[Federal Register Volume 65, Number 158 (Tuesday, August 15, 2000)]
[Proposed Rules]
[Pages 49777-49780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20701]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172 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: Advance notice of proposed rulemaking (ANPRM).

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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.

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.

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

[[Page 49778]]

documents 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

[[Page 49779]]

41848), 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

[[Page 49780]]

rulemaking 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.

    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.
[FR Doc. 00-20701 Filed 8-14-00; 8:45 am]
BILLING CODE 4910-60-P