[Federal Register: March 25, 2003 (Volume 68, Number 57)]
[Rules and Regulations]
[Page 14341-14347]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr03-18]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 and 175
[Docket No. RSPA-00-7762 (HM-206C)]
RIN 2137-AD29
Hazardous Materials: Availability of Information for Hazardous
Materials Transported by Aircraft
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: RSPA is amending the Hazardous Materials Regulations to
require an aircraft operator transporting a hazardous material to:
Place a telephone number, on the notification of pilot-in-command or in
the cockpit of the aircraft, that can be contacted during an in-flight
emergency to obtain information about any hazardous materials aboard
the aircraft; retain and provide upon request a copy of the
notification of pilot-in-command, or the information contained in it,
at the aircraft operator's principal place of business, or the airport
of departure, for 90 days, and at the airport of departure until the
flight leg is completed; and make readily accessible, and provide upon
request, a copy of the notification of pilot-in-command, or the
information contained in it, at the planned airport of arrival until
the flight leg is completed. The intent of these amendments is to
increase the level of safety associated with the transportation of
hazardous materials aboard aircraft.
DATES: Effective Date: The effective date of these amendments is
October 1, 2003.
Delayed Compliance Date: Compliance with the amendments adopted in
this final rule is required beginning on October 1, 2004.
FOR FURTHER INFORMATION CONTACT: John A. Gale or Gigi Corbin, Office of
Hazardous Materials Standards, telephone (202) 366-8553, Research and
Special Programs Administration, U.S. Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Hazardous Materials Regulations (HMR; 49 CFR parts 171-
180), an offeror of a hazardous material must prepare a signed shipping
paper containing the quantity and a basic shipping description of the
material being offered for transportation (i.e., proper shipping name,
hazard class, UN or NA identification number, and packing group);
certain emergency response information; and a 24-hour emergency
response telephone number. (49 CFR part 172, Subparts C and G).
Additional information may be required depending on the specific
hazardous material being shipped. (49 CFR 172.203).
When hazardous material is transported by air, a copy of the
shipping paper must accompany the shipment during transportation, and
the aircraft operator must provide the pilot-in-command of the aircraft
written information relative to the hazardous materials on board the
aircraft. (49 CFR 175.33 and 175.35). For each hazardous materials
shipment, the information in the notification of pilot-in-command
(NOPC) must include:
(1) Proper shipping name, hazard class, and identification number;
(2) technical and chemical group name, if applicable;
(3) any additional shipping description requirements applicable to
specific types or shipments of hazardous materials or to materials
shipped under International Civil Aviation Organization (ICAO)
requirements;
(4) total number of packages;
(5) net quantity or gross weight, as appropriate, for each package;
(6) the location of each package on the aircraft;
(7) for Class 7 (radioactive) materials, the number of packages,
overpacks or freight containers, their transport index, and their
location on the aircraft; and
(8) an indication, if applicable, that a hazardous material is
being transported under terms of an exemption.
This information must be readily available to the pilot-in-command
during flight. In essence, the NOPC provides the same information to
emergency response personnel as a shipping paper for transportation by
public highway. In addition, emergency response information applicable
to the specific hazardous materials being transported by aircraft must
be available for use at all times the materials are present on the
aircraft, and must be maintained on board in the same manner as the
NOPC. (See Subpart G of part 172 for requirements relating to emergency
response information.) In an emergency situation, the flight crew may
be able to transmit information concerning the hazardous materials
aboard the aircraft to air traffic control, or emergency responders may
be able to retrieve the information from the aircraft after it lands.
However, retrieval of the information from the flight crew may not be
practical during an in-flight emergency because the flight crew may be
attending to more pressing tasks. Also, in many emergencies the
aircraft is damaged or destroyed, making retrieval of this information
from the aircraft difficult or impossible.
On February 13, 2002, RSPA issued a notice of proposed rulemaking
(NPRM) to amend the HMR to assure that information on the hazardous
materials carried aboard the aircraft is available to emergency
responders through sources other than the flight crew (67 FR 6669). The
NPRM proposed to amend the HMR to require an aircraft operator to:
Place a telephone number on the notification of pilot-in-command that
can be contacted during an in-flight emergency to obtain information
about any
[[Page 14342]]
hazardous materials aboard the aircraft; retain a copy of the
notification of pilot-in-command at the aircraft operator's principal
place of business for one year; retain and make readily accessible a
copy of the notification of pilot-in-command, or the information
contained in it, at the airport of departure until the flight leg is
completed; and make readily accessible a copy of the notification of
pilot-in-command, or the information contained in it, at the planned
airport of arrival until the flight leg is completed.
The amendments adopted in this final rule respond to a
recommendation of the National Transportation Safety Board (NTSB) and
are consistent with recent changes to the ICAO Technical Instructions
for the Safe Transport of Dangerous Goods by Air (ICAO Technical
Instructions). The NTSB recommends that RSPA:
Require, within two years, that air carriers transporting
hazardous materials have the means, 24 hours per day, to quickly
retrieve and provide consolidated specific information about the
identity (including proper shipping name), hazard class, quantity,
number of packages, and location of all hazardous material on an
airplane in a timely manner to emergency responders. (A-98-80).
This recommendation is contained in NTSB's August 12, 1998, letter
to RSPA, which has been placed in the public docket.
The ICAO Dangerous Goods Panel also considered additional steps
that could be taken to improve the availability of information in the
event of an aircraft incident. As a result, the Panel revised the ICAO
Technical Instructions to: (1) Require the NOPC to be readily
accessible at the airports of departure and arrival; and (2) allow an
aircraft operator to provide a phone number where a copy of the NOPC
could be obtained. In an emergency, the pilot would relay the phone
number instead of the specific hazardous materials aboard the aircraft
to an air traffic controller (see ICAO Technical Instructions 7;4.3).
For informational purposes, we placed in the Docket an excerpt from the
reports of the ICAO Dangerous Goods Panel reflecting discussions on
this topic and relevant changes for inclusion in the 2001-2002 and
2003-2004 editions of the ICAO Technical Instructions.
On August 15, 2000, we issued an advance notice of proposed
rulemaking (ANPRM) requesting comments and suggestions on ways to
implement the NTSB recommendation and the need for this or other
changes to the HMR (65 FR 49777). The ANPRM solicited comments on past
incidents; practices and procedures currently in use and their costs;
information needed by emergency responders; and the benefit,
feasibility, and funding of a centralized reporting system (CRS).
II. Discussion of Comments
A. Place a Telephone Number on the NOPC
Two commenters supported our proposal to place a telephone number
on the NOPC that can be contacted during an in-flight emergency to
obtain information about any hazardous materials aboard the aircraft.
Emery Forwarding stated that it is reasonable to provide such a
telephone number on the NOPC, and aircraft operators should have a
single point of control that could be contacted for hazmat information.
Emery went on to say the telephone number would take little space on
the NOPC and the primary cost would be in the modification of internal
computer systems. The International Pilots Association (IPA) stated
that, in an emergency, the telephone number relieves the crew from
having to ``read off a lot of information at a time when they probably
have more urgent matters to attend to''. The commenter pointed out that
providing a telephone number instead of detailed information about the
hazardous materials is consistent with ICAO Technical Instructions
7;4.3. At the same time, IPA questioned who would be staffing this
telephone number. IPA stated that the point of contact at United Parcel
Services (UPS) is the Dispatcher. IPA opposed the Dispatcher as the
contact point and suggested the telephone number should be another
department in order to allow the dispatcher to work with the crew to
resolve the immediate situation.
The Air Line Pilots Association (ALPA) commented that the
requirement for a telephone number on the NOPC that could be contacted
during an in-flight emergency to obtain information about any hazardous
materials aboard the aircraft would have limited safety benefits. Due
to the nature of most in-flight emergencies, the flight crew may have
insufficient time to transmit any information from the NOPC. Even if
the crew had time to transmit information from the NOPC to Air Traffic
Control (ATC), the presence of two telephone numbers (emergency
response and hazmat information) could be potentially confusing. ALPA
conceded that the addition of the phone number is a slight improvement
over the present system, but the situation addressed by the telephone
number would be better addressed by a more robust hazardous materials
tracking system.
Two commenters disagreed with the proposal. FedEx contended that it
should be sufficient for the flight crew to inform ATC whether or not
hazardous material is aboard the aircraft as it would allow the crew to
continue with the more pressing tasks of the emergency. FedEx stated
that ATC would contact the aircraft operator with the flight number and
obtain the required hazardous materials information from a single
contact of the operator. The Air Transport Association (ATA) also
stated that the flight crew should be able to contact a single
telephone contact known to flight crews and that many air carriers have
already identified a single location to become responsible for this
function, and airlines should be permitted to designate the location.
RSPA continues to believe that each airline that is transporting
hazardous materials should maintain a phone number that is monitored at
all times the aircraft is in flight by a person from whom the
information in the NOPC can be obtained. In the NPRM, RSPA stated that
one of the problems faced by emergency responders in an aviation
emergency is that a flight crew may not have time or otherwise be able
to provide information on the hazardous material aboard an aircraft. A
phone number that is monitored by a person from whom the information in
the NOPC can be obtained could be used in those incidents where a pilot
does not have time to provide an air traffic controller the information
on the NOPC. However, RSPA does agree with the commenter who requested
that the telephone number be allowed to be placed in a centralized
location on the aircraft and not the NOPC. Therefore, RSPA is adopting
the proposal to require aircraft operators to monitor a telephone
number while the aircraft is in flight by a person whom the information
in the NOPC can be obtained, but is allowing the phone number to be
placed on the NOPC or in a location on the aircraft that is known to
the flight crew.
B. Retention of NOPC During Flight
In the NPRM, we proposed to require aircraft operators to retain
and make readily accessible a copy of the NOPC, or the information
contained in it, at the airport of departure until the flight leg is
completed and make readily accessible a copy of the NOPC, or the
information contained in it, at the airport of arrival until the flight
leg is complete. Most commenters supported retaining and making readily
accessible
[[Page 14343]]
``the information contained in the NOPC'' at the airport of departure.
They agreed that the hazardous material information must be readily
available and in a format that is easily understood by emergency
personnel.
While the commenters generally agreed with the proposal that the
information contained in the NOPC must be retained and readily
accessible at the airport of departure, several of them pointed out
that in an emergency, the aircraft most likely will not land at the
planned destination airport. The commenters stated that having copies
of the NOPC at the planned airport of arrival would not be useful. ATA
stated that in all likelihood, the flight will divert ``to the nearest
suitable airport''. The information would have to be obtained from the
last departure airport.
The ATA stated that air carriers may have no choice but to automate
in order to comply with the requirements in this rulemaking and that it
is unrealistic to expect large-scale air carriers to duplicate the
NOPC, file the copied form, and transmit it by fax. ATA stated that if
carriers did utilize a fax system to manage this information, it is
reasonable to assume that these requirements will add 10 minutes of
additional work to each flight. ATA went on to say that if we estimate
that one-third of the 19,000 daily flights carry hazardous materials,
utilizing the $18 per hour labor rate yields a total cost of almost
$7,000,000 per year.
ALPA questioned when the required hazardous materials information
must be accessible at the destination airport. ALPA asked if the
departure of a flight from Chicago to Tokyo would need to be delayed if
station personnel in Tokyo had not yet received the required
information. ALPA stated that with long transcontinental or
international flights, the destination airport may not be staffed at
the time of departure from the originating station. Requiring personnel
to remain at an otherwise closed station for the purpose of accessing
hazardous material information appears to create significant expense
with very little, if any, safety benefit.
ALPA stated the best way to make improvements in the availability
of the hazardous material information is through a tracking system
based around an airline's dispatch or operations control center, not
the airports of departure or arrival. ALPA pointed out that in the U.S.
all airline flight operations must maintain a flight following system
capable of tracking an airplane through its entire flight, including
intermediate stops and diversions. The dispatcher and pilot-in-command
share operational authority for the flight. ALPA stated that the
dispatch or operations control center is the natural location for the
hazardous material information. The dispatcher is required to monitor
the flight and would most likely be the first person within the airline
to be aware of a flight diversion due to an emergency. Dispatchers
would work closely with corporate emergency response to an accident.
ALPA pointed out that dispatchers are certificated, highly trained
individuals, and often have access to a multitude of advanced
communications equipment and contact information for a variety of
emergency response situation.
NTSB stated the NPRM fails to ensure that the air carrier has the
ability to quickly provide emergency responders with a consolidated
list that not only identifies each hazardous material on board the
aircraft but also the quantity and location of each hazardous materials
package on the aircraft. Maintaining the NOPC at the departure and
arrival points of an aircraft does not ensure that air carriers will
provide the consolidated list in a timely manner. If an aircraft
diverts, the aircraft operator would still have to transmit a copy of
the NOPC or assemble a list and then transmit it. Neither is timely. If
the air carrier has the consolidated list prior to the departure of
each flight, the air carrier could easily transmit a consolidated list
to emergency responders at the scene.
NTSB pointed out that for many carriers the NOPC is a multi-part
form with the hazardous materials information on the individual
shipping papers. In an emergency, when the onboard NOPC is not
available or accessible, the carrier must retrieve a copy of the NOPC
at the point of origin and collect the shipping papers for the
individual hazardous material shipments. The carrier must then transmit
copies of the individual shipping papers or consolidate the information
into a list before transmitting to emergency responders. The NTSB
stated that this unnecessarily delays the accurate transmission of the
hazardous materials information. NTSB stated that the final rule under
this docket should include an explicit requirement that an air carrier
must have the capability to provide emergency responders with a
consolidated list of hazardous materials on any of its aircraft and
appropriate information about those materials.
Several commenters stated that the requirements in the NPRM are
only manageable with an automated tracking system. FedEx agreed with
the proposal to have the NOPC accessible at the airports of departure
and arrival until the flight leg is completed, but only if RSPA
requires aircraft operators to fully automate or computerize the
required hazmat information. FedEx emphasized how burdensome the task
would be if not automated. FedEx cited its Memphis hub with 160 flights
departing within a matter of hours and stated that, without an
automated system, the company would be required to fax paper copies to
the destination airports so that the information would be available
prior to the scheduled arrival time.
As we stated in the NPRM, emergencies involving hazardous materials
transported by aircraft provide difficulties to emergency responders
not usually encountered in other modes of transportation. The flight
crew may not have time or otherwise be able to provide information
during or immediately after the emergency. An aircraft involved in an
accident may be damaged to such an extent the information cannot be
retrieved from it. In such instances, emergency responders may not know
what, if any, hazardous materials are aboard the aircraft. These
difficulties cause us to shift our focus away from retrieving hazardous
materials information aboard the aircraft or from air crew members. We
continue to believe that these problems support a requirement for
information to be accessible from a source other than the aircraft
flight crew. We also agree with the comment to the ANPRM that stated
that the additional risk posed during an emergency by properly prepared
hazardous materials shipments may not be significant considering the
standard fuel capacity of commercial aircraft. A system that utilizes
the information contained in the NOPC can appropriately address these
problems without the need for costly new computer or paper tracking
systems.
Therefore, as proposed, we are amending the HMR to require an
aircraft operator to: (1) Retain and make readily accessible a copy of
the NOPC, or the information contained in it, at the airport of
departure until the flight leg is completed; and (2) make readily
accessible a copy of the NOPC, or the information contained in it, at
the planned airport of arrival until the flight leg is completed.
Nothing in the rule requires, however, that an aircraft operator has to
fax every NOPC to its final destination before a flight takes-off or
lands. The airport of arrival must only have the means available to
retrieve the NOPC. With facsimile machines and email capabilities,
companies can easily store the information at the airport of departure
[[Page 14344]]
and then, when necessary, transmit it to the airport of arrival very
quickly. Therefore, a flight would not have to be held on the ground to
wait for a NOPC to be faxed to its airport of arrival. In addition, we
are not mandating that airlines retain staff at both airports of
arrival and destination while an aircraft is in flight. However, the
airport of departure and arrival must be able to receive and transmit
the information to appropriate government personnel in such a timely
manner that emergency responders can make response mitigation
decisions. It is our belief that the act of filing and maintaining this
information in a manner that is readily available should impose a
marginal cost on each flight since (1) the NOPC is already being
created at the airport of departure; and (2) the airport of arrival
only requires the information be readily available, which should permit
the faxing of the information when requested by appropriate
authorities, not after each flight.
In response to commenters who concluded that a computerized
tracking system is the only opportunity to comply with this NPRM, we
agree that a computer tracking system would enhance the transmission of
the hazmat information on the NOPC and believe that it is an acceptable
method for complying with the amendments. However, we disagree with the
conclusion that it is the only method for compliance. We believe that
the hazmat information contained on the NOPC can be managed without a
computerized tracking system. Mandating all aircraft operators to
install such a system would greatly disadvantage smaller air carriers.
Air carriers who already have a computerized tracking system or are in
the process of developing such a system, may use or modify their
existing system to have the capability to transmit the hazmat
information to other locations as required by this final rule.
We agree with the commenter that stated that an air carrier should
have the capability to provide emergency responders with a consolidated
list of hazardous materials aboard their aircraft, however, we did not
propose such a requirement and, therefore, is beyond the scope of this
rulemaking. We note that in order to provide emergency responders the
required information without any undue delay it may be necessary for
some carriers to use a consolidated list.
We are also revising the HMR to clarify that the NOPC must identify
all hazardous materials carried on the plane, even those loaded at
earlier departure points. These changes to the HMR will provide
emergency responders with timely and consolidated information about the
identity (including proper shipping name, hazard class, quantity, and
number of packages), and location of all hazardous material on an
airplane.
C. Retention of NOPC After Completion of the Flight
Most commenters objected to the proposal to retain a copy of the
NOPC or an electronic image thereof for one year after completion of
the flight. Two commenters (UPS and ATA) suggested that ``the
information contained in'' the NOPC is important, not the form itself.
The commenters stated an aircraft operator should be allowed to retain
the ``information contained in'' the NOPC rather than the actual NOPC
and went on to say that for emergency responders, the essential
information consists of the hazardous materials shipping description
for each material loaded on the aircraft, the amount of hazardous
material in the shipment, and its location on the aircraft. These
elements should be available away from the aircraft and presented to
emergency responders. The commenters stated that the other information
on the NOPC will not provide an emergency responder with information
necessary to respond to an incident and could in fact easily distract
from the emergency response. The ATA commented that if RSPA requires
the retention and provision of copies of the NOPC itself, emergency
responders will criticize the results as distracting. RSPA should not
require an operator to retain and transmit superfluous information. The
less complicated the information, the easier the retrieval in an
emergency.
UPS stated that RSPA lacks justification for permitting an operator
to make the information contained in an NOPC accessible at the airports
of departure and arrival, but require the actual written NOPC for all
other purposes specified in the proposed Sec. 175.33(c). UPS went on
to request that RSPA should specify what information contained in the
NOPC must be retained.
FedEx stated that the information currently required is redundant,
confusing and in some cases encumbers the very process it was intended
to support and improve. Fed Ex urged RSPA to consider using a summary
of the total hazardous materials by hazard class on board the aircraft
in lieu of the current and proposed NOPC. British Airways stated that
we should not require NOPCs to be stored at the principal place of
business. The commenter went on to say that they retain their NOPCs at
each of its stations and that no safety benefit would result from
requiring that notification be transferred to a central repository.
The majority of commenters objected to the proposed one year
retention period. Three commenters (UPS, ALPA and IPA) supported a 90-
day retention period, two commenters (FedEx and ATA) a 30-day period,
while another (Emery) favored a retention period in the 30-90 day
range. ATA conceded that in the event of an incident the NOPC should be
retained for 90 days. Two commenters (IPA and ALPA) who favor a 90-day
period pointed out that this is consistent with the current
requirements to retain shipping papers for 90 days in 49 CFR 175 as
well as in the ICAO Technical Instructions. Other commenters (ATA,
Emery) stated that requiring an aircraft operator to retain the NOPC
for one year has no bearing on the ability of first responders to react
to an accident.
Several commenters objected to the proposal to require retention of
the NOPC at the operators' principal place of business. Three
commenters (ATA, UPS and FedEx) commented that RSPA should allow the
aircraft operator to designate the location. ALPA expressed concern
over the requirement to retain a copy of the NOPC (not just the
information contained in it) at the operator's principal place of
business for one year and stated that the only apparent benefit of
retaining a copy of the NOPC at the principal place of business appears
to be for enforcement opportunities, and as such, has no place within
the context of this rulemaking.
Several commenters (UPS, FedEx, ATA) objected to the proposal to
require aircraft operators to make the NOPC available, upon request, to
any representative of a Federal, State, or local government agency. The
commenters stated RSPA should limit the scope of Sec. 175.33 to a
government representative who is either responding to a hazardous
material incident or is conducting an investigation which involves a
hazardous material, consistent with the requirements in Sec.
172.600(c)(2). Without such limitation, an agency at any level of
government could request sensitive information concerning an operator's
business, customer base or transportation of hazardous materials. ATA
stated that the proposal empowers such a variety of authorities to
demand and receive NOPC information that unmanageable circumstances
might arise. The ATA urged RSPA to restrict access of this information,
in an emergency, to an incident commander or other duly empowered
representative of an agency.
[[Page 14345]]
In 1994, Congress amended the Federal hazardous material
transportation law (Federal hazmat law) to require that, after a
hazardous material ``is no longer in transportation,'' each offeror and
carrier of a hazardous material must retain the shipping paper ``or an
electronic image thereof for a period of one year to be accessible
through their respective principal places of business.'' 49 U.S.C.
5110(e), added by Pub. L. 103-311, Title I, Sec. 115, 108 Stat. 1678
(Aug. 26, 1994). That section also provides that the offeror and
carrier ``shall, upon request, make the shipping paper available to a
Federal, State, or local government agency at reasonable times and
locations.'' On July 12, 2002, RSPA issued a final rule under Docket
HM-207B amending the HMR to conform with Sec. 5110(e) (67 FR 46124).
As stated in the NPRM, the NOPC provides the same information to
emergency response personnel as the shipping paper for transportation
by rail or public highway. RSPA believes, therefore, that it is
consistent with the statutory intent of Congress to require aircraft
operators to maintain a copy of the NOPC, or the information contained
in it for a reasonable period of time. RSPA does agree, however, with
those commenters indicating that 90 days is a sufficient period of time
for the NOPC to be maintained; operators should be allowed the option
of maintaining the information in the NOPC and not just a copy of the
NOPC itself; and, the NOPC should be allowed to be stored at their
stations (i.e., airport of departure). Therefore, RSPA is amending
Sec. 175.33 to require aircraft operators to maintain a copy of the
NOPC, or the information contained in it, for 90 days at the airport of
departure or principal place of business. The information required to
be maintained is the information required on the NOPC as specified in
Sec. 175.33(a), including confirmation that no damage or leaking
packages have been loaded on the aircraft. However, information on the
NOPC that is pertaining to non-hazardous material is not required to be
maintained. In addition, if the NOPC is also the shipping paper, as
provided by Sec. 175.35(b), a copy of the NOPC (i.e., the shipping
paper), or an electronic image thereof, must be retained for 375 days.
Consistent with changes to the shipping paper retention
requirements published under the response to appeals to Docket HM-207B
(July 12, 2002; 67 FR 46123) and comments received to the NPRM issued
under Docket HM-206C, RSPA is also modifying proposed Sec. 175.33(c).
Except when requests are from government representatives responding to
an incident, RSPA is not requiring that the NOPC be provided
``immediately'' to an authorized official of a Federal, State, or local
government agency. RSPA has revised Sec. 175.33 to require that the
information be provided ``at reasonable times and locations.'' Because
of the appeals received in response to Docket HM-207B, RSPA also
reevaluated the terminology of ``immediately available'' with regard to
providing the NOPC, or the information contained therein, to government
personnel responding to an incident. RSPA believes that government
personnel, such as emergency response personnel, that are responding to
an incident involving an aircraft must receive information regarding
the hazardous materials aboard the aircraft in such a time and manner
that will allow them to take appropriate emergency response actions.
RSPA believes that, for the time being, the term ``immediately
available'' best describes this need. The term is intended to indicate
that the information must be provided to an emergency responder with no
undue delay. Though a few minutes may elapse between the request and
the information being transmitted, the NOPC information must be
transmitted to the responder as quickly as possible. By providing this
information in as quick, legible and consolidated fashion as possible
emergency response personnel may be able to take adequate action to
minimize loss of the content within the aircraft versus losing the
aircraft and its contents in its entirety. RSPA may propose in a future
rulemaking an alternative phrase for ``immediately available'' in order
to define how quickly an aircraft operator must provide this
information to government personnel responding to an aviation incident.
The revisions contained in this final rule are consistent with the
changes recently adopted into the ICAO Technical Instructions, with one
exception. Our amendments require an aircraft operator to provide a
phone number for where a copy of the NOPC can be obtained. The ICAO
Technical Instructions do not contain this requirement.
III. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
subject to formal review by the Office of Management and Budget (OMB).
This final rule is not considered significant under the Regulatory
Policies and Procedures of the Department of Transportation (44 FR
11034). A regulatory evaluation is available for review in the docket.
B. Executive Order 13132
This final rule was 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 adopt any regulation with substantial direct effects on: the
States; the relationship between the national government and the
States; or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting State, local, and Indian tribe requirements on certain
subjects. These subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses subject item (3) above and preempts
State, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. Federal hazardous materials
transportation law provides at Sec. 5125(b)(2) that, if RSPA issues a
regulation concerning any of the subjects, RSPA must determine and
publish in the Federal Register the effective date of Federal
preemption. The effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance. The effective date of preemption is
90 days from publication of this final rule in the Federal Register.
[[Page 14346]]
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''). Because this final rule
does not have tribal implications, and does not impose direct
compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statutes, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve this principle, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rationale for
their actions. The Act covers a wide range of small entities, including
small businesses, not-for-profit organizations and small governmental
jurisdictions. Agencies must perform a review to determine whether a
proposed or final rule will have a significant economic impact on a
substantial number of small entities. If the determination is that it
will, the agency must prepare a regulatory flexibility analysis (RFA)
as described in the Act. However, if an agency determines a proposed or
final rule is not expected to have a significant economic impact on a
substantial number of small entities, section 605(b) of the 1980 act
provides the head of the agency may so certify, and an RFA is not
required.
The Small Business Administration criterion specifies an air
carrier is ``small'' if it has 1,500 or fewer employees. For this rule,
small entities are part 121 and part 135 air carriers, approved to
carry hazardous materials, with 1,500 or fewer employees. We identified
729 air carriers meeting this standard.
As mentioned in the Paperwork Reduction Act section of this
preamble, it is estimated that the cost to the airline industry of this
final rule will be $450,000 per year. This estimate comes from an
examination of the data in the U.S. Department of Transportation's Air
Carrier Traffic Statistic Monthly. From that data we also were able to
estimate that small business airlines undertake no more than 25% of all
aircraft departures, and thus 25% of the total cost. The average small
business is expected to incur a cost of no more than $150 per year.
Therefore, I certify this final rule does not have a significant
economic impact on a substantial number of small entities.
E. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more, in the aggregate, to any of the following: State,
local, or Native American tribal governments, or the private sector.
F. Paperwork Reduction Act
This rule results in an increase in the annual paperwork burden and
costs. We currently have an approved information collection under OMB
No. 2137-0034, ``Hazardous Materials Shipping Papers & Emergency
Response Information''. These revisions regarding the maintenance of
copies of notification of pilot-in-command were submitted under the
NPRM to OMB for review and approval.
Section 1320.8(d), Title 5, Code of Federal Regulations required
that RSPA provide interested members of the public and affected
agencies an opportunity to comment on information collection and
recordkeeping requests. The NPRM identified a new information
collection requirement that RSPA submitted to OMB for approval. RSPA
estimated that the new total information collection and recordkeeping
burden for OMB No. 2137-034 would be as follows:
``Hazardous Materials Shipping Papers & Emergency Response
Information'' OMB No. 2137-0034
Total Annual Number of Respondents: 250,000.
Total Annual Responses: 260,000,000.
Total Annual Burden Hours: 6,523,611.
Total Annual Burden Cost: $6,925, 000.
RSPA specifically requested comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these requirements. We received three comments regarding
this information collection. Under the Paperwork Reduction Act of 1995,
no person is required to respond to an information collection unless it
displays a valid OMB control number. OMB approved the revised
information collection requirement on February 27, 2003.
G. Environmental Assessment
This final rule will improve emergency response to hazardous
materials incidents involving aircraft by ensuring information on the
hazardous materials involved in an emergency is readily available. By
improving emergency response to aircraft incidents, this should help
lessen environmental damage associated with such incidents. We find
there are no significant environmental impacts associated with this
rule.
H. 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 may be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 175
Air carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 171.14, paragraph (f) is added to read as follows:
Sec. 171.14 Transitional provisions for implementing certain
requirements.
* * * * *
(f) 49 CFR 175.33 sets out requirements regarding the availability
of information for hazardous materials transported by aircraft. Until
October 1, 2004, a person may elect to comply with either the
applicable requirements of 49 CFR 175.33 in effect on September 30,
2003, and contained in 49 CFR Part 175 revised as of October 1, 2002,
or the requirements of that section contained in 49 CFR Part 175
revised as of October 1, 2003. On October 1,2004, all applicable
regulatory requirements in 49
[[Page 14347]]
CFR 175.33 in effect on October 1, 2003 must be met.
PART 175--CARRIAGE BY AIRCRAFT
3. The authority citation for part 175 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
4. In Sec. 175.33, paragraph (a)(1) introductory text is revised,
paragraphs (a)(7) and (a)(8) are redesignated as paragraphs (a)(9) and
(a)(10), respectively, and new paragraphs (a)(7), (a)(8), (c) and (d)
are added to read as follows:
Sec. 175.33 Notification of pilot-in-command.
(a) * * *
(1) The proper shipping name, hazard class, and identification
number of the material, including any remaining aboard from prior
stops, as specified in Sec. 172.101 of this subchapter or the ICAO
Technical Instructions. In the case of Class 1 materials, the
compatibility group letter also must be shown. If a hazardous material
is described by the proper shipping name, hazard class, and
identification number appearing in:
* * * * *
(7) The date of the flight;
(8) The telephone number of a person not aboard the aircraft from
whom the information contained in the notification of pilot-in-command
can be obtained. The aircraft operator must ensure the telephone number
is monitored at all times the aircraft is in flight. The telephone
number is not required to be placed on the notification of pilot-in-
command if the phone number is in a location in the cockpit available
and known to the flight crew.
* * * * *
(c) The aircraft operator must retain at the airport of departure
or the operator's principal place of business a copy of each
notification of pilot-in-command, an electronic image thereof, or the
information contained therein for 90 days. Except as provided in
paragraph (d) of this section, the aircraft operator must make this
information available, upon request, to an authorized official of a
Federal, State, or local government agency at reasonable times and
locations.
(d) The aircraft operator must have the information required to be
retained under paragraph (c) of this section readily accessible at the
airport of departure and the intended airport of arrival for the
duration of the flight leg and, upon request, must make the information
immediately available, in an accurate and legible format, to any
representative of a Federal, State, or local government agency
(including an emergency responder) who is responding to an incident
involving the flight.
Issued in Washington, DC on March 20, 2003 under the authority
delegated in 49 CFR part 1.
Ellen G. Engleman,
Administrator.
[FR Doc. 03-7070 Filed 3-24-03; 8:45 am]
BILLING CODE 4910-60-P
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