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Proposed Rule

Hazardous Materials: Availability of Information for Hazardous Materials Transported by Aircraft

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AGENCY:

Research and Special Programs Administration (RSPA), DOT.

ACTION:

Advance notice of proposed rulemaking (ANPRM).

SUMMARY:

RSPA solicits comments and suggestions on ways to implement a recommendation from the National Transportation Safety Board (NTSB) to require that air carriers transporting hazardous materials have the means to quickly retrieve and provide information about the identity of a hazardous material on an airplane. We also solicit comments on the need for this or other changes to the Hazardous Materials Regulations to make it easier for emergency responders to obtain shipment information for hazardous materials transported by aircraft.

DATES:

Comments must be received by November 13, 2000.

ADDRESSES:

Written Comments. Address comments to the Dockets Management System, U.S. Department of Transportation, Room PL 401, 400 Seventh St., SW, Washington, DC 20590-0001. Comments should identify the docket number, RSPA-00-7762 (HM-206C). You should submit two copies of your comments. If you wish to receive confirmation that your comments were received, you should include a self-addressed stamped postcard. You may also submit your comments by e-mail to http://dms.dot.gov or by telefax to (202) 366-3753. The Dockets Management System is located on the Plaza Level of the Nassif Building at the U.S. DOT at the above address. You may view public dockets between the hours of 10 a.m. and 5 p.m., Monday through Friday, except on Federal holidays. Internet users can access all comments received by the U.S. DOT Dockets Management System web site at http://dms.dot.gov. An electronic copy of this document may be downloaded using a modem and suitable communications software from the Federal Register Electronic Bulletin Board Service at (202) 512-1661.

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FOR FURTHER INFORMATION CONTACT:

John A. Gale or Eric Nelson, Office of Hazardous Materials Standards, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001 telephone (202) 366-8553.

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SUPPLEMENTARY INFORMATION:

I. Background

The National Transportation Safety Board (NTSB) has recommended that the Research and Special Programs Administration (“RSPA” or “we”):

Require, within two years, that air carriers transporting hazardous materials have the means, 24 hours per day, to quickly retrieve and provide consolidated specific information about the identity (including proper shipping name), hazard class, quantity, number of packages, and location of all hazardous material on an airplane in a timely manner to emergency responders. (A-98-80).

This recommendation is contained in NTSB's August 12, 1998 letter to RSPA which has been placed in the public docket. The recommendation follows NTSB's investigation of a September 5, 1996, accident involving a Federal Express Corporation (FedEx) flight from Memphis, Tennessee, to Boston, Massachusetts.

On September 5, 1996, FedEx flight 1406 was forced to make an emergency landing at Stewart International Airport in Newburgh, New York, after the flight crew determined that there was smoke in the cabin cargo compartment. According to the NTSB, the emergency responders on the scene responding to the fire on the airplane did not receive specific information about the identity and quantity of hazardous materials on the plane. NTSB indicated that, despite repeated requests throughout the incident for this information, emergency responders received only general and incomplete information indicating the hazard classes of the hazardous materials and their location on the plane by cargo container position. NTSB found that the FedEx Global Operations Command Center in Memphis faxed as many as twelve transmissions of various hazardous materials shipping documents to the emergency operations center at the airport and to the New York State Police. NTSB found that many of the faxes were illegible because of the poor quality of the original Start Printed Page 49778documents and that none of the faxed information reached the incident commander.

Under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), a hazardous materials shipper must provide an aircraft operator with a signed shipping paper that contains the quantity and a basic shipping description of the material being offered for transportation (proper shipping name, hazard class, UN or NA identification number, and Packing Group); certain minimum emergency response information; and a 24-hour emergency response telephone number. 49 CFR Part 172, Subparts C and G. Additional information may be required depending on the specific hazardous material being shipped. 49 CFR 172.203. A copy of this shipping paper must accompany the shipment it covers during transportation aboard the aircraft. 49 CFR 175.35.

In addition to the shipping paper accompanying each hazardous materials shipment, an aircraft operator must provide the pilot-in-command of the aircraft written information relative to the hazardous materials on board the plane. 49 CFR 175.33. For each hazardous materials shipment, this information must include:

(1) proper shipping name, hazard class, and identification number;

(2) technical and chemical group name, if applicable;

(3) any additional shipping description requirements applicable to specific types or shipments of hazardous materials or to materials shipped under International Civil Aviation Organization (ICAO) requirements;

(4) total number of packages;

(5) net quantity or gross weight, as appropriate, for each package;

(6) the location of each package on the aircraft;

(7) for Class 7 (radioactive) materials, the number of packages, overpacks or freight containers, their transport index, and their location on the plane; and

(8) an indication, if applicable, 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 addition, emergency response information applicable to the specific hazardous materials being transported must be available for use at all times that the materials are present on the plane and must be maintained on board in the same manner as the notification to the pilot-in-command. (See Subpart G of Part 172 for requirements relating to emergency response information.)

In the 1996 FedEx incident, NTSB found that the on-board hazardous materials shipping papers and notification to the pilot-in-command were not available to emergency responders. Further, NTSB discovered that FedEx did not have the capability to generate in a timely manner a single list indicating the shipping name, hazard class, identification number, quantity, and location of hazardous materials on the airplane. To prepare such a list, FedEx, according to the NTSB, would have had to compile information from individual shipping papers for each individual shipment of hazardous materials on board the aircraft. NTSB contrasted the railroads' practice of generating a computerized list of all the freight cars that contain hazardous materials on a given train, with the shipping name, hazard class, identification number, quantity and type of packaging, and emergency response guidance for each hazardous material. NTSB stated that such a list provides information to emergency responders in a timely fashion and in a useful format.

As a result of the 1996 FedEx incident, NTSB surveyed other air carriers as to their capability to provide specific hazardous materials information in an accident. Only one carrier has an on-line capability to provide detailed information about the hazardous materials on its airplanes if the on-board shipping documentation is destroyed. The remaining carriers, like FedEx, rely on paper copies of hazardous materials shipping documentation retained at the place of departure.

NTSB also stated that shipping papers are less likely to be available or accessible after an aircraft accident, than a rail, highway or water accident, because of the greater likelihood of fire or destruction of the airplane. Because of the fire danger, a flight crew is also less likely to have time to retrieve shipping papers after a crash. NTSB concluded that the HMR do not adequately address the need for air carriers to have hazardous materials information on file that is quickly retrievable in a format useful to emergency responders.

This ANPRM is issued to obtain comments on the means of implementing the recommendation and any practicable alternatives which may enhance the ability of emergency responders to obtain information in the event of an incident involving the transportation of hazardous materials by aircraft.

It should be noted that the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel is also considering what additional steps can be taken to improve the availability of information in the event of an aircraft incident. An excerpt from the report of the 17th meeting of the ICAO Dangerous Goods Panel reflecting discussions on this topic and relevant changes for inclusion in the 2001-2002 ICAO Technical Instructions has been placed in the docket for information.

II. Hazardous Materials Transportation and Uniform Safety Act of 1990 (HMTUSA)

Section 25 of HMTUSA (Pub. L. 101-615, 104 Stat. 3273) required DOT to conduct a rulemaking to evaluate methods for establishing and operating a central reporting system and computerized telecommunication data center. DOT was also mandated to contract with the National Academy of Sciences (NAS) to study the feasibility and necessity of establishing and operating a central reporting system and computerized telecommunication data center that: (1) Would be capable of receiving, storing and retrieving data concerning all daily shipments of hazardous materials; (2) would identify hazardous materials being transported by any mode of transportation; and (3) would provide information to facilitate responses to accidents and incidents involving the transportation of hazardous materials.

RSPA issued an ANPRM “Improvements to Hazardous Materials Identifications Systems” (Docket HM-206; 57 FR 24532) on June 9, 1992. The ANPRM asked 63 primary questions on the feasibility of establishing a central reporting system, methods of improving the placarding system, and the feasibility of requiring each carrier to maintain a continually monitored emergency response telephone number.

The NAS submitted its report to Congress and DOT on April 29, 1993. [A copy of the NAS report can be obtained from the Transportation Research Board at 2101 Constitution Avenue, NW Washington, DC 20418]. The central recommendation in the NAS report was that the Federal Government should not attempt to implement a national central reporting system as originally proposed for consideration. NAS found that, in most instances, the existing hazardous materials communication system is effective and that information available at hazardous materials transportation incident sites meets the critical information needs of emergency responders.

In the NPRM issued under Docket HM-206 on August 15, 1994 (59 FR Start Printed Page 4977941848), RSPA did not propose to establish a centralized reporting system and telecommunication data center. In that NPRM, RSPA stated that the national central reporting system described in detail in HMTUSA would be extremely complicated, burdensome, expensive to implement and of questionable benefit.

Request for Comments

1. Do you have information concerning past incidents in which a lack of information about hazardous material aboard an aircraft has caused difficulties in responding to an incident? If so, please describe the incident in detail.

2. What practices, procedures, or information collection and reporting systems are currently in use or available that meet the intent of the NTSB recommendation or that could be adapted to meet it? Please provide details on how these practices, procedures or systems operate, how they would satisfy the NTSB recommendation, and how much they cost.

3. Do aircraft operators maintain copies of the notification to pilot-in-command required by 49 CFR 175.33? If so, do operators keep copies of the notifications and for how long?

4. Could the system that airlines use to meet the passenger manifesting requirements in 14 CFR part 243 be modified to satisfy the NTSB recommendation? If so, please provide details. What would be the costs of such a modification?

5. After an accident/incident, how do emergency responders presently obtain information regarding the cargo on board an aircraft? What information is needed for initial response to an aircraft emergency on the ground? How “timely” can this information be obtained? Do airlines maintain a central number for assistance during emergencies?

6. Would a centralized computer system that serves all air carriers be beneficial? Is it feasible to establish a centralized information collection and reporting system, specifically for transportation by aircraft? If such a system is feasible, who should operate it and how should it be funded?

7. How “timely” is information needed by emergency responders, e.g., 15 minutes, 1 hour, 2 hours, 4 hours, etc. Is it practicable to get this information to emergency responders during the initial phases of a response?

8. If an airline develops its own system, how would emergency responders be educated on how to obtain the information from the airline? What responsibilities should an airline have and how would the airline communicate to emergency responders that such information is available? Should information be available at any airport an aircraft might land in the event of an emergency? How could this be accomplished?

9. If a system that meets the NTSB recommendation is developed, what information should be available to emergency responders (e.g., proper shipping name, identification number, hazard class, quantity, number of packages, consignee, consignor, loading positions, emergency response information)?

10. What requirements should apply to international air carriers to meet the NTSB recommendation?

11. What requirements should apply to overflights of the US by non-US airlines?

12. Should information be available to emergency response personnel by one or all of the following means: phone, fax, or computer?

13. What changes, if any, do you recommend be made to the HMR to improve the hazard communication to persons responding to hazardous materials incidents aboard aircraft? What is your estimate of any costs or benefits associated with these changes?

14. Would use of a “visual stowage” plan that provides a diagram of an aircraft's cargo-hold and exact location where the hazardous material is stowed be beneficial to emergency response personnel? How and where should such a plan be maintained?

15. If RSPA adopts the NTSB recommendation, should any exceptions be provided? For example, should an exception be provided based on the size, type or category of aircraft being operated, the type of material being carried, emergency exemption flights, or any combination thereof?

Comments are invited on any items or issues pertinent to this topic which are not addressed by the above questions. There are a number of additional issues that we must address in determining whether to proceed with rulemaking on this issue. These include the analyses required under the following statutes and Executive Orders:

1. Executive Order 12866: Regulatory Planning and Review. E.O. 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” We therefore request comments, including specific data if possible, concerning the costs and benefits that may be associated with implementation of the NTSB recommendation.

2. Regulatory Flexibility Act: Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. We invite comments as to the economic impact that implementation of the NTSB recommendation may have on small businesses.

3. Executive Order 13132: Federalism. Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.) preempts many state and local laws and regulations concerning hazardous materials transportation that are not the same as the federal requirements. E.O. 13132 requires agencies to assure meaningful and timely input by state and local officials in the development of regulatory policies that may have a substantial, direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. We invite comments on the effect that implementation of the NTSB recommendation may have on state or local safety or emergency response programs.

4. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments. E.O. 13084 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. We do not think that there will be any effect on Indian tribes, but invite Indian tribal governments to provide comments as to the effect that implementation of the NTSB recommendation may have on Indian communities.

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This rulemaking is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This Start Printed Page 49780rulemaking is not considered significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

B. 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.

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Issued in Washington, DC on August 10, 2000 under the authority delegated in 49 CFR part 106.

Robert A. McGuire,

Associate Administrator for Hazardous Materials Safety.

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[FR Doc. 00-20701 Filed 8-14-00; 8:45 am]

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