[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]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
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.
[[Page 48569]]
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
