[Federal Register: April 19, 2004 (Volume 69, Number 75)]
[Rules and Regulations]
[Page 20831-20833]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap04-17]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 172
[Docket No. RSPA-03-13658 (HM-215E)]
RIN 2137-AD41
Harmonization With the United Nations Recommendations,
International Maritime Dangerous Goods Code, and International Civil
Aviation Organization's Technical Instructions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; extension of compliance date.
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SUMMARY: RSPA is extending the compliance date of the recently adopted
air eligibility marking requirement. On July 31, 2003, RSPA published a
final rule under Docket Number RSPA-2002-13658 (HM-215E) requiring
mandatory compliance with the air eligibility marking by October 1,
2004. This final rule extends the October 1, 2004 mandatory compliance
date to October 1, 2006.
DATES: The effective date of this final rule is April 19, 2004.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials Standards, telephone (202) 366-8553, or Shane Kelley,
International Standards, telephone (202) 366-0656, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On July 31, 2003, the Research and Special Programs Administration
(RSPA, we) published a final rule under Docket HM-215E (68 FR 44992)
revising the Hazardous Materials Regulations (HMR) to maintain
alignment with recent changes to corresponding provisions in the
International Civil Aviation Organization's (ICAO) Technical
Instructions, the International Maritime Dangerous Goods Code and the
United Nations Recommendations. One of the amendments made in the July
31, 2003 final rule was the incorporation into the HMR of an air
eligibility marking requirement, consistent with the ICAO Technical
Instructions' air eligibility marking requirement. Since publication of
the final rule, ICAO approved an amendment to the 2005-2006 ICAO
Technical Instructions that will replace the air eligibility mark with
a shipper's certification on the shipping paper, and approved an
addendum to the 2003-2004 edition of the ICAO Technical Instructions
that revises the air eligibility marking requirement by making it
optional rather than mandatory during the interim period leading up to
the effective date of the 2005-2006 ICAO Technical Instructions. Based
on ICAO's action, we are re-evaluating the marking requirement. To
provide an opportunity for public comment, this issue will be addressed
in an upcoming NPRM to be issued under Docket HM-215G. Currently under
the HMR, the air eligibility marking requirement becomes mandatory on
October 1, 2004. Taking into consideration the time element involved
with the HM-215G rulemaking
[[Page 20832]]
process, in this final rule we are adding a new paragraph (e) in Sec.
172.321 to extend the mandatory compliance date for meeting the air
eligibility marking requirement to October 1, 2006.
II. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget. This final rule is not considered
significant under the Regulatory Policies and Procedures of the
Department of Transportation [44 FR 11034]. This final rule amends a
July 31, 2003 final rule by extending the compliance date for the air
eligibility marking requirement from October 1, 2004 to October 1,
2006. The compliance date extension adopted in this final rule does not
alter the cost-benefit analysis and conclusions contained in the
Regulatory Evaluation prepared for the July 31, 2003 final rule.
Indeed, the compliance date extension assures that persons who offer
hazardous materials for transportation by air will not incur increased
costs to comply with a requirement that may be amended.
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rulemaking preempts State, local and Indian tribe requirements but does
not propose 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-
5127, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials 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; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subject item (2) above and would
preempt 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 this final rule and not later than
two years after the date of issuance. The effective date of Federal
preemption is July 19, 2004.
C. 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''). Because this final rule
does not have tribal implications, does not impose substantial direct
compliance costs, and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities,
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule applies to businesses, some of whom are small entities, that
offer for transportation or transport hazardous materials in commerce
for transportation by air. This final rule provides an extension of the
compliance date for the recently adopted air eligibility marking
requirement. The compliance date extension assures that persons who
offer hazardous materials for transportation by air will not incur
increased costs to comply with a requirement that may be amended.
Therefore, I certify that this final rule will not have a significant
economic impact on a substantial number of small entities.
This final rule 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.
E. Paperwork Reduction Act
This final rule does not impose new information collection
requirements.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to either State, local or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major Federal actions
and prepare a detailed statement on actions significantly affecting the
quality of the human environment. The environmental assessment prepared
for the July 31, 2003 final rule can be found in the public docket for
this rulemaking. The revisions adopted in this final rule do not alter
the conclusions contained in the environmental assessment. There are no
significant environmental impacts associated with this final rule.
List of Subjects in 49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.
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In consideration of the foregoing, amend 49 CFR Chapter I as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
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1. The authority citation for part 172 continues to read as follows:
[[Page 20833]]
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
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2. In Sec. 172.321, a new paragraph (e) is added to read as follows:
Sec. 172.321 Air eligibility mark.
* * * * *
(e) Transition Date. Compliance with the requirements of this
section is not mandatory until October 1, 2006.
Issued in Washington, DC, on April 12, 2004, under authority
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 04-8825 Filed 4-16-04; 8:45 am]
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