Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Proposed Rules 66903

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–AD14

Hazardous Materials: Withdrawal of

Radiation Protection Program

Requirement

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: RSPA is proposing to amend

the Hazardous Materials Regulations

(HMR) to remove Subpart I of 49 CFR

Part 172, ‘‘Radiation Protection

Program’’ and related modal provisions

that require persons who offer, accept

for transportation, or transport

radioactive materials to develop and

maintain a written radiation protection

program. 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: Comments must be received on

or before February 13, 1998.

ADDRESSES: Address comments to the

Dockets Management System, U.S.

Department of Transportation, 400

Seventh Street, SW, Washington, D.C.

20590–0001. Comments should identify

the Docket No. [RSPA–97–2850 (HM–

169B)] and be submitted in two copies.

Persons wishing to receive confirmation

of receipt of their comments should

include a self-addressed stamped

postcard. The Dockets Management

System is located on the Plaza level of

the Nassif Building at the above address.

Public dockets may be reviewed

between the hours of 10:00 a.m. and

5:00 p.m., Monday through Friday,

except Federal holidays. Comments may

also be submitted by E-mail 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 No. 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 the transportation

of radioactive materials.

One of the substantive regulatory

changes under Docket No. HM–169A is

a requirement to develop and maintain

a written radiation protection program

(RPP). The RPP requirements are found

in Subpart I of Part 172 of the HMR.

Implementation provisions for rail, air,

vessel and highway are found in

§§ 174.705, 175.706, 176.703, and

177.827, respectively. The RPP

requirements apply, with certain

exceptions, to each person who offers

for transportation, accepts for

transportation, or transports Class 7

(radioactive) materials. Compliance

with the RPP requirements was required

after 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. After

considering these comments, RSPA

decided that the concerns expressed

could not all be resolved through

guidance; new rulemaking was required

in order to adequately address many of

the issues raised in the comments.

RSPA 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, because

it did not believe they could be

corrected without significant review and

a further rulemaking action.

Accordingly, RSPA published a direct

final rule on September 2, 1997 (62 FR

46214), withdrawing the RPP

requirements effective September 30,

1997, unless an adverse comment or

notice of intent to file an adverse

comment was received by September

30, 1997. Because RSPA received two

adverse comments it is revoking the

direct final rule in a separate document.

In a final rule published in Docket No.

HM–169B, RSPA is also extending until

October 1, 1999, the date for compliance

with the RPP requirements, because it

does not believe it would be appropriate

to require compliance with

requirements which it is proposing to

withdraw in this NPRM.

Several commenters to Notice 96–7

cited modal differences as a factor

which makes application of the RPP

requirements 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. 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

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
66904 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Proposed Rules

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 six petitions. The

first was a petition for reconsideration

received from the Radiopharmaceutical

Shippers and Carriers Conference

(RSCC) in response to publication of

Docket No. HM–169A as a final rule.

This petition was considered and

denied in a May 8, 1996 Federal

Register notice (61 FR 20748). Three

documents purporting to be ‘‘petitions

for reconsideration’’ of the September

28, 1995 final rule received during the

comment period established in Notice

96–7, were treated as comments rather

than petitions for reconsideration

because they were received after the

thirty day period in the September 28,

1995 final rule. Petitions for rulemaking

were received from the RSCC and the

Nuclear Energy Institute (NEI). A

discussion of these remaining five

petitions follows.

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

requirements be postponed, and that an

exception to the RPP requirements be

allowed for less-than-truckload (LTL)

non-exclusive use shipments of

radioactive material.

RSCC requested amendments to

various paragraphs of the RPP

requirements. These included restricting

the 0.02 mSv/hour (2 mrem/hour) limit

to members of the public and other nonoccupationally 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 NEI petitioned RSPA to rescind

the public radiation measurement

requirement in 49 CFR 172.803(b)(2).

The arguments presented in these

petitions have been considered along

with the other comments received.

However, the disposition of the

petitions for rulemaking will be decided

at a later date.

Two persons submitted adverse

comments on the direct final rule:

Caliber System, Inc. and Davis

Transport Inc. Caliber System, Inc.,

believes that the concerns raised

through public comments can be

addressed through guidance and other

means. It contends that all shippers and

consignees of radioactive materials

already have formal, approved, written

procedures for the handling of

radioactive material and exposure

monitoring for their personnel and as a

result, all shippers and consignees are

already in compliance with HM–169A.

In addition, it argues that carriers who

regularly engage in transporting

radioactive materials in the course of

their main business also have formal,

written and approved programs. Davis

Transport, Inc., argues that RSPA did

not adequately consider worker safety,

overemphasized the comments on

economic ability to comply, and

overstated the inconsistency and

compliance assurance issues associated

with the rule.

Before the September 28, 1995 final

rule under Docket No. HM–169A, the

HMR had not contained a performance

standard requiring hazmat employers to

minimize radiation exposure to the

lowest level possible through a RPP. In

the past, the HMR have sought to

minimize radiation hazards to workers

and the public by including

requirements on: (1) packagings

designed and tested to contain Type A

quantities of RAM under normal

conditions, and Type B quantities of

radioactive materials under both normal

and accident conditions during

transportation; (2) hazard

communication, 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.

RSPA believes that some form of an

RPP requirement may be appropriate in

the HMR, to provide a formal and

structured framework for ensuring

radiation safety during radioactive

material transportation activities. 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 RPP requirements.

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

revised RPP requirements in the HMR.

As a result, RSPA may propose in a

future rulemaking the establishment of

revised RPP requirements, to provide

such a formal and structured

framework.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This proposed 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. The effect of this rule, as

proposed, 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 proposed rule is not

considered significant under the

regulatory policies and procedures of

the Department of Transportation (44 FR

11034; February 26, 1979).

RSPA has prepared a regulatory

evaluation that specifically addresses

the issue of withdrawing requirements

for a radiation protection program. The

regulatory evaluation prepared in

support of the final rule issued under

Docket No. HM–169A (60 FR 50292;

September 28, 1995) estimated annual

costs attributed to radiation protection

program requirements in the amount of

$6.6 million. At that time, RSPA did not

have sufficient data to quantitatively

assess benefits to be derived from the

radiation protection program

requirements. However, the regulatory

evaluation considered the health

benefits to the transportation

community of limiting radiation

exposures to be significant.
Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Proposed Rules 66905

The benefits of removing the radiation

protection program are, at a minimum,

the $6.6 million RSPA estimated that

the RPP requirements would cost to

implement. However, RSPA believes

that the RPP requirements are so overly

restrictive, ambiguous, and inconsistent

with the requirements of other Federal

agencies that they would tend to cause

affected parties to adopt the most

conservative approach, leading to

unnecessarily high costs in order to

assure compliance. Therefore, RSPA

believes that the health benefits in

implementing these requirements would

be much lower than originally

anticipated. Also, because of the

problems with the RPP requirements

which have been identified, RSPA

believes that any improvements to

safety through implementation of the

current RPP requirements would be

much less than anticipated and their

value would be less than the costs of

implementation. Therefore, RSPA

believe that the costs of implementation

of RPP requirements will exceed their

benefits and that withdrawing the

requirements is cost-effective.

B. Executive Order 12612

This proposed 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 premempt 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

(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 requirements that would

be preempted by a withdrawal of the

RPP requirements, as proposed herein.

RSPA invites comments on this subject

and, if any person believes that this

proposed rule concerns a covered

subject, what the effective date of

Federal preemption should be.

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 them by the HMR, by a RSPA

exemption, or by other Federal

departments and agencies.

Based upon the above, I certify that

this proposed rule will not have a

significant adverse economic impact on

a substantial number of small entities.

D. Unfunded Mandates Reform Act of

1995

This proposed 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

Under regulations implementing the

Paperwork Reduction Act of 1995,

‘‘* * * an agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid OMB

control number.’’ 5 CFR

1320.8(b)(iii)(6). RSPA has reviewed the

HM–169A final rule and the information

collection approval for radioactive

materials transportation requirements.

(OMB control number 2137–0510 was

issued in January 1995 in anticipation of

the final rule to be issued under Docket

No. HM–169A. That approval expires on

January 31, 1998, unless renewed.)

Based on that review, RSPA concludes

that the OMB approval is limited to

information collection requirements for

radioactive materials transportation

other than the RPP requirements

contained in Subpart I of Part 172.

Section 1320.8(d), Title 5, Code of

Federal Regulations requires that RSPA

provide interested members of the

public and affected agencies an

opportunity to comment on information

collection and recordkeeping requests.

RSPA estimates that the total

information collection and

recordkeeping burden for a Radiation

Protection Program is:

Number of Respondents: 497.

Total Annual Responses: 497.

Total Annual Burden Hours: 94,286.

Total Annual Burden Cost: $6.6

million.

These figures are based on RSPA’s

estimates from the regulatory evaluation

under HM–169A. As previously

indicated, the estimate of total annual

burden cost may be higher than this

estimate. However, RSPA estimates that

approximately 497 (50%) of these

carriers will be required to implement

and maintain a full radiation protection

program. The cost of a radiation

protection program was considered in

two parts. First, RSPA considered the

cost of monitoring those workers who

are not currently required to be

monitored by the existing regulations of

the Occupational Safety and Health

Administration or the Nuclear

Regulatory Commission. The second

cost considered was that of the hourly

wages of technical and managerial

workers to implement the radiation

protection program. Other costs of a

radiation protection program are already

accounted for in the requirements of the

HMR for a HAZMAT employer to give

their HAZMAT employees safety

training relative to the risks associated

with the material a person transports.
66906 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Proposed Rules

Requests for a copy of this

information collection should be

directed to Deborah Boothe, Office of

Hazardous Materials Standards (DHM–

10), Research and Special Programs

Administration, Room 8102, 400

Seventh Street, SW, Washington, DC

20590–0001. Telephone (202) 366–8553.

RSPA specifically requests comments

on the information collection and

recordkeeping burdens associated with

developing, implementing and

maintaining a radiation protection

program. Written comments should be

addressed to the Dockets Unit as

identified in the ADDRESSES section of

this rulemaking. Comments should be

received prior to the close of comment

period identified in the DATES section of

this rulemaking. If a decision is made to

retain the RPP requirements, RSPA will

submit this information collection and

recordkeeping requirement to the Office

of Management and Budget for

approval.

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

is proposed to be 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

would continue to read as follows:

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

1.53.

Subpart I—[Removed]

2. In Part 172, Subpart I would be

removed.

PART 174—CARRIAGE BY RAIL

3. The authority citation for part 174

would continue to read as follows:

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

1.53.

§ 174.705 [Removed]

4. Section 174.705 would be removed.

PART 175—CARRIAGE BY AIRCRAFT

5. The authority citation for part 175

would continue to read as follows:

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

1.53.

§ 175.706 [Removed]

6. Section 175.706 would be removed.

PART 176—CARRIAGE BY VESSEL

7. The authority citation for part 176

would continue to read as follows:

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

1.53.

§ 176.703 [Removed]

8. Section 176.703 would be removed.

PART 177—CARRIAGE BY PUBLIC

HIGHWAY

9. The authority citation for part 177

would continue to read as follows:

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

1.53.

§ 177.827 [Removed]

10. Section 177.827 would be

removed.

Issued in Washington, DC on December 12,

1997 under authority delegated in 49 CFR

Part 1.

Alan I. Roberts,

Associate Administrator for Hazardous

Materials Safety.

[FR Doc. 97–33029 Filed 12–19–97; 8:45 am]

BILLING CODE 4910–60–P