66898 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations

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: Radiation

Protection Program Requirement

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Revocation of direct final rule;

Reinstatement of regulations.

SUMMARY: This action restores regulatory

text that was removed by a September

2, 1997 direct final rule because

interested parties submitted adverse

comments on it. In the direct final rule,

RSPA removed regulations that require

persons who offer, accept for

transportation, or transport radioactive

materials to develop and maintain

written radiation protection programs.

The effect of this action is that the

radiation protection program

requirements issued on September 28,

1995 remain in effect. RSPA is

publishing a notice of proposed

rulemaking elsewhere in this issue of

the Federal Register inviting further

comments on the need to withdraw or

revise the radiation protection program

requirements.

DATES: The direct final rule published at

62 FR 46214 is revoked and the text of

affected provisions in Subpart I of Part

172 and §§ 174.705, 175.706, 176.703

and 177.827 are reinstated as of

September 30, 1997.

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:

I. Background

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

the transportation of radioactive

materials.

One of the substantive regulatory

changes under Docket 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

they could not be corrected through

rulemaking action prior to the October

1, 1997 compliance date. 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. The preamble to

the direct final rule discussed the

concerns expressed in response to

Notice 96–7.

II. Revocation of Direct Final Rule

The procedures governing issuance of

direct final rules are in 49 CFR 106.39.

These procedures provide for public

notice and opportunity for comment

subsequent to publication of a direct

final rule. They also provide that if an

adverse comment or notice of intent to

file an adverse comment is received,

RSPA will issue a timely document in

the Federal Register to confirm that fact

and withdraw the direct final rule in

whole or in part. Under the procedures,

RSPA may then incorporate the adverse

comment into a subsequent direct final

rule or may publish a notice of proposed

rulemaking.

Two persons submitted adverse

comments on the direct final rule:

Caliber System, Inc. and Davis

Transport Inc. In summary, these parties

asserted that RSPA did not adequately

consider worker safety, but had

overemphasized the comments on

economic ability to comply and

overstated the inconsistency and

compliance assurance issues associated

with the rule.

In this document, RSPA is providing

notice that the provisions removed by

the September 2, 1997 direct final rule

are reinstated because two adverse

comments were submitted.

RSPA is publishing a notice of

proposed rulemaking (NPRM) elsewhere

in this issue of the Federal Register to

address the merits of the adverse

comments and to request additional

comments concerning the need to

revoke or revise the RPP requirements.

III. Paperwork Reduction Act of 1995

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

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

other than the RPP requirements

contained in Subpart I of Part 172.

In the NPRM, which RSPA is

publishing concerning the need to

withdraw or revise the RPP

requirements, RSPA is requesting

comments concerning the annual

information collection burden

attributable to those requirements, and

RSPA will seek OMB approval if the

RPP requirements are retained.

IV. 1997 Edition of 49 CFR Parts 100–

185

Title 49 of the Code of Federal

Regulations (CFR) was revised effective

October 1, 1997. Because of the lateness

of this document, Subpart I of Part 172

and §§ 174.705, 175.706, 176.703 and

177.827, do not appear in the 1997
Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations 66899

edition of the CFR. RSPA is publishing

the full text of the affected regulations

in this document, as follows.

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, the

following provisions in 49 CFR parts

172, 174, 175, 176, and 177 are

reinstated to read 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. In Part 172, Subpart I is reinstated

to read as follows:

Subpart I—Radiation Protection

Program

Sec.

172.801 Applicability of the radiation

protection program.

172.803 Radiation protection program.

172.805 Recordkeeping and notifications.

172.807 Transitional provisions.

Subpart I—Radiation Protection

Program

§ 172.801 Applicability of the radiation

protection program.

(a) Scope. This subpart prescribes

requirements for developing and

maintaining a radiation protection

program.

(b) Applicability. This subpart applies

to persons who offer for transportation,

accept for transportation, or transports

Class 7 (radioactive) materials.

§ 172.803 Radiation protection program.

Each person who offers for

transportation, accepts for

transportation, or transports Class 7

(radioactive) materials must develop,

implement and maintain a written

radiation protection program in

accordance with the following:

(a) Radiation exposures must be kept

as low as reasonably achievable

(ALARA), with economic and social

factors being taken into account.

(b) Radiation exposures must be

controlled such that:

(1) An occupationally exposed hazmat

employee’s annual effective dose

equivalent for occupational radiation

exposure will not exceed 12.5 mSv (1.25

rem) in any 3 month period or 50 mSv

(5 rem) in any 12 month period. For

workers under the age of eighteen, the

radiation dose will not exceed 1.250

mSv (0.125 rem) in any 3 month period

or 5.0 mSv (0.5 rem) in any 12 month

period;

(2) Radiation exposures to members of

the general public must be less than

0.02 mSv (2 mrem) per hour. This level

will be measured as if an individual

were present for an hour in any area

where the general public could be

exposed to radiation during the course

of transportation, except that, if there is

an occurrence where the dose to a

member of the general public equals or

exceeds 0.02 mSv (2 mrem) in one hour,

the program must provide limits that

will prevent an individual from

receiving cumulative doses totaling 1.0

mSv (100 mrem) in any week or 5.0 mSv

(500 mrem) in any twelve-month period;

(3) The radiation dose to an embryofetus in a pregnant female

occupationally exposed hazmat

employee, who has declared her

pregnancy to her employer, must not

exceed 5.0 mSv (500 mrem) during the

pregnancy. This limit is to be achieved

by limiting the radiation dose of the

declared pregnant worker to not more

than 5.0 mSv (500 mrem) during the

nine months and not greater than 0.5

mSv (50 mrem) in any one month; and

(4) The radiation doses received by

occupationally exposed hazmat

employees must be monitored by

radiation dosimetry devices.

(c) The Environmental Protection

Agency report entitled ‘‘Radiation

Protection Guidance to Federal

Agencies for Occupational Exposure

(January 1987)’’. This document is

available from the U.S. Environmental

Protection Agency, Washington, DC

20460.

(d) Exceptions. (1) The requirements

of this subpart do not apply to:

(i) Persons who offer for

transportation or transport less than 200

TI, not including TI calculated for

criticality control purposes, of packages

in a 12-month period; or

(ii) Those persons whose operations

will not result in a hazmat employee

receiving an exposure of 5 mSv (500

mrem) or more per year. This evaluation

must consider the hazmat employers

Class 7 (radioactive) materials

transportation activities for a period of

at least 12 months. An evaluation must

be conducted by a person experienced

with radiation protection programs and

transportation regulations and

programs. The evaluator’s competency

may be evidenced by being certified by

the American Board of Health Physics,

or by a letter of recommendation from

a State Radiation Official listed in the

most current issue of the ‘‘Directory of

Personnel Responsible For Radiological

Health Programs’’ published annually

by the Conference of Radiation Control

Program Directors, Frankfort, KY.

(2) The requirements of this subpart

may be satisfied by any radiation

protection program that has been

approved by an appropriate federal or

state agency.

(e) Guidance. (1) Each hazmat

employer should review and follow the

guidance provided in the following

documents when establishing and

maintaining their radiation protection

program:

(i) National Council on Radiation

Protection and Measurements (NCRP)

Report No. 59, ‘‘Operational Radiation

Safety Program (1978)’’. The guidance in

this report should be tailored to the

practical needs and operations of the

hazmat employer and their

occupationally exposed hazmat

employees.

(ii) NCRP Report No. 116, ‘‘Limitation

of Exposure to Ionizing Radiation

(1993)’’.

(2) The reports referenced in

paragraph (e)(1) of this section are

available from NCRP Publications, 7910

Woodmont Avenue, Bethesda, MD

20814.

§ 172.805 Recordkeeping and

notifications.

(a) A hazmat employer must

document their radiation protection

program and maintain written records of

the radiation protection program

activities, including dosimetry records,

described in this subpart. These records

must be made available to the Associate

Administrator for Hazardous Materials
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