Browse: Departments   Dates   Agencies  

DEPARTMENT OF TRANSPORTATION

Treasury Department

CFR Citation: 49 CFR Part 171

Docket ID: [Docket No. RSPA-99-5013 (HM-229)]

RIN ID: RIN 2137-AD21

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Hazardous Materials: Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report Form

DATES: Effective Date: This final rule is effective July 1, 2004.

Compliance Date: Only the revised DOT Form F 5800.1 (012004) 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.

DOCUMENT 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 nonrelease 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.

SUMMARY: Transportation Department, Research and Special Programs Administration,

SUPPLEMENTAL 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. OneCall 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 Departmentwide initiative (ONE DOT Flagship Initiative on Hazardous Materials Handling/Incidents; ``HazMat Flagship'') which began in 1999 and a Departmentwide 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 multimodal team to conduct a Departmentwide 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 171180). 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 HM225A, ``Revision to Regulations Governing Transportation and Unloading of Liquefied Compressed Gases,'' and Docket HM213B, ``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 H926 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 R8952 suggests implementing regulations to ensure that there is formal feedback
[[Page 67747]]
from carriers to shippers when an incident has occurred.
(3) NTSB recommendation H9958 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 internetbased form or through a bulk data transfer, in order to facilitate the process. An internetbased 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 199798. 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, nonprofit 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
[[Page 67748]]
commenters, and our decisions on each issue below:
(A) Electronic filing
(B) Revisions to the form
(C) Onecall 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 (email), and internetbased 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, email, 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 nonexperienced 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 ``WhoWhyWhen?'' 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:
\1\ Other scheduled attendees of both sessions experienced work related emergencies or had other difficulties that prevented them from participating in the focus group.
[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 locationspecific password, and would store information such as reporting entity address, mode, and
[[Page 67749]]
possibly even material information (for singlematerial handlers). Alternatively, some participants indicated that they would like to be able to host versions of these forms (with companyspecific 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 Webbased 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 backcode 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 crossreference 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 fillintheblank 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. OneCall 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 onecall 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
[[Page 67750]]
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 onecall 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 onecall 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 onecall 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 HM223 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 HM223. ``If the final rule in HM223 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 HM223 (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 HM223, 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 HM223 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 HM223, 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 HM223 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 HM229 Docket (RSPA99501387), 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 intransit storage, resulting in 1.2 million daily hazardous materials movements. We estimate that extending reporting requirements to intransit 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 intransit 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 intransit 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 HM223 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) ORMD; 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 5gallon 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 nonbulk packagings and IBCs containing residues should not be reported if a spill of the residue occurs. SafetyKleen 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 paintrelated 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 HM36A (45 FR 73682) in 1980, before Packing Groups for materials were developed in Docket HM181 (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 HM222B (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 lowhazard 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 H9958 to provide a specific time period to report an incident by telephone. NTSB recommended that a 2hour time frame was preferable. Commenters note the difficulties in complying with a 2hour 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 resubmission 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 followup.
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 H926, 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 (PB92917002). 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 H926.'' 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 ONEDONalco 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 1000gallon 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. valvebut 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 passengercarrying or cargoonly 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. RSPA0110380), 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,

FOR FURTHER INFORMATION CONTACT T. Glenn Foster, (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration or Kevin Coburn, (202) 3664555, Office of Hazardous Materials Planning & Analysis, Research and Special Programs Administration.