[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).
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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 ``[email protected].'' 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