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Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions; Incorporation by Reference
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 8, 2003 (Volume 68, Number 5)]
[Rules and Regulations]
[Page 1013-1015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja03-8]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[RSPA Docket No. 02-13658 (HM-215E)]
RIN 2137-AD41
Harmonization with the United Nations Recommendations,
International Maritime Dangerous Goods Code, and International Civil
Aviation Organization's Technical Instructions; Incorporation by
Reference
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Hazardous Materials Regulations
(HMR) by updating incorporation by reference materials to include the
most recent amendments to the International Maritime Dangerous Goods
Code (IMDG Code), the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by Air
(ICAO Technical Instructions) and the United Nations Recommendations on
the Transport of Dangerous Goods (UN Recommendations). This action is
necessary to facilitate the continued transport of hazardous materials
in international commerce by aircraft and vessel after these
international standards become effective. The other changes proposed in
the notice of proposed rulemaking (NPRM) under this docket will be
addressed in a separate rule.
DATES: Effective date: The effective date of these amendments is
January 8, 2003.
Voluntary compliance date: Compliance with the regulations, as
amended herein, is authorized as of January 1, 2003.
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 January 8, 2003.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials Standards, telephone (202) 366-8553, or Shane Kelley,
International Standards, telephone (202) 366-0656, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Background
On December 3, 2002, RSPA published a notice of proposed rulemaking
(NPRM) under Docket Number RSPA-2002-13658 (HM-215E), 67 FR 72034, that
proposed changes to more fully align the HMR with international
standards. Proposed changes were to update the incorporations by
reference of three international standards and to solicit comments by
January 2, 2003. The standards are Amendment 31 to the IMDG Code, the
2003-2004 edition of the ICAO Technical Instructions, and the twelfth
revised edition of the UN Recommendations. We received no comments
opposing the incorporation of these updated standards. We are issuing
this final rule adopting only the incorporation by reference materials
to allow their use beginning January 1, 2003, the effective date of the
international standards. Our intent is to prevent disruption for
persons transporting hazardous materials in international commerce.
Discussion of Standards and Amendments
Amendment 31 to the IMDG Code, which was recently published by the
International Maritime Organization (IMO), contains miscellaneous
changes to the IMDG Code concerning classification, labeling,
packaging, and documentation. The IMO has established January 1, 2003,
as the implementation date for these amendments and is authorizing a
one-year transition period, until January 1, 2004, for compliance with
the new requirement. Amendments 30 and 31 are authorized for use until
January 1, 2004, at which time all shipments must conform to Amendment
31. With certain exceptions, we authorize in Sec. 171.12 of the HMR,
shipments prepared in accordance with the IMDG Code if all or part of
the transportation is by vessel. At least 150 countries, with combined
merchant fleets accounting for more than 98% of the world's gross
tonnage, use the IMDG Code as a basis for regulating vessel transport
of hazardous materials.
The 2003-2004 edition of the ICAO Technical Instructions is
effective January 1, 2003. The revised edition incorporates numerous
miscellaneous changes concerning classification, labeling, packaging
and documentation. In Sec. 171.11 of the HMR, we authorize the
offering, accepting and transporting of hazardous materials by air when
prepared in conformance with the ICAO Technical Instructions and by
motor vehicle both before and after air transportation, with certain
exceptions. Virtually all shipments of hazardous materials transported
internationally by aircraft are transported in accordance with the ICAO
Technical Instructions, as well as the majority of the domestic
shipments. The ICAO Technical Instructions are updated every two years.
The twelfth revised edition of the UN Recommendations is also
effective January 1, 2003. The UN Recommendations are not regulations
but are recommendations issued by the UN Committee of Experts on the
Transport of Dangerous Goods. These recommendations are amended and
updated biennially by the UN Committee of Experts. They serve as the
basis for the IMDG Code and the ICAO Technical Instructions.
Uniform national and international hazardous materials
transportation regulations enhance transportation safety and facilitate
trade of hazardous materials. International carriers engaged in the
transportation of hazardous materials by air generally elect to comply
with the ICAO Technical Instructions, while vessel operators generally
elect to comply with the IMDG Code. In so doing, these carriers are
able to train their hazmat employees in a single set of hazardous
materials transportation requirements, thereby minimizing the
possibility of improperly transporting a shipment of hazardous
materials because of differences in domestic regulations. Authorizing
the use of the updated editions of international standards will
facilitate the international transportation of hazardous materials by
aircraft and vessel by ensuring a basic consistency between the HMR and
the international regulations.
Based on the above discussion, we are revising Sec. 171.7, to
incorporate by reference Amendment 31 to the IMDG Code, the 2003-2004
edition of the ICAO Technical Instructions, and the twelfth revised
edition of the UN Recommendations.
[[Page 1014]]
Sequence of Optional Shipping Paper Description in the NPRM
The December 3, 2002 NPRM contains an error in Sec. 172.203(b),
pertaining to the proposed optional sequence of information for the
basic description on shipping papers. We intended that the proposed
description be identical to that specified in the UN Recommendations,
ie., identification (ID) number, proper shipping name, hazard class,
subsidiary hazard, and packing group. A correct example would be
``UN2744, Cyclobutyl chloroformate, 6.1, (8.3), PG II.'' The proposed
rule incorrectly specified the order of sequence as ID number, hazard
class, subsidiary hazard, proper shipping name, and packing group.
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]. Benefits
resulting from the adoption of the amendments in this final rule
include enhanced transportation safety resulting from the consistency
of domestic and international hazard communications and continued
access to foreign markets by domestic shippers of hazardous materials.
This final rule applies to offerors and carriers of hazardous
materials, such as chemical manufacturers, chemical users and
suppliers, packaging manufacturers, distributors and training
companies.
Adoption of the amendments in this final rule should result in
minimal cost savings by easing the regulatory compliance burden for
shippers engaged in domestic and international commerce by aircraft and
vessel. Although preparation of a regulatory impact analysis or
regulatory evaluation is not warranted because these amendments do not
impose mandatory additional requirements, a preliminary regulatory
evaluation addressing the December 3, 2002 NPRM is available for review
in Docket Number RSPA-2002-13658.
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local and Indian tribe requirements but does
not propose 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.
The Federal hazardous material transportation law, 49 U.S.C. 5101-
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
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 materials; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, 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 covered subject items (1), (2), (3), and
(5), above, and would preempt State, local, and Indian tribe
requirements not meeting the ``substantively the same'' standard. This
final rule is necessary to incorporate changes adopted in international
standards, effective January 1, 2003. Without adoption of the
amendments in this final rule, U.S. companies, including numerous small
entities competing in foreign markets, would be at an economic
disadvantage. These companies would be forced to comply with a dual
system of regulations. The changes in this rulemaking are intended to
avoid this result.
Federal hazardous materials transportation law provides at section
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.
The effective date of Federal preemption will be April 8, 2003.
C. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rule does
not have tribal implications, does not impose substantial direct
compliance costs, and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities,
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. This rule
will facilitate the transportation of hazardous materials in
international commerce by providing consistency with, and authorizing
the use of, international standards contained in the 2003-2004 ICAO
Technical Instructions and Amendment 31 to the IMDG Code. This final
rule applies to offerors and carriers of hazardous materials, some of
whom are small entities such as chemical users and suppliers. The total
net increase in costs to small businesses in implementing this
rulemaking is minimal. We believe that any costs associated with
adoption of these amendments will be outweighed by the benefits. This
final rule will facilitate the transportation of hazardous materials in
international commerce by providing consistency with international
requirements. By adopting the amendments in this final rule, U.S.
companies, including numerous small entities competing in foreign
markets, will have continued access to foreign markets and will not be
at an economic disadvantage by being forced to comply with a dual
system of regulations. Consistency with international requirements also
will result in enhanced safety. Therefore, I certify that this final
rule will not have a significant economic impact on a substantial
number of small entities.
E. Paperwork Reduction Act
There are no information collection requirements in this final
rule.
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.
[[Page 1015]]
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
$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.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major federal actions
and prepare a detailed statement on actions significantly affecting the
quality of the human environment. We analyzed the effects of these
amendments, as well as other proposals, on the environment and whether
a more comprehensive environmental impact statement may be required.
Our findings conclude that there are no significant environmental
impacts associated with the amendments being adopted in this final
rule. For interested parties, an environmental assessment is available
in the public docket.
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 (Volume 65, Number 70;
Pages 19477-78) or you may visit http://dms.dot.gov. 
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.
2. In Sec. 171.7, in the paragraph (a)(3) table, the following
changes are made:
a. Under the entry ``International Civil Aviation Organization
(ICAO)'', the existing entry is revised;
b. Under the entry ``International Maritime Organization (IMO)'',
the entry ``International Maritime Dangerous Goods (IMDG) Code, 1994
Consolidated Edition, as amended by Amendment 29 (1998) (English
edition)'' is removed and one entry is added in its place; and
c. Under the entry ``United Nations'', the entry ``UN
Recommendations on the Transport of Dangerous Goods, Eleventh Revised
Edition (1999)'' is revised.
The revisions and addition read as follows:
Sec. 171.7 Reference material.
(a) * * *
(3) Table of material incorporated by reference. * * *
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Source and name of material 49 CFR reference
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* * * * * * *
International Civil Aviation Organization
(ICAO):
* * * * * * *
Technical Instructions for the Safe 171.11; 172.202; 172.401;
Transport of Dangerous Goods by Air 172.512; 172.602
(ICAO Technical Instructions), DOC
9284-AN/905, 2003-2004 Edition,
including Erratum.
* * * * * * *
International Maritime Organization
(IMO):
* * * * * * *
International Maritime Dangerous Goods 171.12; 172.202; 172.401;
(IMDG Code), 2002 Edition, including 172.502; 172.602; 173.21;
Amendment 31-02 (English Edition). 176.2; 176.5; 176.11;
176.27; 176.30
* * * * * * *
United Nations:
* * * * * * *
UN Recommendations on the Transport of 172.202; 172.401; 172.502;
Dangerous Goods, Twelfth Revised 173.24
Edition (2001).
* * * * * * *
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* * * * *
Issued in Washington, DC on January 3, 2003 under authority
delegated in 49 CFR part 1.
Ellen G. Engleman,
Administrator, Research and Special Programs Administration.
[FR Doc. 03-325 Filed 1-7-03; 8:45 am]
BILLING CODE 4910-60-P