[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66900-66902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33030]
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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.
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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whether the RPP requirements should be withdrawn or revised because of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should not be required with requirements that may be withdrawn or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
[[Page 66901]]
requirements are set forth in Subpart I of Part 172 of the HMR.
Implementation provisions for rail, air, vessel, and highway are
contained in Secs. 174.705, 175.706, 176.703, and 177.827,
respectively. Compliance with the RPP requirements has been required
since October 1, 1997.
RSPA's regulatory evaluation prepared in support of the September
28, 1995 final rule considered that carriers would be primarily
affected by the RPP requirements. (Some carriers of radioactive
materials are already covered by monitoring requirements contained in
exemptions from quantity limitations in the HMR.) Many shippers of
radioactive material, especially those who are Department of Energy
contractors, or Nuclear Regulatory Commission or Agreement State
licensees, are already subject to RPP requirements, and the September
28, 1995 final rule provides that the RPP requirements are satisfied by
any radiation protection program that has been approved by an
appropriate Federal or State agency. 49 CFR 172.803(d)(2).
On May 8, 1996, RSPA published in the Federal Register editorial
corrections to the September 28, 1995 final rule and a denial of the
one petition for reconsideration (from the Radiopharmaceutical Shippers
and Carriers Conference [RSCC]) that had been timely filed. [61 FR
20747]. The editorial corrections included changes to Sec. 172.803.
In addition, on April 19, 1996, RSPA published in the Federal
Register a request for comments on the implementation of the RPP
requirements, in response to questions or comments expressing
difficulties in implementing or complying with the RPP requirements.
Notice 96-7 (61 FR 17349). In Notice 96-7, RSPA stated its intention to
develop guidance for the radioactive material industry to facilitate
compliance with the RPP requirements.
In response to Notice 96-7, RSPA received numerous comments, a new
petition for rulemaking from RSCC (that expanded upon its denied
petition for reconsideration), and three additional documents
purporting to be ``petitions for reconsideration'' of the September 28,
1995 final rule (which were treated as comments in response to Notice
96-7, rather than petitions for reconsideration, because they were not
submitted within 30 days after publication of the September 28, 1995
final rule). After considering these comments and petitions, RSPA
decided that the concerns expressed could not all be resolved through
guidance. The concerns were significant enough that RSPA determined it
would be preferable to withdraw the RPP requirements completely, and
reconsider this matter from the beginning, rather than try to amend
Subpart I before the upcoming October 1, 1997 compliance date.
For this reason, RSPA published a direct final rule on September 2,
1997, withdrawing the RPP requirements effective September 30, 1997,
unless (in accordance with RSPA's procedural rules at 49 CFR 106.39) an
adverse comment or notice of intent to file an adverse comment was
received by September 30, 1997. [62 FR 46214]. Because two persons
submitted adverse comments on the direct final rule, RSPA is publishing
a separate document, revoking the direct final rule and leaving the RPP
requirements in effect.
As noted above and in the direct final rule, many shippers of
radioactive materials are already subject to an RPP requirement. RSPA
considers that it may also be appropriate to establish in the HMR some
form of RPP requirement for carriers and any shippers not already
covered by other existing requirements, to provide a formal and
structured framework for ensuring safety during radioactive material
transportation activities. However, RSPA has also concluded that the
problems with the current RPP requirements in Subpart I of 49 CFR Part
172 are sufficiently great that compliance with them should not be
required while RSPA reconsiders this entire matter.
As a first step, RSPA intends to publish a notice of proposed
rulemaking (NPRM) in the near future to address the merits of all the
comments and petitions directed to the RPP requirements and to request
additional comments concerning the need to withdraw or revise the RPP
requirements. To allow this separate rulemaking to proceed in an
orderly fashion, without the threat of enforcement or liability based
on noncompliance, and in response to a request for a stay of the
compliance date from RSCC, RSPA is extending the date for mandatory
compliance with the RPP requirements until October 1, 1999. As also
discussed below, RSPA has concluded that a lack of approval by the
Office of Management and Budget (OMB) for information collection
requirements precludes Federal enforcement of the RPP requirements at
this time.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule provides relief to persons who offer for transportation,
accept for transportation, or transport Class 7 (radioactive) materials
by extending until October 1, 1999, the requirement to develop and
maintain a radiation protection program. The effect of this rule is not
considered a significant regulatory action under Section 3(f) of
Executive Order 12866, and this rule was not reviewed by the Office of
Management and Budget. This rule is not considered significant under
the regulatory policies and procedures of the Department of
Transportation. [44 FR 11034 (February 26, 1979)].
RSPA has not prepared a regulatory evaluation that specifically
addresses the issue of extending the date for developing and
maintaining a radiation protection program. The regulatory evaluation
prepared in support of the September 28, 1995 final rule considered
that the health benefits to the transportation community of limiting
radiation exposures, through a radiation protection program, would be
significant. That regulatory evaluation also estimated that the
benefits of making U.S. regulations for the transportation of
radioactive materials consistent with international standards would
exceed the total estimated costs of the September 28, 1995 final rule
involved in converting to the international system of units (SI) and
meeting the RPP requirements. However, the costs of implementing the
RPP requirements will be greatly increased (and overall safety will
likely be reduced) if compliance with the current regulations is
required, then if these requirements are withdrawn or significantly
revised. RSPA, in support of the NPRM, will be preparing a regulatory
evaluation to address the issue of removing the radiation protection
program requirement from the HMR.
B. Executive Order 12612
This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous material transportation law contains express
preemption provisions at 49 U.S.C. 5125 that preempt State, local, and
Indian tribe requirements if
(1) Complying with a requirement of the State, political
subdivision, or Indian tribe and Federal hazardous material
transportation law or regulations is not possible;
(2) The requirement of the State, political subdivision, or Indian
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out Federal hazardous material transportation law or
regulations; or
[[Page 66902]]
(3) The requirement of the State, political subdivision, or Indian
tribe concerns any of the following ``covered subjects'' and is not
substantially the same as a provision of Federal hazardous material
transportation law or regulations:
(A) The designation, description, and classification of hazardous
material;
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(E) The design, manufacture, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
Federal law (49 U.S.C. 5125(b)(2) provides that if DOT issues a
regulation concerning any of the covered subjects, DOT must determine
and publish in the Federal Register the effective date of Federal
preemption. The effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance.
RSPA is not aware of any State, local, or Indian tribe requirement
that would be preempted by an extension of the date for compliance with
the RPP requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, directs agencies
to consider the potential impact of regulations on small business and
other small entities. In the regulatory evaluation originally prepared
to consider RPP requirements, RSPA estimated a total of 497 carriers
(primarily motor carriers) would be subject to these requirements. All
but a few of these carriers are thought to meet criteria of the Small
Business Administration as ``small business,'' e.g., motor freight
carriers with annual revenue less than $18.5 million.
Extending the date for compliance with the RPP requirements will
allow those carriers to continue to transport radioactive materials,
until October 1, 1999, without having to develop and implement a
written plan (or for those carriers transporting radioactive materials
under an exemption, a plan that goes beyond what is now required).
Based on the above, I certify that this rule will not have a
significant adverse economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act of 1995
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more, in the aggregate, to any of the following: State,
local, or Indian tribal governments, or the private sector. This rule
is the least burdensome alternative that achieves the objective of the
rule.
E. Paperwork Reduction Act
This rule does not impose any information collection burdens. RSPA
has concluded that the information collection approval under OMB
control number 2137-0510 (which expires January 31, 1998, unless
renewed) does not cover the information collection requirements in the
RPP requirements. Because Subpart I of 49 CFR Part 172 does not display
a valid OMB control number, no person is required to respond to its RPP
requirements.
If RSPA decides to retain the RPP requirements, in the form of
Subpart I of 49 CFR Part 172 or otherwise, RSPA will submit this
information collection and recordkeeping requirement to OMB for
approval. As part of that process, RSPA will provide interested members
of the public and affected agencies an opportunity to comment on
information collection and recordkeeping requests, as provided in OMB's
regulations.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda. The September 28, 1995 final rule and the May 8, 1996
final rule were published under RIN 2037-AB60.
List of Subjects in 49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Packaging and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, the following provisions in 49
CFR part 172 is amended as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.
2. Section 172.807 is revised to read as follows:
Sec. 172.807 Transitional provisions.
Compliance with the requirements of this subpart is required after
October 1, 1999.
Issued in Washington, DC on December 12, 1997, under authority
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 97-33030 Filed 12-19-97; 8:45 am]
BILLING CODE 4910-60-P