in 49 CFR

part 172, subpart I, lead RSPA to

conclude that it cannot provide
46216 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Rules and Regulations

appropriate guidance, based on the final

rule published under Docket No. HM–

169A, that meets the needs for safety in

transportation through procedures that

are consistent with other Federal

regulations and at costs that are not

unnecessarily high. That being the case,

RSPA cannot, at this time, justify the

need for persons who offer for

transportation, accept for transportation,

or transport radioactive materials to

develop, implement, and maintain a

written radiation protection plan.

B. Executive Order 12612

This final rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612 (‘‘Federalism’’). The Federal

hazardous material transportation law,

(49 U.S.C. 5101–5127) contains an

express preemption provision that

preempts State, local and Indian tribe

requirements on certain covered

subjects. Covered subjects are:

(i) The designation, description, and

classification of hazardous materials;

(ii) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous materials;

(iii) The preparation, execution, and

use of shipping documents pertaining to

hazardous materials and requirements

related to the number, contents, and

placement of those documents;

(iv) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous materials; and

(v) The design, manufacturing,

fabricating, marking, maintenance,

reconditioning, repairing, or testing of a

packaging or a container which is

represented, marked, certified or sold as

qualified for use in the transportation of

hazardous material.

This final rule does not have

sufficient federalism impacts to warrant

the preparation of a federalism

assessment.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (Act),

as amended, 5 U.S.C. 601–612, directs

agencies to consider the potential

impact of regulations on small business

and other small entities. In the

regulatory evaluation originally

prepared to consider requirements for a

radiation protection program, RSPA

estimated a total of 497 carriers

(primarily motor carriers) would be

subject to those requirements. All but a

certain few of those carriers are thought

to meet criteria of the Small Business

Administration as ‘‘small business,’’

e.g., motor freight carriers with annual

revenue of less than $18.5 million. The

effect of withdrawing requirements for a

radiation protection program is to allow

those carriers to continue to transport

radioactive materials without having to

develop and implement a written plan

that goes beyond what is now required

of many of those carriers through

RSPA’s exemption program, or that of

other Federal departments and agencies.

Based upon the above, I certify that

this final rule will not have a significant

economic impact on a substantial

number of small entities.

D. Unfunded Mandates Reform Act of

1995

This rule does not impose unfunded

mandates under the Unfunded

Mandates Reform Act of 1995. It does

not result in costs of $100 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 objective of the rule.

E. Paperwork Reduction Act

This final rule does not impose any

information collection burdens.

Information collection requirements

addressing radioactive materials

requirements are currently approved

under OMB approval number 2137–

0510. This approval expires January 31,

1998. RSPA plans to submit a revised

information collection to OMB for

renewal prior to the expiration date.

Under the Paperwork Reduction Act of

1995, no person is required to respond

to an information collection unless it

displays a valid OMB control number.

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.

List of Subjects

49 CFR Part 172

Hazardous materials transportation,

Hazardous waste, Labeling, Packaging

and containers, Reporting and

recordkeeping requirements.

49 CFR Part 174

Hazardous materials transportation,

Radioactive materials, Railroad safety.

49 CFR Part 175

Air carriers, Hazardous materials

transportation, Radioactive materials,

Reporting and recordkeeping

requirements.

49 CFR Part 176

Hazardous materials transportation,

Maritime carriers, Radioactive materials,

Reporting and recordkeeping

requirements.

49 CFR Part 177

Hazardous materials transportation,

Motor carriers, Radioactive materials,

Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49

CFR parts 172, 174, 175, 176, and 177

are amended as follows:

PART 172—HAZARDOUS MATERIALS

TABLE, SPECIAL PROVISIONS,

HAZARDOUS MATERIALS

COMMUNICATIONS, EMERGENCY

RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

1. The authority citation for part 172

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 49 CFR

1.53.

Subpart I—[Removed]

2. In part 172, subpart I is removed.

PART 174—CARRIAGE BY RAIL

3. The authority citation for part 174

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 49 CFR

1.53.

§ 174.705 [Removed]

4. Section 174.705 is removed.

PART 175—CARRIAGE BY AIRCRAFT

5. The authority citation for part 175

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 49 CFR

1.53.

§ 175.706 [Removed]

6. Section 175.706 is removed.

PART 176—CARRIAGE BY VESSEL

7. The authority citation for part 176

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 49 CFR

1.53.

§ 176.703 [Removed]

8. Section 176.703 is removed.

PART 177—CARRIAGE BY PUBLIC

HIGHWAY

9. The authority citation for part 177

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 49 CFR

1.53.

§ 177.827 [Removed]

10. Section 177.827 is removed.
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Rules and Regulations 46217

Issued in Washington, DC, on August 22,

1997, under authority delegated in 49 CFR

Part 1.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 97–23083 Filed 8–29–97; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1002 and 1108

[STB Ex Parte No. 560]

Arbitration of Certain Disputes Subject

to the Statutory Jurisdiction of the

Surface Transportation Board

AGENCY: Surface Transportation Board.

ACTION: Final rules.

SUMMARY: The Surface Transportation

Board (Board) adopts rules providing a

means for the binding, voluntary

arbitration of certain disputes subject to

the statutory jurisdiction of the Board.

EFFECTIVE DATE: October 2, 1997.

FOR FURTHER INFORMATION CONTACT:

Ellen Hanson, (202) 565–1558. (TDD for

the hearing impaired: (202) 565–1695.)

SUPPLEMENTARY INFORMATION: The

Railroad-Shipper Transportation

Advisory Council (RSTAC)

recommended that the Board adopt

rules providing for informal dispute

resolution through arbitration. In a

notice of proposed rulemaking

published March 26, 1997 (62 FR

14385), we proposed rules along the

lines of those recommended by the

RSTAC. We have received comments on

the proposed rules from various

shipper, carrier, and other interests,

offering suggestions to enhance, modify,

or clarify the proposed rules. We have

incorporated many, but not all, of their

suggestions.

This arbitration is designed for the

resolution of specific disputes between

specific parties involving the payment

of money or involving rates or practices

related to rail transportation or service

that is subject to the statutory

jurisdiction of the Board. We believe

that this arbitration alternative will save

costs and reduce litigation burdens on

parties to disputes that might otherwise

have to be brought to the Board for

formal resolution. It will enable the

parties to resolve those disputes

themselves informally, with only

limited Board involvement.

Additional information is contained

in the Board’s decision served on

September 2, 1997. To purchase a copy

of the decision, write to, call, or pick up

in person from DC New & Data, Inc.,

Room 210, 1925 K St. NW., Washington

DC 20423, phone (202) 289–4357.

List of Subjects

49 CFR Part 1002

Administrative practice and

procedure, User fees.

49 CFR Part 1008

Administrative practice and

procedure, Railroads.

Decided: August 25, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, and under the authority of 49

U.S.C. 721(a), title 49, chapter X, of the

Code of Federal Regulations is amended

as follows:

PART 1002—FEES

1. The authority citation for part 1002

continues to read as follows:

Authority: 5 U.S.C. 552(a)(4)(A) and 553;

31 U.S.C. 9701; and 49 U.S.C. 721(a).

2. Section 1002.2 is amended by

adding a new paragraph (f)(87) to read

as follows:

§ 1002.2 Filing fees.

* * * * *

(f) * * *

(87) Arbitration of Certain Disputes Subject

to the Statutory Jurisdiction of the Surface

Transportation Board under 49 CFR part

1108:

(i) Complaint .................................... $75

(ii) Answer (per defendant), Unless

Declining to Submit to Any Arbitration ........................................... $75

(iii) Third Party Complaint ............. $75

(iv) Third Party Answer (per defendant), Unless Declining to

Submit to Any Arbitration .......... $75

(v) Appeals of Arbitration Decisions or Petitions to Modify or

Vacate an Arbitration Award ...... $150

* * * * *

3. A new part 1108 is added to read

as follows:

PART 1108—ARBITRATION OF

CERTAIN DISPUTES SUBJECT TO THE

STATUTORY JURISDICTION OF THE

SURFACE TRANSPORTATION BOARD

Sec.

1108.1 Definitions.

1108.2 Statement of purpose, organization,

and jurisdiction.

1108.3 Matters subject to arbitration.

1108.4 Relief.

1108.5 Fees and costs.

1108.6 Arbitrators.

1108.7 Arbitration commencement

procedures.

1108.8 Arbitration procedures.

1108.9 Decisions.

1108.10 Precedent.

1108.11 Enforcement and appeals.

1108.12 Additional matters.

Authority: 49 U.S.C. 721(a).

§ 1108.1 Definitions.

(a) Arbitrator means an arbitrator

appointed pursuant to these provisions.

(b) ICC means the Interstate

Commerce Commission.

(c) Interstate Commerce Act means

the Interstate Commerce Act as

amended from time to time, including

the amendments made by the ICC

Termination Act of 1995.

(d) RSTAC means the Rail-Shipper

Transportation Advisory Council

established pursuant to 49 U.S.C. 726.

(e) STB means the Surface

Transportation Board.

(f) Statutory jurisdiction means the

jurisdiction conferred on the STB by the

Interstate Commerce Act, including

jurisdiction over rail transportation or

services that have been exempted from

regulation.

§ 1108.2 Statement of purpose,

organization, and jurisdiction.

(a) These provisions are intended to

provide a means for the binding,

voluntary arbitration of certain disputes

subject to the statutory jurisdiction of

the STB, either between two or more

railroads subject to the jurisdiction of

the STB or between any such railroad

and any other person.

(b) These procedures shall not be

available to obtain the grant, denial, stay

or revocation of any license,

authorization (e.g., construction,

abandonment, purchase, trackage rights,

merger, pooling) or exemption, or to

prescribe for the future any conduct,

rules, or results of general, industrywide applicability. Nor are they

available for arbitration that is

conducted pursuant to labor protective

conditions. These procedures are

intended for the resolution of specific

disputes between specific parties

involving the payment of money or

involving rates or practices related to

rail transportation or service subject to

the statutory jurisdiction of the STB.

(c) The alternative means of dispute

resolution provided for herein are

established pursuant to the authority of

the STB to take such actions as are

necessary and appropriate to fulfill its

jurisdictional mandate and not pursuant

to the Administrative Dispute

Resolution Act, 5 U.S.C. 571, et seq.

(d) On January 1, 1996, the STB

replaced the ICC. For purposes of these

procedures, it is immaterial whether an

exemption from regulation was granted

by the ICC or the STB.