[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Rules and Regulations]
[Pages 40589-40618]
[FR Doc No: 2014-15514]

Vol. 79

Friday,

No. 133

July 11, 2014

Part V

Department of Transportation

-----------------------------------------------------------------------

Pipeline and Hazardous Materials Safety Administration

-----------------------------------------------------------------------

49 CFR Parts 171, 172, 173, et al.

Hazardous Materials: Compatibility With the Regulations of the
International Atomic Energy Agency (RRR); Final Rule

Federal Register / Vol. 79 , No. 133 / Friday, July 11, 2014 / Rules
and Regulations

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174, 175, 176, 177 and 178

[Docket No. PHMSA-2009-0063 (HM-250)]
RIN 2137-AE38

Hazardous Materials: Compatibility With the Regulations of the
International Atomic Energy Agency (RRR)

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: PHMSA, in coordination with the Nuclear Regulatory Commission
(NRC), is amending requirements in the Hazardous Materials Regulations
(HMR) governing the transportation of Class 7 (radioactive) materials
based on recent changes contained in the International Atomic Energy
Agency (IAEA) publication ``Regulations for the Safe Transport of
Radioactive Material, 2009 Edition, IAEA Safety Standards Series No.
TS-R-1.'' The purposes of this rulemaking are to harmonize requirements
of the HMR with international standards for the transportation of Class
7 (radioactive) materials and update, clarify, correct, or provide
relief from certain regulatory requirements applicable to the
transportation of Class 7 (radioactive) materials.

DATES: Effective date: October 1, 2014.
    Voluntary compliance date: PHMSA is authorizing voluntary
compliance beginning July 11, 2014.
    Delayed compliance date: Unless otherwise specified, compliance
with the amendments adopted in this final rule is required beginning
July 13, 2015.
    Incorporation by reference date: The incorporation by reference of
certain publications listed in this rule is approved by the Director of
the Federal Register as of October 1, 2014.

FOR FURTHER INFORMATION CONTACT: Steven Webb, Standards and Rulemaking
Division, telephone<PHONE_NUMBER>, or Michael Conroy, Engineering and
Research Division, telephone<PHONE_NUMBER>, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation,
1200 New Jersey Avenue SE., 2nd Floor, Washington, DC, 20590-0001.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
III. Section-by-Section Review
IV. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for the Rulemaking
    B. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and
    C. Procedures
    D. Executive Order 13132
    E. Executive Order 13175
    F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Policies and Procedures
    G. Paperwork Reduction Act
    H. Regulatory Identifier Number (RIN)
    I. Unfunded Mandates Reform Act
    J. Environmental Assessment
    K. Privacy Act
    L. Executive Order 13609 and International Trade Analysis

I. Executive Summary

    In this final rule, PHMSA is amending the Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) to incorporate changes adopted
in the 2009 Edition of the IAEA Safety Standards publication titled
``Regulations for the Safe Transport of Radioactive Material, 2009
Edition, Safety Requirements, No. TS-R-1'' (hereinafter referred to as
``TS-R-1.'') \1\ Additionally, PHMSA is making other changes to amend
or clarify the requirements for transport of radioactive materials.
These changes will help ensure that the classification, packaging
requirements, and hazard communication requirements for shipments of
radioactive materials provide the requisite level of public safety and
are consistent with those employed throughout the world.
---------------------------------------------------------------------------

    \1\ A copy of the 2009 Edition of TS-R-1may be obtained from the
U.S. distributors, Bernan, 15200 NBN Way, P.O. Box 191, Blue Ridge
Summit, PA 17214, telephone<PHONE_NUMBER>, email:
<EMAIL_ADDRESS>or Renouf Publishing Company Ltd., 812
Proctor Ave., Ogdensburg, NY 13669, telephone: 1-888-551-7470,
email<EMAIL_ADDRESS>An electronic copy of TS-R-1 has been
placed in the docket of this rulemaking and may also be found at the
following IAEA Web site: http://www-pub.iaea.org/MTCD/publications/PDF/Pub1384_web.pdf.
---------------------------------------------------------------------------

    The harmonization of domestic and international standards for
hazardous materials transportation enhances safety by creating a
uniform framework for compliance. Harmonization also facilitates
international trade by minimizing the costs and other burdens of
complying with multiple or inconsistent safety requirements and
avoiding hindrances to international shipments. Harmonization has
become increasingly important as the volume of hazardous materials
transported in international commerce grows.
    Accordingly, federal law and policy strongly favor the
harmonization of domestic and international standards for hazardous
materials transportation. The Federal hazardous materials
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) directs
PHMSA to participate in relevant international standard-setting bodies
and encourages DOT to align the HMR with international transport
standards to the extent practicable, while recognizing that deviations
may be appropriate, at times in the public interest (see 49 U.S.C.
5120). Under this authority, PHMSA actively participates in relevant
international standard-setting bodies and promotes the adoption of
standards consistent with the high safety standards set by the HMR.
PHMSA's continued leadership in maintaining consistency with
international regulations and enhances the hazardous materials safety
program.

II. Background

    Under their respective statutory authorities, DOT and the NRC
jointly regulate the transportation of radioactive materials to, from,
and within the United States. In accordance with their July 2, 1979,
Memorandum of Understanding (a copy of which has been placed in the
docket of this rulemaking) (44 FR 38690):
    1. DOT regulates both shippers and carriers with respect to:
    A. Packaging requirements;
    B. Communication requirements for:
    [ssquf] Shipping paper contents,
    [ssquf] Package labeling and marking requirements, and
    [ssquf] Vehicle placarding requirements;
    C. Training and emergency response requirements; and
    D. Highway routing requirements.\2\
---------------------------------------------------------------------------

    \2\ Within DOT, PHMSA is currently delegated the authority to
carry out the functions assigned to DOT, except for highway routing
requirements which are set forth in regulations of the Federal Motor
Carrier Safety Administration. 49 CFR part 397, subpart D.
---------------------------------------------------------------------------

    2. NRC requires its licensees to satisfy requirements to protect
public health and safety and to assure the common defense and security,
and:
    A. Certifies Type B and fissile material package designs and
approves package quality assurance programs for its licensees;
    B. Provides technical support to PHMSA and works with PHMSA to
ensure consistency with respect to the transportation of Class 7
(radioactive) materials; and
    C. Conducts inspections of licensees and an enforcement program
within its jurisdiction to assure compliance with its requirements.
    Since 1968, PHMSA and the NRC (and their predecessor agencies)
have, to the extent practicable, harmonized their

respective regulations with international regulations of the IAEA in:
     Safety Series No. 6, Regulations for the Safe Transport of
Radioactive Material, as published in 1961 and revised in 1964 and
1967. Amendments to the HMR were adopted in a final rule published on
October 4, 1968 in Docket HM-2 (33 FR 14918).
     The major updates of Safety Series No. 6 in 1973 and 1985.
See the final rules published on March 10, 1983 in Docket HM-169 (48 FR
10218) and September 28, 1995, in Docket HM-169A (60 FR 50291).
     The 1996 major revision to the Safety Series No. 6,
renamed ``Regulations for the Safe Transport of Radioactive Material,
1996 Edition, No. ST-1'' issued by the IAEA in 1996 and republished in
2000 to include minor editorial changes at which time the previous
title was changed to ``Regulations for the Safe Transport of
Radioactive Material, 1996 Edition, No. TS-R-1 (ST-1, Revised).'' See
the final rule published on January 26, 2004, in Docket HM-230 (69 FR
3632).
    Since then, the IAEA has published amendments and revised editions
of TS-R-1 in 2003, 2005, and 2009.\3\ PHMSA published a notice of
proposed rulemaking (NPRM) on August 12, 2011 (76 FR 50332) that
proposed to amend the HMR to maintain alignment with the 2009 Edition
of TS-R-1, which incorporates all of the changes made to TS-R-1 in the
2003 amendments, the 2005 Edition, as well as other revisions. In this
final rule, PHMSA is adopting the proposal with some changes. In
addition to changes to harmonize with TS-R-1, PHMSA is enacting
regulatory amendments identified through internal regulatory review
processes to update, clarify, correct, or provide relief from certain
regulatory requirements applicable to the transportation of Class 7
(radioactive) materials. Notable amendments to the HMR in this final
rule include the following:
---------------------------------------------------------------------------

    \3\ In 2012, the IAEA published the Specific Safety
Requirements-6 (SSR-6) which may be addressed in a future
rulemaking.
---------------------------------------------------------------------------

     Revise paragraph Sec.  173.25(a)(4) to adopt the new TS-R-
1 requirement for the marking of all overpacks of Class 7 (radioactive)
packages with the word ``OVERPACK.''
     Revise Sec. Sec.  172.203(d)(3) and 172.403(g) to clarify
that the total activity indicated on the shipping paper and label must
be the maximum activity during transportation.
     Revise Table 1 in Sec.  172.504 to additionally require
conveyances carrying unpackaged LSA-I material or SCO-I, all
conveyances required by Sec. Sec.  173.427, 173.441, and 173.457 to
operate under exclusive use conditions, and all closed vehicles used in
accordance with Sec.  173.443(d) to be placarded. This change is a
result of internal PHMSA review.
     Update definitions in Sec.  173.403 for contamination,
criticality safety index (CSI) for conveyances, fissile material, LSA,
and radiation level. These changes are proposed primarily to align with
definitions in the TS-R-1, and the change to the definition of
``criticality safety index'' is made to align with the NRC definition.
     Extend the retention period for Type A, Type IP-2, and
Type IP-3 package documentation from one year to two years, to coincide
with the minimum retention period currently required for shipping
papers. PHMSA is also including more detailed language describing the
kinds of information required to be included as part of the Type A
package documentation. This change is being made based on internal
PHMSA review of existing regulations, and is intended to ensure proper
testing and preparation of these packages prior to being offered for
transportation.
     Require that any conveyance, overpack, freight container,
tank, or intermediate bulk container involved in an exclusive use
shipment under Sec.  173.427 or Sec.  173.443(b) be surveyed with
appropriate radiation detection instrumentation after each such
shipment, and not be permitted to be used for another such exclusive
use shipment until the removable surface contamination meets package
contamination limits and the radiation dose rate at each accessible
surface is no greater than 0.005 mSv/h (0.5 mrem/h). These changes are
a result of internal PHMSA review.
     Update matter incorporated by reference to align with
updated references in the TS-R-1 in Sec.  171.7 and applicable
sections.
     Clarify labeling requirements for radioactive shipments
with subsidiary hazards in Sec.  172.402. This change is a result of
internal PHMSA review.
     Require that, when it is evident that a package of
radioactive material or conveyance carrying unpackaged radioactive
material is leaking or suspected to have leaked, access to the package
or conveyance must be restricted and, as soon as possible, the extent
of contamination and the resultant radiation level of the package or
conveyance must be assessed in Sec.  173.443. This will more closely
align with the requirements in TS-R-1.
    As in PHMSA's past rulemakings to incorporate updates of the IAEA
regulations into the HMR, PHMSA has worked in close cooperation with
the NRC in the development of this rulemaking. The NRC published a
parallel NPRM on May 16, 2013 (78 FR 28988). PHMSA anticipates that NRC
will publish a parallel final rule at a future date. Since the proposed
rules will be published separately, there is a risk of differences in
overlapping proposals that may affect the compatibility of the NRC and
PHMSA regulations. PHMSA and the NRC have coordinated the development
and publication schedules for the final rules. Several actions have
been taken to mitigate possible problems that may arise from such
asynchronous publication, including but not limited to: A delayed
mandatory compliance date, enforcement guidance/discretion, and
deferred consideration of a proposed change to Sec.  173.453 regarding
a fissile material exception for uranium enriched in uranium-235. PHMSA
believes these actions, most specifically the delayed mandatory
compliance date, will allow the NRC to complete its rulemaking cycle
and to publish a final rule with an effective date in line with our
effective date. This final rule addresses only the areas for which DOT
has jurisdiction as defined in the MOU with NRC.
    In response to the 2011 NPRM we received comments from the
following persons, companies, associations and other entities:

 Alaska Inter-Tribal Council
 B&W Y-12 L.L.C. (B&W)
 Energy Solutions
 J. L. Shepherd & Associates (J. L. Shepherd)
 Lawrence Laude
 Nuclear Information and Resource Service (NIRS) & Citizens for
Alternatives to Chemical Contamination (CACC) (NIRS & CACC)
 QSA Global Inc. (QSA Global)
 Regulatory Resources
 The Pennsylvania State University (Penn State)
 U.S. Army Corps of Engineers (USACE)
 United States Enrichment Corporation (USEC)
 Veolia ES Technical Solutions, L.L.C. (Veolia)

    These comments are discussed in the section-by-section portion of
this rule.\4\ In considering each proposal in the NPRM and each
comment, we reviewed and evaluated each amendment on its own merit, on
the basis of its overall impact on transportation safety, and on the
basis of the economic implications

associated with its adoption into the HMR. Our goal is to harmonize the
HMR with TS-R-1 without diminishing the level of safety currently
provided by the HMR or imposing undue burdens on the regulated
community.
---------------------------------------------------------------------------

    \4\ Comments which were outside the scope of this rulemaking are
not addressed in this final rule.
---------------------------------------------------------------------------

III. Section-by-Section Review

Part 171

Section 171.7

    In Sec.  171.7, which contains a listing of all standards
incorporated by reference into the HMR, PHMSA is replacing the 1996
edition of ``TS-R-1 (ST-1, Revised)'' with the 2009 edition of TS-R-1,
with which we are harmonizing requirements in the HMR. We are also
replacing the International Organization for Standardization standard
``ISO 2919-1980(E) Sealed radioactive sources--classification'' with
``ISO 2919-1999(E) Radiation Protection--Sealed radioactive sources--
General requirements and classification,'' applicable to Sec.
173.469(d).
    We are removing from Sec.  171.7 all entries that are only listed
in Sec. Sec.  178.356 and 178.358 covering the construction and use of
20PF and 21PF specification overpacks, respectively. These overpacks
are no longer authorized in hazardous materials regulations. We are
also deleting references to 2R vessels, and any materials incorporated
by reference solely into Sec.  178.360. The specifications for these
packages are being removed from Sec. Sec.  178.356, 178.358, and
178.360, respectively, as discussed below. J. L. Shepherd raised a
concern about a possible effect on currently issued special permits
that allow use of 2R vessels, but these changes would not affect
existing special permits.
    As a consequence of the removal of Sec. Sec.  178.356, 178.358, and
178.360 the following references are being removed from the list of
matter incorporated by reference in Sec.  171.7:
     ANSI B16.5-77, Steel Pipe Flanges, Flanged Fittings, 1977
from Sec.  171.7(d)(2),
     AWWA Standard C207-55, Steel Pipe Flanges, 1955 from Sec.
171.7(i)(1),
     the reference heading for American Water Works Association
from Sec.  171.7(i); and
     all listings and the reference heading for Department of
Energy under Sec.  171.8(p)
    [cir] USDOE, CAPE-1662, Revision 1, and Supplement 1, Civilian
Application Program Engineering Drawings, April 6, 1988, from Sec.
171.7(p)(1)
    [cir] USDOE, Material and Equipment Specification No. SP-9, Rev. 1,
and Supplement--Fire Resistant Phenolic Foam, March 28, 1968, from
Sec.  171.7(p)(2)
    [cir] USDOE, KSS-471,--Proposal for Modifications to U.S.
Department of Transportation Specification 21PF-1, Fire and Shock
Resistant Phenolic Foam--Insulated Metal Overpack, November 30, 1986
from Sec.  171.7(p)(3).

Part 172

Section 172.203

    This section details additional description requirements that are
required for certain shipments of hazardous materials. As proposed in
our NPRM, we are revising Sec.  172.203(d)(2) to specify that when a
material is in ``special form'' the words ``special form'' must be
included in the description, unless those words already appear in the
proper shipping name. Lawrence Laude noted that this change would
require that the offeror have the proper documentation to declare the
material as special form. We agree, but note that an offeror of special
form Class 7 material is already required to maintain documentation
showing that the material meets the special form test requirements in
Sec.  173.469 or has an IAEA Certificate of Competent Authority showing
this (see Sec.  173.476). Consequently, if such documentation does not
exist, the offeror may not classify the material as special form. An
offeror who does not have the proper special form documentation, or
does not wish to classify the material as special form, has the option
to not declare it as special form.
    In our NPRM we proposed that the activity included on shipping
papers and labels required by Sec.  172.203(d)(3) should include all
parent radionuclides and daughter products, even those daughters that
have half-lives shorter than 10 days and not greater than that of the
parent. Several commenters raised concerns on our proposal. Lawrence
Laude and J.L Shepherd commented that as proposed the NPRM changes
would require listing multiple daughter products on the label with
limited space, and create a potential conflict with the 95 percent
requirement of Sec.  173.433(g). (Sec.  173.433(g). requires that those
radionuclides that constitute 95% of the total radioactive hazard,
based on nuclide-specific activity/Type A ratios, to be listed on the
shipping paper) While we did not propose any changes to the listing of
the radionuclides, but only to the total activity, we agree this could
introduce confusion between the list and the total. Lawrence Laude also
noted that the proposed change would introduce an inconsistency with
Sec.  173.433(c)(2) for the calculation of A values for chains with
short-lived daughters as that paragraph omits short-lived daughters.
Lawrence Laude and J. L. Shepherd additionally noted that the
A1 and A2 values for those radionuclides with
short-lived daughters were derived taking the presence of the short-
lived daughters into account; adding their activity would not be a fair
comparison to the A1 and A2 values and would not
be in harmony with TS[hyphen]R[hyphen]1. To avoid confusion with the
nuclides to be listed, and to maintain consistency with the calculated
A1 and A2 values, we are not adopting the
proposed requirement to include daughter products when those daughters
have half-lives less than 10 days and not greater than that of the
parent.
    As proposed in the NPRM, we are also more closely aligning with the
wording in TS-R-1 by specifying that the activity should be the maximum
activity of the radioactive contents during transport. Lawrence Laude
agreed with adding ``maximum'' to require that the offeror take into
account changes in the activity due to decay and/or buildup of
daughters, and suggested it would be useful to include a short
explanation of ``maximum'' in the regulations. We believe the phrase
``maximum activity of the radioactive contents contained in each
package during transport'' is self-explanatory.
    We are also amending Sec.  172.203(d)(3) to permit the mass of each
fissile nuclide for mixtures to be included when appropriate, that is,
when there is a mixture present.
    Additionally, in Sec.  172.203(d)(4), we are revising the example
to clarify that the word ``RADIOACTIVE'' is not required to be included
in the description of the category of label.

Section 172.310

    This section contains additional marking requirements for packages
containing Class 7 (radioactive) material. In the NPRM we proposed to
align the marking requirements in this section with the requirements in
Sec.  178.350 which references the marking requirements of Sec.  178.
3. Lawrence Laude noted that our proposed change would have the
unintended effect of requiring all Type A packages, including those
with an AF certificate of compliance, to be marked with ``DOT 7A''
which is also required by Sec.  178.350. The commenter also noted that
an alternate approach is to simply change the current marking size
requirements in Sec.  172.310 to 12 mm (0.47 inches). We agree and are
revising this paragraph accordingly.

Section 172.402

    This section prescribes additional labeling requirements for
shipments of hazardous materials. We are revising paragraph (d)(1) to
clarify that for a package containing a Class 7 (radioactive) material
that meets the definition of one or more additional hazard classes a
subsidiary label is not required on the package if the non-radioactive
material conforms to the small quantity exception in Sec.  173.4,
excepted quantities exception in Sec.  173.4a, or de minimis exceptions
in Sec.  173.4b. Lawrence Laude suggested modification to clarify that
applicable packaging and marking requirements for the subsidiary hazard
need not be met. However, our intent is to except these packages only
from labeling. Regulatory Resources stated that paragraph (d)(1) is
redundant with the referenced paragraphs and should be deleted in its
entirety. However we are keeping the paragraph to provide clarity that
the subsidiary label is not needed in these situations.

Section 172.403

    This section describes labeling requirements for shipments of Class
7 (radioactive) materials. We are correcting the reference in paragraph
(d) from Sec.  173.428(d) to Sec.  173.428(e). We are revising
paragraph (g)(2) to be consistent with the change included herein for
Sec.  172.203(d)(3) to more closely align with the wording in TS-R-1 by
specifying that the activity should be the maximum activity of the
radioactive contents during transport. In response to several comments,
and as discussed under Sec.  172.203(d)(3), we are not including the
word ``total'' before ``maximum activity''. Further, we are amending
the activity printing requirement on the RADIOACTIVE label to permit
the mass of each fissile nuclide, as appropriate for mixtures, to be
included.

Section 172.504

    This section prescribes general placarding requirements. In the
NPRM we proposed to require placards to be affixed to conveyances
carrying fissile material packages, unpackaged low specific activity
(LSA) material or surface contaminated object (SCO) in category I
(i.e., LSA-I and SCO-I respectively), all conveyances required by
Sec. Sec.  173.427 and 173.441 to operate under exclusive use
conditions, and all closed vehicles used in accordance with Sec.
173.443(d). This would more closely align domestic placarding
requirements with those of TS-R-1.
    Regulatory Resources and Lawrence Laude stated their belief that
packages bearing a fissile label do not warrant a radioactive placard,
as adequate controls are provided by packaging and criticality safety
index (CSI) labels. Lawrence Laude recommended that, if placarding
fissile shipments is considered necessary, placarding should be limited
to shipments required by Sec.  173.457 to be operated under exclusive
use. While adoption of placarding for all shipments of packages with
fissile labels would be consistent with the requirements of TS-R-1,
PHMSA recognizes this could be a burden for shipments of small
quantities of fissile material. We are therefore adopting the suggested
approach to require placarding only for shipments required by Sec.
173.457 to be operated under exclusive use (that is, packages with CSI
greater than 50).
    Regulatory Resources stated that under the proposed requirement, a
shipper cannot ``apply full markings and labels per 49 CFR 172 Subparts
D and E on a package containing low specific activity (LSA) material or
surface contaminated objects (SCO) and ship them as exclusive use
unless the shipper placards the vehicle--regardless of the label
applied.'' While this is true, when it is not required to be shipped as
exclusive use, a shipper may apply full markings and labels per 49 CFR
part 172 subparts D and E on a package containing LSA material or SCO
and choose to not declare the shipment as exclusive use.
    Regulatory Resources and Lawrence Laude noted that the placarding
of all conveyances required by Sec.  173.441 to operate under exclusive
use would extend applicability to shipments where the aggregate
transport index (TI) for packages with Radioactive Yellow II labels
exceeds 50. Regulatory Resources stated that this would provide little
benefit and would result in large training costs, though they did not
provide a specific cost estimate. PHMSA believes there is a safety
benefit to providing a clear indication to personnel that a package or
packages have TI's larger than allowed on non-exclusive use shipments.
PHMSA further believes that this benefit will exceed the costs. For
further information on costs and benefits, please see the
``placarding'' and ``benefits of the rule'' sections of the RIA placed
in the docket for this rulemaking.
    Lawrence Laude noted that the use of the word ``conveyances'' in
our proposed footnote, at least as defined in Sec.  173.403, would
require vessels and aircraft to be placarded, which is not consistent
with Sec.  172.504(a). While the definition in Sec.  173.403 does not
apply to Sec.  172.504(a), we recognize that such an interpretation
could be made. USEC added that based upon previous letters of
interpretation changes to the existing text in sections to Sec.
172.504(e) and Sec.  173.427 to require only the conveyance to be
placarded and not the conveyance and the package(s) would be
beneficial. After analyzing the above comments on the NPRM, we are
revising Sec.  172.504(e) Table 1 Footnote 1 to read as set out in the
regulatory text of this rule.

Section 172.505

    This section describes when placarding for subsidiary risks is
required. In paragraph (b), we proposed to remove the reference to
``low specific activity uranium hexafluoride'' to be consistent with
changes to Sec.  173.420(e). Lawrence Laude noted that the phrase
``non-fissile, fissile-excepted, or fissile uranium hexafluoride''
covers all the possible shipments requiring subsidiary placarding, so
it should suffice to just refer to ``uranium hexafluoride.'' We agree,
but choose to list the three different proper shipping names used for
uranium hexafluoride for clarity.

Part 173

Section 173.4

    This section provides requirements for shipments of small
quantities by highway and rail. We proposed to revise paragraph
(a)(1)(iv) to remove the reference to Sec.  173.425, as the references
in Sec. Sec.  173.421 and 173.424 already cite the activity limits in
Sec.  173.425. Lawrence Laude noted that the reference to Sec.  173.426
should also be deleted since, as noted in the preamble, it also does
not specify a dose rate limit. The commenter also noted that the
current and proposed Sec.  173.4(b) already invoke Sec. Sec.  173.421
and 173.424 which give activity limits for the package, making the
inner receptacle activity limit references in Sec.  173.4(a)(1)(iv)
redundant. We agree and are removing paragraph (a)(1)(iv) from Sec.
173.4.
    In the NPRM we proposed to revise paragraph (b) to specify that
small quantities of Class 7 (radioactive) materials must satisfy the
requirements of Sec. Sec.  173.421, 173.424, or 173.426 in their
entirety. Lawrence Laude asked for justification, noting that as
proposed, the change brings in all the requirements of Sec.  173.422,
including the requirements for notification, training, and for
hazardous waste and hazardous substances, shipping papers; not just the
marking change highlighted in our NPRM. We agree and we are revising
paragraph (b) to cite only the previously

referenced paragraphs while adding the similar paragraphs of Sec.
173.426. The commenter also noted that, as currently written, Sec.
173.4 does not require shipping papers for small quantity packages
containing hazardous waste or hazardous substances and suggested
considering whether this needs to be addressed. General relief
applicable to all hazard classes and divisions was not proposed in the
NPRM, and is outside the scope of this rulemaking.
    Lawrence Laude suggested that PHMSA should eliminate the marking
requirements of Sec. Sec.  173.4 and 173.4a for UN2910 and UN2911
excepted packages, viewing them as redundant. We did not propose these
changes in the NPRM and such a change would be result in a substantive
change not proposed and made available for public comment. Thus, such a
change is considered outside the scope of this rulemaking. Commenters
are welcome to petition for change by following the process detailed in
Sec. Sec.  106.95 and 106.100.

Section 173.25

    This section provides requirements for packages utilizing
overpacks. In the NPRM, we proposed to require the ``OVERPACK'' marking
on all overpacks containing packages of Class 7 (radioactive)
materials, unless package type markings representative of each Class 7
package contained therein are visible from the outside of the overpack.
    J.L. Shepherd claimed that the historical meaning and understanding
by users of Type B packages is that ``overpacks'' are heat and impact
resistant structures, and thus the term should not be used for
cardboard boxes, shrink wrap or wooden boxes. However, we did not
propose any change to the definition of the term ``overpack'' already
found in Sec.  171.8 which does not preclude the use of cardboard
boxes, shrink wrap, or wooden boxes as overpacks. The commenter also
claimed that the IAEA has never addressed the use of ``overpacks''
related to type B shipments; however, the IAEA does define ``overpack''
in TS-R-1 which applies to all radioactive material packages and has
marking requirements for overpacks similar to those proposed in our
NPRM.
    Lawrence Laude suggested deletion of the text ``(Type IP-1, -2, or
-3)'' since industrial package by definition includes Type IP-1, -2, or
-3. We agree and have made this change. He also suggested revisions to
Sec.  173.25(a)(6). However, we did not propose any changes to that
paragraph in the NPRM and so those changes are outside the scope of
this rulemaking. Clarifications were also requested on several other
portions of this section that were not within the scope of this
rulemaking. Lawrence Laude asked for clarification whether an overpack
containing only excepted packages would need to be marked only with the
UN number(s), consistent with Table 10 of TS-R-1. This is correct, but
we see no needed changes to the proposed language. Regulatory Resources
also requested we clarify the overpack marking requirements in Sec.
173.448(g)(2), which references subpart D of part 172 and Sec.
173.25(a), by removing the reference to subpart D. Although we agree
that, because the part 172 marking requirements do not cover overpacks,
this reference is unnecessary, we did not propose any changes to Sec.
173.448 in the NPRM so this is outside the scope of this rulemaking. We
may address this in a future rulemaking.

Section 173.401

    This section outlines the scope of subpart I; subsection (b)
specifies materials that are outside of that scope. We are modifying
Sec.  173.401(b)(4) to add the phrase ``which are either in their
natural state, or which have only been processed for purposes other
than for extraction of the radionuclides.'' We also added ``or
determined in accordance with Sec.  173.433'' to account for
calculations for mixtures of radionuclides. We are also adding a new
paragraph (b)(5) to clarify, based on internal PHMSA review of existing
requirements, that non-radioactive solid objects with radioactive
substances present on any surfaces in quantities not exceeding the
limits cited in the definition of contamination in Sec.  173.403 are
not subject to the Class 7 (radioactive) material requirements of the
HMR.
    B & W requested that we consider PHMSA interpretation 06-0274
(issued May 6, 2008) and add that contaminated items below the
consignment exemption limits are also not regulated. We believe this
concept is already addressed in the regulations as referenced in the
letter of interpretation and have not made this addition. The commenter
also requested that we recognize ``free release'' limits that have been
established by other federal agencies. We are not aware of any other
specific codified federal limits and DOT does not have authority to set
such limits.

Section 173.403

    Section 173.403 contains definitions specific to Class 7
(radioactive) materials. We are revising the definitions of
``contamination,'' ``criticality safety index (CSI),'' ``fissile
material,'' ``low specific activity (LSA) material,'' ``radiation
level,'' and ``uranium.'' NIRS & CACC expressed ``serious concerns''
with the changes in the definitions but provided no specific comments.
    We are changing the definition of ``contamination'' by deleting the
word ``radioactive'' from the present definitions of ``Fixed
radioactive contamination'' and ``Non-Fixed radioactive
contamination.'' In addition, we are replacing the phrase
``contamination exists in two phases'' with ``there are two categories
of contamination.'' Lawrence Laude noted that we were not consistent in
our subsequent use of the term used for ``non-fixed contamination'' in
the NPRM, using variations such as ``non-fixed (removable) radioactive
surface contamination,'' ``removable (non-fixed) radioactive
contamination,'' and ``removable radioactive surface contamination.''
We agree this could cause confusion, so we are standardizing by using
``non-fixed contamination'' as given in the definition and have made
corresponding edits to Sec. Sec.  173.421(c), 173.443, 174.715,
176.715, and 177.843.
    We are revising the definition of ``criticality safety index
(CSI)'' to include the sum of criticality safety indices of all fissile
material packages contained within a conveyance. Lawrence Laude
suggested that the language ``(rounded up to the next tenth)'' should
be deleted from the definition of CSI as this is effectively addressed
in the referenced sections of 10 CFR part 71 and would seem to
eliminate a valid CSI of zero. The referenced NRC regulations contain
the same words as our definition, except the last paragraph which says,
``Any CSI greater than zero must be rounded up to the first decimal
place.'' PHMSA is not adopting the suggestion because we are consistent
with the NRC definition in 10 CFR 71.4, and we reference 10 CFR 71.59
in our definition which includes the statement, ``Any CSI greater than
zero must be rounded up to the first decimal place.'' We are revising
the definition of ``fissile material'' to align with NRC's definition
and to clarify that certain exceptions are provided in Sec.  173.453.
Lawrence Laude suggested that we adopt the IAEA definition, which makes
a distinction between fissile nuclides and fissile material, rather
than the NRC definition. We choose the NRC definition for domestic
consistency and as we believe it more precisely defines what is
intended by the regulation.
    As proposed we are revising the definition of ``low specific
activity

(LSA) material'' to more closely align with the definitions in TS-R-1
and in the NRC regulations.
    We proposed slight modifications in the definition of ``package''
to replace ``Industrial package Type 1 (IP-1) . . . (IP-2) . . . (IP-
3)'' with ``Industrial package Type 1 (Type IP-1) . . . (Type IP-2) . .
. (Type IP-3).'' However, as Lawrence Laude and USEC noted, we
introduced an error, repeating the word ``together'' under ``Industrial
package.'' We are now correcting that error and changing only the
references to package types.
    We are revising the definition of ``radiation level'' to clarify
the types of radiation that contribute to the radiation level, stating
that it consists of the sum of the dose-equivalent rates from all types
of ionizing radiation present including alpha, beta, gamma, and neutron
radiation. Energy Solutions claimed this is inapplicable and overly
burdensome when applied to container/conveyance release surveys. We do
not use the term ``release survey'' in the regulations as DOT does not
regulate the transfer of radioactive materials from control while
``radiation level'' limits are given in Sec. Sec.  173.441 and 173.443.
The commenter claims that alpha emitting radionuclides are not a
contributor to external radiation dose equivalent and are already
addressed in the removable surface contamination limits prescribed in
the rule; he also claims that low-energy beta emissions should not be
of concern and that it is not possible to accurately quantify beta dose
at very low levels. We agree that for a large majority of radioactive
packages, gamma or neutron radiation is the only significant
contributor to dose at one meter from the surface of the package and
although low energy beta emissions are typically more difficult to
measure or might contribute little or even nothing to the radiation
level, it is still possible and appropriate to measure their
contribution, or the absence of any contribution, in order to ensure
radiological safety.
    However there are a few packages where neutrons must be considered
(as noted in the current definition), and alpha and beta radiation
should also be considered in meeting the regulatory requirements. The
commenter proposed a new definition of ``Release Survey Effective
Radiation Dose Equivalent;'' we do not believe such a term is needed.
    We are revising the definition of ``uranium'' to include natural
uranium that has not been chemically separated from accompanying
constituents. Lawrence Laude said we should consider deleting ``(which
may be chemically separated)'' as unnecessary. While this is true, we
prefer to leave the words in for clarification.
    B & W suggested we also change the Sec.  173.403 definition of
``low toxicity alpha emitters'' to be consistent with the NRC and IAEA
definitions. However, we did not propose such a change in the NPRM. We
may consider changing the definition in a future rulemaking.
    USEC suggested that we add a definition of ``overpack'' to Sec.
173.403 specifically for radioactive material, separate from the
definition of ``overpack'' in Sec.  171.8. While the definition in
Sec.  171.8 is different than the definition in the TS-R-1 we do not
see a need for change at this time. We did not propose such a change in
the NPRM and believe that multiple definitions within the regulations
are unnecessary.

Section 173.410

    This section describes general design requirements for packages
used to ship Class 7 (radioactive) materials. In paragraph (i)(3), we
are revising the requirement for transporting liquid Class 7
(radioactive) material by air to specify that the package must be
capable of withstanding, without leakage (i.e., without release of
radioactive material), a pressure differential of not less than the
``maximum normal operating pressure'' (defined in Sec.  173.403) plus
95 kPa (13.8. psi). The HMR currently require a package to be capable
of withstanding a pressure differential of not less than 95 kPa. We are
adding the maximum normal operating pressure (defined in Sec.  173.403)
to account for the contribution of internally generated gas pressure to
the overall pressure differential.
    USEC suggested we change ``13.8 psi'' to ``13.8 psia.'' We are not
making this change, because ``psi'' is consistent with similar usage in
Sec.  173.27 and other sections of the HMR. Furthermore, the
differential pressure may be either absolute or gage pressure, as long
as both points are measured in the same units.

Section 173.411

    Section 173.411 provides transportation requirements for industrial
packagings. We are making several editorial revisions to improve
consistency with the nomenclature used for package types, and to
clarify the meaning of two authorized alternatives to Type IP-2 or IP-3
packages. We are replacing the word ``packaging'' with ``package'' in
each place it appears in this section. We are also replacing the terms
IP-1, IP-2, and IP-3 with Type IP-1, Type IP-2, and Type IP-3 to make
the designations for industrial packages more consistent with the
language used in the HMR for other Class 7 (radioactive) material
package types, such as Type A and Type B(U).
    We proposed modifying the requirement that tests for Type IP-2 and
Type IP-3 packages must not result in a significant increase in the
external surface radiation levels, with wording to indicate that the
package tests must not result in more than a 20% increase in the
maximum radiation level at any external surface of the package,
consistent with the Sec.  173.411 requirements for tank containers,
tanks, freight containers, and metal intermediate bulk containers that
are used as Type IP-2 or Type IP-3 packages. Penn State and Lawrence
Laude stated that the 20% criterion could be difficult to meet for low-
dose-rate packages. Regulatory Resources questioned the need for change
as we had not previously adopted the IAEA approach. Regulatory
Resources claimed there is already a quantified external package
surface dose rate increase limit in Sec.  173.441. However, that
section provides the upper limits on allowable dose rates, whereas this
criterion relates to the ability of the package design to maintain its
shielding effectiveness in normal conditions of transport. Lawrence
Laude stated that the proposed change would necessitate a review of all
designs in domestic use and would entail large costs for little
benefit. We agree that compliance with the 20% criterion could be
burdensome for very low-dose-rate packages and that consideration needs
to be given to use of previously allowable packages. Due to the issues
raised we are not adopting the change to 20% at this time. However, we
are not deleting the existing requirements in Sec.  173.441 for tanks,
freight containers, and intermediate bulk containers to meet the 20%
limit and are revising the language in Sec.  173.411 to be consistent
with TS-R-1.
    For consistency with the language in TS-R-1, in Sec.  173.411(b)(4)
we are replacing the phrases in paragraphs (b)(4), (b)(5), (b)(6) and
(b)(7), ``designed to satisfy'' or ``designed to conform to'' certain
requirements with the words, ``meet'' or ``designed to meet.'' In the
NPRM we proposed to use the term ``satisfy,'' but after further
consideration we believe it is clearer and simpler to instead replace
the phrases in question with ``meets,'' which is also consistent with
the language in TS-R-1.
    USEC suggested that in both existing Sec.  173.411(b)(4)(iii) and
in proposed Sec.  173.411(b)(5)(ii) we indicate ``38.4 psia,'' rather
than ``37.1 psig'' as the U.S. standard or customary unit

equivalent to 265 kPa. We agree and are making these changes.
    In Sec.  173.411(b)(5) we are removing references to DOT
Specification IM-101 and IM-102 steel portable tanks as Type IP-2 or
IP-3 packages because they are no longer listed in Part 178 of the HMR
and authorization for their use terminated on January 1, 2010 (although
their use would still be permitted if it can be shown that they meet
the requirements of Sec.  173.411(b)(4)). We are revising Sec.
173.411(b)(5) to contain the TS-R-1 requirements for cargo tanks and
tank cars.
    In paragraph (c), we are extending the retention period for Type
IP-2 and Type IP-3 package documentation from one year to two years
after the offeror's latest shipment, to correspond to the minimum
period an offeror is required to retain copies of shipping papers.
Regulatory Resources noted that the shipper of a package may not be the
manufacturer of the package; in these instances, the commenter
suggested that the documentation requirements should be placed on the
manufacturer rather than the user/shipper. However, since Part 173 only
applies to shippers, any requirement on manufacturers would need to be
placed in Part 178. Furthermore, we are not introducing a new
documentation requirement here, but only extending the required
retention period. The commenter also suggested a delayed compliance
timeframe to allow use of existing documentation requirements. We feel
that this provision can be met by the delayed compliance date of this
rule.

Section 173.412

    This section prescribes additional design requirements for Type A
packages. We are changing Sec.  173.412(f) to require the containment
system of a Type A package to be capable of retaining its contents
under the reduction of ambient pressure to 60 kPa (8.7 psi) instead of
the current 25 kPa (3.6 psi). Lawrence Laude expressed support for the
change on the ground that it was more representative of the reduced
pressures that could be experienced in ground transportation. J.L.
Shepherd asked whether we would require the retesting of current Type A
packages or provide a transition period. PHMSA believes that since
packages currently have to withstand a reduction in ambient pressure
from 100 kPa to 25 kPa, they should already be able to meet the new
requirement (the old requirement was to withstand a reduction of 75 kPA
(100 to 25 kpa), but now a reduction of only 40 kPa (100 kPa to 60 kPa)
will be required). USEC suggested that we should use 8.7 psia instead
of 60 kPa for clarity; we agree and have made this change.
    We proposed revising Sec.  173.412(j)(2) to specify that the
maximum radiation level at the external surface of the package not
increase by more than 20%. We received multiple comments on this
proposal similar to those on the change proposed in Sec.  173.411; as
discussed above, due to the issues raised we are not adopting the
change to 20% at this time.
    Paragraph (k)(3) sets forth requirements for the retention of
liquid contents in a Type A package. To provide further clarity, we are
adopting the revised wording in TS-R-1, which states that a packaging
designed for liquids must ``Have a containment system composed of
primary inner and secondary outer containment components designed to
enclose the liquid contents completely and ensure their retention
within the secondary outer component in the event that the primary
inner component leaks.''

Section 173.415

    This section discusses authorized Type A packages. We proposed to
extend the retention period for Type A package documentation from one
year to two years after the offeror's latest shipment, to correspond to
the minimum period for which an offeror is currently required to retain
copies of shipping papers. We also proposed to include more detailed
language describing the kinds of information expected to be included as
part of the Type A package documentation.
    While we received support from some commenters for the two-year
retention period, Lawrence Laude requested that there be a delayed
compliance period to accommodate shipments made more than one year
prior to the effective date of the final rule and for which the
documentation is no longer available. Several commenters (Veolia, J. L
Shepherd, Lawrence Laude, and Penn State) expressed concern that
current Type A package documentation would not meet the new
requirements, and that any new requirements would invalidate the use of
such packages until the documentation could be developed. Several
commenters (Veolia, J. L Shepherd, Lawrence Laude, and Penn State)
suggested a phase-in period be authorized for Type A packages currently
in use until additional detailed documentation is available.
    We agree that there may be a need for a transition period until the
two-year retention period takes effect. We also agree that time may be
needed to review and upgrade documentation. Therefore, we are not
requiring compliance with the revised documentation requirements until
January 1, 2017.
    Veolia stated that the offeror of a Type A package should be able
to use additional shielding or packing materials inside that package
beyond that described in the package's documentation. We disagree. The
current regulations require the packaging to be tested ``as normally
prepared for transport'' which means shielding must be considered;
additional shielding could change how the package performs and thus
would need to be evaluated.
    Penn State stated that providing engineering drawings of a package
for a one-time-only shipment would increase the cost from negligible to
significant with no added benefit and suggested that minimal
documentation was required in such instances. However, the current
regulations require even single use packages to be appropriately
evaluated and documented. We agree that for some packages, engineering
drawings may not be necessary, so we are not requiring engineering
drawings in this final rule.
    QSA Global and Penn State noted that in some instances, such as
when a manufacturer ships a Type A package to a customer and the
customer subsequently uses the package, following the manufacturer's
instructions for the evaluated contents, the customer should be able to
rely upon a certification from the manufacturer. Examples given include
radiopharmaceuticals, sealed sources, instruments and gauges. In such
instances, the shipper complies with the package assembly and closure
instructions provided by the package manufacturer without modifying the
design of the package system or contents except as authorized by the
manufacture (e.g., various sources authorized for a given packaging
system). It should be noted that under the existing requirements of
Sec.  173.415, the offeror must maintain the complete documentation.
    QSA Global stated that full Type A package documentation files for
reusable containers can be thousands of pages in length and contain
information considered proprietary and confidential. The company
currently maintains documentation on numerous packages used for Type A
transport, and claims to provide sufficient information to ensure that
users are aware of limitations associated with content, form and
weight. The company also notes that there are hundreds of users of
their Type A package designs, and recommended that shippers of Type A
specification packages be required to

maintain package assembly instructions and obtain a Type A
specification certification for the package from the packaging
manufacturer.
    Under the existing Sec.  178.350, the term ``packaging
manufacturer'' means the person certifying that the package meets all
requirements of that section, which can often be the offeror,
especially if the packaging or contents have been altered from that
evaluated by another party. However, we agree that there are instances
where the offeror is provided a packaging from another source for a
particular set of contents and should not be considered to be the
packaging manufacturer. Therefore, as an optional alternative to the
current and revised requirement for offerors to maintain complete
package documentation we are also including an option for offerors who
receive a packaging from another party acting as the manufacturer, to
rely on a manufacturer's certification. This certification would
include a signed statement from the manufacturer affirming that the
package meets all the requirements of Sec.  178.350 for the radioactive
contents presented for transport. This alternative creates no
obligation on manufacturers to supply such a certification; it is
merely an option available if an offeror is able to obtain the
certification from the manufacturer. In such instances, the offeror
will also be required to maintain a copy of the manufacturer's
certification, and if requested by DOT, be able to obtain a copy of the
complete documentation from the manufacturer. However, if the offeror
has modified the packaging or contents from that evaluated and
documented by the other party, the offeror must perform an evaluation
of the changes and then maintain the complete documentation which must
be provided to DOT on request. This will enable users to reuse
packagings expressly made for certain contents and rely on
documentation from another party acting as the manufacturer, but does
not allow them to modify the packaging or contents without a documented
evaluation of those changes.

Section 173.416

    This section discusses authorized Type B packages. We are removing
the present paragraph (c), which allowed the continued use of an
existing Type B packaging constructed to DOT specification 6M, 20WC, or
21WC until October 1, 2008, and replacing it with a new paragraph (c)
to authorize the domestic shipment of a package conducted under a
special package authorization granted by the U.S. Nuclear Regulatory
Commission in accordance with 10 CFR 71.41(d). That NRC provision is
only applicable to limited, one-time shipments of large components that
cannot be shipped inside a certified package, or for which designing a
packaging would be impracticable due to their large size.
    J. L. Shepherd requested that we maintain reference to the obsolete
specification packages to allow continued use of those packages under
special permits, but removal of this paragraph would have no impact on
any such special permits. Lawrence Laude requested that we specify what
proper shipping name should be used for packages authorized by this new
paragraph. In the rulemaking establishing 10 CFR 71.41(d), the NRC
stated that, for a package approved under that paragraph, the NRC will
issue a Certificate of Compliance or other approval (i.e., special
package authorization letter). In those cases where the NRC issues a
certificate, the proper shipping name will be associated with the
certificate (e.g., ``Radioactive material, Type B(M) package, non-
fissile or fissile-excepted). In instances where the NRC issues a
special package authorization letter, the proper shipping name will be
``Radioactive material, transported under special arrangement, non-
fissile or fissile-excepted''.

Section 173.417

    This section discusses authorized fissile materials packages. We
are removing the present paragraph (c), which allows the continued use
of an existing fissile material packaging constructed to DOT
specification 6L, 6M, or 1A2 until October 1, 2008. We are also
removing the references to 20 PF and 21PF overpacks in paragraphs
(a)(3), (b)(3),and (b)(3)(ii) in Table 3 because those overpacks are no
longer in service.
    We are adding a new paragraph (c) to authorize the domestic
shipment of a package conducted under a special package authorization
granted by the U.S. Nuclear Regulatory Commission in accordance with 10
CFR 71.41(d). Lawrence Laude requested that we specify what proper
shipping name should be used for packages authorized by this new
paragraph. In those cases where the NRC issues a certificate, the
proper shipping name will be associated with the certificate (e.g.,
``Radioactive material, Type B(M) package, fissile). In instances where
the NRC issues a special package authorization letter, the proper
shipping name will be ``Radioactive material, transported under special
arrangement, fissile.''

Section 173.420

    Section 173.420 sets forth requirements for uranium hexafluoride
(fissile, fissile excepted and non-fissile). We are removing and
reserving paragraph (a)(2)(ii), which refers to specifications for DOT-
106A multi-unit tank car tanks as these multi-unit tank car tanks are
not used, nor planned to be used for transporting UF6.
    We had proposed to add the specification 30C package to the table
in Sec.  173.420(a)(2)(iii)(D). However, as USEC pointed out, the 30C
cylinder is not a Section VIII ASME pressure vessel but is an ANSI
N14.1 packaging. Therefore, we are not adding it to the table.
    USEC suggested that in 173.420(a)(3)(i) we should change ``200
psi'' to ``200 psia'' and in 173.420(a)(6) we should change ``14.8
psig'' to ``14.7 psia''. For the first reference, the ANSI standard
referenced in this section uses psig, not psia, thus we are not
adopting the suggested change, but are changing it to ``200 psig''
instead. We do agree with the second suggestion as these packages are
required to be shipped with an internal pressure less than atmosphere,
and so we are adopting this change.
    We proposed adding a paragraph (e) to require that, when there is
more than one way to describe a UF6 shipment, the proper
shipping name and UN number for the uranium hexafluoride should take
precedence (e.g., the uranium hexafluoride shipping description should
take precedence over the shipping description for LSA material).
Lawrence Laude noted that while the bullet-list summary of changes in
the NPRM stated that this change would apply only to shipments of 0.1
kg or more of UF6, our later discussion and draft text
applied the change to all quantities. Lawrence Laude and USEC requested
that this paragraph only apply to packages with 0.1 kg or more of
UF6, allowing small packages of uranium hexafluoride to be
re-classed as Class 8 in accordance with Sec.  173.423. We note that
because we are harmonizing with the 2009 edition of the IAEA
regulations, and this point has been raised regarding interpretation of
the corresponding paragraph in TS-R-1, we will limit application of
this paragraph to packages of 0.1 kg or more of UF6. As the
IAEA is working to clarify application of this requirement to packages
of less than 0.1 kg of UF6, we may consider changes to this
requirement in a future rulemaking.

Section 173.421

    This section outlines requirements for excepted packages for
limited quantities of Class 7 (radioactive) materials. Presently, Sec.
173.421(b) permits excepted packages of limited quantities of
radioactive material that are a reportable quantity of hazardous
substance or waste to be shipped without having to comply with Sec.
172.203(d) or Sec.  172.204(c)(4). We are extending this relief from
these shipping paper requirements to all excepted packages that are a
hazardous substance or waste by removing Sec.  173.421(b) and adding
the exclusion from Sec. Sec.  172.203(d) and 172.204(c)(4) to Sec.
173.422.

Section 173.422

    Section 173.422 sets forth additional requirements for excepted
packages containing Class 7 (radioactive) materials. PHMSA is revising
the introductory text to specify that a small quantity of another
hazard class transported by highway or rail (as defined in Sec.  173.4)
that would otherwise qualify for shipment as a Class 7 (radioactive)
material in an excepted package must also satisfy the requirements of
Sec.  173.422. Lawrence Laude suggested that we also add excepted
quantities as defined in Sec.  173.4a. However such packages are
currently covered by Sec.  173.4a(a)(3).
    As noted above, Sec.  173.421(b) currently permits excepted
packages of limited quantities of radioactive material that are a
hazardous substance or hazardous waste to be shipped without having to
comply with Sec.  172.203(d) or Sec.  172.204(c)(4). We are extending
this relief from shipping paper requirements to include those excepted
packages that contain a hazardous substance or hazardous waste by
moving the exclusion from Sec.  172.203(d) and Sec.  172.204(c)(4)
provisions to Sec.  173.422(e). In the discussion in our NPRM, we
stated that we were proposing to add an exclusion from Sec.
172.202(a)(5) for such packages; however, in the draft of the
regulatory text we referenced Sec.  172.202(a)(6) instead. Lawrence
Laude suggested that we should include both paragraphs; we agree and
are including both.
    We are also adding to Sec.  173.422(a) a requirement that all
excepted packages whose contents meet the definition of a hazardous
substance, be marked with the letters ``RQ''. This will provide
consistency with existing marking requirements for a package containing
a hazardous substance. Lawrence Laude and Regulatory Resources noted
that to be consistent with Sec.  172.324, this should only apply to
non-bulk excepted packages, we agree and have made that change.

Section 173.423

    Section 173.423 prescribes requirements for multiple hazard limited
quantity Class 7 materials. Lawrence Laude suggested several changes to
Sec.  173.423. However, as we did not propose any changes to that
section in the NPRM, we are not adopting his proposals in this final
rule.

Section 173.427

    This section prescribes transport requirements for low specific
activity (LSA) Class 7 (radioactive) material and surface contaminated
objects (SCO). In the introductory paragraph of Sec.  173.427(a), we
are changing the phrase ``LSA material and SCO . . . must be packaged''
to ``LSA material and SCO must be transported.'' This should help
clarify that paragraphs (c) and (d) apply to subcategories of LSA
material or SCO, specifically unpackaged LSA material or SCO, and LSA
or SCO which require packaging in accordance with NRC requirements in
10 CFR 71. NIRS and CACC opposed provisions in the proposed changes
that remove packaging requirements for some SCO; however, this is a
misunderstanding of these changes as no packaging changes were
proposed. Lawrence Laude noted that for consistency, Sec.
173.427(a)(2) should read ``LSA material and SCO'' instead of ``LSA and
SCO material,'' and we are adopting that correction.
    In Sec.  173.427(a)(6)(v), we are removing the placarding exception
for shipments of unconcentrated uranium or thorium ores. The increased
communication requirement is intended to compensate for the fact that
packaging requirements are minimal for these materials. We are also
clarifying that all of the placarding requirements of subpart F of part
172 must be met by rewording this paragraph from referring to vehicle
placarding, to requiring appropriate placarding of the shipment.
    In Sec.  173.427(a)(6)(vi), we proposed to require that when LSA
material or SCO are shipped in accordance with that paragraph and
contain a subsidiary hazard from another hazard class, Sec.  172.402(d)
labeling requirements for the subsidiary hazard would apply. Presently,
Sec.  173.427(a)(6)(vi) excepts such shipments from all marking and
labeling requirements, other than for the stenciling or marking as
``RADIOACTIVE--LSA'' or ``RADIOACTIVE--SCO,'' as appropriate. Lawrence
Laude noted that it is unclear how labels would be applied to
unpackaged material, how many labels would be required, and whether
labels or placards would be required for bulk packages with a
volumetric capacity greater than 18 m\3\ (640 ft\3\). The commenter
also claimed the proposed change has the potential for conflicting with
the proposed change to Sec.  172.402(d)(1) regarding not requiring
subsidiary labels for Class 7 packages with subsidiary hazards meeting
the requirements of Sec. Sec.  173.4, 173.4a, and 173.4b. While this
change cannot conflict with the new Sec.  172.402(d), to which
paragraph (a)(6)(vi) makes reference, the concerns on labeling of
unpackaged material are valid. Therefore, we are amending this change
to apply only to packaged material; for larger bulk packages, labels or
placards could be used as required in Sec.  172.400.
    Lawrence Laude further claimed that portions of the proposed (and
existing) Sec.  173.427(a)(6) are either redundant or inconsistent with
other requirements of subpart I and recommended that paragraphs
(a)(6)(i) through (v) be deleted, that only paragraph (a)(6)(vi) be
retained, and that paragraph (a)(6)(vii) be moved to a new paragraph
(b)(6) or, alternately, a new paragraph (f). However, Sec.
173.427(a)(6) does contain some unique requirements, and the changes
suggested would be beyond the scope of what was proposed in the NPRM,
so we are not adopting them.
    We are revising paragraph (b)(1) to replace ``IP-1, IP-2, or IP-3''
with ``Type IP-1, Type IP-2, or Type IP-3,'' to coincide more closely
with the IAEA nomenclature in TS-R-1.
    In the NPRM we proposed to rearrange the wording in paragraph
(b)(4), to indicate that for an exclusive use shipment of less than an
A2 quantity, the packaging must meet the requirements of
Sec.  173.24a or Sec.  173.24b, depending on whether the packaging
would be considered non-bulk or bulk according to the definition in
Sec.  171.8. Lawrence Laude noted that the reference to Sec. Sec.
173.24a and 173.24b is redundant since the introductory text of Sec.
173.410, which is also referenced, includes a requirement to meet
subparts A and B of part 173, and Sec. Sec.  173.24a and 173.24b are
included in subpart B. We agree and are revising this paragraph to
reference only Sec.  173.410. Lawrence Laude also commented that we
should address issues related to bulk Type A and Type B packages.
However, we did not propose such changes in the NPRM.
    In paragraph (b)(5), we are withdrawing the explicit authorization
for certain DOT Specification tank cars and cargo tanks, and replacing
it with the general authorization for use of portable tanks, cargo
tanks and tank cars as provided in Sec.  173.411. The previously
authorized DOT

Specification tank cars and cargo tanks are seldom used and the Sec.
173.411 requirements provided by this rulemaking offer a broader range
of options.
    In Sec.  173.427(c)(3), we are changing the phrase ``where it is
suspected that non-fixed contamination exists'' to ``where it is
reasonable to suspect that non-fixed contamination exists'' to clarify
that the shipper must have a justifiable reason if it decides that it
is not necessary to take measures to ensure that contamination from
SCO-I is not released into the conveyance or the environment.
    We proposed adding a new paragraph (c)(4) to require that when
unpackaged LSA-I material or SCO-I required to be transported as
exclusive use is contained in receptacles or wrapping materials, the
outer surfaces of the receptacles or wrapping materials must be marked
``RADIOACTIVE LSA-I'' or ``RADIOACTIVE SCO-I'' as appropriate. We
proposed an additional new paragraph (c)(5) to require that all highway
or rail conveyances carrying unpackaged SCO-I be placarded. USACE noted
that paragraph (c)(4) would not provide hazard communication when a
liner is shipped inside a transport vehicle (e.g. rail gondola) or an
intermodal container and suggested that the outside of the transport
vehicle and/or the receptacle or intermodal container would be the only
place the marking should be required. We agree that the proposed
markings could be obscured and we note that conveyance marking is
already covered by Sec.  173.427(a)(vi); hence we are not including
this suggestion in the final rule. Lawrence Laude suggested that for
consistency with other usage, the proposed Sec.  173.427(c)(5) should
refer to ``transport vehicle'' rather than ``highway or rail
conveyance.'' However, conveyance includes freight containers, which
sometimes need to be placarded. Lawrence Laude also asked for
clarification that the placarding requirement of paragraph (c)(5)
applies to non-exclusive use shipments of SCO-I made in accordance with
paragraph (c)(2), whereas for other LSA material and SCO shipments,
placards are only required for exclusive use shipments. Mr. Laude is
correct, in this final rule, the placarding required in paragraph
(c)(4) would only apply to exclusive use shipments, except for those
SCO-I non-exclusive use shipments cited in paragraph (c)(2).
    We are modifying Table 5 by adding a separate column for
conveyances traveling by inland waterways, in which the authorized
activity limits for combustible solids, liquids and gases of LSA-II and
LSA-III and SCO would be 10% of those for other types of conveyances.
NIRS & CACC asserted that this change could weaken existing regulations
and opposed a change. However, these are newly added and more
restrictive requirements so they do not ``weaken'' the regulations. In
Table 6, we are replacing the terms IP-1, IP-2, and IP-3 with Type IP-
1, Type IP-2, and Type IP-3 to be consistent with the similar changes
made in Sec.  173.411.

Section 173.433

    Section 173.433 sets forth requirements for determining
radionuclide values, and for listing radionuclides on shipping papers
and labels. In the NPRM, we proposed to revise paragraphs (b), (c),
(d)(3), and (h) Tables 7 and 8.
    We are revising paragraph (b) to clarify the use of line 3 in
Tables 7 and 8 when no relevant data are available. Currently,
paragraph (b) allows use of Table 7 for values of A1 and
A2 and Table 8 for exemption values when the individual
radionuclides are not listed in Sec. Sec.  173.435 or 173.436. Tables 7
and 8 also indicate values that may be used when ``No relevant data are
available,'' but there is no reference in the text to when those
entries may be used.
    We are revising paragraph (c)(1) to conform to the current wording
in TS-R-1 that ``it is permissible to use an A2 value
calculated using a dose coefficient for the appropriate lung absorption
type.'' We are also adding language to paragraph (c) to clarify that
this method of calculation only applies to the alternative specified in
paragraph (b)(2), which requires approval by the Associate
Administrator, or for international transportation, multilateral
approval from the appropriate Competent Authorities.
    We are revising paragraph (d)(3) to correct incorrect references to
other paragraphs. Currently, the explanation of the symbols in
paragraph (d)(3) refers to paragraph (d)(2) and itself. We are revising
it to refer to paragraphs (d)(1) and (d)(2).
    We are modifying the second category descriptions in both Tables 7
and 8, which presently read ``Only alpha emitting nuclides are known to
be present.'' To conform as nearly as possible to the current wording
in TS-R-1, we are replacing the current wording with ``Alpha emitting
nuclides, but no beta, gamma, or neutron emitters, are known to be
present'' (in Table 7), and ``Alpha emitting nuclides, but no neutron
emitters, are known to be present'' (in Table 8).
    In Table 7 we are also adding a footnote for the case when alpha
emitters and beta or gamma emitters but no neutron emitters are known
to be present. The reason for this footnote is that the IAEA default
A1 value for the case when alpha emitters are known to be
present is larger than the value when only beta or gamma emitters are
known to be present; the footnote entry clarifies that if both alpha
and beta or gamma emitters are present, the lower default A1
value should be used. The lesser A1 default value that would
be prescribed in this case would be the more logical and conservative
choice. The third category presently reads ``No relevant data are
available,'' we are replacing it with ``Neutron emitting nuclides are
known to be present or no relevant data are available.'' The revised
wording clarifies that if there are different default values for
different types of radiation, the smaller, most conservative value for
the types of radiation known to be present should be used. Regulatory
Resources questioned how an A1 value can be assigned when
there are no relevant data concerning the nuclide(s); it is done by
assigning a value that is equal to the lowest entry for nuclides listed
in the table in Sec.  173.435.

Section 173.435

    This section contains the table of A1 and A2
values for the most commonly transported radionuclides. We are revising
the table as follows:
     In the entry for Cf-252, in column 1, the reference to
footnote (h) is removed, and in columns 3 and 4, the A1
value is revised (this adopts the new TS-R-1 value for A1,
which is the same as previously allowed by domestic exception in
footnote (h) and eliminates the domestic exception for A2);
     A1 and A2 values and the intrinsic
specific activity for Krypton-79 (Kr-79) are added to the table; the A
values were calculated using the Q system, and added to TS-R-1 in its
2009 edition, and the specific activity calculated from the relation
specific activity in Bq/g = 0.693 times Avogadro's number divided by
the half-life in seconds times the atomic mass; and
     In the footnotes to the table, footnote (a) is revised to
add a reference to TS-R-1 Table 2's list of daughter products, footnote
(c) is revised to clarify that the comparison of ``output'' activity to
the A-values is restricted to special form sources of Ir-192, and
footnote (h) is removed for the Cf-252 entry, as discussed above, and
reserved.
    NIRS and CACC said they oppose weakening of definitions and
increases in exemption levels. However, these are not changes to
exemption levels but are corrections and clarifications.
    Regulatory Resources suggested that the tables in Sec. Sec.
173.435 and 173.436 be

combined into a single table. We prefer to keep the current format in
order to maintain all the current content without reducing readability.

Section 173.436

    This section contains exempt material activity concentrations and
exempt consignment activity limits for radionuclides. To reflect
corresponding changes in TS-R-1, we are revising the total consignment
activity exemption for Tellurium-121m (Te-121m), from 1 x 10\5\ Bq to 1
x 10\6\ Bq, and we are adding an entry for Krypton-79 (Kr-79). We are
also revising the list of parent nuclides and their progeny listed in
secular equilibrium in footnote (b) to the table. The chains for
parents Cerium-134 (Ce-134), Radon-220 (Rn-220), Thorium-226 (Th-226),
and Uranium 240 (U-240) are removed. We are adding an entry for Silver-
108m (Ag-108m).

Section 173.443

    This section prescribes contamination control provisions. Paragraph
(a) provides that the level of non-fixed contamination ``must be kept
as low as resonabl[y] achievable'' and specifies alternative methods
for determining the level of non-fixed contamination, which may not
exceed certain permissible limits. The remaining paragraphs of Sec.
173.443 address situations under which a higher level of non-fixed
contamination is allowed;
     When a closed transport vehicle is used only for
transportation by highway or rail of Class 7 (radioactive) material,
the contamination level on the package may be as great as ten times the
applicable limit specified in paragraph (a) if (1) a survey shows that
the radiation dose rate at any point does not exceed specified values;
(2) the outside of the vehicle is stenciled on both sides with the
words ``For Radioactive Materials Use Only'' at least three inches
high; and (3) the vehicle is kept closed excluding loading or
unloading.
     Alternatively, if a package is transported as an
``exclusive use'' shipment by rail or highway, the level of non-fixed
contamination on a package during the course of transportation may be
as much as ten times the applicable limit specified in paragraph (a) so
long as:
    [cir] At the beginning of transport, the level of non-fixed
contamination on the package does not exceed the applicable limit set
forth in paragraph (a); and
    [cir] the transport vehicle is surveyed and is not returned to
service until the radiation does rate at each accessible surface does
not exceed a specified value and there is no significant removable
(non-fixed) surface contamination.
Paragraph (a)
    The alternative methods for determining the level of non-fixed
contamination are currently set forth in paragraphs (a)(1) and (2). In
the NPRM, we proposed to redesignate these two paragraphs as paragraphs
(a)(1)(i) and (a)(1)(ii), respectively, and provide in new paragraph
(a)(2) that a ``conveyance used for non-exclusive use shipments is not
required to be surveyed unless there is reason to suspect that it may
exhibit contamination.'' We also proposed to apply the existing
requirement that the level of non-fixed (removable) radioactive
contamination on the external surfaces of each package be kept as low
as reasonably achievable on the external and internal surfaces of an
overpack, freight container, tank, intermediate bulk container (IBC),
or conveyance--but not to the internal surfaces of a conveyance,
freight container, tank or IBC dedicated to the transport of unpackaged
radioactive material in accordance with Sec.  173.427(c) and remaining
under that specific exclusive use. This change ensures that any
associated transportation equipment utilized for transportation does
not exhibit excessive levels of non-fixed (removable) radioactive
contamination and aligns the domestic contamination control
requirements with international standards in TS-R-1.
    In response to comments from Lawrence Laude and Regulatory
Resources that the contamination levels should not apply to the
interior surfaces of packages, we are clarifying that the contamination
control requirements in paragraph (a) do not apply to the interior
surfaces of (1) a tank, intermediate bulk container or other
``package,'' or (2) a conveyance or freight container dedicated to the
transport of unpackaged LSA-1 material and SCO-1 in accordance with
Sec.  173.427(c) and remaining under that exclusive use.
    In Table 9, which is referenced in the new Sec.  173.443(a)(1)(i),
we are changing the contamination limits in the column labeled dpm/
cm\2\ from 220 to 240 for contamination due to beta and gamma emitters
and low toxicity alpha emitters, and from 22 to 24 for contamination
due to all other alpha emitting nuclides, respectively. This will
provide the correct conversions from the 4 and 0.4 Bq/cm\2\ values.
Lawrence Laude also raised additional concerns with our proposed
changes to Sec.  173.443(a):
     Mr. Laude inquired whether we should adopt any limit on
fixed contamination, because we only addressed non-fixed contamination.
We do not believe it is necessary or practical to impose fixed
contamination limits on conveyances, overpacks, or freight containers
being used for radioactive material transport, as radiation levels from
the Class 7 material would make this practice difficult and unduly
expensive, if not impossible to implement. It would also be unnecessary
since the other transport controls for the declared hazard of the
packaged or unpackaged radioactive material provides sufficient
protection. Moreover, once these conveyances, overpacks, or freight
containers are no longer used for transport of Class 7 material, they
become subject to the HMR independently for possible radioactive
material classification to address any possible fixed contamination
hazard.
     Mr. Laude inquired whether the first sentence of the
proposed paragraph (a)(1) should be limited to conveyances to be
consistent with Sec.  173.427(c), which prescribes requirements for
shipping LSA-I and SCO-I in conveyances. However, a freight container
can also be used in accordance with Sec.  173.427(c) and should be
subject to these requirements. Any requirement to measure non-fixed
contamination on the internal surface of a tank or IBC is addressed by
our change to the introductory language of paragraph (a).
     Finally, Mr. Laude inquired whether paragraph (a)(2)
should apply to overpacks as well as conveyances. While this seems
possible, we consider this change unnecessary because we are addressing
the misconception that conveyances used for non-exclusive use transport
were required to be routinely surveyed for contamination.
Paragraph (b)
    Section 173.443(b) currently allows non-fixed radioactive
contamination limits on a package to be up to ten times the limits in
Sec.  173.443(a) during exclusive use shipments by rail or highway, if
the initial contamination is no greater than the Sec.  173.443(a)
limits. We proposed to apply this exception to the external and
internal surfaces of conveyances, overpacks, freight containers, tanks,
and IBCs, in addition to the external surfaces of each package. This
ensures that any radioactive substances on the associated items
utilized during transportation do not exceed the designated upper
limits for non-fixed (removable) radioactive contamination of the
package during transport.
    In response to comments from Lawrence Laude and Regulatory

Resources, we are removing the reference to the ``internal surfaces''
of tanks and IBCs from the proposed Sec.  173.443(b) because they are
covered by the term ``package.'' However, we disagree that the
reference to tanks and IBCs should be removed from the ``return to
service'' provisions in Sec.  173.443(c), which should be applicable to
tanks and IBCs. And we do not find any inconsistency with the
provisions in Sec.  173.428 on the transport of empty Class 7
(radioactive) packagings.
Paragraph (c)
    In paragraph (c), we proposed to replace the phrase ``returned to
service until the radiation dose at each accessible surface'' is at a
specified level with ``returned to Class 7 (radioactive) materials
exclusive use transport service, and then only for a subsequent
exclusive use shipment utilizing one of the above cited provisions,
unless the radiation dose rate at each accessible surface'' is at that
specified level. Under this proposal, with limited exceptions provided
by Sec. Sec.  173.443(a) and (d), a conveyance, freight container,
overpack, tank, or intermediate bulk container used for exclusive use
transport of radioactive materials under Sec. Sec.  173.427(b)(4),
173.427(c), or 173.443(b) would need to be surveyed with appropriate
radiation detection instruments. These conveyances, freight containers,
overpacks, tanks, or intermediate bulk containers would have to exhibit
a radiation dose rate no greater than 0.005 mSv per hour (0.5 mrem per
hour) at any accessible surface, and non-fixed radioactive surface
contamination no greater than the limits in Sec.  173.443(a), in order
to continue to be used for one of the following specified Class 7
(radioactive) materials exclusive use transport scenarios:
    (1) The use of the packaging exception for less than an
A2 quantity authorized in Sec.  173.427(b)(4);
    (2) The use of the authorization in Sec.  173.427(c) to ship
unpackaged LSA-I and SCO-I; or
    (3) The use of the authorization in Sec.  173.443(b) to ship
packages that may develop increased contamination during transport up
to ten times the normal package limits, so long as the package meets
the non-fixed contamination limits at the beginning of transport.
    The procedure described in Sec.  173.443(c) would not be
applicable, and would in fact generally be prohibited, for unrestricted
return to general service of the item or conveyance. The rationale for
this proposed change in Sec. Sec.  173.443(c), 174.715(a), 175.705(c),
176.715, and 177.843(a), is as follows:
    (1) If this ``returned to service'' criterion were to be considered
a criterion for unrestricted release following exclusive use transport
of Class 7 (radioactive) materials, it would be providing a radioactive
material unrestricted transfer (free release) limit, which DOT cannot
authorize. DOT has authority only for the regulation of radioactive
material while in transport. The clearance (unrestricted or free
release) from regulatory control of radioactive materials for further
use or disposal, or ownership, is subject to regulations of the Nuclear
Regulatory Commission, NRC Agreement States or is effected pursuant to
the control of the Department of Energy from their facilities (pursuant
to the Atomic Energy Act of 1954, as Amended and the Energy
Reorganization Act of 1974;
    (2) Non-hazardous material, even foodstuffs, could be transported
in contact with these items or conveyances, and an unacceptable health
physics practice would result if these limits were construed to be a
criterion for free release (i.e., for unrestricted radioactive material
transfer);
    (3) Adhering to the requirements for non-fixed contamination (no
greater than the Sec.  173.443(a) values) and radiation level (no
greater than 0.005 mSv per hour, or 0.5 mrem per hour, at the surface
of the vehicle) of Sec.  173.443(c) would not provide sufficient
protection for unrestricted transfer, considering that over time
factors such as weathering could gradually convert any fixed
contamination to non-fixed contamination; and
    (4) Allowing the free release or unrestricted transfer of
radioactive material at these levels would be incompatible with
currently and generally accepted radiation protection practices.
    USACE stated that the proposed rulemaking does not eliminate the
confusion about ``contamination,'' especially for internal surfaces of
conveyances, tanks, or intermediate bulk containers and whether they
can be released from non-radioactive shipments. It also noted there are
discrepancies concerning ``unrestricted release'' between PHMSA (in the
HMR) and other Federal government agencies (in various guidance
documents) and recommended that we consult with the NRC to develop
``unrestricted release'' criteria that would be applicable to both
transport and transfer. While such a project may have merit, it would
be beyond the scope of this rulemaking and could involve attempts to
reconcile non-internationally accepted standards and/or U.S. standards
that may be less restrictive or decades old. In this rulemaking, we are
adopting the most recent international standards on contamination
promulgated by the United Nations and the IAEA to be as consistent as
possible with transport safety standards required by the rest of the
countries in the world and facilitate international commerce.
    Energy Solutions commented that the ``return to service''
provisions in revised paragraph (c) would create ambiguities, are
contrary to the intent of the 1979 DOT and NRC memorandum of
understanding, and are not compliant with Presidential Executive Orders
12866 and 13272, the Paperwork Reduction Act, the Unfunded Mandates
Reform Act and ALARA mandates. The questions that Energy Solutions
presented and our responses are as follows:
     Would a manifest be required when the package, conveyance,
overpack, freight container, tank, or intermediate bulk container meets
the return to service criteria, under the revised language? Since the
exclusive use provision would continue to apply, at a minimum, the
exclusive use requirements in Sec.  173.403 would be applicable. The
shipper must also classify and offer the material appropriate to the
hazard, as applicable.
     What is the proper shipping name if the remaining material
is exempt from Class 7 transport in accordance with Sec.  173.436? If
the remaining material can be demonstrated to be exempt from the
regulations, then the HMR do not apply and therefore a proper shipping
name is not necessary.
     How would the return to service requirements apply to
various hypothetical situations, such as:
    [cir] If a reportable quantity of radioactive material is being
offered that is also exempt from the HMR in accordance with Sec.
173.436. We do not know of a realistic scenario that could cause this
situation to happen, but if the radioactive material can be
demonstrated to be exempt from the HMR, then the HMR do not apply.
    [cir] If the radioactive Class 7 hazard present is the subsidiary
hazard of the material. We see no ambiguity; the return to service
requirements criteria apply whether the radioactive material is the
primary or subsidiary hazard.
    [cir] If the conveyance returned to service under the proposed
language remains under the control of the licensee or if it must be
returned to a licensed facility? The material will need to be
transferred in accordance with the

transfer license conditions of the shipper, which the DOT does not
regulate.
    [cir] If a closed transport vehicle meets the criteria in Sec.
173.443(d) and is marked and placarded, would a manifest would be
required and what proper shipping name should be used? The return to
service requirements in paragraph (c) do not apply to a vehicle that
meets the conditions in paragraph (d).
    Overall, we disagree with Energy Solutions' position that the
proposed rulemaking does not provide the clarification DOT seeks. We
believe the proposed rulemaking clarifies possible longstanding
misinterpretations on the distinction between transport and transfer of
radioactive material and that the benefits realized for the public,
transport workers and emergency responders far outweigh any possible
disadvantages of the proposal.
    We also disagree that this rulemaking is inconsistent with the 1979
Memorandum of Understanding or that it is not in ``the public
interest.'' DOT and the NRC have advised and consulted with one another
on this subject for a number of years and worked to clarify that return
to service does not refer to, and cannot be interpreted to mean,
unrestricted release or transfer. Class 7 accidental release statistics
which the commenter referred to in the comments are not applicable in
this case, because even if such accidents were to have occurred and no
hazard communications were available, there would be no way of knowing
such data should even be gathered because the human senses cannot
detect radiation. Additionally, the possible detrimental scenarios need
not be accident related, even weathering effects could possibly cause
the spread of contamination, or as stated in the proposed rulemaking
the contamination could be commingled with foodstuffs in subsequent
transports, creating an unsatisfactory health physics practice.
    Based on currently-accepted health physics theory, these revisions
provide benefits to the public. Any data or documentation would be
unrevealing, as there would be no deterministic health effects observed
from low level contamination and any stochastic health effects would be
equally difficult to observe empirically.
    Similarly, we do not agree with Energy Solutions' arguments that
this rulemaking fails to comply with the Executive Orders 12866 and
13271, the Unfunded Mandates Reform Act, and the Paperwork Reduction
Act on the theory that the amendments proposed in the NPRM would result
in a dramatic increase in operational costs of approximately 800-1,000%
without any offsetting benefit or reduction in exposure to the public.
Energy Solutions was the only entity to assert that there would be any
increase in costs, much less the extreme increase it claimed. We
consider that some relatively minor adaptation to new practices would
enable return shipments of packages classified under a relatively lower
Class 7 hazard category, such as an excepted package, and the
regulatory benefits of modest transport requirements (primarily hazard
communication provided to transport workers, emergency responders and
members of the public) far outweigh the burden imposed.
    Lastly, Energy Solutions recommended creating a new definition in
Sec.  173.403 for the term ``release survey effective radiation dose
equivalent'' and additional rewording of Sec.  173.443, as proposed in
the NPRM, to provide ``relief from the unnecessary burdens and
inaccuracies'' of the proposal. However, these recommended changes are
beyond the scope of the proposals in this rulemaking.
    Regulatory Resources expressed uncertainty over what the intention
was for the proposed Sec.  173.443(c) ``return to service'' criteria,
but seemed to believe it applied primarily to packages. Our intention
is unchanged, and we believe it is widely recognized that the basic
contamination limits provided in Sec.  173.443 will not typically lead
to cross contamination of conveyances or any other items in contact
with packaged radioactive material. For this reason, we do not require
periodic radiation and contamination surveys related to non-exclusive
use transport.
    At the same time, we are clarifying the return to service criteria
in this rulemaking, because regulatory relief in certain circumstances,
such as provided by Sec. Sec.  173.443(b), 173.427(b)(4), or
173.427(c), can possibly create cross contamination. For this reason,
exclusive use provisions are needed, and return to service surveys are
necessary, in order to mitigate and control the build-up of
contamination levels in undesired locations when these provisions are
utilized, while allowing flexibility and overall exposure reduction in
these instances. As noted above, there seems to be some confusion that
return to service standards can lead to a free release or unrestricted
transfer situation, for which DOT does not have authority. Rather,
exclusive use provisions may always be terminated when the items
affected have been demonstrated to be no longer subject to the HMR or
can be transported in accordance with provisions of the HMR that do not
require contamination related exclusive use transport.
Paragraph (d)
    In paragraph (d), we proposed to require placarding of closed
transport vehicles used solely for the exclusive transportation by
highway or rail of Class 7 (radioactive) material packages with
contamination levels that do not exceed 10 times the package
contamination limits prescribed in Sec.  173.443(a). We proposed to add
the qualifier ``exclusive use'' to ensure that the exclusive use
requirements described under the definition of ``exclusive use'' in
Sec.  173.403 are satisfied for these shipments. In this paragraph, we
are deleting the word ``packages'' to allow this paragraph to apply to
unpackaged radioactive material, which will provide consistency with
similar requirements found in paragraphs Sec. Sec.  174.715(b) and
177.843(b).
    Lawrence Laude suggested that Sec.  173.443(d)(2) be changed to
allow the words to be a ``marked'' rather than ``stenciled'' to allow
flexibility. PHMSA accepts that there are several ways to appropriately
mark the required information, and has amended the regulatory text to
allow marking, with stenciling as an example.
Paragraph (e)
    In paragraph (e), we proposed to add required actions for leaking
or suspect Class 7 (radioactive) packages or unpackaged material,
including immediate actions and assessments, protective requirements,
recovery techniques, and prerequisites for continued transport. In
response to the suggestions from Regulatory Resources, we are adding
the words ``as applicable'' and changing the second sentence in the
paragraph to read ``The scope of the assessment must include, as
applicable, the package, the conveyance, the adjacent loading and
unloading areas, and, if necessary, all other material which has been
carried in the conveyance.''

Section 173.453

    This section prescribes exceptions for fissile materials. In the
NPRM we proposed inserting a phrase into Sec.  173.453(d) that would
allow a fissile material exception for uranium enriched in uranium-235
to a maximum of 1 percent by weight under the conditions stated there
only if the material in question is essentially homogeneous. After
consulting with the NRC on its upcoming rulemaking, we have decided to
not make the proposed change at this

time. If the NRC changes the defining criteria for this radionuclide we
will update in a future rulemaking.
    Regulatory Resources suggested a reorganization of Sec.  173.453(c)
for clarity. However, this was not included in our NPRM and we find the
existing language to be clear, so we are not adopting the suggested
changes.

Section 173.465

    This section sets out requirements for Type A packaging tests. In
paragraph (a), we are adding a specific reference to the standard in
Sec.  173.412(j) for when a test for a Type A package is deemed to be
successful. In Sec.  173.465(d)(i), we are adopting the revised TS-R-1
language to clarify that the stacking test weight must be calculated
using five times the maximum weight of the loaded package. USEC
suggested that we reword this requirement to ``maximum allowable
package weight,'' but we choose to keep the wording shown in our NPRM
for consistency with TS-R-1.

Section 173.466

    This section describes additional tests for Type A packagings
designed for liquids and gases. In paragraph (a), we are adding a
specific reference to the standard in Sec.  173.412(k) for when a test
for a Type A package designed for liquids or gases is deemed to be
successful.

Section 173.469

    This section describes tests for special form Class 7 (radioactive)
materials. In paragraph (b)(2)(ii), we are replacing the word ``edges''
with the word ``edge'' since this refers to the edge of a flat circular
surface.
    In paragraph (b)(2)(iii), we are revising the units of measure and
the thickness requirement for the lead sheet used for the percussion
test from ``2.5 cm (1 inch) or greater'' to ``not more than 25 mm (1
inch)'' in thickness, which is consistent with the requirement in TS-R-
1. USEC asked that there be a transition period for previously tested
materials that might not meet the revised criteria. PHMSA expects
minimal impact because alternative testing in accordance with ISO 2919
or IAEA requirements has been typically used to demonstrate compliance.
If any special form certificate renewals are impacted, they will be
evaluated on a case-by-case basis to allow for transition if necessary.
    In paragraph (d)(1) we are adding an alternative to allow the use
of the ISO 2919 Class 5 impact test as an alternative to the impact and
percussion test if the mass of the special form material is less than
500 g, as this alternative was added to TS-R-1. Updated references to
the 1999 edition of ISO 2919 are being added to paragraphs (d)(1) and
(d)(2).
    We are adding a provision in new paragraph (e) in Sec.  173.469 to
allow sources subjected to the ISO 2919 heat test before the effective
date of this final rule to not have to be retested to the newer
revision of ISO 2919 (i.e. ISO 2919-1999(E)) which is being
incorporated by reference in this rulemaking.

Section 173.473

    This section prescribes requirements for foreign made packages. We
are revising Sec.  173.473(a)(1) to update the reference to the 2009
edition of the IAEA standards for transportation of radioactive
materials, TS-R-1.

Section 173.476

    This section details the requirements for approval of special form
materials. We are revising paragraph (a) to extend the retention period
for special form documentation from one year to two years after the
offeror's latest shipment, to coincide with the minimum retention
period for shipping papers. In the NPRM we proposed revising paragraph
(d) to replace the reference to an obsolete proper shipping name with a
reference to the current proper shipping names. This change was
completed under a different rulemaking, Docket No. PHMSA-2013-0158 (HM-
244F) 78 FR 60748 (Oct. 2, 2013). Further amendment to this paragraph
is not needed in this final rule.
    Lawrence Laude requested that paragraph (d) be expanded to include
packages of special form material where the activity is less than
A2 to account for special form sources with expired or
unavailable documentation which could be shipped as ``Radioactive
Material, Type A Package.'' As discussed under our changes to Sec.
172.203(d)(2), if such documentation does not exist, the shipper should
not classify the material as special form and then this paragraph would
not be applicable.

Section 173.477

    This section details the requirements for approval of packagings
containing greater than 0.1 kg of non-fissile or fissile-excepted
uranium hexafluoride. In paragraph (a), we are extending the retention
period for uranium hexafluoride packaging documentation from one year
to two years after the offeror's latest shipment, to coincide with the
minimum retention period for shipping papers.

Section 174.700

    We are removing and reserving paragraph (e), which provided special
handling requirements for fissile material, controlled shipments, since
that term was removed from the regulations in our January 26, 2004
rulemaking (69 FR 3632 (HM-230)). Lawrence Laude stated that paragraph
(e) should not be deleted, but should be reworded to be consistent
with, for example, Sec.  177.842(f) as ``fissile material controlled
shipments'' were replaced with exclusive use shipments with a total CSI
not to exceed 100. The commenter also stated that if this change is
intended to rely on the references to Sec. Sec.  173.457 and 173.459 in
Sec.  174.700(d), the requirements in part 177 should be similar and
the different modal requirements should be consistent. However,
paragraph (d) does provide references to Sec. Sec.  173.457 and
173.459, as does Sec.  177.842(f). The commenter also proposed deletion
of Sec.  173.459, but as we did not include any proposed changes to
that section in the NPRM we are not adopting that suggestion.

Section 174.715

    This section prescribes requirements for cleanliness of rail
transport vehicles after use. We are revising Sec.  174.715(a) to make
this section consistent with the changes being made in Sec.  173.443(c)
to clarify the phrase ``returned to service.''

Section 175.702

    This section provides separation distance requirements for packages
containing Class 7 (radioactive) materials in cargo aircraft. In the
NPRM we proposed changes to Sec.  175.702(b) and (c) to include
references to the CSI limits in Sec.  175.700(b). Lawrence Laude noted
that this paragraph is inconsistent with TS-R-1, which does not have
limits on groups of packages beyond the limits for the entire aircraft.
We agree that this paragraph is more stringent than TS-R-1, but not
otherwise contradictory. In other words, compliance with the existing
requirements of Sec.  175.702(b) satisfies the (lesser) requirements in
TS-R-1. As such, we are adopting the changes to Sec.  175.702 as
proposed in the NPRM.

Section 175.705

    This section describes requirements concerning radioactive
contamination of aircraft. In paragraph (c) we are clarifying that the
totality of any radioactive substances remaining after clean-up of an
aircraft where radioactive material has been released must not meet the
definition of radioactive material (as defined in Sec.  173.403) before

returning the aircraft to service. Lawrence Laude noted the proposed
change to Sec.  175.705 appears to be more stringent than the
requirement for other modes as well as the non-fixed contamination
limits in Sec.  173.443(a). The commenter is correct in noting the
contamination related requirements for aircraft are different from the
other modes. The differences are a result of the evolution of the
requirements, dating back to aircraft contamination events that
occurred in the 1960s. However, it should be noted that the
contamination limits in Sec.  173.443 apply to packages, conveyances
and other related items that are offered for Class 7 transport. It
should also be noted that Sec.  173.443(a) does not just require
compliance with the Table 9 limits, but also that contamination be kept
as low as reasonably achievable.

Section 176.715

    This section describes requirements concerning radioactive
contamination of vessels. We are revising Sec.  176.715 to make this
section consistent with the changes being made in Sec.  173.443(c) to
clarify when holds, compartments, or deck areas used for the
transportation of LSA material or SCO under exclusive use conditions
may be ``used again'' (i.e. ``returned to service''). Lawrence Laude
stated these changes to Sec.  176.715 would add increased ambiguity
rather than eliminating it because it does not specifically address
contamination limits for holds, compartments, and deck areas being
returned to general service. The commenter also stated it was
questionable whether a deck area would be used for unpackaged
radioactive material. We believe the definition of contamination in
conjunction with the new scope exclusion provided in Sec.
173.401(b)(5) provides clear guidance as to when the HMR is applicable
in these transport cases cited by the commenter, as well as all other
transport scenarios. However, any further transfer or ownership
criteria of radioactive material will be regulated separately by the
applicable licensing authority. Use of a deck area for unpackaged
transport is conceivable in accordance with Sec.  173.427(c), so it is
not appropriate to revise this wording.

Section 177.843

    This section describes requirements concerning radioactive
contamination of vehicles. In Sec.  177.843(a), PHMSA is adding a
reference to Sec.  173.443(b). This is part of a larger proposed change
developed from PHMSA internal review, that is intended to make this
section consistent with the changes proposed in Sec.  173.443(c). In
this final rule, PHMSA is modifying Sec.  173.443(c), to eliminate the
ambiguity and confusion concerning the phrase ``returned to service,''
for conveyances, overpacks, freight containers, tanks, and intermediate
bulk containers that may have had radioactive substances deposited on
them during certain Class 7 (radioactive) exclusive use transport
scenarios.
    Lawrence Laude suggested that Sec.  177.843 fails to address the
contamination limits to be applied to motor vehicles being returned to
general service. We believe the definition of contamination in
conjunction with the new scope of exclusions provided in Sec.
173.401(b)(5) will provide clear guidance as to when the HMR is
applicable in these transport cases cited by the commenter, as well as
all other possible transport scenarios. However, any further transfer
or ownership criteria of radioactive material will be regulated
separately by the applicable licensing agency.
    Lawrence Laude further stated the current and proposed Sec.
177.843(a) requires that motor vehicles used for an exclusive use
shipment of LSA material or SCO per Sec.  173.427(b)(4) must be
surveyed for contamination after each use. The commenter also noted
Sec.  173.427(b)(4) allows LSA material and SCO to be shipped in
packages meeting the performance based criteria of Sec.  173.410 and
these are the same criteria that Type IP-1 packages have to meet, yet
exclusive use shipments of LSA material and SCO in Type IP-1 packages
do not require vehicle surveys after use. For consistency, the
commenter recommended that the requirement for surveying vehicles used
for Sec.  173.427(b)(4) shipments be deleted from Sec.  177.843(a) and
the corresponding sections of Parts 174 and 176. We believe the
commenter failed to note the longstanding domestic exception in Sec.
173.427(b)(4) permits liquid LSA-I, LSA-II, LSA-III and SCO-II to be
transported in a Type IP-1 package, under certain conditions, rather
than a Type IP-2 or Type IP-3 as required by Table 6 in Sec.  173.427.
This practice has been demonstrated to provide needed flexibility and
an effective level of safety for several decades. A shipper is not
required to package in accordance with Sec.  173.427(b)(4) and may
elect to ship solid LSA-I and SCO-I in a Type IP-1 non-exclusive use in
accordance with Sec.  173.427(b)(1) and Table 6 in Sec.  173.427. A
shipper may also elect to package in accordance with Sec. Sec.
173.427(b)(2), (3), or (5), which would not necessarily require the
survey required by Sec.  177.843(a).

Section 178.350

    This section provides specifications for specification 7A packages.
We are revising paragraph (c) to clarify that a DOT Specification 7A
Type A package must satisfy the requirements of Sec.  178.2 as well as
the marking requirements of Sec.  178.3.

Sections 178.356, 176.356-1 through178.356-5

    These sections provide specifications for specification 20PF
phenolic-foam insulated, metal overpacks. USEC noted that this section,
along with the sections cited below on the 21PF overpacks, should also
be deleted in its entirety, as the 20PF series overpacks are old
specification packages that also are no longer in service. We agree,
and are removing and reserving these sections.

Sections 178.358, 178.358-1 through 178.358-6

    These sections provide specifications for specification 21PF fire
and shock resistant, phenolic-foam insulated, metal overpacks. We are
removing Sec. Sec.  178.358 and 178.358-1 through 178.358-6 because
21PF overpacks for uranium hexafluoride cylinders are no longer
authorized.

Sections 178.360, 178.360-1 through 178.360-4

    These sections provide specifications for specification 2R: Inside
containment vessels. We are removing Sec. Sec.  178.360, and 178.360-1
through 178.360-4 pertaining to the DOT Specification 2R inside
containment vessel since specification 2R was only required, under
certain conditions, to be used as the inner container for the DOT
Specification 20WC, 21WC, 6L, and 6M packages, and authorization for
use of these latter packages was terminated on October 1, 2008. J. L.
Shepherd was concerned that removal of the 2R specification would
impact Special Permits that include their usage; however, this change
would not directly affect such Special Permits.

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of 49 U.S.C. 5103 and
5120 which, respectively:
    1. Authorize the Secretary of Transportation to (a) designate
radioactive and other materials ``as hazardous when the Secretary
determines that transporting the material in commerce in a particular
amount and form may pose an unreasonable risk to health and safety or

property,'' and (b) ``prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.''
    2. Direct the Secretary to (a) ``participate in international
forums that establish or recommend mandatory standards and requirements
for transporting hazardous material in international commerce,'' and
(b) ``consult with interested authorities to ensure that, to the extent
practicable, regulations the Secretary prescribes . . . are consistent
with standards and requirements related to transporting hazardous
material that international authorities adopt,'' except that the
Secretary need not adopt an international standard or requirement which
``the Secretary decides. . .is unnecessary or unsafe,'' and the
Secretary may prescribe a more stringent safety standard or requirement
which the Secretary decides ``is necessary in the public interest.''
This final rule amends requirements in the HMR governing the
transportation of Class 7 (radioactive) materials in commerce to
maintain alignment with international standards by adopting recent
updates in TS-R-1, including changes to packaging requirements,
definitions, and activity limits.
    Harmonization serves to facilitate international commerce; at the
same time, harmonization promotes the safety of people, property, and
the environment by reducing the potential for confusion and
misunderstanding that could result if shippers and transporters were
required to comply with two or more conflicting sets of regulatory
requirements. While the intent of this rulemaking is to align the HMR
with international standards, we review and consider each amendment on
its own merit based on its overall impact on transportation safety and
the economic implications associated with its adoption into the HMR.
Our goal is to harmonize without sacrificing the current HMR level of
safety and without imposing undue burdens on the regulated community.
Thus, as explained in the corresponding sections above, we are not
harmonizing with certain specific provisions of the TS-R-1. Moreover,
we are maintaining a number of current exceptions for domestic
transportation that should minimize the compliance burden on the
regulated community.
    In developing this final rule PHMSA consulted with the NRC and the
U.S. Coast Guard.

B. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures

    This rulemaking is not considered a significant regulatory action
under Executive Order (E.O.) 12866 (``Regulatory Planning and
Review''), as supplemented and reaffirmed by E.O. 13563 (``Improving
Regulation and Regulatory Review''), stressing that, to the extent
permitted by law, an agency rulemaking action must be based on benefits
that justify its costs, impose the least burden, consider cumulative
burdens, maximize benefits, use performance objectives, and assess
available alternatives, and the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
    During the rulemaking process, PHMSA considered three alternatives
to harmonize domestic and international radioactive materials
transportation requirements:
    Alternative 1: Do nothing. The United States actively participates
in the development of uniform international standards for transporting
hazardous materials. Because all major countries and international
carrier organizations have or will adopt the changes proposed in this
rulemaking, a do-nothing approach would fail to adopt international
standards which enhance safety in the transportation of radioactive
materials and would result in complications in the movement of these
materials. Future inconsistencies with international transport
standards may result in foreign authorities refusing to accept
hazardous material shipments prepared in accordance with the HMR. To
successfully participate in international markets, U.S. companies would
be required to conform to dual regulations. Inconsistent domestic and
international regulations also have an adverse safety impact by making
it more difficult for shippers and carriers to understand and comply
with all applicable requirements. Unnecessary transportation delays may
also expose international shipments to additional safety and security
vulnerabilities. For these reasons, PHMSA did not adopt Alternative 1.
    Alternative 2: Adopt the international standards in their entirety.
Under this alternative, all revisions to the IAEA regulations would be
incorporated into the HMR. In some instances PHMSA believes more
stringent regulations are necessary to enhance transportation safety,
and in others, less stringent regulations are necessary to reduce
economic burden. Because of certain safety and economic concerns PHMSA
elected not to propose adoption into the HMR of some amendments
incorporated into the IAEA regulations. In addition, PHMSA and the NRC
have identified changes that are only applicable domestically that
would increase safety, reduce costs, and improve compliance. For these
reasons, PHMSA did not adopt Alternative 2.
    Alternative 3: Adopt IAEA regulations with additional changes to
the HMR that promise to enhance safety and decrease regulatory
compliance obstacles. Under this alternative, PHMSA is harmonizing the
HMR with the IAEA regulations and the NRC proposed amendments to an
extent consistent with U.S. safety and economic goals. As indicated
above, PHMSA is not adopting provisions that, in PHMSA's view, do not
provide an adequate level of safety. Further, PHMSA is providing for
exceptions and extended compliance periods to minimize the potential
economic impact of any revisions on the regulated community. PHMSA
provides detailed justification for each instance in the final rule
where the proposed change differs from the revised IAEA regulations.
Alternative 3 is the only alternative that addresses, in all respects,
the purpose of this regulatory action, which is to facilitate the safe
and efficient transportation of hazardous materials in international
commerce. For these reasons, Alternative 3 is PHMSA's chosen
alternative. A complete copy of the economic impact assessment for this
final rule is available in the docket for this rulemaking action PHMSA-
2009-0063 (HM-250).

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local, and Indian tribe requirements but
does not impose any regulation that has substantial direct effects on
the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    The Federal hazardous material transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain
subjects, as follows:
    (1) The designation, description, and classification of hazardous
material;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;

    (3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, inspection, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material in commerce.
    This final rule addresses subject items (1), (2), (3), and (5)
above and preempts State, local, and Indian tribe requirements not
meeting the ``substantively the same'' standard. Federal hazardous
materials transportation law provides at 49 U.S.C. 5125(b)(2) 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. The effective date of
Federal preemption is January 1, 2015.

D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). PHMSA received two
comments concerning Executive Order 13175. PHMSA received a comment
from NIRS and CACC asking how we concluded that the proposed rule would
not uniquely impact communities of Indian Tribal leadership. PHMSA also
received a comment from the Alaska Inter-Tribal Council stating its
opposition to the assertion that our proposed rule does not
significantly or uniquely affect the communities of the Indian Tribal
governments. The Alaska Inter-Tribal Council states that international
shipping of radioactive materials is of great concern because of the
potential adverse risks to the Arctic territory and its inhabitants. It
further states that consultation between tribal governments and PHMSA
must occur before any changes to PHMSA rules that could potentially
adversely impact tribal communities, territories, peoples and
traditional ways of life.
    This rule has the intended goal of harmonizing with international
standards for the safe transportation of radioactive materials, making
internally identified clarifications of requirements, and making
changes that enhance safety while shipments of radioactive materials
are in transportation. International and domestic shipments of
radioactive materials are already transiting arctic waters and Alaska
in compliance with the requirements of TS-R-1 or the HMR. The changes
adopted in this final rule are simply creating greater harmonization
with the international standard, and are not creating or authorizing
new hazardous materials shipments or transit routes. Furthermore,
consistency between U.S. and international regulations enhances the
safety of international hazardous materials transportation through
better understanding of the regulations, an increased level of industry
compliance, the smooth flow of hazardous materials from their points of
origin to their points of destination, and consistent emergency
response in the event of a hazardous materials incident. Based on this
information and the absence of specific indications to the contrary
from these commenters, the revisions adopted in this final rule do not
have direct tribal implications and do not impose substantial direct
compliance costs on Indian tribal governments; consequently the funding
and consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
and has been developed in accordance with Executive Order 13272
(``Proper Consideration of Small Entities in Agency Rulemaking'') and
DOT's procedures and policies to promote compliance with the Regulatory
Flexibility Act to ensure that potential impacts of draft rules on
small entities are properly considered.
    This final rule facilitates the transportation of hazardous
materials in international commerce by providing consistency with
international standards. This final rule applies to offerors and
carriers of hazardous materials, some of whom are small entities, such
as chemical manufacturers, users and suppliers, packaging
manufacturers, distributors, and training companies. As discussed in
the regulatory impact analysis, the majority of amendments in this
final rule should result in cost savings and ease the regulatory
compliance burden for shippers engaged in domestic and international
commerce, including trans-border shipments within North America.
    Many companies will realize economic benefits as a result of these
amendments. Additionally, the changes effected by this final rule will
relieve U.S. companies, including small entities competing in foreign
markets, from the burden of complying with a dual system of
regulations. Therefore, we certify that these amendments will not have
a significant economic impact on a substantial number of small
entities. A complete copy of the regulatory flexibility analysis for
this final rule is available in the docket for this rulemaking action.

F. Paperwork Reduction Act

    PHMSA currently has approved information collections under Office
of Management and Budget (OMB) Control Number 2137-0034, ``Hazardous
Materials Shipping Papers and Emergency Response Information,'' and OMB
Control Number 2137-0510, ``Radioactive Materials Transportation
Requirements.'' Specifically, this final rule will result in:
     A decrease in the annual information collection burden of
OMB Control Number 2137-0034 due to reductions in the shipping paper
requirements for excepted quantities of RAM shipments. These reductions
in burden include not requiring the mass of these shipments on the
shipping papers for air shipments in Sec.  172.202(a)(6), the
additional description in Sec.  172.203(d) for RAM shipments, and not
requiring the shippers certification statement for RAM shipments in
Sec.  172.204(c)(4) and
     an increase in the annual information collection burden of
OMB Control Number 2137-0510 due to an increase in the duration of
record keeping requirements in Sec. Sec.  173.411(c) and 173.415(a),
and the documentation required to demonstrate a package complies with
testing requirements in Sec. Sec.  173.415(a)(1) and (a)(2).
    In response to comments received from multiple commenters we are
authorizing an option for alternative documentation to allow an offeror
who receives a packaging from another party acting as the manufacturer,
to rely on a manufacturer's certification when available. In such
instances, the offeror must maintain a copy of the manufacturer's
certification and, if requested by DOT, be able to obtain a copy of the
complete documentation from the manufacturer. These changes will not
result in an increase of respondents or responses, as the new
requirements are in addition to existing package documentation
requirements.

There will however be additional costs involved in the preparation and
retention of the documents in question. The manufacturer's
certification is an additional document, not previously provided for in
the HMR, but is merely an optional alternative to the existing package
documentation requirements.
    Under the Paperwork Reduction Act of 1995, no person is required to