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Hazardous Materials: Availability of Information for Hazardous Materials Transported by Aircraft
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 24, 2005 (Volume 70, Number 36)]
[Rules and Regulations]
[Page 8956-8957]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24fe05-9]
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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.
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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