[Federal Register Volume 69, Number 169 (Wednesday, September 1, 2004)]
[Rules and Regulations]
[Pages 53352-53354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19963]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket No. RSPA-00-7762 (HM-206C)]
RIN 2137-AD29


Hazardous Materials: Availability of Information for Hazardous 
Materials Transported by Aircraft

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

ACTION: Interim Final Rule; extension of compliance date.

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

SUMMARY: This interim final rule extends the compliance date of the 
notification and record retention

[[Page 53353]]

requirements for aircraft operators transporting hazardous materials. 
On March 25, 2003 RSPA published a final rule that requires an aircraft 
operator transporting a hazardous material to assure that information 
on the hazardous material carried aboard the aircraft is available to 
emergency responders through sources other than the flight crew. This 
interim final rule extends the October 1, 2004 mandatory compliance 
date to April 1, 2005.

DATES: Effective Date: The effective date of these amendments is 
September 1, 2004.
    Comments: Submit comments by October 1, 2004. To the extent 
possible, we will consider late-filed comments as we develop a final 
rule.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 
RSPA 00-7762 (HM-206C)] by any of the following methods:
     Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: (202) 493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identifcation Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without 
change, to http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading under Regulatory Analyses 
and Notices.
    Docket: For access to the docket to read background documents and 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: John A. Gale or Gigi Corbin, Office of 
Hazardous Materials Standards, telephone (202) 366-8553, Research and 
Special Programs Administration, U.S. Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 25, 2003, the Research and Special Programs Administration 
(RSPA, we) published a final rule under this docket (68 FR 14341) 
amending the Hazardous Materials Regulations to require an aircraft 
operator to: (1) Place a telephone number, that can be contacted during 
an in-flight emergency to obtain information about any hazardous 
materials aboard the aircraft, on the notification of pilot-in-command 
or in the cockpit of the aircraft; (2) retain and provide upon request 
a copy of the notification of pilot-in-command, or the information 
contained in it, at the aircraft operator's principal place of 
business, or the airport of departure, for 90 days, and at the airport 
of departure until the flight leg is completed; and (3) make readily 
accessible, and provide upon request, a copy of the notification of 
pilot-in-command, or the information contained in it, at the planned 
airport of arrival until the flight leg is completed. Currently under 
the HMR, the notification and record retention requirements become 
mandatory on October 1, 2004.
    On June 22, 2004 the Air Transport Association (ATA) requested that 
RSPA extend the compliance date from October 1, 2004 to April 1, 2005 
to allow its member air carriers additional time to prepare for and 
implement these new requirements. ATA stated that most of its members 
have decided to automate the notification and record retention 
requirements of Docket HM-206C because automation will better serve the 
safety purposes of the rule. ATA goes on to say that automation 
requires extensive reprogramming of air carriers' existing systems as 
well as a significant initial investment of time and resources; that, 
once programming solutions are devised, they must be tested by the 
carrier over its nation-wide or world-wide system; and that air 
carriers must also develop training materials and train employees in 
the new applications and procedures. ATA states that delay of the 
compliance date will enable carriers to complete these preparations and 
achieve an orderly transition to the automated methods. RSPA agrees 
that delaying the compliance date on this rulemaking is in the public 
interest. Because there is insufficient time to provide an opportunity 
for public comment in response to a notice of proposed rulemaking, 
prior to the current mandatory compliance date in the HMR, we are 
publishing an interim final rule in which we are delaying the 
compliance date to April 1, 2005.
    The Regulatory Policies and Procedures of DOT (44 FR 1134; February 
29, 1979) provide that, to the maximum extent possible, DOT operating 
administrations should provide an opportunity for public comment on 
regulations issued without prior notice. Accordingly, we encourage 
persons to participate in this rulemaking by submitting comments 
containing relevant information, data, or views. We will consider all 
comments received on or before the closing date for comments. We will 
consider late filed comments to the extent practicable. This interim 
final rule may be amended based on comments received.

II. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and was not reviewed by the 
Office of Management and Budget (OMB). 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 March 25, 2003 final rule by extending the compliance date for the 
notification and record retention requirements for air carriers 
transporting hazardous materials. 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 
March 25, 2003 final rule.

B. Executive Order 13132

    This final rule was 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 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.
    Federal hazardous material transportation law, 49 U.S.C. 5101-5127, 
contains an express preemption provision (49 U.S.C. 5125(b)) preempting 
State, local, and Indian tribe

[[Page 53354]]

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, 
reconditioning, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    The March 25, 2003 final rule addressed covered subject item (3) 
above and preempts State, local, or 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 
RSPA issues a regulation concerning any of the covered subjects, RSPA 
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. This interim final 
rule does not change the effective date of Federal preemption of the 
March 25, 2003 final rule, which was June 23, 2003.

C. Executive Order 13175

    This final rule has been 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 on Indian tribal governments, and does not preempt 
tribal law, the funding and consultation requirements of Executive 
Order 13175 do not apply.

D. 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. 
An agency must conduct a regulatory flexibility analysis unless it 
determines and certifies 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 
transport hazardous materials by air. This final rule provides an 
extension of the compliance date for notification and record retention 
requirements for air carriers. The compliance date extension assures 
that air carriers have sufficient time to reprogram their systems to 
meet the new requirements, test the reprogrammed system, develop 
training materials and train their employees. Therefore, I certify this 
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 number 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 
$120.7 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

    This final rule will improve emergency response to hazardous 
materials incidents involving aircraft by ensuring information on the 
hazardous materials involved in an emergency is readily available. 
Improving emergency response to aircraft incidents will reduce 
environmental damage associated with such incidents. We find there are 
no significant environmental impacts associated with this final rule.

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 (65 FR 19477) or you 
may visit http://dms.dot.gov.

List of Subjects in 49 CFR Part 171

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

0
In consideration of the foregoing, 49 CFR chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.


Sec.  171.14  [Amended]

0
2. Amend Sec.  171.14, paragraph (f), by removing the wording ``October 
1, 2004'' and adding the wording ``April 1, 2005'' in both places it 
appears.

    Issued in Washington, DC on August 18, 2004, under the authority 
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 04-19963 Filed 8-31-04; 8:45 am]
BILLING CODE 4910-60-P