66900 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations

Safety or other authorized officials in

written form within seven days of a

written request.

(b) A hazmat employer must keep a

record of the radiation dose that each

hazmat employee has received and

provide it to the employee in reasonable

time following a request during

employment and no more than three

months after end of employment.

(c) Each hazmat employer must notify

the Associate Administrator for

Hazardous Materials Safety, in writing,

if a hazmat employee receives a dose

exceeding 12.5 mSv (1250 mrem) in any

calendar quarter or 50 mSv (5,000

mrem) in one year, or if a member of the

general public is likely to receive a dose

exceeding 5 mSv (500 mrem) in one

year as a result of the hazmat employer’s

transportation activities. Such a

notification must be made as soon as

practicable following awareness of the

occurrence.

(d) If an offeror or carrier of Class 7

(radioactive) materials is not required to

establish a radiation protection program,

they must develop and keep records

which demonstrate why a program is

not required (i.e., either the total TI of

packages transported in any 12 month

period is less than 200, or that the

current Class 7 (radioactive) materials

transport activities are the same as the

activities that were reviewed by a

competent radiation protection

specialist whose evaluation

demonstrated that no worker will

receive a dose exceeding 5 mSv (500

mrem) in one year).

§ 172.807 Transitional provisions.

Compliance with the requirements of

this subpart is required after October 1,

1997.

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.

4. Section 174.705 is reinstated to

read as follows:

§ 174.705 Radiation protection program.

Unless otherwise excepted, a carrier

shall not transport a Class 7

(radioactive) material by rail unless each

of its occupationally exposed hazmat

employees is under a radiation

protection program that complies with

the requirements of subpart I of part 172

of this subchapter.

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.

6. Section 175.706 is reinstated to

read as follows:

§ 175.706 Radiation protection program.

Unless otherwise excepted, a carrier

shall not transport a Class 7

(radioactive) material by aircraft unless

each of its occupationally exposed

hazmat employees is under a radiation

protection program that complies with

the requirements of subpart I of part 172

of this subchapter.

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.

8. Section 176.703 is reinstated to

read as follows:

§ 176.703 Radiation protection program.

Unless otherwise excepted, a carrier

shall not transport a Class 7

(radioactive) material by vessel unless

each of its occupationally exposed

hazmat employees is under a radiation

protection program that complies with

the requirements of subpart I of part 172

of this subchapter.

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.

10. Section 177.827 is reinstated to

read as follows:

§ 177.827 Radiation protection program.

Unless otherwise excepted, a carrier

shall not transport a Class 7

(radioactive) material by motor vehicle

unless each of its occupationally

exposed hazmat employees is under a

radiation protection program that

complies with the requirements of

subpart I of part 172 of this subchapter.

Issued in Washington, DC on December 12,

1997, under authority delegated in 49 CFR

Part 1.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 97–33031 Filed 12–19–97; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Part 172

[Docket No. RSPA–97–2850 (HM–169B)]

RIN 2137–AD14

Hazardous Materials: Radiation

Protection Program Requirement

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Final Rule; extension of

compliance date.

SUMMARY: RSPA is extending until

October 1, 1999, the date for mandatory

compliance with the Radiation

Protection Program (RPP) requirements

adopted in the final rule issued

September 28, 1995. During this period,

RSPA intends to consider in a separate

rulemaking whether the RPP

requirements should be withdrawn or

revised because of the difficulties and

complexities concerning

implementation of and compliance with

the RPP requirements. RSPA believes

that compliance should not be required

with requirements that may be

withdrawn or substantially revised, and

that overall safety in the transportation

of radioactive materials will be

advanced by reexamining the RPP

requirements before requiring

compliance with the current

requirements.

EFFECTIVE DATE: December 22, 1997.

FOR FURTHER INFORMATION CONTACT: Dr.

Fred 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 in this

docket as part of RSPA’s ongoing effort

to harmonize the Hazardous Materials

Regulations (HMR), 49 CFR Parts 171–

180, with international standards and to

improve safety for workers and the

public during the transportation of

radioactive materials. (60 FR 50292).

One of the substantive regulatory

changes in the September 28, 1995 final

rule is the requirement to develop and

maintain a written radiation protection

program (RPP).

The RPP requirements apply, with

certain exceptions, to each person who

offers for transportation, accepts for

transportation, or transports Class 7

(radioactive) materials. The RPP
Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations 66901

requirements are set forth in Subpart I

of Part 172 of the HMR. Implementation

provisions for rail, air, vessel, and

highway are contained in §§ 174.705,

175.706, 176.703, and 177.827,

respectively. Compliance with the RPP

requirements has been required since

October 1, 1997.

RSPA’s regulatory evaluation

prepared in support of the September

28, 1995 final rule considered that

carriers would be primarily affected by

the RPP requirements. (Some carriers of

radioactive materials are already

covered by monitoring requirements

contained in exemptions from quantity

limitations in the HMR.) Many shippers

of radioactive material, especially those

who are Department of Energy

contractors, or Nuclear Regulatory

Commission or Agreement State

licensees, are already subject to RPP

requirements, and the September 28,

1995 final rule provides that the RPP

requirements are satisfied by any

radiation protection program that has

been approved by an appropriate

Federal or State agency. 49 CFR

172.803(d)(2).

On May 8, 1996, RSPA published in

the Federal Register editorial

corrections to the September 28, 1995

final rule and a denial of the one

petition for reconsideration (from the

Radiopharmaceutical Shippers and

Carriers Conference [RSCC]) that had

been timely filed. [61 FR 20747]. The

editorial corrections included changes

to § 172.803.

In addition, on April 19, 1996, RSPA

published in the Federal Register a

request for comments on the

implementation of the RPP

requirements, in response to questions

or comments expressing difficulties in

implementing or complying with 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.

In response to Notice 96–7, RSPA

received numerous comments, a new

petition for rulemaking from RSCC (that

expanded upon its denied petition for

reconsideration), and three additional

documents purporting to be ‘‘petitions

for reconsideration’’ of the September

28, 1995 final rule (which were treated

as comments in response to Notice 96–

7, rather than petitions for

reconsideration, because they were not

submitted within 30 days after

publication of the September 28, 1995

final rule). After considering these

comments and petitions, RSPA decided

that the concerns expressed could not

all be resolved through guidance. The

concerns were significant enough that

RSPA determined it would be preferable

to withdraw the RPP requirements

completely, and reconsider this matter

from the beginning, rather than try to

amend Subpart I before the upcoming

October 1, 1997 compliance date.

For this reason, RSPA published a

direct final rule on September 2, 1997,

withdrawing the RPP requirements

effective September 30, 1997, unless (in

accordance with RSPA’s procedural

rules at 49 CFR 106.39) an adverse

comment or notice of intent to file an

adverse comment was received by

September 30, 1997. [62 FR 46214].

Because two persons submitted adverse

comments on the direct final rule, RSPA

is publishing a separate document,

revoking the direct final rule and

leaving the RPP requirements in effect.

As noted above and in the direct final

rule, many shippers of radioactive

materials are already subject to an RPP

requirement. RSPA considers that it

may also be appropriate to establish in

the HMR some form of RPP requirement

for carriers and any shippers not already

covered by other existing requirements,

to provide a formal and structured

framework for ensuring safety during

radioactive material transportation

activities. However, RSPA has also

concluded that the problems with the

current RPP requirements in Subpart I

of 49 CFR Part 172 are sufficiently great

that compliance with them should not

be required while RSPA reconsiders this

entire matter.

As a first step, RSPA intends to

publish a notice of proposed rulemaking

(NPRM) in the near future to address the

merits of all the comments and petitions

directed to the RPP requirements and to

request additional comments

concerning the need to withdraw or

revise the RPP requirements. To allow

this separate rulemaking to proceed in

an orderly fashion, without the threat of

enforcement or liability based on

noncompliance, and in response to a

request for a stay of the compliance date

from RSCC, RSPA is extending the date

for mandatory compliance with the RPP

requirements until October 1, 1999. As

also discussed below, RSPA has

concluded that a lack of approval by the

Office of Management and Budget

(OMB) for information collection

requirements precludes Federal

enforcement of the RPP requirements at

this time.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This rule provides relief to persons

who offer for transportation, accept for

transportation, or transport Class 7

(radioactive) materials by extending

until October 1, 1999, the requirement

to develop and maintain a radiation

protection program. The effect of this

rule is not considered a significant

regulatory action under Section 3(f) of

Executive Order 12866, and this rule

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)].

RSPA has not prepared a regulatory

evaluation that specifically addresses

the issue of extending the date for

developing and maintaining a radiation

protection program. The regulatory

evaluation prepared in support of the

September 28, 1995 final rule

considered that the health benefits to

the transportation community of

limiting radiation exposures, through a

radiation protection program, would be

significant. That regulatory evaluation

also estimated that the benefits of

making U.S. regulations for the

transportation of radioactive materials

consistent with international standards

would exceed the total estimated costs

of the September 28, 1995 final rule

involved in converting to the

international system of units (SI) and

meeting the RPP requirements.

However, the costs of implementing the

RPP requirements will be greatly

increased (and overall safety will likely

be reduced) if compliance with the

current regulations is required, then if

these requirements are withdrawn or

significantly revised. RSPA, in support

of the NPRM, will be preparing a

regulatory evaluation to address the

issue of removing the radiation

protection program requirement from

the HMR.

B. Executive Order 12612

This rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612 (‘‘Federalism’’). The Federal

hazardous material transportation law

contains express preemption provisions

at 49 U.S.C. 5125 that preempt State,

local, and Indian tribe requirements if

(1) Complying with a requirement of

the State, political subdivision, or

Indian tribe and Federal hazardous

material transportation law or

regulations is not possible;

(2) The requirement of the State,

political subdivision, or Indian tribe, as

applied or enforced, is an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

or regulations; or
66902 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations

(3) The requirement of the State,

political subdivision, or Indian tribe

concerns any of the following ‘‘covered

subjects’’ and is not substantially the

same as a provision of Federal

hazardous material transportation law

or regulations:

(A) The designation, description, and

classification of hazardous material;

(B) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous material;

(C) The preparation, execution, and

use of shipping documents related to

hazardous material and requirements

related to the number, contents, and

placement of those documents;

(D) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material; and

(E) The design, manufacture,

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.

Federal law (49 U.S.C. 5125(b)(2)

provides that if DOT issues a regulation

concerning any of the covered subjects,

DOT 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.

RSPA is not aware of any State, local,

or Indian tribe requirement that would

be preempted by an extension of the

date for compliance with the RPP

requirements.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act, 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 RPP requirements, RSPA

estimated a total of 497 carriers

(primarily motor carriers) would be

subject to these requirements. All but a

few of these carriers are thought to meet

criteria of the Small Business

Administration as ‘‘small business,’’

e.g., motor freight carriers with annual

revenue less than $18.5 million.

Extending the date for compliance

with the RPP requirements will allow

those carriers to continue to transport

radioactive materials, until October 1,

1999, without having to develop and

implement a written plan (or for those

carriers transporting radioactive

materials under an exemption, a plan

that goes beyond what is now required).

Based on the above, I certify that this

rule will not have a significant adverse

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, in the aggregate, to any of the

following: State, local, or Indian tribal

governments, or the private sector. This

rule is the least burdensome alternative

that achieves the objective of the rule.

E. Paperwork Reduction Act

This rule does not impose any

information collection burdens. RSPA

has concluded that the information

collection approval under OMB control

number 2137–0510 (which expires

January 31, 1998, unless renewed) does

not cover the information collection

requirements in the RPP requirements.

Because Subpart I of 49 CFR Part 172

does not display a valid OMB control

number, no person is required to

respond to its RPP requirements.

If RSPA decides to retain the RPP

requirements, in the form of Subpart I

of 49 CFR Part 172 or otherwise, RSPA

will submit this information collection

and recordkeeping requirement to OMB

for approval. As part of that process,

RSPA will provide interested members

of the public and affected agencies an

opportunity to comment on information

collection and recordkeeping requests,

as provided in OMB’s regulations.

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 contained in the heading

of this document can be used to crossreference this action with the Unified

Agenda. The September 28, 1995 final

rule and the May 8, 1996 final rule were

published under RIN 2037–AB60.

List of Subjects in 49 CFR Part 172

Hazardous materials transportation,

Hazardous waste, Labeling, Packaging

and containers, Reporting and

recordkeeping requirements.

In consideration of the foregoing, the

following provisions in 49 CFR part 172

is 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.

2. Section 172.807 is revised to read

as follows:

§ 172.807 Transitional provisions.

Compliance with the requirements of

this subpart is required after October 1,

1999.

Issued in Washington, DC on December 12,

1997, under authority delegated in 49 CFR

Part 1.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 97–33030 Filed 12–19–97; 8:45 am]

BILLING CODE 4910–60–P