[Federal Register Volume 69, Number 75 (Monday, April 19, 2004)]
[Rules and Regulations]
[Pages 20831-20833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8825]


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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.

0
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

0
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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