Hazardous Materials: Radiation Protection Program Requirement

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]

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