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. RSPA-98-4185 (HM-215C)]

RIN 2137-AD15

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.

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SUMMARY: This final rule amends a requirement for the use of the

International Civil Aviation Organization's Technical Instructions for

the Safe Transport of Dangerous Goods by Air (ICAO Technical

Instructions) and updates references in the Hazardous Materials

Regulations (HMR) to include the most recent amendments to the

International Maritime Dangerous Goods Code (IMDG Code) and the ICAO

Technical Instructions. These amendments are necessary to facilitate

the continued transport of hazardous materials in international

commerce by vessel and aircraft at the time these international

regulations become effective.

DATES: Effective date: January 1, 1999.

Compliance date: Compliance with the regulation as amended in

Sec. 171.11(d)(4)(ii) is authorized immediately.

Incorporation by reference: The incorporation by reference of the

publications listed in these amendments has been approved by the

Director of the Federal Register effective January 1, 1999.

FOR FURTHER INFORMATION CONTACT: Bob Richard, Assistant International

Standards Coordinator, telephone (202) 366-0656, or Joan McIntyre,

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: On August 18, 1998, RSPA published a notice

of proposed rulemaking (NPRM) under Docket HM-215C (63 FR 44312) which

proposed changes to more fully align the HMR with the international

regulations. Among the changes, RSPA proposed to amend the HMR to

incorporate by reference the 1999-2000 ICAO Technical Instructions and

Amendment 29 to the IMDG Code, and to make a shipping paper requirement

notation permissive. RSPA received no adverse comments to these

proposals. Therefore, these changes are adopted in this final rule.

Section 171.11 of the HMR authorizes hazardous materials shipments

to be prepared in accordance with the ICAO Technical Instructions and

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

being transported by aircraft, subject to certain conditions and

limitations. Similarly, Sec. 171.12 of the HMR authorizes hazardous

materials shipments to be prepared in accordance with the IMDG Code if

all or part of the transportation is by vessel, subject to certain

conditions and limitations. Use of the latest versions of the ICAO

Technical Instructions and the IMDG Code become mandatory for

international hazardous materials shipments on January 1, 1999.

This final rule also amends a shipping paper requirement for the

use of the ICAO Technical Instructions. In Sec. 171.11(d)(4), as

adopted under Docket HM-215B (FR 62 24700), published May 6, 1997, the

letters ``ICAO'' were required to be included on shipping papers when

being transported in accordance with the ICAO Technical

[[Page 57930]]

Instructions. The effective date of this requirement was October 1,

1998. Several months after publication of the final rule, RSPA received

numerous comments opposing the change as an unnecessary economic

burden. In the NPRM, RSPA proposed to make the requirement permissive.

RSPA is incorporating the change in this final rule to minimize

disruption to persons transporting hazardous materials in accordance

with the ICAO Technical Instructions.

All other changes proposed to the HMR, under Docket HM-215C, will

be addressed in a subsequent final rule.

Regulatory 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. This rule is not

significant under the Regulatory Policies and Procedures of the

Department of Transportation (44 FR 11034).

The costs and benefits asociated with this final rule are

considered to be so minimal as to not warrant preparation of a

regulatory impact analysis or regulatory evaluation.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

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

Federal law expressly preempts State, local, and Indian tribe

requirements applicable to the transportation of hazardous material

that cover certain subjects and are not substantively the same as the

Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:

(i) the designation, description, and classification of hazardous

material;

(ii) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(iii) the preparation, execution, and use of shipping documents

pertaining to hazardous material and requirements respecting the

number, content, and placement of those documents;

(iv) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(v) the design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous material.

This final rule concerns the classification, packaging, marking,

labeling, and handling of hazardous material, among other covered

subjects.

This final rule would preempt any State, local, or Indian tribe

requirements concerning these subjects unless the non-Federal

requirements are ``substantively the same'' (see 49 CFR 107.202(d)) as

the Federal requirements.

Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a

regulation concerning any of the covered subjects after November 16,

1990, DOT must determine and publish in the Federal Register the

effective date of Federal preemption. That 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 October 1, 1999 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 updates two incorporations by reference and relaxes

one shipping paper requirement. The changes in this rule apply to

offerors and carriers of hazardous materials and facilitate 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 be

relieved of the need to comply with a dual system of regulations. The

costs and benefits associated with this final rule are considered to be

so minimal as to not warrant preparation of a regulatory impact

analysis or regulatory evaluation. Therefore, I certify that this will

rule will not, if promulgated, have a significant economic impact on a

substantial number of small entities.

D. Paperwork Reduction Act

This final rule contains no new information collection burdens.

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.

F. 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.

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 ``1997-1998 Edition'' is revised to read ``1999-2000

Edition''.

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

``International Maritime Dangerous Goods (IMDG) Code'', the wording

``Amendment 28 (1996)'' is revised to read ``Amendment 29 (1998)''.

3. In Sec. 171.11, paragraph (d)(4)(ii) is revised to read as

follows:

Sec. 171.11 Use of ICAO Technical Instructions.

* * * * *

(d) * * *

(4) * * *

(ii) The shipping paper may include an indication that the shipment

is being made under the provisions of this section or the letters

``ICAO.''

* * * * *

Issued in Washington, D.C. on October 22, 1998, under authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Administrator.

[FR Doc. 98-28874 Filed 10-28-98; 8:45 am]

BILLING CODE 4910-60-P