[Federal Register Volume 70, Number 36 (Thursday, February 24, 2005)]
[Rules and Regulations]
[Pages 8956-8957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3485]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 171

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


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

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

ACTION: Final rule.

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SUMMARY: This final rule adopts without change the April 1, 2005, 
mandatory compliance date for the notification and record retention 
requirements for aircraft operators transporting hazardous materials, 
as adopted in an interim final rule in this proceeding published on 
September 1, 2004.

DATES: Effective Date: The effective date of these amendments is 
February 24, 2005.

FOR FURTHER INFORMATION CONTACT: John A. Gale or Gigi Corbin, Office of 
Hazardous Materials Standards, telephone (202) 366-8553, Pipeline and 
Hazardous Materials Safety 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, the predecessor agency of the Pipeline and Hazardous Materials 
Safety Administration (PHMSA)) published a final rule under this docket 
(68 FR 14341) amending the Hazardous Materials Regulations (HMR) to 
require an aircraft operator to: (1) Place on the notification of 
pilot-in-command (NOPC) or in the cockpit of the aircraft a telephone 
number that can be contacted during an in-flight emergency to obtain 
information about any hazardous materials aboard the aircraft; (2) 
retain and provide upon request a copy of the NOPC, 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 NOPC, or the 
information contained in it, at the planned airport of arrival until 
the flight leg is completed. The March 25, 2003, rule which became 
effective October 1, 2003, required compliance 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. In response to this request, RSPA 
published an interim final rule (IFR) on September 1, 2004, delaying 
the compliance date to April 1, 2005. We invited interested parties to 
participate in this rulemaking by submitting comments on the IFR.
    We received two comments. Neither comment addressed the issue of 
delayed compliance discussed in this IFR. One commenter submitted 
comments dealing with issues discussed in the NPRM; the other commenter 
questioned the length of the retention period for the NOPC (see Sec.  
175.33(c)) in comparison to the retention period for shipping papers in 
Sec.  172.201. Both comments are outside the scope of this rulemaking, 
and are not addressed here. PHMSA is adopting the amendments as 
presented in the IFR.

II. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This interim final rule is published under the authority of Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.) and 49 U.S.C. 44701. Section 5103(b) of Federal hazmat 
law authorizes the Secretary of Transportation to prescribe regulations 
for the safe transportation, including security, of hazardous material 
in intrastate, interstate, and foreign commerce. Title 49 United States 
Code Sec.  44701 authorizes the Administrator of the Federal Aviation 
Administration to promote safe flight of civil aircraft in air commerce 
by prescribing regulations and minimum standards for practices, 
methods, and procedures the Administrator finds necessary for safety in 
air commerce and national security. Under 49 U.S.C. 40113, the 
Secretary of Transportation has the same authority to regulate the 
transportation of hazardous material by air, in carrying out Sec.  
44701, that he has under 49 U.S.C. 5103.

B. 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 adopts 
without change a compliance date adopted in an interim final rule 
published on September 1, 2004. 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.

C. 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 requirements on the following subjects:
    (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; or

[[Page 8957]]

    (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.
    This final rule addresses 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 PHMSA 
issues a regulation concerning any of the covered subjects, PHMSA 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 final rule does not 
change the effective date of Federal preemption of the March 25, 2003, 
final rule, which was October 1, 2003.

D. 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.

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. 
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.

F. Paperwork Reduction Act

    This final rule does not impose new information collection 
requirements. We currently have an approved information collection 
under OMB No. 2137-0034, ``Hazardous Materials Shipping Papers & 
Emergency Response Information.'' The March 25, 2003, final rule 
resulted in an increase in the annual paperwork burden and costs. These 
revisions regarding the maintenance of copies of notification of pilot-
in-command were submitted under the NPRM to OMB for review and 
approval.
    PHMSA estimated that the new total information collection and 
recordkeeping burden for OMB No. 2137-034 would be as follows: 
``Hazardous Materials Shipping Papers & Emergency Response 
Information'' OMB No. 2137-0034.
    Total Annual Number of Respondents: 250,000.
    Total Annual Responses: 260,000,000.
    Total Annual Burden Hours: 6,523,611.
    Total Annual Burden Cost: $6,925,000.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. OMB approved the revised information collection 
requirement on February 27, 2003.

G. 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.

H. 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, in the aggregate, to any of the following: 
State, local or tribal governments, or to the private sector.

I. 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. There are no 
significant environmental impacts associated with this final rule.

J. 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
Accordingly, the interim final rule amending 49 CFR part 171 which was 
published at 69 FR 53352 on September 1, 2004, is adopted as a final 
rule without change.

    Issued in Washington, DC, on February 3, 2005, under the 
authority delegated in 49 CFR part 1.
Elaine E. Joost,
Acting Deputy Administrator.
[FR Doc. 05-3485 Filed 2-23-05; 8:45 am]
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