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

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Information about this document as published in the Federal Register.

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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 Start Printed Page 53353requirements 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.

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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.

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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 Start Printed Page 53354requirements 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.

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List of Subjects in 49 CFR Part 171

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

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PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

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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.

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[Amended]
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2. Amend § 171.14, paragraph (f), by removing the wording “October 1, 2004” and adding the wording “April 1, 2005” in both places it appears.

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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.

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[FR Doc. 04-19963 Filed 8-31-04; 8:45 am]

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