Daily Rules, Proposed Rules, and Notices of the Federal Government
Under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), an offeror of a hazardous material must provide the aircraft operator with a signed shipping paper containing the quantity and a basic shipping description of the material being offered for transportation (i.e., proper shipping name, hazard class, UN or NA identification number, and packing group); certain emergency response information; and a 24-hour emergency response telephone number. (49 CFR part 172, subparts C and G). Additional information may be required depending on the specific hazardous material being shipped. (49 CFR 172.203). A copy of this shipping paper must accompany the shipment it covers during transportation aboard the aircraft. (49 CFR 175.35).
In addition to the shipping paper accompanying each hazardous materials shipment, an aircraft operator must provide the pilot-in-command of the aircraft written information relative to the hazardous materials on board the plane. (49 CFR 175.33). For each hazardous materials shipment, this information must include:
(1) Proper shipping name, hazard class, and identification number;
(2) technical and chemical group name, if applicable;
(3) any additional shipping description requirements applicable to specific types or shipments of hazardous materials or to materials shipped under International Civil Aviation Organization (ICAO) requirements;
(4) total number of packages;
(5) net quantity or gross weight, as appropriate, for each package;
(6) the location of each package on the aircraft;
(7) for Class 7 (radioactive) materials, the number of packages, overpacks or freight containers, their transport index, and their location on the plane; and
(8) an indication, if applicable, a hazardous material is being transported under terms of an exemption.
This information must be readily available to the pilot-in-command during flight. In essence, the Notification of pilot-in-command (NOPC) provides the same information to emergency response personnel as a shipping paper for transportation by rail or public highway. In addition, emergency response information applicable to the specific hazardous materials being transported by aircraft must be available for use at all times the materials are present on the plane, and must be maintained on board in the same manner as the notification of pilot-in-command. (See subpart G of part 172 for requirements relating to emergency response information.) In an emergency situation, the flight crew may be able to transfer information on the hazardous materials aboard the aircraft to air traffic control, or emergency responders may be able to retrieve the information from the aircraft after it lands. However, during an in-flight emergency, the flight crew will most likely be attending to more pressing tasks, thus making retrieval of the information from the flight crew impractical. Also, in many emergencies the aircraft is damaged or destroyed, making retrieval of this information from the aircraft impossible. Therefore, we need to amend the HMR to assure the information on the hazardous materials carried aboard the aircraft is available to emergency responders through sources other than the flight crew.
This proposal has its origins in the Hazardous Materials Transportation Uniform Safety Act (HMTUSA). Section 25 of HMTUSA (Pub. L. 101-615, 104 Stat. 3273) required the Secretary to conduct a rulemaking to evaluate methods for establishing and operating a central reporting system and computerized telecommunication data center. HMTUSA mandated we contract with the National Academy of Sciences (NAS) to study the feasibility and necessity of establishing and operating a central reporting system and computerized telecommunication data center. Areas of the study included: (1) Receiving, storing, and retrieving data concerning all daily shipments of hazardous materials; (2) identifying hazardous materials being transported by any mode of transportation; and (3) providing information to facilitate responses to accidents and incidents involving the transportation of hazardous materials.
In conjunction with the NAS study, RSPA issued an ANPRM entitled “Improvements to Hazardous Materials Identification Systems” on June 9, 1992 (Docket HM-206; 57 FR 24532). The ANPRM included 63 primary questions
NAS published its report on April 29, 1993. (A copy of the NAS report can be obtained from the Transportation Research Board at 2101 Constitution Avenue, NW, Washington, DC 20418.) The central recommendation of the report advises the Federal government not to attempt to implement a national central reporting system, as originally proposed for consideration. NAS found the existing hazardous materials communication system effective, in most instances; and, further, that the information available at hazardous materials transportation incident sites meets the critical information needs of emergency responders.
In the NPRM issued under Docket HM-206 on August 15, 1994 (59 FR 41848), we did not propose to establish a centralized reporting system and telecommunication data center. Instead, we concluded the national central reporting system described in detail in HMTUSA would be extremely complicated, burdensome, expensive to implement, and of questionable benefit. We believe this conclusion and the central recommendation of the NAS report are still valid.
The changes proposed in this notice are also responsive to a recommendation of the National Transportation Safety Board (NTSB) and are consistent with recent changes to the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions). The NTSB recommends that RSPA:
Require, within two years, that air carriers transporting hazardous materials have the means, 24 hours per day, to quickly retrieve and provide consolidated specific information about the identity (including proper shipping name), hazard class, quantity, number of packages, and location of all hazardous material on an airplane in a timely manner to emergency responders. (A-98-80).
This recommendation is contained in NTSB's August 12, 1998, letter to RSPA, which has been placed in the public docket. The recommendation follows NTSB's investigation of a September 5, 1996, accident involving a Federal Express Corporation (FedEx) flight from Memphis, Tennessee, to Boston, Massachusetts (a detailed description of the incident can be found in the ANPRM). NTSB found the on-board hazardous materials shipping papers and notification of pilot-in-command (NOPC) were not available to emergency responders. Further, NTSB discovered FedEx did not have the capability to generate, in a timely manner, a single list indicating the shipping name, hazard class, identification number, quantity, and location of hazardous materials on the airplane. To prepare such a list, according to the NTSB, FedEx would have had to compile information from individual shipping papers for each individual shipment of hazardous materials on board the aircraft. NTSB contrasted this with the railroads' practice of generating a computerized list of all the freight cars containing hazardous materials on a given train, with the shipping name, hazard class, identification number, quantity and type of packaging, and emergency response guidance for each hazardous material. NTSB stated such a list provides information to emergency responders in a timely fashion and in a useful format.
NTSB also stated shipping papers are less likely to be available or accessible after an aircraft accident than after a rail, highway, or water accident, because of the likelihood of fire or destruction of the airplane. Due to the danger of fire, a flight crew is also less likely to have time to retrieve shipping papers after an accident. NTSB concluded the HMR do not adequately address the need for air carriers to have quickly retrievable hazardous materials information in a format useful to emergency responders.
The ICAO Dangerous Goods Panel also considered additional steps that could be taken to improve the availability of information in the event of an aircraft incident. As a result, the Panel revised the ICAO Technical Instructions to: (1) Require the NOPC to be readily accessible at the airport of departure and arrival; and (2) allow an aircraft operator to provide a phone number where a copy of the NOPC could be obtained. In an emergency, the pilot would relay the phone number instead of the specific hazardous materials aboard the aircraft to an air traffic controller (see ICAO Technical Instructions 7;4.3). For informational purposes, we placed in the Docket an excerpt from the reports of the ICAO Dangerous Goods Panel reflecting discussions on this topic and relevant changes for inclusion in the 2001-2002 and 2003-2004 ICAO Technical Instructions.
On August 15, 2000, we issued an advance notice of proposed rulemaking (ANPRM) requesting comments and suggestions on ways to implement the NTSB recommendation and the need for this or other changes to the HMR. The purpose of this action is to make it easier for emergency responders to obtain shipment information for hazardous materials transported by aircraft. The ANPRM solicited comments on past incidents; practices and procedures currently in use and their costs; information needed by emergency responders; and the benefit, feasibility, and funding of a centralized reporting system (CRS).
We received nine comments in response to the ANPRM. Commenters included a shipper, a freight forwarder, software developers, and trade associations. Commenters who support development of a CRS believe improved response capabilities to aircraft hazardous materials incidents are important to the entire aviation industry. One commenter suggests it would be best if a CRS were developed by an industry advisory committee. Another commenter supports the exploration of the concept of a CRS by an industry task force convened under the auspices of RSPA and the Federal Aviation Administration (FAA). One commenter believes a CRS would help protect crew-members, passengers, emergency response personnel, and persons on the ground. Another commenter states a CRS is the key to rapid and effective information distribution and would provide emergency response personnel and flight crews with valuable information in timely fashion on the types, quantities, and locations of hazardous materials aboard an aircraft. This commenter suggests we charge shippers for the costs associated with the development and operation of the CRS.
A commenter opposed to the development of a CRS believes the new system will not provide an improvement over the existing, proven emergency response communication system and the complicated operation of a centralized system could make errors likely and result in a substantial decrease in safety. This commenter believes the current requirements in the HMR work well and have achieved an excellent safety record. The commenter suggests improvements are possible, but wholesale changes are not necessary. Another commenter notes RSPA and NAS rejected the proposal for a CRS several years ago because it was impractical and unnecessary. The commenter believes the earlier finding of RSPA and NAS continues to be valid, even though the technology advanced. This commenter states that a government-mandated CRS will force-fit a “one size fits all” solution and stifle further technological advances. Another
Several commenters note that a system meeting the NTSB recommendation is not only feasible, but is currently available. One current software system has the ability to contact a carrier's data files, and return the identity of the vehicle's contents, if hazardous, within 90 seconds by the process of entering a unique vehicle identifier. However, the developer of this software says it does not know how much it would cost to modify air carrier computer programs to provide accessible, on-scene information. Another computer system described by commenters facilitates the preparation of hazardous material shipments in accordance with applicable domestic and international regulations. The developer of this software claims that all of the information per flight is stored perpetually in a database and an entire NOPC for a given flight can be retrieved and sent via e-mail in seconds. Neither software developer provided specific cost information.
In response to the question of how quickly should emergency responders have access to information, several of the commenters suggested a time frame within 5 to 10 minutes. One commenter believes it is absolutely critical for emergency response personnel to be able to access the information immediately. This commenter adds that transmission of this information immediately, as opposed to even within 15 minutes, can mean the difference between life and death.
One commenter suggests that the method of how the information is made available to emergency response personnel should be left optional, as long as it satisfies the NTSB recommendation to quickly provide the information. Another commenter states that RSPA should not dictate the method of delivery, but allow the airlines and the emergency response personnel to use the methods which best fit their needs at the time of the incident. Other commenters believe that the information should be available by phone, fax, and computer, because not all media are available at every airport in the world.
Regarding the question of how emergency response personnel currently obtain information about cargo aboard an aircraft, several commenters mention in response that, information is transmitted by the aircraft captain in advance of the aircraft landing or from the availability of the NOPC from the flight crew after landing. One commenter explains that many operators maintain copies of the NOPC at departure stations, which are also accessible for information.
Several commenters who address the issue of a visual stowage plan, believe such a plan would be beneficial for both crew and emergency response personnel, and a map showing the location and a description of the different hazardous materials on-board the aircraft would be particularly helpful. Another commenter counters by pointing out that there are many variables involved with a visual stowage plan—for example, the same type of aircraft may be configured differently and have different compartment and position numbers. The commenter suggests the feasibility of combining both a visual diagram with a CRS seems very remote.
We received several comments on what, if any, exceptions from a requirement for a CRS should be provided. Most of the commenters state no exceptions should be granted. One commenter suggests if we were to grant exceptions, RSPA would need to establish strict criteria for making exception decisions. Another commenter states RSPA must recognize that an aircraft contains a wide range of hazardous materials as part of its necessary equipment, and exceptions should be considered for these classes of materials.
NTSB recommends we “require, within two years, that air carriers transporting hazardous materials have the means, 24 hours per day, to quickly retrieve and provide consolidated specific information about the identity (including proper shipping name), hazard class, quantity, number of packages, and location of all hazardous material on an airplane in a timely manner to emergency responders.” Though not explicitly stated, NTSB believes there is a need to develop some type of computer tracking system, similar to that used by the railroad industry. Such a system could be accessed directly by both the airline industry and emergency responders. We agree the requirements in the HMR related to the accessibility of a NOPC by emergency response personnel in the event of an emergency can be improved. However, we do not agree it is necessary to require airlines to develop computer tracking systems suitable for this purpose. Nothing submitted by NTSB or the commenters contradicts the previous NAS finding that a computer tracking system would be extremely complicated, burdensome, expensive to implement, and of questionable benefit. Therefore, we are not proposing airlines develop computer tracking systems. However, we are proposing changes to the HMR to improve the accessibility of the NOPC to emergency responders.
Emergencies involving hazardous materials transported by aircraft provide difficulties to emergency responders not usually encountered in other modes of transportation. First, the flight crew may not have time or otherwise be able to provide information during or immediately after the emergency. Second, an aircraft involved in an accident may be damaged to such an extent the information cannot be retrieved from it. In such instances, emergency responders may not know what, if any, hazardous materials are aboard the aircraft. These difficulties cause us to shift our focus away from retrieving hazardous materials information aboard the aircraft or from air crew members.
We believe these problems support a requirement for information to be accessible from a source other than the aircraft flight crew. The information we currently require on the NOPC is also available on the ground, although there is no requirement for the information to be accessible. Therefore, we are proposing to amend the HMR to require an aircraft operator to: (1) Place a telephone number on the NOPC that can be contacted during an in-flight emergency to obtain information about any hazardous materials aboard the aircraft; (2) retain a copy of the NOPC at the aircraft operator's principal place of business for one year; (3) retain and make readily accessible a copy of the NOPC, or the information contained in it, at the airport of departure until the flight leg is completed; and (4) make readily accessible a copy of the NOPC, or the information contained in it, at the planned airport of arrival until the flight leg is completed. The phone number would be used in those incidents where a pilot does not have time to provide an air traffic controller the information on the NOPC, but can provide a phone
The revisions proposed in this NPRM are consistent with the changes recently adopted into the ICAO Technical Instructions, with two exceptions. Our proposal would require an aircraft operator to provide a phone number for where a copy of the NOPC can be obtained, and to retain a copy of the NOPC at the airport of departure. The ICAO Technical Instructions do not contain these requirements.
If adopted, this proposed rule would not be considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not subject to formal review by the Office of Management and Budget (OMB). This proposed rule is not considered significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Due to minimal economic impact of this proposed rule, preparation of a regulatory impact analysis or regulatory evaluation is not warranted. Although we are requiring aircraft operators to retain a copy of the NOPC for one year and retain a copy of the NOPC at the airport of departure, we believe most air carriers, especially the major air carriers, already maintain readily accessible information. Therefore, the costs associated with this proposed rule are minimal. We may revise this determination based on comments we receive.
This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt State, local, and Indian tribe requirements, but does not propose any regulation with 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 materials 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 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 material; 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 proposed rule addresses covered subject item (3) above and would preempt State, local, and Indian tribe requirements not meeting the “substantively the same” standard. Federal hazardous materials transportation law provides at section 5125(b)(2) that, if RSPA issues a regulation concerning any of the covered subjects, RSPA must determine and publish in the
We analyzed this proposal in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act of 1980 establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis (RFA) as described in the Act. However, if an agency determines a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 act provides the head of the agency may so certify, and an RFA is not required.
The Small Business Administration criterion specifies an air carrier is “small” if it has 1,500 or fewer employees. For this proposed rule, small entities are part 121 and part 135 air carriers with 1,500 or fewer employees approved to carry hazardous materials. We identified 729 air carriers meeting this standard.
As mentioned in the Paperwork Reduction Act section of this preamble, it is estimated the cost to the airline industry of this proposal will be $450,000 per year. This estimate comes from an examination of the data in the U.S. Department of Transportation's Air Carrier Traffic Statistic Monthly. From that data we also were able to estimate that small business airlines undertake no more than 25% of all aircraft departures, and thus 25% of the total cost. The average small business is expected to incur a cost of no more than $150 per year. Therefore, I certify this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not, if adopted, result in costs of $100 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or the private sector.
This proposed rule may result in a modest increase in annual burden and
Section 1320.8(d), Title 5, Code of Federal Regulations requires us to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies a new information collection request we submitted to OMB for approval based on the requirements in this proposed rule. We developed burden estimates to reflect changes in this proposed rule. We estimate the total information collection and recordkeeping burden proposed in this rule would be as follows:
OMB No. 2137-0034.
We specifically request comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.
Requests for a copy of the information collection should be directed to Deborah Boothe, Office of Hazardous Materials Standards (DHM-10), Research and Special Programs Administration, Room 8102, 400 Seventh Street, SW, Washington, DC 20590-0001, Telephone (202) 366-8553.
Written comments should be addressed to the Dockets Unit as identified in the
This proposed 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. By improving emergency response to aircraft incidents, this proposed rule should help lessen environmental damage associated with such incidents. We find there are no significant environmental impacts associated with this proposed rule.
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 may be used to cross-reference this action with the Unified Agenda.
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I would be amended as follows:
1. The authority citation for part 175 would continue to read as follows:
49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In § 175.33, paragraph (a)(1) introductory text would be revised, paragraphs (a)(7) and (a)(8) would be redesignated as paragraphs (a)(8) and (a)(9), respectively, and new paragraphs (a)(7) and (c) would be added to read as follows:
(a) * * *
(1) The proper shipping name, hazard class, and identification number of the material, including any remaining aboard from prior stops, as specified in § 172.101 of this subchapter or the ICAO Technical Instructions. In the case of Class 1 materials, the compatibility group letter also must be shown. If a hazardous material is described by the proper shipping name, hazard class, and identification number appearing in:
(7) The telephone number of a person not aboard the aircraft from whom the information contained in the notification of pilot-in-command can be obtained. The aircraft operator must ensure the telephone number is monitored at all times the aircraft is in flight.
(c) The aircraft operator must retain, for one year from the date of the flight, a copy, or an electronic image thereof, of each notification of pilot-in-command and make it accessible at or through the operator's principal place of business. A copy of the notification of pilot-in-command, or the information contained in it, must be retained and be readily accessible at the airport of departure until the flight is completed and must be readily accessible at the planned airport of arrival until the flight is completed. The aircraft operator must make the notification of pilot-in-command immediately available, upon request, to any representative (including any emergency responder) of a Federal, State, or local government agency. Each notification of pilot-in-command must include the date of the flight.