[Federal Register Volume 63, Number 175 (Thursday, September 10, 1998)]
[Rules and Regulations]
[Pages 48566-48569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24343]



[[Page 48565]]

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Part IV





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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49 CFR Parts 172, 173, et al.



Hazardous Materials: Withdrawal of Radiation Protection Program 
Requirement; Final Rule

  Federal Register / Vol. 63, No. 175 / Thursday, September 10, 1998 /
Rules and Regulations  

[[Page 48566]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172, 173, 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: Final rule.

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SUMMARY: RSPA is removing regulations on ``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.

DATE: Effective date: September 10, 1998.

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 
HM-169A were part of RSPA's ongoing effort to harmonize the Hazardous 
Materials Regulations (HMR; 49 CFR parts 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 HM-169A was 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. 173.441, 174.705, 175.706, 176.703 and 177.827 
should be withdrawn, because the RPP could not 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 the direct final rule was revoked in a separate rulemaking 
action. As a result of the direct final rule revocation, on December 
22, 1997 (62 FR 66898), RSPA published a notice of proposed rulemaking 
(NPRM) (HM-169B; 62 FR 66903) proposing to amend the Hazardous 
Materials Regulation by removing 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 radioactive 
protection program.
    In a final rule published under HM-169B (62 FR 66900), RSPA also 
extended until October 1, 1999, the date for compliance with the RPP 
requirements, because RSPA believed that requiring compliance with 
requirements, which in the NPRM are being proposed to be withdrawn, 
would be inappropriate.

II. Comments Received

    A total of 14 comments were received in response to the December 
22, 1997 NPRM. Commenters represented electric power utilities, 
radiopharmaceutical manufacturers, and other offerors and carriers of 
radioactive materials. Thirteen of the fourteen commenters agreed with 
the proposal in the NPRM, citing modal differences as a factor which 
makes application of the RPP requirements difficult. Examples given by 
commenters include difficulties in tracking doses to railroad workers 
and ship crews because rail cars are generally transferred between 
carriers during transport, and because most ships are registered under 
foreign flags and also operate in foreign ports. Several commenters 
also stated that personnel involved in bulk or containerized transport 
of radioactive material by highway, rail, or vessel usually receive 
much lower doses of radioactivity than workers that handle non-bulk 
shipments.
    Additional comments pointed to ambiguities in the RPP requirements. 
These commenters stated 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 cover workers whose doses would be expected to be 
below the limit of detection of the dosimeters. Most commenters noted 
the difficulty 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.
    Several commenters cited inconsistencies with other regulations. 
For example, in contrast to the HMR, the Nuclear Regulatory Commission 
(NRC) regulations and Environmental Protection Agency 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 different 
from the NRC's; and the HMR require monitoring of occupationally

[[Page 48567]]

exposed hazmat workers, while the NRC requires monitoring adult workers 
with personal dosimetry only if their annual dose is likely to exceed 5 
millisieverts.
    One commenter additionally noted that entities with an RPP are 
required to comply with the stated dose limits for members of the 
general public, while entities which qualify for an exception are not. 
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 causing some carriers to no longer carry radioactive 
materials.
    One commenter stated that RSPA should not remove the RPP 
requirements from the HMR. The commenter stated 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 already meet the RPP requirements. The commenter did not 
provide information on how those current formal, written procedures 
align with the provisions of the HMR's RPP requirements for shippers 
and how they could be implemented by carriers. For example, no 
information was provided on how a shipper or carrier could determine or 
measure exposure to the general public, which has been stated by other 
commenters to be a significant problem with the current RPP 
requirements. The commenter also stated that any such difficulties and 
complexities with the HMR's RPP can and should be dealt with in a 
combination of: (a) Amending the RPP; (b) issuing more detailed 
guidelines or other means; and (c) flexible cooperative enforcement. 
The commenter did not support this position by providing specific 
recommendations relative to revisions to the current RPP, the type of 
guidelines that could be developed, and did not explain what was meant 
by ``flexible and cooperative enforcement.''
    RSPA agrees with commenters that the current RPP program is not 
clear in its application and is not fully compatible with other 
regulations, such as those issued by the EPA and NRC. RSPA further 
believes that certain aspects of the current RPP requirements are not 
able to be practically implemented, such as those addressing public 
exposure.
    RSPA does believe that hazmat workers and the public should be 
protected from exposure to radiation. RSPA reminds hazmat employers 
that the training requirements in subpart H of part 172, require that 
each hazmat employer train each of its hazmat employees prior to 
performing any hazmat function under the HMR. Such training must 
provide a general awareness of the requirements of the HMR, including 
meanings of package markings and labels. A hazmat employee must receive 
function specific training applicable to their performance of specific 
regulatory requirements under the HMR. For example a hazmat employee 
that handles and transports packages of radioactive materials should 
receive specific training that includes: properly determining the 
Transport Index (TI) of a radioactive material package; determining the 
maximum TI allowed on a transport vehicle; and procedures that address 
the storage, segregation, and separation requirements for radioactive 
materials packages. Additionally, a hazmat employee must receive safety 
training that provides information regarding the hazards presented by 
radioactive materials, use of appropriate safety and monitoring 
equipment, and how to protect themselves from unnecessary exposure to 
radioactive materials (e.g., ``Do not sit on a package containing 
radioactive materials.''). The intent of the radioactive materials 
requirements of the HMR is to minimize radiation hazards to workers and 
the public. These provisions include: limits on the amount of 
radioactive materials that may be transported in a package; shielding 
requirements for packagings to limit surface radiation; specific 
testing of Type A packagings to ensure that they can survive conditions 
normally incident to transportation; testing of Type B packages for 
radioactive materials for both normal and accident conditions during 
transportation; hazard communication, including shipping paper 
information, labels, and markings to provide identification of the 
hazards of the material being transported; package surface 
contamination limits; and requirements addressing the segregation and 
separation of packages from passengers and hazmat employees. RSPA also 
notes that many radioactive material shippers, specifically Department 
of Energy contractors or NRC or Agreement State licensees, are already 
subject to RPP requirements, though not identical with the HMR's RPP. 
In addition, several carriers who transport radioactive materials under 
exemptions issued by RSPA are required to have an RPP in place which 
includes use of a qualified health physicist to monitor employee 
exposure. RSPA believes that the requirements in the HMR and the other 
agencies RPP's ensure an acceptable level of safety for both hazmat 
employees and the public.
    RSPA will continue to review and evaluate criteria for developing 
RPP's, such as the Recommendations Approved by the President entitled 
``Radiation Protection Guidance to Federal Agencies for Occupational 
Exposure,'' and criteria adopted by the IAEA Safety Standards Series 
No. ST-1. RSPA may propose a revised RPP as a means of incrementally 
improving safety for hazmat workers and the public in the future.
    Based on the foregoing discussion and as proposed, RSPA is removing 
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 radioactive protection program.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final 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. This rule 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 
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 in support of the final 
rule that specifically addresses the issue of withdrawing requirements 
for a radiation protection program.
    RSPA concludes that the benefits of removing the radiation 
protection program requirement are, at a minimum, the $6.6 million per 
year that the RPP requirements would cost to implement, as estimated by 
RSPA in the regulatory evaluation prepared in support of the final rule 
issued under Docket No. HM-169A. 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.
    RSPA now considers that the RPP requirements are so overly 
restrictive, ambiguous, and inconsistent with the requirements of other 
Federal agencies

[[Page 48568]]

that they would tend to cause affected parties to adopt the most 
conservative approach, leading to greater costs than previously 
estimated. Therefore, RSPA concludes 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 rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612 (``Federalism''). The 
Federal hazardous material transportation law, (49 U.S.C. 5101-5127) 
contains express preemption provisions at 49 U.S.C. 5125.
    RSPA is not aware of any State, local, or Indian tribe requirements 
that would be preempted by a withdrawal of the RPP requirements. This 
final rule does not have sufficient federalism impacts to warrant the 
preparation of a federalism assessment.

C. Executive Order 13084

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule would 
not significantly or uniquely affect the communities of the Indian 
tribal governments, the funding and consultation requirements of this 
Executive Order do not apply.

D. 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 final rule will not have 
a significant economic impact on a substantial number of small 
entities.

E. Unfunded Mandates Reform Act of 1995

    This final 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.

F. Paperwork Reduction Act

    There are no information collection requirements in this final 
rule.

G. 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 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

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, 173, 174, 175, 
176, and 177 are 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.


Secs. 172.801--172.807  (Subpart I) [Removed]

    2. In part 172, subpart I consisting of Secs. 172.801 through 
172.807, is removed.

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    3. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 49 CFR 1.45 and 1.53.

    4. In Sec. 173.441, paragraph (b)(4) is revised to read as follows:


Sec. 173.441  Radiation level limitations.

* * * * *
    (b) * * *
    (4) 0.02 mSv/h (2mrem/h) in any normally occupied space, except 
that this provision does not apply to carriers if they operate under 
the provisions of a State or federally regulated radiation protection 
program and if personnel under their control who are in such an 
occupied space wear radiation dosimetry devices.
* * * * *

PART 174--CARRIAGE BY RAIL

    5. The authority citation for part 174 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.

Sec. 174.705  [Removed]

    6. Section 174.705 is removed.

PART 175--CARRIAGE BY AIRCRAFT

    7. The authority citation for part 175 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.

Sec. 175.706  [Removed]

    8. Section 175.706 is removed.

PART 176--CARRIAGE BY VESSEL

    9. The authority citation for part 176 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.

Sec. 176.703  [Removed]

    10. Section 176.703 is removed.

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PART 177--CARRIAGE BY PUBLIC HIGHWAY

    11. The authority citation for part 177 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.

Sec. 177.827  [Removed]

    12. Section 177.827 is removed.

    Issued in Washington, DC on September 4, 1998, under authority 
delegated in 49 CFR part 1.
Stephen D. Van Beek,
Deputy Administrator.
[FR Doc. 98-24343 Filed 9-9-98; 8:45 am]
BILLING CODE 4910-60-P