[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Proposed Rules]
[Pages 66903-66906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33029]



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

[[Page 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 <a href="/cdn-cgi/l/email-protection#b9d9d9cbccd5dccaf9cbcac9d897ddd6cd97ded6cf">``<span class="__cf_email__" data-cfemail="6715120b021427151417064903081349000811">[email protected]</span></a>.'' 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 Secs. 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 Secs. 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

[[Page 66904]]

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 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 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.

[[Page 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.

[[Page 66906]]

    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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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


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