[Federal Register: December 3, 2003 (Volume 68, Number 232)]
[Rules and Regulations]
[Page 67745-67773]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de03-11]
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Part II
Department of Transportation
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Research and Special Programs Administration
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49 CFR Part 171
Hazardous Materials: Revisions to Incident Reporting Requirements and
the Hazardous Materials Incident Report Form; Final Rule
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. RSPA-99-5013 (HM-229)]
RIN 2137-AD21
Hazardous Materials: Revisions to Incident Reporting Requirements
and the Hazardous Materials Incident Report Form
AGENCY: Research and Special Programs Administration, DOT.
ACTION: Final rule.
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SUMMARY: RSPA is revising the incident reporting requirements of the
Hazardous Materials Regulations and the hazardous materials incident
report form, DOT Form F 5800.1. The major changes adopted in this final
rule include: Collecting more specific information on the incident
reporting form; expanding reporting exceptions; expanding reporting
requirements to persons other than carriers; reporting undeclared
shipments of hazardous materials; and reporting non-release incidents
involving cargo tanks. These revisions will assure an increase in the
usefulness of data collected for risk analysis and management by
government and industry and, where possible, provide relief from
regulatory requirements.
DATES: Effective Date: This final rule is effective July 1, 2004.
Compliance Date: Only the revised DOT Form F 5800.1 (01-2004)
specified in this final rule will be accepted for incidents occurring
on, or after July 1, 2004. Filers must use the previous DOT Form F
5800.1 (Rev 6/89) form for all incidents up to, and including June 30,
2004.
FOR FURTHER INFORMATION CONTACT: T. Glenn Foster, (202) 366-8553,
Office of Hazardous Materials Standards, Research and Special Programs
Administration or Kevin Coburn, (202) 366-4555, Office of Hazardous
Materials Planning & Analysis, Research and Special Programs
Administration.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
II. Current Requirements
III. Summary of Issues, Comments and Changes
A. Electronic Filing
B. Revisions to the Form
C. One-Call Reporting
D. Expansion of Reporting Requirements to Persons Other Than
Carriers
E. Exceptions to Incident Reporting
F. Criteria for Telephonic Notification
G. Updates to Reports
H. Reporting When No Hazardous Material is Released During an
Incident
I. Undeclared Shipments of Hazardous Materials That Do Not Result in a
Release
J. Notifying Shippers of Incidents
IV. Summary and Conclusion
V. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Executive Order 13132
C. Executive Order 13175
D. Executive Order 13272
E. Regulatory Flexibility Act
F. Paperwork Reduction Act
G. Regulation Identification Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
I. Background
Quality data that supports causal, trend, and risk analysis is
fundamental to an effective safety program. The importance of data to
the hazardous materials transportation safety program was highlighted
in both a Department-wide initiative (ONE DOT Flagship Initiative on
Hazardous Materials Handling/Incidents; ``HazMat Flagship'') which
began in 1999 and a Department-wide Hazardous Materials Program
Evaluation (HMPE) completed in 2000. The HazMat Flagship Initiative
identified a set of new and ongoing actions relating to hazardous
materials transportation that have the greatest potential impact on
safety and program operation and that benefit from a cooperative
approach. The HMPE used a multi-modal team to conduct a Department-wide
program evaluation to document and assess the effectiveness of the
Department's hazardous materials transportation safety program. The
team's final report can be found at: http://hazmat.dot.gov/hmpe.htm.
Both the HazMat Flagship initiative and the HMPE emphasized the
need to obtain more accurate and complete data on incidents. The
hazardous materials transportation safety program relies on DOT Form F
5800.1, Hazardous Materials Incident Report, to gather basic
information on incidents that occur during transportation and that meet
specified criteria in Sec. 171.16 of the Hazardous Materials
Regulations (HMR; 49 CFR Parts 171-180). The Research and Special
Programs Administration (RSPA, we) last revised this form in 1989. In
2001, we received approximately 17,500 incident reports. RSPA uses the
data and information reported by carriers to:
[sbull] Evaluate the effectiveness of the existing regulations;
[sbull] Determine the need for regulatory changes to cover changing
transportation safety problems; and
[sbull] Identify major problem areas that should receive priority
attention.
In addition, both government and industry use this information to
chart trends, identify problems and training inadequacies, evaluate
packagings, and assess ways to reduce releases.
Although the current incident report form provides useful
information and is generally recognized as being fundamentally sound,
there is room for improvement. We believe the opportunity exists to
obtain better, more detailed information on events, such as more
descriptive information to help determine root causes of events; to
offer better linkages so that data can be coupled; and to better
structure the report form to facilitate complete and accurate
responses.
Our experience using data generated by the current form has
identified certain deficiencies. Rulemakings such as Docket HM-225A,
``Revision to Regulations Governing Transportation and Unloading of
Liquefied Compressed Gases,'' and Docket HM-213B, ``Safety Requirements
for External Product Piping on Cargo Tanks Transporting Flammable
Liquids,'' have demonstrated the difficulties involved with using DOT
Form F 5800.1 data to determine precise failure modes and causes. These
rulemakings also underscore the unreliability of reported incident cost
information and the need to update this and other data as better
information becomes available after initial submission of the form.
A study performed by the Argonne National Laboratory and the
University of Illinois (National Risk Assessment for Selected Hazardous
Materials Transportation) for RSPA used incident data as a basic input
into the study, and recommended changes in a number of areas of
incident data collection. Also, risk practitioners in government and
industry offered suggestions for improved reporting of incident data in
a white paper produced under the auspices of the Transportation
Research Board.
The National Transportation Safety Board (NTSB) has issued several
recommendations related to data collection and processing identified
during the course of their investigations:
(1) NTSB Recommendation H-92-6 suggests establishment of a program
to collect information necessary to identify patterns of cargo tank
equipment failures, including the reporting of all accidents involving
a DOT specification cargo tank, with or without a release of hazardous
materials.
(2) NTSB recommendation R-89-52 suggests implementing regulations
to ensure that there is formal feedback
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from carriers to shippers when an incident has occurred.
(3) NTSB recommendation H-99-58 asks RSPA to establish a specific
time period for reporting incidents meeting criteria in Sec. 171.15
(telephonic notification).
Undeclared hazardous materials shipments, particularly in the air
mode, are a serious safety concern within the Department. This issue
received significant attention in the HazMat Flagship, and was
recognized by the HMPE as an important area where better understanding
of the frequency and impact of such shipments is essential. Data
obtained through reporting discoveries of such shipments, whether or
not the material is released, can help in defining the extent of the
problem and in developing programs to mitigate the risk involved. DOT
Form F 5800.1 is an efficient way to collect this data. Such data, even
though it represents only undeclared hazardous materials that are
discovered rather than the full spectrum of undeclared hazardous
material shipments, can play a significant role in monitoring trends
and measuring the effects of efforts to reduce undeclared shipments.
We are cognizant of the burden often imposed by regulatory
requirements. As we developed changes to the incident reporting
requirements, we attempted to minimize any additional burden associated
with the revised requirements. For instance, we are adding exceptions
to reporting requirements for small releases of materials that pose the
least hazard where sufficient data already exists to manage risk.
Further, we have deleted certain data fields that ask for information
that is obtainable from other sources, for example, land use at the
incident site. In addition, we are allowing electronic submission of
the form, such as through an internet-based form or through a bulk data
transfer, in order to facilitate the process. An internet-based form
will ask only the questions the reporter is required to complete, based
on previous answers. Accepting the data through a bulk file transfer
allows larger companies to configure reporting software for their
particular operations, maintain the information electronically, and
eliminate paper and postage.
As a result of a meeting between DOT and members of several trade
associations concerning hazardous materials incident reporting, the
Association of American Railroads (AAR) sponsored a workgroup with
segments of the transportation community to discuss the DOT Form F
5800.1 and the reporting requirements of Sec. Sec. 171.15 and 171.16.
The workgroup meetings were held during the winter of 1997-98.
Participants included representatives from all four transportation
modes, RSPA, shippers, container manufacturers, and labor. The
workgroup submitted recommendations to RSPA. We developed questions
based on input from these meetings, the DOT modal agencies, other
concerned individuals, and on our own initiative.
On March 23, 1999, we published an advance notice of proposed
rulemaking (ANPRM; 64 FR 13943) that asked a series of questions
regarding the need to change current reporting requirements or the
incident report form. We received approximately 40 comments from
industry associations, State and local governments, non-profit
associations, and carriers. Based on these comments, we developed
proposed regulatory language and published a notice of proposed
rulemaking (NPRM; 66 FR 35155) on July 3, 2001. We identified ten
general issues in the NPRM, which are reviewed in Section III of this
document. RSPA received over 30 comments on the NPRM. RSPA's decisions
on the proposals of the NPRM and review of these comments are discussed
in Section III, below.
II. Current Requirements
Currently, Sec. 171.15 requires carriers to immediately notify the
National Response Center (NRC) after any incident that occurs during
transportation in which, as a direct result of hazardous materials:
(1) A person is killed;
(2) A person receives injuries requiring his or her
hospitalization;
(3) Estimated carrier or other property damage exceeds $50,000;
(4) An evacuation of the general public occurs lasting one or more
hours;
(5) One or more major transportation arteries or facilities are
closed or shut down for one hour or more;
(6) The operational flight pattern or routine of an aircraft is
altered;
(7) Fire, breakage, spillage, or suspected contamination occurs
involving shipments of radioactive material or infectious substances
(etiologic agents);
(8) There has been a release of a marine pollutant in a quantity
exceeding 450 L (119 gallons) for liquids or 400 kg (882 pounds) for
solids; or
(9) A situation exists of such a nature (e.g., a continuing danger
to life exists at the scene of the incident) that, in the judgment of
the carrier, it should be reported to the National Response Center even
though it does not meet any other immediate notification criteria.
Carriers may report any of these incidents involving aircraft to the
Federal Aviation Administration (FAA) Security Field Office. In
addition, certain incidents involving infectious substances must be
reported to the Centers for Disease Control and Prevention (CDC).
Each carrier required to make a report under Sec. 171.15 is also
required to complete DOT Form F 5800.1 in accordance with Sec. 171.16.
Additionally, unless excepted, a carrier is required to submit DOT Form
F 5800.1 for any incident occurring during transportation that results
in an unintentional release of a hazardous material from its package or
the discharge of any quantity of hazardous waste.
We use the data and information reported by carriers to:
(1) Evaluate the effectiveness of the existing regulations;
(2) Determine the need for regulatory changes to cover changing
transportation safety problems; and
(3) Identify major problem areas that should receive priority
attention. In addition, both government and industry use this
information to chart trends, identify problems and training
inadequacies, evaluate packagings, and assess ways to reduce releases.
In considering how to improve the incident report form, our primary
objective was to ensure that useful information is collected in an
efficient manner. We believe it is possible to improve the structure
and format of the form to make it easier to understand and complete. To
reduce the reporting burden on persons responsible for completing the
incident report, we believe certain existing fields that ask for
information that is obtainable from other sources can be deleted. We
also believe it is appropriate to add information in certain areas
where it can help determine future program direction and support
measures of program effectiveness. For example, a good description of
packaging performance, documenting both failures and successes, helps
us define future requirements. In addition, undeclared hazardous
materials is an area of significant safety concern to DOT, and the
ability to identify the frequency and source of such shipments is an
important factor in reducing their occurrence. A complete description
of changes to the content of the form is provided in the following
sections.
III. Summary of Issues, Comments and Changes
In the NPRM, RSPA proposed changes on the following ten issues. In
this final rule, we discuss comments submitted to the docket, concerns
raised by
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commenters, and our decisions on each issue below:
(A) Electronic filing
(B) Revisions to the form
(C) One-call reporting
(D) Expansion of reporting requirements to persons other than
carriers
(E) Exceptions to incident reporting
(F) Criteria for telephonic notification
(G) Updates to reports
(H) Reporting when no hazardous material is released during an
incident
(I) Undeclared shipments of hazardous materials that do not result
in a release
(J) Notifying shippers of incidents.
A. Electronic Filing
In the NPRM, we proposed to adopt a variety of electronic filing
methods, including facsimile (fax), electronic mail (e-mail), and
internet-based forms. Electronic filing of incident reports is
consistent with the requirements of the Government Paperwork
Elimination Act (GPEA), which generally mandates that, by October 2003,
agencies accept electronic documents and electronic signatures for the
transactions that they conduct with the public and regulated parties.
All commenters support an electronic filing option. Commenters
state that fax, e-mail, and internet submissions should be available to
facilitate reporting. However, some commenters also state that
electronic filing should be optional rather than mandatory.
We agree that electronic filing of incident reports would reduce
the reporting burden on industry and increase reporting flexibility.
However, because of logistical obstacles, all means of electronic
filing will not be immediately available. We are in the process of
developing the capability to allow electronic submission of the form
and bulk transfer, and will issue an advisory notification upon
completion. Although initial systems available to receive electronic
submissions are limited, they will be expanded in the future as new
systems are implemented within the Department or as new technologies
become available.
We will continue to accept filing of a paper form, but we will not
require the reporter to submit duplicate copies of the form. In
addition, we have revised language in the regulations concerning the
retention of the report in order to facilitate electronic storage. We
have removed the provision requiring approval from the Department of
Transportation to retain copies at a location other than the reporter's
principal place of business. Instead, we allow the reporter to store
the report at a location other than the principal place of business if
the report is available to the reporter's principal place of business
24 hours after a request by a representative of the Department. Often,
electronic documents may be stored on a computer server that is not
physically located at the person's place of business. Additionally, the
storage location is not of paramount concern, provided the document can
be produced in the specified time. This change allows more flexibility
for storing electronic and physical copies of the reports.
B. Revisions to the Form
The proposed modifications to the data form were published in the
Federal Register in a notice of proposed rulemaking (NPRM). These
proposed modifications introduced new and revised data elements in the
form. These revisions are intended to minimize burdens on the end user,
while necessitating that the form be completed accurately.
As a result of these new requirements, as well as RSPA's intent to
maximize the accuracy and completeness of the forms we receive, RSPA
procured the services of the QED Group, LLC (QED) of Washington, DC to
recruit both experienced and non-experienced users of the previous form
to test the form proposed in the NPRM. QED convened a series of focus
groups to provide RSPA with constructive feedback on the revised form.
The first focus group meeting took place on October 25, 2002, with
a morning session attended by ten experienced filers and an afternoon
session attended by four less experienced filers. Neither group
indicated that major revisions to the layout of the draft form were
necessary. However, we derived the following observations from this
meeting:
[sbull] The form layout should be more compact than the version in
the NPRM, but attention should still be paid to font size.
[sbull] The form should avoid the use of shaded regions, as these
interfere with faxing.
[sbull] The form should explicitly identify the form and/or series
number of the accompanying instructions, as well as URL information for
instructions available online.
[sbull] Any such online instructions should contain links to the
sections of the CFR cited, and should also contain links to
definitions.
[sbull] There were no major issues or concerns with the graphics or
other visual cues.
[sbull] Infrequent filers were concerned that the conditions for
form filing were not presented all in one place. They suggested a
different grouping of instructions, something along the lines of a
``Who--Why--When?'' section. Infrequent filers preferred a format
similar to a flowchart (perhaps on a separate instruction page or
worksheet) to walk them through the incident characteristics and help
them arrive at a filing decision.
Considerations of an electronic form were not a major element of
the discussions in this session. The most significant finding regarding
the design of the electronic form was that large companies would prefer
direct data exchange to a piecemeal filing of form information via the
Web. Small companies, however, welcomed the Web interface primarily
because of the potential for live HTML links to instructions,
definitions and supporting regulations.
The second focus group meeting took place on November 22, 2002,
with a morning session attended by seven experienced filers and an
afternoon session attended by six less experienced filers.\1\ The full
QED report can be found in the Docket. Some of the comments received
from this group included:
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\1\ Other scheduled attendees of both sessions experienced work-
related emergencies or had other difficulties that prevented them
from participating in the focus group.
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[sbull] In general, participants reacted very positively to the new
electronic form. Participants appreciated having direct access to the
instructions for completing the form in an electronic version.
[sbull] Replace the numeric values and alpha codes with check-
boxes.
[sbull] Change the wording for the entry of failure codes for
packaging from ``Enter up to 3 Codes'' to ``Enter up to 3 sets of
Codes.'' They also suggested that a vertical line be drawn between each
grouping of ``What Failed How Failed Cause(s) of Failure.''
[sbull] Air carriers indicated that for a hazardous material
incident involving passenger baggage, there should be an ability to
indicate the type of bag containing the item involved in the release,
as well as any packaging within the bag.
[sbull] Language should be changed in Part 6 from ``Describe the
package failure'' to something else since the report may not be in
response to the failure of a package but due to some other hazardous
material incident.
[sbull] Participants indicated that they would like the ability to
save templates. These templates could be linked to a company- or
location-specific password, and would store information such as
reporting entity address, mode, and
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possibly even material information (for single-material handlers).
Alternatively, some participants indicated that they would like to be
able to host versions of these forms (with company-specific information
already filled in) on their own intranets and post the reports to DOT
databases from their own systems.
[sbull] Participants would like to enter the UN number of the
hazardous material, and have a scripted lookup function enter
everything else into the various fields from a table.
[sbull] Provide additional ``skip patterns'' and validation logic--
for example, if the release is caused by a ``puncture,'' the program
should make ``shell thickness'' a required data field and not allow the
form to be saved or submitted if it is incomplete. Participants also
mentioned that they would like relevant previous responses to gray out
everything not applicable after item 23, and that item 23 itself should
be linked to the response to 1(b). Similarly on item 27, if there are
no fatalities, the numbers could be greyed out and ``tab'' could skip
to the next valid item.
[sbull] Add ability to upload supplementary documentation/pictures,
etc. on the part 6 page using an interface not unlike that for adding
attachments to Web-based mail.
[sbull] Part 7 might be better as a dropdown box, since filers will
probably supply a response that can be autocoded this way. This might
save DOT time in having to back-code responses that fall into regular
patterns such as ``enhanced training, accelerated repair schedule,''
etc.
[sbull] Participants stated that default values would be a good
idea for the form. Having a default value for ``unknown'' might make it
easier for DOT to identify missings/unknowns/not applicables, a
frequent source of problems in data analysis from survey research.
[sbull] Measurement units entered throughout the form should be
confined to a standard list and should exist in fields separate from
the quantities field.
RSPA received numerous comments and questions on the proposed form
layout. Several commenters mentioned the increase in the number of
pages of the form. As we explained in the NPRM, the page numbers
increased due to the addition of approximately 15 data fields to the
basic incident information and the addition of more white space. The
number of pages in the final version of the form actually only
increased from 2 to 4 pages.
In considering how to organize and lay out the incident report
form, our primary objective is to ensure that useful information is
captured in an efficient manner. We are deleting certain existing
fields that ask for information obtainable from other sources or that
can be extrapolated from other fields. The questions ``Is material a
hazardous substance?,'' ``Was the RQ met?,'' and the ``Land Use and
Community Type'' fall into this category. Similarly, the ``Highway
Type'' and ``Number of Lanes at a Vehicle Accident/Derailment site''
can be determined from other sources. In addition, the type of labeling
or placarding fields offer limited benefit to safety improvements, and
have not been included in the revised form.
Additional information in certain areas is needed to help determine
future program direction and to support measures of program
effectiveness. Separate fields for information on packing group,
hazardous wastes, and toxic by inhalation materials would allow us to
better identify the materials involved in incidents. Further, we
believe the inclusion of cross-reference fields, such as the NRC report
number and the shipper's and carrier's hazardous materials registration
number, will help broaden the ties the incident data has with other
Federal hazardous materials data.
We also believe gathering additional information on the types of
persons who respond to incidents, the types of persons who are killed,
injured or need to be evacuated, as well as how long evacuations or
closures last, will contribute to incident risk analysis. The more
detailed questions concerning air transport incidents and questions
directed to specific types of packagings will allow for more focused
review of where and how packages fail. Additionally, the ability to
identify the frequency and source of undeclared hazardous materials
shipments, an area of significant safety concern to DOT, is important
to reduce their occurrence.
We are revising the packaging sections of the incident report form
to eliminate duplicative and confusing formatting and to enable us to
gather more specific packaging information. For example, we are
replacing check boxes to identify damage to packagings with failure
codes specific to each packaging type. The utilization of failure codes
was one of the recommendations that came from the AAR workgroup
discussed in Section I. The use of failure codes allows the preparer to
select from a set of choices appropriate to the particular packaging
type involved. Also, we believe use of terminology appropriate for the
particular packaging type will help avoid confusion and ultimately make
it easier for the preparer to complete the incident report. Although we
have not adopted failure codes of the exact type and form recommended
by AAR, we have revised the format of the codes on the form so that the
first code element for ``What Failed'' corresponds to the specific
point of failure followed by location codes. This allows for easy
translation of the codes. The single AAR code corresponds to a specific
sequence of codes to be entered on this form. Further, we recognize
that the experience we gain with the early use of these failure codes
may result in periodic changes as the set matures. The instructions
invite suggestions for improvements to the failure codes.
The expansion will add about 15 data fields to the basic incident
information. We believe the benefits to be gained by collecting more
detailed information will require only minimal additional time to
report these mostly short yes/no or fill-in-the-blank fields. In
addition, we have provided space for recommendations or actions. The
purpose of this section is not to assess blame or serve as a definitive
statement relating to the root causes of an incident, but rather to
gather ideas on preventing the recurrence of incidents. Such
information can help identify common problems and may be used to
support regulatory changes. Further, we have reformatted the incident
report form to facilitate completion (e.g., more white space and a more
logical flow from item to item). While this reformatting has added two
additional pages to the form, we believe that this design will improve
accuracy and make the form easier to complete.
C. One-Call Reporting
In this final rule, we are adopting the proposal to eliminate the
separate telephonic notification requirement to FAA for air shipments
and to require all air carriers to report incidents subject to Sec.
171.15(a) to the National Response Center (NRC). NRC would then make
any subsequent notifications. NRC personnel are specifically trained on
which notification requirements pertain to which entities, thus, this
change should result in more accurate notification to parties with a
need to know.
Only a few commenters addressed the one-call issue. In its comment,
the California Highway Patrol (CHP) supported streamlining the calling
process, but emphasized the need to alert state officials via 911. RSPA
recognizes the difference between contacting emergency response
officials and incident reporting to DOT. As the CHP states, ``* * * it
is the local emergency response agency(s) who
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handle the entire incident and nearly every instance bears the initial
response burden and often the greatest opportunity to mitigate the
adverse consequences.'' We reiterate that the one-call for reporting to
the NRC is for incident reporting. In the case of any incident
involving hazardous materials that requires immediate emergency
response, the local authorities should be immediately notified. In
addition, adoption of this requirement does not relieve a person from
reporting discrepancies of hazardous material shipments transported by
air. Discrepancies are those air shipments involving hazardous
materials which are improperly described, certified, labeled, marked,
or packaged, in a manner not ascertainable when accepted. Section
175.31 of the HMR requires, as soon as practical, a person to report by
telephone to the nearest FAA Security Field Office a discrepancy
relative to the shipment of a hazardous material following the
shipment's acceptance for transportation aboard an aircraft.
The United Parcel Service (UPS) indicated its support for
continuing reporting to the FAA Security Field Office in place of
reporting to the NRC. UPS stated that ``* * * direct notification to
the FAA by the person in physical possession of the hazardous material
will result in more accurate notification * * *'' than notification to
the NRC. UPS notes that ``* * * nothing in the administrative record
provides a reasoned discussion of why elimination of direct FAA
notification would result in more accurate incident reporting.'' A
Presidential review of Federal release prevention, mitigation, and
response authorities, conducted under the requirements of section
112(r)(10) of the Clean Air Act, as amended in 1990, found that the
current reporting system was complex and confusing. In 1993, the
National Response Team (NRT), comprised of multiple federal agencies,
submitted a Report to Congress entitled ``A Review of Federal
Authorities for Hazardous Materials Accident Safety.'' In this report
the NRT recommended that streamlining the accident notification
reporting requirements be further examined. The NRT found that the
duplicative reporting requirements imposed by the various agencies was
a burden.
The one-call reporting system is an attempt to streamline the
process for federally mandated reporting of accidental discharges of
hazardous materials. There are a variety of incident scenarios, that,
under current Federal regulations, would require the reporting party to
call multiple Federal agencies to notify them of an accidental release.
Under the one-call system, the NRC receives all Federal telephonic
notifications of hazardous materials incidents and then notifies all
appropriate parties, ensuring that incident data is collected and
maintained. Centralizing the collection of release notifications will
result in improved data quality by ensuring that all release
notification data is collected in a consistent and comprehensive
manner.
D. Expansion of Reporting Requirements to Persons Other Than Carriers
Currently, the requirements for telephonic and written reporting of
transportation incidents apply to carriers only. Operators of
transportation facilities, such as marine terminals, who may not
perform carrier functions are not required to report transportation
incidents involving hazardous materials. Most commenters to the NPRM
agree that the person in physical control of a hazardous material when
an incident occurs during transportation should be responsible for
reporting that incident. The Norfolk Southern Railway Company supports
the proposal and notes ``the person in control * * * would be the
person most knowledgeable about the incident.''
Many commenters note that a pending RSPA rulemaking that will
define when a material is ``in transportation in commerce'' (Docket HM-
223, NPRM published on January 27, 2001; 66 FR 59220) is an important
factor in determining when and what entities would be required to
report incidents. DuPont comments ``* * * this issue cannot be resolved
until the DOT publishes a final rulemaking on Docket HM-223
Applicability of the Hazardous Materials Regulations to Loading/
Unloading and Storage.'' A commenter associated with the F 5800.1 Task
Force supports ``* * * the idea that the party having physical control
of the material is the one who should be required to complete the
report * * *'' but notes the relationship of Docket HM-223. ``If the
final rule in HM-223 is promulgated as proposed, it would relieve
parties, other than carriers from having to execute incident reports''
notes the commenter. He continues ``This would mean that consignors and
consignees would not have to report incidents occurring during loading
or unloading.'' The International Vessel Operators Hazardous Materials
Association, Inc. (VOHMA) expands the concept further by questioning
``* * * who will actually be required to report an incident that occurs
during the course of activities that might not be considered to be `in
transportation' and in fact, [we] wonder if the responsibility might
then fall back on the last carrier.''
On October 30, 2003, we published a final rule under Docket HM-223
(68 FR 61906). Among other issues, the final rule clarifies the
applicability of the HMR to specific functions and activities,
including loading, unloading, and storage operations. Consistent with
the Federal hazardous materials transportation law (49 U.S.C. 5101 et
seq.), the final rule defines ``transportation'' to mean the movement
of property and loading, unloading, or storage incidental to the
movement. Transportation in commerce begins when a carrier takes
physical possession of a hazardous material for the purpose of
transporting it and continues until delivery of the package to its
consignee or destination as evidenced by the shipping documentation
under which the hazardous material is moving. The final rule defines
``loading incidental to movement'' to mean the loading by carrier
personnel or in the presence of carrier personnel of packaged or
containerized hazardous material onto a transport vehicle, aircraft, or
vessel; for a bulk packaging, ``loading incidental to movement'' means
the filling of the packaging with a hazardous material by carrier
personnel or in the presence of carrier personnel. The final rule
defines ``unloading incidental to movement'' to mean the removal of a
packaged or containerized hazardous material from a transport vehicle,
aircraft, or vessel or the emptying of a hazardous material from a bulk
packaging after the hazardous material has been delivered to the
consignee and prior to the delivering carrier's departure from the
consignee facility or premises. Under the final rule, ``storage
incidental to movement'' means storage by any person of a transport
vehicle, freight container, or package containing a hazardous material
between the time that a carrier takes physical possession of the
hazardous material until the package containing the hazardous material
is physically delivered to the destination indicated on a shipping
document.
This final rule requires reporting of incidents under Sec. Sec.
171.15 of 171.16 that occur during the time that the material is in
transportation. Consistent with the definitions adopted in HM-223,
incidents that occur during loading operations conducted by carrier
personnel or in the presence of carrier personnel must be reported, as
must incidents that occur during unloading operations conducted prior
to a carrier's departure from the consignee's premises. Hazardous
materials incidents
[[Page 67751]]
that occur during loading operations conducted by a shipper prior to a
carrier's arrival at its facility to pick up the hazardous material or
during unloading operations conducted by consignee personnel after the
hazardous material has been delivered and the carrier has departed the
premises are not required to be reported under Sec. Sec. 171.15 and
171.16. Note in this regard that the HM-223 final rule changes the
applicability of the HMR to rail tank car unloading operations
conducted by consignee personnel, which are currently subject to the
provisions of Sec. 174.67. Under HM-223, such rail tank car unloading
operations are not transportation functions and, thus, are not subject
to incident reporting requirements.
Other commenters opposed the requirement in total. In addition to
Docket HM-223 concerns, the Fertilizer Institute (TFI) and The National
Propane Gas Association (NPGA) ``* * * contend that this change will
increase the burden on industry.'' Additionally, they claim the ``* * *
change will decrease the efficiency of RSPA's data collection'' because
it is possible that more than one person will report the same incident.
The Petroleum Marketers Association of America (PMMA) sees an increase
in burden for industry and RSPA by ``* * * requiring procedural
changes, additional training, and time'' for industry and the confusion
caused by duplicative reporting will ``* * * decrease the efficiency of
RSPA's data collection efforts and will not benefit its risk
assessment.''
RSPA already receives duplicate reports and currently has a system
for identifying duplicative reporting, thus the impact to RSPA should
be minimal. In our Regulatory Evaluation, available in the HM-229
Docket (RSPA-99-5013-87), we discuss the additional cost to industry by
adopting this proposal. We anticipate a minimal increase in the number
of reports concerning incidents that occur during loading and unloading
because these activities are already reported by carriers. Given the
volume of handlings, however, we conservatively estimate a 2% increase
in the number of reports concerning incidents that occur during loading
and unloading.
RSPA also expects an increase in the number of reported incidents
occurring in facilities where hazardous materials are stored incidental
to transportation. An RSPA study conducted in 1998 estimates that many
of the 800,000 daily shipments of hazardous materials involve
consolidations, intermodal or intramodal transfers and in-transit
storage, resulting in 1.2 million daily hazardous materials movements.
We estimate that extending reporting requirements to in-transit storage
facilities will increase the overall total number of reports by 10%.
The intent of this rule change is to collect spill information on
incidents that occur while the hazardous material is in transportation.
Since RSPA has jurisdiction over hazardous materials in transportation,
excluding reporting on incidents that occur during in-transit storage
creates an incomplete data set of hazardous materials incidents. In the
past, RSPA has discovered such incidents only from sources such as
press reports of the most serious incidents. The information will
provide a more complete picture of incidents occurring throughout the
transportation system.
In this final rule, we are requiring each person in physical
control of a hazardous material while it is in transportation in
commerce to report any incident that occurs while the material is in
that person's possession. For example, an in-transit storage facility
owner would have to report any event that meets the provisions of
Sec. Sec. 171.15 or 171.16 and that occurs during the time that a
hazardous material is stored in transportation. Consistent with the
definitions adopted in the HM-223 final rule, storage incidental to
movement is storage by any person of a transport vehicle, freight
container, or package containing a hazardous material between the time
that a carrier takes physical possession of the hazardous material
until the package containing the hazardous material is physically
delivered to the destination indicated on a shipping document. Reports
of incidents or releases that occur during incidental storage will
provide more accurate and complete information regarding hazardous
materials incidents.
In addition, we are revising Sec. 171.21 to require the person
responsible for reporting the incident, rather than the ``carrier,'' to
make available all records and information pertaining to the incident.
E. Exceptions to Incident Reporting
As proposed in the NPRM, an incident meeting all of the following
criteria would not be required to be reported:
(1) The shipment has not been offered for transportation or
transported by air;
(2) None of the criteria in Sec. 171.15(a) apply;
(3) The material is not a hazardous waste;
(4) The material is properly classed as--
(i) ORM-D; or
(ii) A Packing Group III material in Class or Division 3, 4, 5,
6.1, 8, or 9;
(5) Each package has a capacity of less than 20 liters (5.2
gallons) for liquids or less than 30 kg (66 pounds) for solids;
(6) The total aggregate release is less than 20 liters (5.2
gallons) for liquids or less than 30 kgs (66 pounds) for solids; and
(7) The material does not meet the definition of an undeclared
hazardous material in Sec. 171.8.
In the NPRM, we proposed to except small spills of low hazard
materials from the reporting requirements. We wanted to require that an
aggregate spill of 20 liters (5.2 gallons) or over for liquids or 30 kg
(66 pounds) or over for solids of otherwise excepted hazardous
materials be reported. For example, if twelve 5-gallon containers of a
flammable liquid hazardous material in PG III are spilled, no incident
report would be required unless the aggregate amount released from the
twelve containers of the hazardous material is at least 5.2 gallons or
one of the conditions in Sec. 171.15(a) is met. Based on reports
received over the past five years, we expect that the proposed
exceptions would result in a sizeable net reduction of the total number
of incident reports filed each year.
Most commenters agreed with the proposed new exceptions and
suggested that we include additional reporting exceptions. The Reusable
Industrial Packaging Association (RIPA) suggested that non-bulk
packagings and IBCs containing residues should not be reported if a
spill of the residue occurs. Safety-Kleen requested that hazardous
wastes be included in the reporting exceptions. RSPA does not agree
with either commenter. Since this information is used to determine the
effectiveness of packagings, excluding packagings larger than what was
proposed, even if they only contain a residue of a hazardous material,
leaves out incidents we wish to include in our data set. In addition,
hazardous wastes are generally not included in most exceptions, even if
the regulations for materials only meeting the definition of a
hazardous waste and no other hazard class are relatively minimal.
Some commenters were against expanding the reporting exceptions or
noted that we risk limiting the data we collect concerning spills.
Chevron/Phillips warns ``* * * the inclusion of many of the exceptions
noted in HM229 [sic] may further reduce data that can be used to
further risk management efforts.'' The International Brotherhood
[[Page 67752]]
of Teamsters ``* * * fears that RSPA will be relinquishing its
authority to collect information about hazardous materials releases
that can, and often do, lead to workers being exposed to hazardous
materials.''
These expanded exceptions, as noted by several commenters, actually
reduce some of the exceptions for paint and paint-related materials,
and for limited quantities in Packing Group II. The Glidden Company
calculates ``* * * the significant increase in reporting will require *
* * an additional 175 to 180 reports per year.'' BASF states ``* * *
this proposed change will significantly increase the burden on the
paint manufacturing industry * * *'' and DuPont adds that the change
``* * * would escalate the cost with no corresponding increase in
safety.'' Indeed, the exceptions presented in this final rule eliminate
exceptions based on specific shipping names for paint and batteries.
Instead, the exceptions in this final rule are based on the hazards the
materials pose and quantities of those materials.
The original exceptions to spill reporting were implemented under
Docket HM-36A (45 FR 73682) in 1980, before Packing Groups for
materials were developed in Docket HM-181 (55 FR 57402 and 56 FR
66124). When Packing Groups were incorporated into the regulations, we
did not revise Sec. 171.16 to update the reporting exceptions in light
of the Packing Group changes. In 1996, under a broad regulatory review,
exceptions for limited quantities of Packing Group II and III materials
were added under Docket HM-222B (61 FR 27166), but we did not conduct a
thorough review of incident reporting, and the basis for reporting
exceptions.
In reviewing the reporting requirements and the exceptions to
reporting, we have determined that the data needs for releases of small
amounts of low-hazard materials is low. We now have ample data from
incidents over the past 20 years involving small releases of Packing
Group III hazardous materials in small quantities to warrant a
reporting exception. However, we have determined that incidents
involving Packing Group II materials warrant reporting, even in these
smaller quantities. These materials pose a greater hazard than Packing
Group III materials, so packaging failures and other incidents will
continue to be required to be reported in order to monitor and improve
regulations. Thus, we have adopted the proposed exceptions published in
the NPRM.
In addition, we are clarifying that the incident report
requirements do not apply to minimal amounts of hazardous materials
escaping: (1) Due to disconnecting a loading or unloading line or from
the operation of venting devices (for which venting is authorized); or
(2) from the manual operation of seals in equipment such as pumps,
compressors, and valves during the normal course of transportation if
the release does not trigger any of the provisions for a telephonic
notification described in Sec. 171.15 of this subpart and does not
result in property damage.
F. Criteria for Telephonic Notification
Under current Sec. 171.15 requirements, one of the criteria that
triggers the requirement for immediate notification is property damage
that exceeds $50,000. RSPA proposed removing this requirement. There
were not many comments on this point. The CHP supported the proposal
because ``quite often the true total costs associated with an incident
will not be determined for a substantial period of time following an
incident.'' We agree and are removing the monetary criterion.
We proposed to clarify the requirements for ``immediate
notification'' by specifying that telephonic notification must be made
as soon as practicable following the occurrence of an incident and in
all instances within 12 hours after an event requiring notification.
This revision also responds to NTSB recommendation H-99-58 to provide a
specific time period to report an incident by telephone. NTSB
recommended that a 2-hour time frame was preferable. Commenters note
the difficulties in complying with a 2-hour response time. The
Conference on Safe Transportation of Hazardous Articles, Inc. notes
that ``* * * immediate reporting requirements should focus on obtaining
response services that are required to gain control of an incident.''
RSPA understands contacting emergency response entities may be of
primary concern immediately following an incident; however,
notification of federal authorities through the NRC is also essential.
The NTSB comments that railroads, under 49 CFR 840.3, are required to
provide telephonic notification to NRC within 2 hours in the event of
an accident resulting in a fatality, release of hazardous materials, or
evacuation of the public, and within 4 hours after an accident
resulting in damages exceeding certain limits. RSPA understands the
circumstances involving remote highway incidents may be more difficult
to address in the constrained time frame. We do not want to detract
from the immediate emergency response efforts focused on amelioration
of a spill, therefore we have clarified the requirements of
``immediate'' telephonic notification to be as soon as practical but no
later than 12 hours after the occurrence of any incident.
G. Updates to Reports
In the NPRM, we proposed to require updates to the incident report
form within one year under the following conditions:
(1) A death results from injury caused by a hazardous material;
(2) There was a misidentification of the hazardous material or
package information on the incident report;
(3) Damage, loss or related cost that was not known when the
initial report was filed becomes known; or
(4) Damage, loss, or related cost changes by $25,000 or more.
RSPA received several comments on updating reports. UPS commented
that the requirement would be a ``* * * substantial burden for any
carrier such as UPS * * *'' because it would have to monitor thousands
of incidents per year to determine if any developments trigger an
update. In addition, it noted that the requirement would ``* * *
require a submitter to constantly update an incident report for one-
year [sic] following its submission.'' Farmland Industries, Inc.
mentions that if RSPA removes ``* * * cost as a requirement for
telephonic reporting, consideration should be given to removing updated
costs from an incident.''
DuPont does not support the proposal to update the report, even
though the actual number of updates would be small. It does not believe
``* * * that a majority of the hazardous materials incidents reported
would require updating because the quantities released are minimal.''
DuPont thinks the number of reports that would require updating are so
minimal and ``* * * question if the small percentage that would qualify
warrant a regulatory requirement for updating the reports.''
Other entities supported an updating requirement, with caveats. The
Norfolk Southern Railway Company does not oppose the proposal, but
feels the requirement to update based on a change of $25,000 in the
costs of the incident would ``* * * serve no real purpose'' and would
be burdensome to industry. Ashland, Inc. suggests that the costs
requirement for updating the report be a $250,000 change and only if
the cost changes by more than 10%. The F5800.1 Task Force also
suggested including a 10% threshold.
We believe that substantive changes to the outcome of an incident
should be
[[Page 67753]]
updated to ensure the accuracy and quality of the data we collect.
Updated information provides a more meaningful approach to causal,
trend, or risk assessment analysis. We are adopting the proposal to
require updated incident reports for up to one year after the date of
an incident for the following: (1) Death resulting from injuries caused
by a hazardous material; (2) corrections to the identification of the
hazardous material or package information; and (3) certain updated
damage costs as additional information becomes available. Cost
information would be updated when: (1) costs not known at the time the
report was filed became known; or (2) original damage/cost estimates
were revised by more than $25,000 or 10% of the original estimate,
whichever is greater. In some cases, certain costs (such as
decontamination and cleanup) may not be known within 30 days of the
incident's occurrence, and would not be included in the initial
incident report. In other cases, some costs (such as property damage)
may be significantly higher than the original estimate. We estimate
that about 800 incidents reported each year would require an update.
CHP mentions that updating the report should be streamlined for
more accurate reporting. It is possible that in the future, with the
advent of electronic data management systems, performing an update to
the form may not require the re-submission of the DOT Form F 5800.1
form. Until that time, we will retain the current requirements for
submitting updates.
Under Sec. 171.21, persons required to report an incident are
required to cooperate with any further investigation of that incident.
In particular, incidents that we categorize as significant may require
further investigation, or reports that are incomplete may require a
follow-up.
H. Reporting When No Hazardous Material Is Released During an Incident
In the NPRM, we proposed to require certain incidents involving
bulk packagings that do not result in release of a hazardous material
to be reported. We stated that such information could provide a broader
base for risk management in more critical transportation situations and
that additional information could be used to gauge the performance and
integrity of certain packagings. This proposal was in response to NTSB
recommendation H-92-6, which requested that DOT implement a program to
collect information necessary to identify patterns of cargo tank
equipment failure, including the reporting of all accidents involving a
DOT specification cargo tank. This request stems from the February 4,
1992 special investigation report on cargo tank rollover protection
(PB92-917002). NTSB examined seven highway accidents in which cargo
tanks overturned and hazardous materials were released through damaged
closures or fittings on top of the tanks; none of the cargo tank shells
had been breached. Among its conclusions were the following:
* There is inadequate information about the forces that can be
encountered in a rollover accident and the extent to which rollover
protection devices for cargo tanks can reasonably be designed to
withstand these forces because neither the RSPA, the FHWA [Federal
Highway Administration, now Federal Motor Carrier Safety
Administration, or FMCSA], nor the industry has provided engineering
modeling or other analysis to determine the magnitude of forces acting
upon a cargo tank under different accident conditions, and
* The FHWA [now FMCSA] and the RSPA accident data bases are not
adequate to identify important trends of potential problems related to
the design and construction of bulk liquid cargo tanks.
Subsequently, in its report, NTSB recommends that RSPA ``implement,
in cooperation with the FMCSA, a program to collect information
necessary to identify patterns of cargo tank equipment failures,
including the reporting of all accidents involving a Department of
Transportation specification cargo tank.'' In an effort to minimize
duplicative reporting of much of the same information, discussions with
FMCSA and RSPA resulted in agreement that the F 5800.1 form would be
suitable and appropriate to collect this type of information.
Most commenters oppose data collection for an incident that does
not result in a release of hazardous materials. Commenters cite a
number of reasons, the main ones being an increase in burden, an
ambiguity in when a report was required, and the limited usefulness of
the data collected under this proposal. The commenters made it clear
that specific guidelines would be required to avoid what the National
Tank Truck Carriers (NTTC) describe is a possible ``compliance trap''
due to varying definitions of ``damage'' from company to company and
inspector to inspector. This point was raised numerous times. Utility
Solid Waste Activities Group comments ``* * * that a specific
definition of `damage' is needed to evaluate the impact of this
proposal.'' PMMA adds ``* * * the language of the proposed rule is
vague.'' TFI and NPGA argue not only that the requirement ``* * * is
vague and fails to give regulated parties the requisite certainty to
enable compliance'' but also that the proposal ``* * * does not
accomplish the desired goals of NTSB Recommendation H-92-6.'' The last
comment seems to contradict NTSB's opinion, as NTSB was one of only two
commenters agreeing with the proposal. The other was the Nuclear Energy
Institute.
RSPA believes there is a need to collect this information as
recommended by NTSB. The potential burden on operators is offset by the
safety information that will be provided. For example, such reporting
can provide information concerning packaging integrity, particularly
the circumstances under which a packaging is able to withstand a
collision or accident without releasing its contents. The incident data
base is expanded to include ``near miss'' or ``close call'' incidents
which, because of the quantity and type of hazardous materials present,
have the potential for significant consequences.
Additionally, collecting this information allows for examination of
the circumstances (packaging, procedures, training) to determine if
there may be ways to avoid the actual set of incidents that pose the
greatest risk. This information also provides an indication of a
packaging's ability to survive forces encountered in the transportation
environment. Finally, this data would provide ``success stories'' and
illustrations of a packagings robustness. The converse is also true. If
most times that a packaging is in an accident and its damage results in
a hazardous materials release, it may point to the inadequacy of the
packaging requirements. Accurate data will prevent safety gaps as well
as aid in determining how to allocate limited funds of the regulated
community to provide the greatest safety benefits.
However, RSPA also agrees with some of the concerns of the
commenters. For example, the ONEDO-Nalco Company argues that smaller
bulk packagings, such as IBCs, are handled, loaded, and unloaded more
frequently than larger containers so that minor damage ``* * * is
relatively common.'' TFI and NPGA noted that the NTSB recommendation
focused only on cargo tanks, while RSPA's proposal expanded the concept
to other bulk packagings. Therefore, in this final rule, RSPA is
adopting the proposal only in regards to reporting damage to
specification cargo tanks over a 1000-gallon capacity. In addition, we
clarify what is reportable damage. Structural damage is damage
considered
[[Page 67754]]
serious enough to bring into question the integrity of the cargo tank.
A cargo tank that requires subsequent replacement or repair due to the
damage sustained in the accident for other than cosmetic reasons falls
into this category. Lading retention system consists of the basic
containment (e.g., tank) and any associated appurtenances or equipment
(e.g., piping and valves) that, if seriously damaged, could result in
the release of the contents of the cargo tank. Examples of when an
incident report is required and when one is not required follow. If
there is doubt, the incident should be reported.
------------------------------------------------------------------------
Incident report required No incident report required
------------------------------------------------------------------------
Damage to an outlet valve that affects Handle broken or knocked off
seating and requires replacement. valve--but otherwise
undamaged.
Serious damage that, if worse, could Serious damage that, even if
have resulted in the loss of the worse, would not have resulted
contents of the cargo tank. Damage to in the loss of the contents of
outlet lines that contain hazardous the cargo tank. Damage to
materials during transportation are in outlet lines that are normally
this category. not charged during
transportation are in this
category.
Cargo tank damage that requires Minor damage that obviously
professional inspection or will not affect continuation
recertification to ensure it is of the cargo tank in service.
capable of meeting requirements..
Cargo tank damage that requires Cargo tank damage that requires
immediate or subsequent repair because repair for cosmetic reasons
of questions about cargo tank only.
integrity.
------------------------------------------------------------------------
RSPA may address this issue in a future rulemaking if it determines
that data needs require additional information for other bulk
packagings. For instance, it is our understanding that AAR maintains
extensive accident data that could be correlated to damage and
releases. Access to this data or reports based on the data may negate
future need for its collection via DOT F 5800.1. We will explore
options in this area with the rail industry. In addition, information
on damage to certified cargo tanks of 1000 gallons or more capacity
that do not result in a release will be analyzed over the next several
years to determine its usefulness in practice and if further rulemaking
is needed.
I. Undeclared Shipments of Hazardous Materials That Do Not Result in a
Release
Reducing undeclared shipments of hazardous materials is a high
priority of the Department. Undeclared shipments are apt to be in
substandard packages and undermine hazard communication that is vital
in an emergency. Undeclared shipments, particularly when offered for
transportation or transported by air, pose a significant safety problem
because of the potential for improper packing, handling, and failure to
communicate the hazard. Emergency responders and transportation workers
are unaware of the presence of undeclared hazardous materials. Certain
hazardous materials that are forbidden for air transportation may make
their way onto a passenger-carrying or cargo-only aircraft, and may
inadvertently be handled in an unsafe manner by transportation workers.
In a hazardous material release from an undeclared shipment, the crew
does not know what the hazardous material is, or what response measures
to take.
Commenters agreed that undeclared shipments posed a great danger,
however, many commenters did not support this proposal. While VOHMA
agrees that undeclared shipments are ``* * * one of our most
significant problems,'' it notes that carriers ``* * * lack the
resources to remove such seals, unpack the container to inspect the
cargo within * * *'' VOHMA also notes in its comments that ``[t]he
carrier should not be held responsible by the regulations for declaring
dangerous cargoes * * *'' Others supported the concern that this could
put the carriers in a difficult position of being responsible to ensure
that all shipments were prepared properly. Some commenters state that a
reporting requirement specific to undeclared hazardous materials would
expose their companies to undue liability and possible enforcement
actions for accepting an undeclared shipment. Other commenters state
that this requirement would place carriers in an enforcement role.
A number of commenters, including the Air Line Pilots Association,
International (ALPA), CHP, and the NTSB support reporting undeclared
shipments when discovered in transportation. ALPA states this problem
is ``* * * one of, if not the greatest potential risks to passengers,
aircraft, and crew.''
We believe that information on undeclared shipments should be
collected and that the incident report form is the most accessible
method for collecting such data. Requiring reports of undeclared
hazardous materials discovered in transportation can help in several
ways. For example, problem shippers can be identified, and outreach and
enforcement can be used to reduce the chance of recurrence. In
addition, reporting can also help define the extent of the problem,
establish trends, and help gauge the effectiveness of efforts to reduce
undeclared shipments. Such a requirement is consistent with the current
emphasis by the Department on this area. Accordingly, RSPA is adopting,
as proposed, the requirement to submit an incident report when an
undeclared shipment of hazardous materials is discovered. This
requirement applies to parties who are likely to discover undeclared
shipments and who will benefit greatly from a reduction of such
shipments, which is a goal of this rulemaking.
RSPA is sensitive to problems noted by commenters concerning the
amount of information that is considered sufficient to give a person
(other than the original offeror) actual or constructive knowledge of
the presence of a hazardous material. In a separate proceeding (Docket
No. RSPA-01-10380), RSPA is formulating additional guidance on the
factors that enforcement agencies consider relevant to a determination
whether a carrier knew or should have known that an ``undeclared''
shipment contained a hazardous material, based on comments submitted in
writing and at a June 19, 2002 public meeting.
This rule does not change the ``knowingly'' standard for civil
penalty liability in 49 U.S.C. 5123, nor does it create any increased
duty to examine all packages for the presence of hazardous material or
affect the responsibility of a carrier or other person to refuse to
transport a package that it knows or should know contains a hazardous
material. The requirement to report the discovery of an undeclared
hazardous material is not intended to create a ``compliance trap.''
Enforcement action is focused on the person who initially offered the
undeclared hazardous material for shipment, not the person who
subsequently received a shipment that was not properly marked, labeled,
placarded, and described on shipping papers. In addition, there is no
basis for
[[Page 67755]]
enforcement action against a person who accepted or handled an
undeclared hazardous material when it had no reason to know of the
presence of the hazardous material.
J. Notifying Shippers of Incidents
We proposed to require the person responsible for completing an
incident report to provide a copy of the report to the shipper whose
packages were the subject of the report. This proposal responded to
NTSB Recommendation R-89-52, that recommends requiring carriers
reporting hazardous materials incidents under the provisions of Sec.
171.16 to notify shippers whose hazardous materials shipments are
involved. NTSB is concerned that shippers are not receiving information
about packages that are prone to failure during transportation.
Some commenters who supported the proposal cited the importance
this information could provide for the shipper in identifying problem
packagings or methods. The Glidden Company indicated notification would
provide it ``* * * with valuable information into possible reasons how
and why packages are damaged in transport.'' This reasoning is echoed
by BASF who stated that the notification would ``* * * provide valuable
information into possible reasons for package failure or damage during
transport,'' and also by Utility Solid Waste Activities Group who
expressed ``* * * such notification could provide a strong safety
incentive and would help prevent additional incidents where the
offeror's packaging is at fault.''
Many other commenters opposed the proposal for a number of
different reasons. One commenter stated that the incident report may
not be forwarded to the appropriate company or person within that
company, essentially eliminating the opportunity for corrective action.
The Air Transport Association (ATA) stated that if there is a shipper's
name and address on the shipping paper, it may not be the location from
which the material was originally shipped. In addition, as VOHMA noted,
``Often, the carrier accepts the freight container from [a] forwarder
listing that party as the shipper of record or consignor'' thus, making
the original shipper impossible to find by the reporter of the
incident. NTTC observed that carriers may not know the identity of the
true shipper of a given product due to the intervention of forwarders,
brokers, and third party logistics providers.
Other commenters stated that the reports were an increased burden
for the reporter and many reports may be of little or no interest to
shippers. Safety-Kleen asserted that ``* * * the majority of hazardous
waste generators do not want to be notified when small amounts of
material have leaked * * this [proposal] places an unfair burden on the
hazardous waste carriers.''
We believe that some type of shipper notification is incorporated
into most standard business practices to account for shipment tracking,
product loss, or damage reporting by carriers and consignees, and may
be replicated by the proposed notification. The comments of several
shippers supported this view. For example, Norfolk Southern Railway
Company stated it ``* * * already voluntarily provides copies to its
shippers * * *'' and that ``* * * reports are sent to the shippers at
the same time they are submitted to RSPA.'' Chevron/Phillips noted that
companies ``* * * already support this activity and have detailed
reporting requirements in contracts and service agreements.''
We agree with NTSB and others that there are benefits to shippers
being made aware of incidents involving their packages; however, for
the reasons discussed above we believe it is not appropriate to impose
the burden of notification on incident reporters. We believe that RSPA,
along with FAA, FMCSA, Federal Railroad Administration (FRA) and the
United States Coast Guard (USCG) can do a better job of ensuring
appropriate corrective action by selective notification of shippers and
others, as warranted by analysis of incidents, and by working towards
making incident report information generally available on RSPA's
website. Notification from DOT would carry more weight and prompt a
more immediate response from shippers. Also, enhanced analysis of
incidents, as enabled by this final rule, will allow us to better
identify problems involving packagings, including those problems that
may occur at different locations of a company, or among different
companies.
How incident data can be analyzed was demonstrated in 2001, when
the Intermodal Hazardous Materials Program (IHMP) office reviewed
incident data for companies whose shipments were involved in a high
proportion of incidents relative to other shippers. Incident data from
January 1998 to October 2000 served as a basis of the review. The
analysis of this data revealed that a large number of incidents
reported by carriers during this 34-month period involved shipments
from a small number (less than 40) companies. The IHMP Director sent
letters to these companies, informing them of their incidents and
detailing the results of the IHMP incident analysis. Each letter
included information on the numbers of yearly incidents, reporting
carriers, types of commodities and packages involved, locations where
the shipments originated, reported incident casual factors, and
reported monetary damages.
The IHMP letters generated significant positive feedback from
shippers and heightened their awareness to potential internal problem
areas. Several companies expressed appreciation to DOT for notifying
them about these incidents. Some shippers stated that they were unaware
of these incidents, others that they had received only partial
notifications from their carriers, and others were surprised to
discover that summary incident data was readily available on RSPA's
Office of Hazardous Materials Safety website. Where appropriate,
shippers took action to reduce the likelihood of reoccurrence of
incidents.
RSPA believes that this type of review and contact by DOT better
serves the affected parties. We anticipate conducting ongoing analyses
to detect problems, and are working closely with the modal
administrations to improve analysis and information sharing
capabilities.
The modal administrations will have access to incident data and
information and may conduct similar reviews if they elect to do so.
RSPA has provided FAA's Office of Internal Security and Hazardous
Materials an electronic summary of all hazardous materials incidents
reported since 1993. As FAA special agents conduct hazmat shipper
inspections and shipper outreach visits, they will individually review
a summary of relevant incident histories with each shipper. FAA and
RSPA will develop a system to electronically share information
concerning incidents, discrepancies, inspections, enforcement,
exemptions, and registrations. This will assist in the identification
and analysis of problems and trends related to transportation of
hazardous materials and will be used to notify shippers, or others,
when problems become evident. Until this system is developed and
implemented, FAA will provide copies of incidents related to the air
mode to the relevant shippers.
As previously indicated, summaries of incident information are
currently available to all shippers and carriers at our website.
Increasing awareness of this option and increasing ease of data access
are additional avenues we will explore to ensure shippers are aware of
[[Page 67756]]
incidents involving materials they have offered for transportation.
Miscellaneous Issues
Publishing Reports on the Internet
RSPA received several comments concerning the availability of
completed incident report forms through the internet via RSPA's
website. Several commenters voiced concern about this issue, mainly
citing privacy concerns. Currently, any completed incident report is
considered a public document and available through RSPA. Making these
public documents available through the internet would meet initiatives
in the government to facilitate information collection through
electronic means. However, any information that is currently withheld
under existing law would remain withheld if incident reports are made
available through the internet. RSPA will be reviewing this issue in
the future; however, no additional rulemaking action is necessary to
make these documents electronically available.
New Definitions
We are adopting a new definition in Sec. 171.8 for ``unintentional
release''. We are revising the definition for ``undeclared hazardous
material shipment'' for further clarification.
Hazardous Waste Manifest
We are removing the requirement in Sec. 171.16 to attach a
hazardous waste manifest to the incident report form when a release
involves a hazardous waste. The revised incident report form requires
the hazardous waste manifest number to be reported and provides a field
for entering the number. Through this reference, we will be able to
access the hazardous waste manifest, if needed, through the appropriate
officials. In addition, we are removing the requirements for: (1) An
estimate of the quantity of waste removed from the scene; (2) the name
and address of the facility to which it was taken; and (3) the manner
of disposition of any removed waste. This information is already
available as a result of EPA's hazardous waste manifest regulations;
thus, continued reporting of this information to RSPA is unnecessary.
Removing these requirements eliminates reporting information that is
obtainable through other sources. Therefore, RSPA has adopted these
amendments as proposed.
Record Retention Location
This final rule requires that an incident report must be retained
for two years at either the reporter's principal place of business or
another record retention site provided the report is available at the
reporter's principal place of business within 24 hours of request. We
are adopting this amendment as proposed, which removes the requirement
to seek an approval to store the report at a place other than the
reporter's principal place of business. Adopting this proposal will
provide flexibility in maintaining records without the need for an
approval from DOT. In addition, this allows electronic versions to be
retained, even though the server the document is located on is outside
the principal place of business.
Incidents at Registered Cargo Tank Facilities
In the NPRM, we asked a series of questions concerning fatalities
that may occur at registered cargo tank repair facilities during cargo
tank inspection and repair operations. Such fatalities generally result
because hazardous materials residue in the cargo tank is not removed
before work is done on the tank. We did not propose any changes
specific to this issue in the NPRM, but asked for comments to assist us
in determining whether we should propose to collect information
concerning such accidents in a future rulemaking. Most of the
commenters that addressed this issue, including NTTC and the
International Brotherhood of Teamsters, supported collecting data on
these accidents. One commenter, Farmland Industries, suggested that
RSPA does not have the authority to require reporting of incidents that
are not related to the actual transportation of a hazardous material.
On December 29, 1970, Congress enacted the Occupational Safety and
Health Act of 1970 (OSH Act) for the purpose of assuring safe and
healthy workplaces. Under the OSH Act, every employer engaged in a
business affecting commerce has a general duty to furnish each of its
employees a workplace free from recognized hazards causing, or likely
to cause, death or serious physical harm. In addition, employers are
required to comply with all safety and health standards issued under
the OSH Act that are applicable to working conditions involved in their
businesses. In accordance with OSHA standards, cargo tank repair
facilities must report accidents to OSHA or to a state agency
responsible for occupational safety and health, if appropriate. OSHA
data for the period 1985-1997 indicate that there were 17 fatalities
during the period resulting from repair work performed on cargo tanks.
The OHSA incident reports clearly conclude that the cause of these
incidents was a failure to comply with existing OSHA and/or HMR
requirements. Because OSHA already collects fairly detailed reports
concerning accidents at cargo tank repair facilities, we do not believe
that imposing an additional reporting requirement is necessary or
appropriate.
State Notification
We were contacted by a state official who requested that we require
incidents meeting the immediate notification criteria in Sec. 171.15
to be reported to the State in which the incident occurred. We
disagree. A State may require immediate, oral accident/incident reports
for local emergency response purposes. Further, any State may request
that NRC notify it of incidents occurring within the State.
IV. Summary and Conclusion
The following are the major changes to the current HMR reporting
requirements and to DOT Form F 5800.1 that we are making in this final
rule:
(1) Reporting of incidents involving a specification cargo tank
with a capacity of 1,000 gallons or greater that receives structural
damage that may adversely affect the cargo tanks's ability to retain
lading even when no hazardous material in released.
(2) Reporting discoveries of undeclared hazardous material
shipments.
(3) Updating incident reports when significant new information
becomes available.
(4) Requiring the person in physical control of a hazardous
material during transportation to report an incident.
(5) Excepting small releases of specified materials that pose the
least hazard from reporting requirements.
(6) Restructuring the form to utilize failure codes to obtain
information on packaging failures.
V. Regulatory Analyses and Notices
A. 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, therefore, was not reviewed
by the Office of Management and Budget. This rule is not a significant
regulatory action under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). A regulatory evaluation
that considers various regulatory alternatives is available for review
in the public docket.
The costs of these regulations identified in the regulatory
evaluation
[[Page 67757]]
are attributed to: (1) Expansion of reporting requirements to persons
other than a carrier in possession of a hazardous material during
transportation; (2) implementation of a requirement to update incident
reports under certain conditions; and (3) expansion of reporting
requirements to incidents involving cargo tanks where no hazardous
material is released. Reductions in the total costs associated with
incident reporting requirements are attributed to implementation of an
electronic filing option and expansion of current exceptions to the
reporting requirements. The expected reductions in total costs
generally offset the anticipated cost increases; thus, the requirements
of the final rule should result in only minimal increased costs of
compliance.
While it is difficult to estimate the net benefit resulting from
this rulemaking, we believe that the revisions to the incident
reporting requirements will greatly enhance our ability to develop
strategies to reduce the risks associated with the transportation of
hazardous materials. The non-quantifiable benefit of increased safety
through reducing the incidence of undeclared shipments is expected to
be far greater than the negligible cost increase to the regulated
community.
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 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)) 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 material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a package or container represented,
marked, certified, or sold as qualified for use in transporting
hazardous material.
This final rule addresses covered subject item number 4 above and
preempts state, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. This final rule is necessary to
increase the usefulness of data collected for risk analysis and
management by government and industry and, where possible, provide
relief from regulatory requirements.
Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if we issue a regulation concerning any of the covered
subjects, we must determine and publish in the Federal Register the
effective date of Federal preemption. The preemption date of this rule
is January 1, 2004.
C. 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''). This final rule does
not have tribal implications, does not impose substantial direct
compliance costs, and is not required by statute. Consequently, the
funding and consultation requirements of Executive Order 13175 do not
apply.
D. Executive Order 13272
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.
E. 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 a rule is not expected to have a
significant impact on a substantial number of small entities. Based on
the assessment in the final regulatory evaluation, I hereby certify
that, while the final rule applies to a substantial number of small
entities, there will not be a significant economic impact on those
small entities. A detailed Regulatory Evaluation is available in the
Docket.
Potentially affected small entities. The revisions in this final
rule will apply to persons in physical control of a hazardous material
during transportation in commerce. Such persons primarily include motor
carriers, air carriers, vessel operators, rail carriers, temporary
storage facilities, and intermodal transfer facilities. Unless
alternative definitions have been established by the agency in
consultation with the Small Business Administration, the definition of
``small business'' has the same meaning as under the Small Business Act
(15 CFR Parts 631-657c). Therefore, since no such special definition
has been established, RSPA employs the thresholds (published in 13 CFR
121.201) of 1,500 employees for air carriers (NAICS Subgroup 481), 500
employees for rail carriers (NAICS Subgroup 482), 500 employees for
vessel operators (NAICS Subgroup 483), $18.5 million in revenues for
motor carriers (NAICS Subgroup 484), and $18.5 million in revenues for
warehousing and storage companies (NAICS Subgroup 493). Of the
approximately 116,000 entities to which the proposals in this final
rule would apply (104,000 of which are motor carriers), we estimate
that about 90 percent are small entities. Based on historical data, we
estimate approximately 17,810 annual responses.
Potential cost impacts. The revision to expand reporting
requirements to any person in physical possession of a hazardous
material while it is being transported in commerce will primarily
affect storage and in-transit storage facilities. We estimate there are
approximately 6,500 warehousing and storage entities subject to this
requirement which will incur the total increased compliance costs of
about $84,000. We estimate that expanding the reporting requirements
will increase the number of incident reports submitted each year by
about 11.45 percent of the 17,810 total annual responses, or
approximately 2,180 reports. Taken on a one-to-one report to entity
ratio, we estimate a cost of approximately $39/year/company.
The revision to require updating of incident reports under certain
conditions applies to all persons subject to the HMR incident reporting
regulations. We estimate that this final rule will result in about 800
additional updates to reports each year for a total annual cost of
$4,800. Taken on a one-to-one report to entity ratio, we estimate a
cost of $6.00/year/company.
[[Page 67758]]
The revision to require reporting of certain incidents involving
cargo tanks that do not result in a release of hazardous materials will
apply to about 104,000 motor carriers. We estimate that this revision
will result in about an increase of about 16 percent of the 17,810
total annual responses, or approximately 2,975 additional incident
reports each year. On a one-to-one report/entity basis, motor carriers
will incur increased compliance costs of approximately $114,240 or
about $38/year/company.
The revision to require reporting of undeclared shipments of
hazardous materials discovered during transportation will apply to all
persons subject to the HMR incident reporting regulations. We estimate
that this final rule will result in an increase of approximately 8
percent of the 17,810 incidents reports submitted each year, or
approximately 1,500 reports. Taken on a one-to-one report/entity ratio,
we estimate the corresponding increased compliance costs of $57,600 to
be approximately $38/year/company.
Potential cost savings. The revision in the final rule that will
permit electronic filing of incident reports and expand the current
exceptions from incident reporting requirements will offset the
increased compliance costs described above. The potential savings
attributable to the revisions to the final rule total about $276,000.
The additional potential costs attributable to the revisions to the
final rule total about $275,712, for a net savings of approximately
$300.
Consideration of alternate proposals for small businesses. The
Regulatory Flexibility Act suggests that it may be possible to
establish exceptions and differing compliance standards for small
businesses and still meet the objectives of the applicable regulatory
statutes. However, given the large numbers of small businesses, as
defined for purposes of the Regulatory Flexibility Act, in hazardous
materials transportation, we do not believe that it would be possible
to establish such differing standards and still accomplish the
objectives of federal hazardous materials transportation law. The
information provided in hazardous materials incident reports serves as
the basis for critical RSPA safety functions, including identification
of safety problems, regulations development, training programs,
outreach efforts, and enforcement strategies. The risks posed by a
hazardous material offered for transportation or transported by a small
entity are the same as the risks posed by the same hazardous material
when offered for transportation or transported by a large entity. Thus,
it is entirely reasonable and appropriate for the HMR incident
reporting requirements to apply equally to any person who offers for
transportation or transports hazardous materials in commerce.
Conclusion. Based on the above analysis, we certify that while the
revisions in this final rule will affect a significant number of small
businesses or other small entities, there will be no substantial
economic impact on these small businesses.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid
Office of Management and Budget (OMB) control number. Section
1320.8(d), Title 5, Code of Federal Regulations requires that RSPA
provide interested members of the public and affected agencies an
opportunity to comment on information collection and recordkeeping
requests. RSPA has a current information collection approval under OMB
No. 2137-0039, Hazardous Materials Incident Reports.
The average number of incident reports RSPA received for the years
1997--2000 is about 17,300, and for the years 1995--2000 is about
16,000. Our regulatory evaluation for this final rule uses a base
number of 17,000 annual incident reports.
As a result of this final rule, there was a modest increase in
annual burden and costs. OMB approved this information collection as
proposed under this rule on August 30, 2001. The following figures are
based on receiving 17,000 incident reports per year and only include
estimates for written incident reports:
Total Annual Respondents: 1,781.
Total Annual Responses: 17,810.
Total Annual Burden Hours: 23,746.
Total Annual Burden Cost: $569,904.
Requests for a copy of the information collection should be
directed to Deborah Boothe or T. Glenn Foster, 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.
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 imposes no mandates and thus does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995. It
would not result in costs of $100 million or more to either state,
local, or tribal governments, in the aggregate, or to the private
sector.
I. Environmental Assessment
The revisions in this final rule will increase the quality of data
collected on hazardous materials spills, increasing our ability to
evaluate potential packaging problems that result in releases to the
environment. Thus, the revisions should produce a small net benefit to
the environment by improving the data sources used in regulatory
development. Therefore, we find that there are no significant
environmental impacts associated with this final rule.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and record keeping requirements.
0
In consideration of the foregoing, we are amending 49 CFR part 171 as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
2. In Sec. 171.8 the following definitions are added in alphabetical
order to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Undeclared hazardous material means a hazardous material that is
(1) subject to any of the hazard communication requirements in subparts
C (Shipping Papers), D (Marking), E (Labeling), and F (Placarding) of
Part 172 of this subchapter, or an alternative marking requirement in
Part 173 of this subchapter (such as Sec. Sec. 173.4(a)(10) and
173.6(c)), and (2) offered for transportation in commerce without any
clear indication of the presence of the hazardous material in or on at
least one of the following: an accompanying shipping paper, the outer
package, the transport vehicle or freight container, or another written
statement by the person
[[Page 67759]]
offering the hazardous material for transportation.
* * * * *
Unintentional release means the escape of a hazardous material from
a package on an occasion not anticipated or planned. This includes
releases resulting from collision, package failures, human error,
criminal activity, negligence, improper packing, or unusual conditions
such as the operation of pressure relief devices as a result of over-
pressurization, overfill or fire exposure. It does not include
releases, such as venting of packages, where allowed, and the
operational discharge of contents from packages.
* * * * *
0
3. Section 171.15 is revised to read as follows:
Sec. 171.15 Immediate notice of certain hazardous materials
incidents.
(a) General. As soon as practical but no later than 12 hours after
the occurrence of any incident described in paragraph (b) of this
section, each person in physical possession of the hazardous material
must provide notice by telephone to the National Response Center (NRC)
on 800-424-8802 (toll free) or 202-267-2675 (toll call). Notice
involving an infectious substance (etiologic agent) may be given to the
Director, Centers for Disease Control and Prevention, U.S. Public
Health Service, Atlanta, GA, 800-232-0124 (toll free), in place of
notice to the NRC. Each notice must include the following information:
(1) Name of reporter;
(2) Name and address of person represented by reporter;
(3) Phone number where reporter can be contacted;
(4) Date, time, and location of incident;
(5) The extent of injury, if any;
(6) Class or division, proper shipping name, and quantity of
hazardous materials involved, if such information is available; and
(7) Type of incident and nature of hazardous material involvement
and whether a continuing danger to life exists at the scene.
(b) Reportable incident. A telephone report is required whenever
any of the following occurs during the course of transportation in
commerce (including loading, unloading, and temporary storage):
(1) As a direct result of a hazardous material--
(i) A person is killed;
(ii) A person receives an injury requiring admittance to a
hospital;
(iii) The general public is evacuated for one hour or more;
(iv) A major transportation artery or facility is closed or shut
down for one hour or more; or
(v) The operational flight pattern or routine of an aircraft is
altered;
(2) Fire, breakage, spillage, or suspected radioactive
contamination occurs involving a radioactive material (see also Sec.
176.48 of this subchapter);
(3) Fire, breakage, spillage, or suspected contamination occurs
involving an infectious substance other than a diagnostic specimen or
regulated medical waste;
(4) A release of a marine pollutant occurs in a quantity exceeding
450 L (119 gallons) for a liquid or 400 kg (882 pounds) for a solid; or
(5) A situation exists of such a nature (e.g., a continuing danger
to life exists at the scene of the incident) that, in the judgment of
the person in possession of the hazardous material, it should be
reported to the NRC even though it does not meet the criteria of
paragraph (b) (1), (2), (3) or (4) of this section.
(c) Written report. Each person making a report under this section
must also make the report required by Sec. 171.16 of this subpart.
Note to Sec. 171.15: Under 40 CFR 302.6, EPA requires persons
in charge of facilities (including transport vehicles, vessels, and
aircraft) to report any release of a hazardous substance in a
quantity equal to or greater than its reportable quantity, as soon
as that person has knowledge of the release, to DOT's National
Response Center at (toll free) 800-424-8802 or (toll) 202-267-2675.
0
4. Section 171.16 is revised to read as follows:
Sec. 171.16 Detailed hazardous materials incident reports.
(a) General. Each person in physical possession of a hazardous
material at the time that any of the following incidents occurs during
transportation (including loading, unloading, and temporary storage)
must submit a Hazardous Materials Incident Report on DOT Form F 5800.1
(01/2004) within 30 days of discovery of the incident:
(1) Any of the circumstances set forth in Sec. 171.15(b);
(2) An unintentional release of a hazardous material or the
discharge of any quantity of hazardous waste;
(3) A specification cargo tank with a capacity of 1,000 gallons or
greater containing any hazardous material suffers structural damage to
the lading retention system or damage that requires repair to a system
intended to protect the lading retention system, even if there is no
release of hazardous material; or
(4) An undeclared hazardous material is discovered.
(b) Providing and retaining copies of the report. Each person
reporting under this section must--
(1) Submit a written Hazardous Materials Incident Report to the
Information Systems Manager, DHM-63, Research and Special Programs
Administration, Department of Transportation, Washington, DC 20590-
0001. Submit an electronic Hazardous Material Incident Report to the
Information System Manager, DHM-63, Research and Special Programs
Administration, Department of Transportation, Washington, DC 20590-0001
at http://hazmat.dot.gov;
(2) For an incident involving transportation by aircraft, submit a
written or electronic copy of the Hazardous Materials Incident Report
to the FAA Security Field Office nearest the location of the incident;
and
(3) Retain a written or electronic copy of the Hazardous Materials
Incident Report for a period of two years at the reporting person's
principal place of business. If the written or electronic Hazardous
Materials Incident Report is maintained at other than the reporting
person's principal place of business, the report must be made available
at the reporting person's principal place of business within 24 hours
of a request for the report by an authorized representative or special
agent of the Department of Transportation.
(c) Updating the incident report. A Hazardous Materials Incident
Report must be updated within one year of the date of occurrence of the
incident whenever:
(1) A death results from injury caused by a hazardous material;
(2) There was a misidentification of the hazardous material or
package information on a prior incident report;
(3) Damage, loss or related cost that was not known when the
initial incident report was filed becomes known; or
(4) Damage, loss, or related cost changes by $25,000 or more, or
10% of the prior total estimate, whichever is greater.
(d) Exceptions. Unless a telephone report is required under the
provisions of Sec. 171.15 of this part, the requirements of paragraphs
(a), (b), and (c) of this section do not apply to the following
incidents:
(1) A release of a minimal amount of material from--
(i) A vent, for materials for which venting is authorized;
(ii) The routine operation of a seal, pump, compressor, or valve;
or
(iii) Connection or disconnection of loading or unloading lines,
provided
[[Page 67760]]
that the release does not result in property damage.
(2) An unintentional release of hazardous material when:
(i) The material is properly classed as--
(A) ORM-D; or
(B) a Packing Group III material in Class or Division 3, 4, 5, 6.1,
8, or 9;
(ii) Each package has a capacity of less than 20 liters (5.2
gallons) for liquids or less than 30 kg (66 pounds) for solids;
(iii) The total aggregate release is less than 20 liters (5.2
gallons) for liquids or less than 30 kg (66 pounds) for solids; and
(iv) The material is not--
(A) Offered for transportation or transported by aircraft,
(B) A hazardous waste, or
(C) An undeclared hazardous material.
(3) An undeclared hazardous material discovered in an air
passenger's checked or carry-on baggage during the airport screening
process. (For discrepancy reporting by carriers, see Sec. 175.31 of
this subchapter.)
0
5. Section 171.21 is revised to read as follows:
Sec. 171.21 Assistance in investigations and special studies.
(a) A shipper, carrier, package owner, package manufacturer or
certifier, repair facility, or person reporting an incident under the
provisions of Sec. 171.16 must:
(1) Make all records and information pertaining to the incident
available to an authorized representative or special agent of the
Department of Transportation upon request; and
(2) Give an authorized representative or special agent of the
Department of Transportation reasonable assistance in the investigation
of the incident.
(b) If an authorized representative or special agent of the
Department of Transportation makes an inquiry of a person required to
complete an incident report in connection with a study of incidents,
the person shall:
(1) Respond to the inquiry within 30 days after its receipt or
within such other time as the inquiry may specify; and
(2) Provide true and complete answers to any questions included in
the inquiry.
Issued in Washington, DC on November 19, 2003 under the
authority delegated in 49 CFR Part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
Attachment 1--Hazardous Materials Incident Report
Note: This attachment will not appear in the Code of Federal
Regulations.
BILLING CODE 4910-60-P
[[Page 67761]]
[GRAPHIC] [TIFF OMITTED] TR03DE03.000
[[Page 67762]]
[GRAPHIC] [TIFF OMITTED] TR03DE03.001
[[Page 67763]]
[GRAPHIC] [TIFF OMITTED] TR03DE03.002
[[Page 67764]]
[GRAPHIC] [TIFF OMITTED] TR03DE03.003
[[Page 67765]]
BILLING CODE 4910-60-C
General Overview for Completing the Hazardous Materials Incident
Report--Department of Transportation Form F 5800.1
What Federal Regulation Requires Me To Submit the Report?
The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)
require that certain types of incidents be reported to the Research
and Special Programs Administration (RSPA). Section 171.15 of the
HMR requires an immediate telephonic report (within 12 hours) of
certain types of hazardous materials incidents and a follow-up
written report. Section 171.16 requires a written report for certain
types of hazardous materials incidents within 30 days. Each type of
report is explained below.
What Is the Purpose of the Report?
The information you are providing in this report is fundamental
to hazardous material transportation risk analysis and risk
management by government and industry. It allows us to better
understand the causes and consequences of hazardous material
transportation incidents. The data is used to identify trends and
provide basic program performance measures. It helps to demonstrate
the effectiveness of existing regulations and to identify areas
where changes should be considered. It also assists all parties,
including industry segments and individual companies, in
understanding the types and frequencies of incidents, what can go
wrong, and possible measures that would prevent their recurrence.
Your accurate and complete description of incidents can make a
significant contribution to continual safety improvement through
better regulations, cooperative partnerships, and individual
efforts.
Who Must Complete the Report?
Any person in possession of a hazardous material during
transportation, including loading, unloading and storage incidental
to transportation, must report to the Department of Transportation
(DOT) if certain conditions are met. This means that when the
conditions apply for completing the report, the entity having
physical control of the shipment is responsible for filling out and
filing Form DOT F 5800.1.
For example, if a shipper is carrying hazardous material, the
consignee is unloading the material and there is an incident
involving this material, the consignee is responsible for filling
out and filing the form. However, if the consignee is unloading the
hazardous material and causes a hazardous materials incident
involving a consignment intended for someone else, the shipper is
responsible for filling out and filing the form.
What Definitions Should I Know in Order To Complete the Report?
In order to accurately complete the report, you should be
familiar with the following terms. A complete list of definitions is
contained in Sec. 171.8.
Bulk packaging--a packaging, other than a vessel or a barge,
including a transport vehicle or freight container, in which
hazardous materials are loaded with no intermediate form of
containment and which has:
(1) A maximum capacity greater than 450 liters (119 gallons) as
a receptacle for a liquid;
(2) A maximum net mass greater than 400 kilograms (822 pounds)
and a maximum capacity greater than 450 liters (119 gallons) as a
receptacle for a solid; or
(3) A water capacity greater than 454 kilograms (1000 pounds) as
a receptacle for a gas as defined in Sec. 173.115.
Cargo tank--a bulk packaging which is:
(1) A tank intended primarily for the carriage of liquids or
gases and includes appurtenances, reinforcements, fittings, and
closures;
(2) Is permanently attached to or forms a part of a motor
vehicle, or is not permanently attached to a motor vehicle but
which, by reason of its size, construction, or attachment to a motor
vehicle, is loaded or unloaded without being removed |
