[Federal Register Volume 68, Number 5 (Wednesday, January 8, 2003)]
[Rules and Regulations]
[Pages 1013-1015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-325]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[RSPA Docket No. 02-13658 (HM-215E)]
RIN 2137-AD41


Harmonization with the United Nations Recommendations, 
International Maritime Dangerous Goods Code, and International Civil 
Aviation Organization's Technical Instructions; Incorporation by 
Reference

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the Hazardous Materials Regulations 
(HMR) by updating incorporation by reference materials to include the 
most recent amendments to the International Maritime Dangerous Goods 
Code (IMDG Code), the International Civil Aviation Organization's 
Technical Instructions for the Safe Transport of Dangerous Goods by Air 
(ICAO Technical Instructions) and the United Nations Recommendations on 
the Transport of Dangerous Goods (UN Recommendations). This action is 
necessary to facilitate the continued transport of hazardous materials 
in international commerce by aircraft and vessel after these 
international standards become effective. The other changes proposed in 
the notice of proposed rulemaking (NPRM) under this docket will be 
addressed in a separate rule.

DATES: Effective date: The effective date of these amendments is 
January 8, 2003.
    Voluntary compliance date: Compliance with the regulations, as 
amended herein, is authorized as of January 1, 2003.
    Incorporation by reference. The incorporation by reference of 
certain publications listed in these amendments has been approved by 
the Director of the Federal Register as of January 8, 2003.

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: 

Background

    On December 3, 2002, RSPA published a notice of proposed rulemaking 
(NPRM) under Docket Number RSPA-2002-13658 (HM-215E), 67 FR 72034, that 
proposed changes to more fully align the HMR with international 
standards. Proposed changes were to update the incorporations by 
reference of three international standards and to solicit comments by 
January 2, 2003. The standards are Amendment 31 to the IMDG Code, the 
2003-2004 edition of the ICAO Technical Instructions, and the twelfth 
revised edition of the UN Recommendations. We received no comments 
opposing the incorporation of these updated standards. We are issuing 
this final rule adopting only the incorporation by reference materials 
to allow their use beginning January 1, 2003, the effective date of the 
international standards. Our intent is to prevent disruption for 
persons transporting hazardous materials in international commerce.

Discussion of Standards and Amendments

    Amendment 31 to the IMDG Code, which was recently published by the 
International Maritime Organization (IMO), contains miscellaneous 
changes to the IMDG Code concerning classification, labeling, 
packaging, and documentation. The IMO has established January 1, 2003, 
as the implementation date for these amendments and is authorizing a 
one-year transition period, until January 1, 2004, for compliance with 
the new requirement. Amendments 30 and 31 are authorized for use until 
January 1, 2004, at which time all shipments must conform to Amendment 
31. With certain exceptions, we authorize in Sec.  171.12 of the HMR, 
shipments prepared in accordance with the IMDG Code if all or part of 
the transportation is by vessel. At least 150 countries, with combined 
merchant fleets accounting for more than 98% of the world's gross 
tonnage, use the IMDG Code as a basis for regulating vessel transport 
of hazardous materials.
    The 2003-2004 edition of the ICAO Technical Instructions is 
effective January 1, 2003. The revised edition incorporates numerous 
miscellaneous changes concerning classification, labeling, packaging 
and documentation. In Sec.  171.11 of the HMR, we authorize the 
offering, accepting and transporting of hazardous materials by air when 
prepared in conformance with the ICAO Technical Instructions and by 
motor vehicle both before and after air transportation, with certain 
exceptions. Virtually all shipments of hazardous materials transported 
internationally by aircraft are transported in accordance with the ICAO 
Technical Instructions, as well as the majority of the domestic 
shipments. The ICAO Technical Instructions are updated every two years.
    The twelfth revised edition of the UN Recommendations is also 
effective January 1, 2003. The UN Recommendations are not regulations 
but are recommendations issued by the UN Committee of Experts on the 
Transport of Dangerous Goods. These recommendations are amended and 
updated biennially by the UN Committee of Experts. They serve as the 
basis for the IMDG Code and the ICAO Technical Instructions.
    Uniform national and international hazardous materials 
transportation regulations enhance transportation safety and facilitate 
trade of hazardous materials. International carriers engaged in the 
transportation of hazardous materials by air generally elect to comply 
with the ICAO Technical Instructions, while vessel operators generally 
elect to comply with the IMDG Code. In so doing, these carriers are 
able to train their hazmat employees in a single set of hazardous 
materials transportation requirements, thereby minimizing the 
possibility of improperly transporting a shipment of hazardous 
materials because of differences in domestic regulations. Authorizing 
the use of the updated editions of international standards will 
facilitate the international transportation of hazardous materials by 
aircraft and vessel by ensuring a basic consistency between the HMR and 
the international regulations.
    Based on the above discussion, we are revising Sec.  171.7, to 
incorporate by reference Amendment 31 to the IMDG Code, the 2003-2004 
edition of the ICAO Technical Instructions, and the twelfth revised 
edition of the UN Recommendations.

[[Page 1014]]

Sequence of Optional Shipping Paper Description in the NPRM

    The December 3, 2002 NPRM contains an error in Sec.  172.203(b), 
pertaining to the proposed optional sequence of information for the 
basic description on shipping papers. We intended that the proposed 
description be identical to that specified in the UN Recommendations, 
ie., identification (ID) number, proper shipping name, hazard class, 
subsidiary hazard, and packing group. A correct example would be 
``UN2744, Cyclobutyl chloroformate, 6.1, (8.3), PG II.'' The proposed 
rule incorrectly specified the order of sequence as ID number, hazard 
class, subsidiary hazard, proper shipping name, and packing group.

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, therefore, was not 
reviewed by the Office of Management and Budget. The rule is not 
considered a significant rule under the Regulatory Policies and 
Procedures of the Department of Transportation [44 FR 11034]. Benefits 
resulting from the adoption of the amendments in this final rule 
include enhanced transportation safety resulting from the consistency 
of domestic and international hazard communications and continued 
access to foreign markets by domestic shippers of hazardous materials. 
This final rule applies to offerors and carriers of hazardous 
materials, such as chemical manufacturers, chemical users and 
suppliers, packaging manufacturers, distributors and training 
companies.
    Adoption of the amendments in this final rule should result in 
minimal cost savings by easing the regulatory compliance burden for 
shippers engaged in domestic and international commerce by aircraft and 
vessel. Although preparation of a regulatory impact analysis or 
regulatory evaluation is not warranted because these amendments do not 
impose mandatory additional requirements, a preliminary regulatory 
evaluation addressing the December 3, 2002 NPRM is available for review 
in Docket Number RSPA-2002-13658.

B. 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 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 materials; 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 items (1), (2), (3), and 
(5), above, and would preempt State, local, and Indian tribe 
requirements not meeting the ``substantively the same'' standard. This 
final rule is necessary to incorporate changes adopted in international 
standards, effective January 1, 2003. Without adoption of the 
amendments in this final rule, U.S. companies, including numerous small 
entities competing in foreign markets, would be at an economic 
disadvantage. These companies would be forced to comply with a dual 
system of regulations. The changes in this rulemaking are intended to 
avoid this result.
    Federal hazardous materials transportation law provides at section 
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 will be April 8, 2003.

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 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 rule 
will facilitate the transportation of hazardous materials in 
international commerce by providing consistency with, and authorizing 
the use of, international standards contained in the 2003-2004 ICAO 
Technical Instructions and Amendment 31 to the IMDG Code. This final 
rule applies to offerors and carriers of hazardous materials, some of 
whom are small entities such as chemical users and suppliers. The total 
net increase in costs to small businesses in implementing this 
rulemaking is minimal. We believe that any costs associated with 
adoption of these amendments will be outweighed by the benefits. This 
final rule will facilitate the transportation of hazardous materials in 
international commerce by providing consistency with international 
requirements. By adopting the amendments in this final rule, U.S. 
companies, including numerous small entities competing in foreign 
markets, will have continued access to foreign markets and will not be 
at an economic disadvantage by being forced to comply with a dual 
system of regulations. Consistency with international requirements also 
will result in enhanced safety. Therefore, I certify that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.

E. Paperwork Reduction Act

    There are no information collection requirements in this final 
rule.

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 number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

[[Page 1015]]

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. We analyzed the effects of these 
amendments, as well as other proposals, on the environment and whether 
a more comprehensive environmental impact statement may be required. 
Our findings conclude that there are no significant environmental 
impacts associated with the amendments being adopted in this final 
rule. For interested parties, an environmental assessment is available 
in the public docket.

I. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects in 49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

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

    2. In Sec.  171.7, in the paragraph (a)(3) table, the following 
changes are made:
    a. Under the entry ``International Civil Aviation Organization 
(ICAO)'', the existing entry is revised;
    b. Under the entry ``International Maritime Organization (IMO)'', 
the entry ``International Maritime Dangerous Goods (IMDG) Code, 1994 
Consolidated Edition, as amended by Amendment 29 (1998) (English 
edition)'' is removed and one entry is added in its place; and
    c. Under the entry ``United Nations'', the entry ``UN 
Recommendations on the Transport of Dangerous Goods, Eleventh Revised 
Edition (1999)'' is revised.
    The revisions and addition read as follows:


Sec.  171.7  Reference material.

    (a) * * *
    (3) Table of material incorporated by reference. * * *

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        Source and name of material               49 CFR reference
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                              * * * * * * *
International Civil Aviation Organization
 (ICAO):
 
                              * * * * * * *
    Technical Instructions for the Safe     171.11; 172.202; 172.401;
     Transport of Dangerous Goods by Air     172.512; 172.602
     (ICAO Technical Instructions), DOC
     9284-AN/905, 2003-2004 Edition,
     including Erratum.
 
                              * * * * * * *
    International Maritime Organization
     (IMO):
 
                              * * * * * * *
    International Maritime Dangerous Goods  171.12; 172.202; 172.401;
     (IMDG Code), 2002 Edition, including    172.502; 172.602; 173.21;
     Amendment 31-02 (English Edition).      176.2; 176.5; 176.11;
                                             176.27; 176.30
 
                              * * * * * * *
United Nations:
 
                              * * * * * * *
    UN Recommendations on the Transport of  172.202; 172.401; 172.502;
     Dangerous Goods, Twelfth Revised        173.24
     Edition (2001).
 
                              * * * * * * *
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* * * * *

    Issued in Washington, DC on January 3, 2003 under authority 
delegated in 49 CFR part 1.
Ellen G. Engleman,
Administrator, Research and Special Programs Administration.
[FR Doc. 03-325 Filed 1-7-03; 8:45 am]
BILLING CODE 4910-60-P