[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66898-66900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33031]



[[Page 66897]]

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Part II





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



_______________________________________________________________________



49 CFR Part 172 et al.



Hazardous Materials: Radiation Protection Program Requirement; Final 
Rules



49 CFR Part 172 et al.



Hazardous Materials: Withdrawal of Radiation Protection Program; 
Proposed Rule

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

[[Page 66898]]



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.

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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 
Secs. 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 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 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 Secs. 174.705, 175.706, 176.703 and 177.827, 
do not appear in the 1997

[[Page 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


Sec. 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.


Sec. 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 embryo-fetus 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.


Sec. 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

[[Page 66900]]

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).


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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