Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket No. HM-215B; Amdt No. 171-149]

RIN 2137-AC82

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.

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

SUMMARY: This final rule updates references in the Hazardous Materials

Regulations to include the most recent amendments to international

standards. Because of recent changes to the International Maritime

Dangerous Goods Code (IMDG Code) and the International Civil Aviation

Organization's Technical Instructions for the Safe Transport of

Dangerous Goods by Air (ICAO Technical Instructions), these amendments

are necessary to facilitate the continued transport of hazardous

materials in international commerce by vessel and aircraft when these

international regulations become effective.

DATES: Effective date: The effective date of these amendments is June

1, 1997.

Compliance date: Because of international standards which become

effective on January 1, 1997, RSPA is authorizing immediate voluntary

compliance. However, persons voluntarily complying with these

regulations should be aware that petitions for reconsideration may be

received and, as a result of RSPA's evaluation of those petitions, the

amendments adopted in this final rule could be subject to further

revision.

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 June 1, 1997.

FOR FURTHER INFORMATION CONTACT: Bob Richard, Assistant International

Standards Coordinator, telephone (202) 366-0656, or Beth Romo, Office

of Hazardous Materials Standards, telephone (202) 366-8553, Research

and Special Programs Administration, U.S. Department of Transportation,

400 Seventh Street, S.W., Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

The UN Recommendations are recommendations issued by the UN

Committee of Experts on the Transport of Dangerous Goods. These

recommendations are amended and updated biennially by the Committee of

Experts and are distributed to nations throughout the world. They serve

as the basis for national, regional, and international modal

regulations (specifically the IMDG Code, issued by the International

Maritime Organization (IMO), and the International Civil Aviation

Organization (ICAO) Technical Instructions, issued by the ICAO

Dangerous Goods Panel).

On October 25, 1996, RSPA published a notice of proposed rulemaking

under Docket HM-215B [61 FR 55364] to amend the HMR to incorporate

provisions adopted in the ninth revised edition of the UN

Recommendations, the 1997-98 ICAO Technical Instructions, and Amendment

28 to the IMDG Code. The notice contained proposals which would more

fully align the HMR with international air and sea transport

requirements which become effective on January 1, 1997. Other proposed

changes in the NPRM were based on feedback from the regulated industry

and RSPA initiatives. RSPA limited the comment period to 30 days and

stated its intent to develop and issue a final rule to coincide with

the January 1, 1997 effective date for international air and sea

transport requirements. Commenters to the NPRM were very supportive of

RSPA's efforts to align the HMR with international standards and urged

RSPA to adopt regulations to incorporate the most recent editions of

the ICAO Technical Instructions and IMDG Code by January 1, 1997.

However, due to an unanticipated delay in publication of the NPRM and a

variety of complex issues raised by commenters, RSPA recognizes the

impossibility of issuing one final rule by January 1, 1997, that

adequately addresses all concerns expressed by commenters. Therefore,

RSPA is issuing this final rule to incorporate the latest versions of

the ICAO Technical Instructions and IMDG Code to allow voluntary

compliance with international standards on January 1, 1997. All other

changes to the HMR proposed in the NPRM will be addressed in a

subsequent final rule under HM-215B.

In this final rule, RSPA is amending Sec. 171.7 to recognize

Amendment 28 to the IMDG Code, which has recently been published by the

International Maritime Organization (IMO). This amendment promulgates

numerous miscellaneous changes to the IMDG Code and addresses such

matters as classification, labeling, packaging, and documentation. IMO

has established January 1, 1997, as the implementation date for these

amendments. In Sec. 171.12, the HMR authorize shipments prepared in

accordance with the IMDG Code if all or part of the transportation is

by vessel, subject to certain conditions and limitations.

This rule also incorporates by reference the 1997-1998 edition of

the ICAO Technical Instructions, which becomes effective on January 1,

1997, pursuant to decisions taken by the ICAO Council regarding

implementation of Annex 18 to the Convention on International Civil

Aviation. The offering, acceptance and transportation of hazardous

materials by aircraft, and by motor vehicle either before or after

being transported by aircraft, is authorized in Sec. 171.11 as fully

equivalent to the HMR (with certain exceptions) if in conformance with

the ICAO Technical Instructions.

This final rule serves as a competent authority approval by

authorizing a six- month period for use of either Amendment 27 or

Amendment 28 of the IMDG Code and either the 1995-96 or 1997-98 ICAO

Technical Instructions. Voluntary compliance with new IMDG Code and

ICAO requirements is authorized as of January 1, 1997, but regulated

entities may comply with the old requirements until June 1, 1997.

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, 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).

The economic impact of this final rule is expected to result in

only minimal costs to certain persons subject to the HMR and may result

in modest cost savings to a small number of persons subject to the HMR

and to the agency. Because of the minimal economic impact of this rule,

preparation of a regulatory impact analysis or a regulatory evaluation

is not warranted.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism'').

Federal

[[Page 65959]]

hazardous materials transportation law, 49 U.S.C. 5701-5127, 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

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

(5) The design, manufacturing, fabricating, marking, maintenance,

reconditioning, repairing, 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 subjects under items (1), (2),

(3), and (5) above and, if adopted as final, would preempt State,

local, or Indian tribe requirements not meeting the ``substantively the

same'' standard. Federal hazardous materials transportation law

provides at Sec. 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. RSPA has determined that the effective date of

Federal preemption for these requirements will be June 16, 1997 under

this docket. Thus, RSPA lacks discretion in this area, and preparation

of a federalism assessment is not warranted.

C. Regulatory Flexibility Act

This final rule incorporates by reference the 1997-98 ICAO

Technical Instructions and Amendment 28 to the IMDG Code. It applies to

offerors and carriers of hazardous materials and facilitates the

transportation of hazardous materials in international commerce by

providing consistency with international requirements. U.S. companies,

including numerous small entities competing in foreign markets, will

not be at an economic disadvantage by being forced to comply with a

dual system of regulation. Therefore, I certify that this final rule

will not have a significant economic impact on a substantial number of

small entities.

D. Paperwork Reduction Act

The requirements for information collection have been approved by

the Office of Management and Budget (OMB) under OMB control numbers

2137-0034 for shipping papers and 2137-0557 for approvals. 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.

E. 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.

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.

Sec. 171.7 [Amended]

2. In Sec. 171.7, in the table in paragraph (a)(3), the following

changes are made:

a. Under International Civil Aviation Organization (ICAO), for the

entry Technical Instructions for the Safe Transport of Dangerous Goods

by Air, the date ``1995-1996'' is revised to read ``1997-1998''.

b. Under International Maritime Organization (IMO), the entry

``International Maritime Dangerous Goods (IMDG) Code'' is amended by

removing the wording ``1990 Consolidated Edition, as amended by

Amendment 27 (1994)'' and adding in its place ``1994 Consolidated

Edition, as amended by Amendment 28 (1996)''.

Issued in Washington, DC on December 9, 1996, under authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 96-31649 Filed 12-13-96; 8:45 am]

BILLING CODE 4910-60-P