[Federal Register Volume 88, Number 159 (Friday, August 18, 2023)]
[Notices]
[Pages 56702-56705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17752]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2021-0109; Notice No. 2023-04]
Hazardous Materials: Frequently Asked Questions--Incident
Reporting
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: On March 22, 2022, PHMSA announced an initiative to convert
historical letters of interpretation (LOI) applicable to the Hazardous
Materials Regulations that have been issued to specific stakeholders
into broadly applicable frequently asked questions (FAQ). On December
9, 2022, PHMSA finalized the first set of FAQ and announced the topic
for the next FAQ. This notice contains the second set of FAQ.
DATES: Interested persons are invited to submit comments on or before
September 18, 2023. Comments received after that date will be
considered to the extent practicable.
ADDRESSES: You may submit comments identified by the Docket Number
PHMSA-2021-0109 by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
Hand Delivery: Docket Management System; Room W12-140 on
the ground floor of the West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
Docket Number (PHMSA-2021-0109) for this notice. To avoid duplication,
please use only one of these four methods. All comments received will
be posted without change to the Federal Docket Management System (FDMS)
and will include any personal information you provide.
Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public. DOT posts these comments, without edit,
including any personal information the commenter provides, to http://www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy.
Confidential Business Information (CBI): CBI is commercial or
financial information that is both customarily and actually treated as
private by its owner. Under the Freedom of Information Act (FOIA) (5
U.S.C. 552), CBI is exempt from public disclosure. If your comments
responsive to this notice contain commercial or financial information
that is customarily treated as private, that you actually treat as
private, and that is relevant or responsive to this notice, it is
important that you clearly designate the submitted
[[Page 56703]]
comments as ``CBI.'' Please mark each page of your submission
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent
to Arthur Pollack, Standards and Rulemaking Division, (202) 366-8553,
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001. Any commentary that PHMSA receives which is not specifically
designated as CBI will be placed in the public docket for this notice.
FOR FURTHER INFORMATION CONTACT: Arthur Pollack, Standards and
Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The March 22, 2022, notice announced an initiative to convert
historical LOI applicable to the Hazardous Materials Regulations (HMR)
\1\ that have been issued to specific stakeholders into broadly
applicable FAQ 2 3 to facilitate better public understanding
and awareness of the HMR. PHMSA also requested comment on the
initiative and solicited input on the prioritization of future sets of
FAQ. FAQ are not substantive rules--themselves--and do not create
legally enforceable rights, assign duties, or impose new obligations
not otherwise contained in the existing regulations and standards.
Instead, FAQ are intended as an aid to demonstrate compliance with the
relevant regulations. An individual who can demonstrate compliance with
the FAQ is likely to be able to demonstrate compliance with the
relevant regulations. If a different course of action is taken by an
individual, the individual must be able to demonstrate that its conduct
is in accordance with the regulations.
---------------------------------------------------------------------------
\1\ 49 CFR parts 171-180
\2\ Hazardous Materials: Frequently Asked Questions--
Applicability of the Hazardous Material Regulations. 87 FR 16308
(March 22, 2022), available at: https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations.
\3\ Hazardous Materials: Frequently Asked Questions-
Applicability of the Hazardous Material Regulations (Dec. 9, 2022),
available at: https://www.federalregister.gov/documents/2022/12/09/2022-26808/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations.
---------------------------------------------------------------------------
II. Purpose of the FAQ Initiative
This initiative provides additional value to PHMSA's Online Code of
Federal Regulations (oCFR) tool.\4\ The oCFR tool is an interactive
web-based application that allows users to navigate between all content
connected to an HMR citation, including LOI. The oCFR tool includes the
ability to sort, filter, and export search results. Upon completion of
this initiative, PHMSA's Office of Hazardous Materials Safety (OHMS)
will be able to achieve efficiencies for other more complex or novel
requests for LOI and devote resources to other hazardous materials
transportation safety projects. This initiative will allow resources to
be made available for other improvement-related operations such as
petitions for rulemakings, public outreach and engagement, and
economically beneficial regulatory and policy improvements. In the
section of this notice titled ``Frequently Asked Questions: Immediate
notice of certain hazardous materials incidents and detailed hazardous
materials incident reports,'' PHMSA is publishing its second set of FAQ
developed under this initiative.
---------------------------------------------------------------------------
\4\ PHMSA's Online CFR (oCFR), available at: https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr.
---------------------------------------------------------------------------
III. Frequently Asked Questions
Immediate notice of certain hazardous materials incidents and
detailed hazardous materials incident reports.
The requirements for incident reporting and notification are
outlined under Subpart B to Part 171 of the HMR. Specifically,
Sec. Sec. 171.15 and 171.16 address immediate notice of certain
hazardous materials incidents and detailed hazardous materials incident
reports. Section 171.15 provides criteria requiring immediate
notification of unintentional hazardous materials releases to the
National Response Center. Each person making a report under Sec.
171.15 is also required to fill out DOT Form F 5800.1 within 30 days of
discovery of the incident as required by Sec. 171.16. Over the years,
OHMS has received more than fifty requests for LOI concerning the
provisions of Sec. Sec. 171.15 and 171.16. Therefore, as noted above,
to facilitate better public understanding and awareness of the HMR, the
FAQ pertaining to incident reporting and notification are as follows:
1. Question: Who is responsible for completing and submitting a
detailed hazardous materials incident report?
Answer: As specified in Sec. 171.16(a), each person in physical
possession of a hazardous material when an incident occurs must file a
Hazardous Materials Incident Report on DOT Form F 5800.1 to the
Department. See Sec. 171.16(b) for information on providing and
retaining copies of the incident report, details of where to obtain the
forms, and where to file the forms.
2. Question: How long do I have to submit a written incident
report?
Answer: In accordance with Sec. 171.16(a), a person must submit a
detailed incident report within 30 days of discovery of the incident to
the Department.
3. Question: Who is responsible for providing immediate notice by
telephone if an incident occurs that meets the criteria in Sec.
171.15(b)?
Answer: As specified in Sec. 171.15(a), each person in physical
possession of a hazardous material when an incident occurs must provide
notice by telephone to the National Response Center (NRC) 1-800-424-
8802 (toll free) or 1-202-267-2675 (toll call). Any person who performs
or is contractually responsible to perform any of the HMR functions is
legally responsible under the regulations for their proper performance.
4. Question: How long do I have to provide notice by telephone to
the National Response Center (NRC) when an incident occurs that meets
the criteria in Sec. 171.15(b)?
Answer: In accordance with Sec. 171.15(a), a person must provide
notice by telephone as soon as practical but no later than 12 hours
after the occurrence of any incident described in Sec. 171.15(b). Any
reporting delay beyond what is necessary to safely secure the scene of
the incident is not permitted.
5. Question: If an incident occurs resulting in the closure of an
access road (i.e., on-ramp, off-ramp, jug-handle, or slip-road) to a
major highway, is the closure of the access road leading to a highway
considered a ``road closure'' and subject to the hazmat reporting
requirements in Sec. 171.15?
Answer: The answer is yes. Components of a highway, such as access
roads and interchange areas that provide access to highways--including
interstate highways--are considered components of a ``major
transportation artery or facility,'' and are thus subject to the
requirements in Sec. 171.15(b)(1)(iv).
6. Question: Is an incident report required if, during the loading/
unloading operation, the consignee discovers or observes a leak from a
cargo tank motor vehicle (CTMV) or other bulk packaging?
Answer: If an incident occurs while the carrier that delivered the
hazardous material is observing or participating in the unloading
operation, the incident
[[Page 56704]]
must be reported because the carrier is deemed to be in possession of
the hazardous material at that point--i.e., the incident occurred
during transportation. For these incidents, the carrier transporting
the CTMV or other bulk packaging must complete a DOT Form F 5800.1
hazardous materials incident report.
However, if an incident occurs or is discovered while a consignee
is unloading a hazardous material from a transport vehicle or emptying
a bulk packaging after the carrier has delivered the material and left
the premises, the incident is not required to be reported because the
incident occurs or is discovered after transportation has ended. As
such, the consignee is not required to file a DOT Form F 5800.1 report
for an undeclared shipment or a damaged or leaking shipment that is
discovered after the carrier has delivered the hazardous material.
Please note that it is possible that a release of this nature is
subject to local, state, or federal reporting requirements. We suggest
you contact the U.S. Environmental Protection Agency (EPA) at 1-800-
424-9346. Additionally, if a person is injured or killed Occupational
Safety & Health Administration (OSHA) reporting may be required--OSHA's
24-hour hotline is 1-800-321-6742. See 29 CFR 1904.39 for requirements
specific to reporting fatalities, hospitalizations, amputations, and
losses of an eye as a result of work-related incidents to OSHA.
7. Question: Under Sec. 171.16, a hazardous materials incident
report (DOT Form F 5800.1) must be filed when an undeclared hazardous
material is discovered. What is an ``undeclared hazardous material''?
Answer: As defined in Sec. 171.8, an undeclared hazardous material
is a hazardous material that is subject to any hazardous communication
requirements and is offered for transportation in commerce without any
visible indication to the person accepting the hazardous material for
transportation that a hazardous material is present. Additionally,
undeclared hazardous materials provide no indication on either an
accompanying shipping document, or the outside of a transport vehicle,
freight container, or package to the person accepting the hazardous
material for transportation that a hazardous material is present.
8. Question: What information is required on the incident report
form for an undeclared shipment?
Answer: The nature of an undeclared shipment is such that complete
information about the shipment may not be known at the time of
discovery. If the undeclared shipment is discovered because material
was released from the package during transportation, then the
information in Part II and Part III of the incident report should be
completed to the extent that specific information is known. Similarly,
Parts IV and V of the report concerning the consequences of the
incident should also be completed. If the undeclared shipment is
discovered and no material was released from the package, then the
person filing the report should provide as much information as
possible, including the carrier information in item 10 of Part II, the
shipper/offeror information in item 11 of Part II, and the shipment
origin and destination information in items 12 and 13 of Part II. For
all reports related to undeclared shipments, the events that led to the
discovery of the undeclared shipment should be included in Part VI of
the report. Finally, for all reports related to undeclared shipments,
Part VIII should be completed to provide contact information. For
information that is not known at the time the undeclared shipment is
discovered, an indication on the report that the information is not
known is acceptable.
9. Question: Is immediate notification to the National Response
Center (NRC) required if a package of radioactive material is damaged
during transportation but the radioactive material itself has not been
released from its inner packaging--which provides shielding--and the
damage does not result in radioactive contamination or excessive
radiation exposure?
Answer: The answer is yes. Under Sec. 171.15, if a radioactive
material package is broken, even if the inner packaging remains intact,
an immediate notification to the NRC is required. See also About
Incident Reporting (June 25, 2019), available at: https://www.phmsa.dot.gov/hazmat-program-management-data-and-statistics/data-operations/incident-reporting.
10. Question: Must the person who files an incident report keep a
copy of the incident report?
Answer: The answer is yes. A copy, written or electronic, of the
incident report must be available within 24 hours of a request for the
report by an authorized representative or special agent of the
Department of Transportation (DOT) and must be retained for two years.
See Sec. 171.16(b)(3) for requirements specific to retention of an
incident report.
11. Question: Where must I keep a copy of an incident report after
I file it with PHMSA?
Answer: The report must be accessible through your company's
principal place of business or, if maintained elsewhere, be made
available at your principal place of business within 24 hours of a
request for the report if maintained at other than the reporting
person's principal place of business. See Sec. 171.16(b)(3) for
requirements specific to retention of an incident report.
12. Question: Where can a filer get a copy of the DOT Form F
5800.1?
Answer: Electronic copies are available at: https://www.phmsa.dot.gov/hazmat-program-development/data-operations/incident-report-form. In addition, the Guide for preparing HazMat Incidents
Reports is available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/reporting_instructions_rev.pdf
13. Question: How much hazardous materials may be unintentionally
released during the hookup and breakdown of loading and unloading hoses
before a person would be required to submit a Hazardous Materials
Incident Report on DOT Form F 5800.1?
Answer: There are exceptions to release reporting, provided the
incident is not otherwise subject to immediate telephone notification
pursuant to Sec. 171.15. For example, as provided in Sec.
171.16(d)(1), the incident reporting requirements do not apply to a
release of a minimal amount of hazardous materials from: (1) a vent,
for materials for which venting is authorized; (2) the routine
operation of a seal, pump, compressor, or valve; or (3) the connection
or disconnection of loading or unloading lines, provided that the
release does not result in property damage.
14. Question: Is a carrier required to file an incident report in
accordance with Sec. 171.16 for a release from a motor vehicle fuel
tank or from a motor vehicle's hydraulic, cooling, or lubrication
systems?
Answer: The answer is no. The HMR govern the transportation of
hazardous materials in commerce. Fluids in a motor vehicle's fuel tank,
hydraulic, cooling, and lubrication system are not ``transported in
commerce.'' See Sec. 171.1 pertaining to applicability of the HMR; see
also 49 U.S.C. 5101 et seq. Therefore, the reporting requirements in
Sec. Sec. 171.15 and 171.16 do not apply. Please note that it is
possible that a release of this nature is subject to local, state, or
federal reporting requirements. We suggest you contact the U.S.
Environmental Protection Agency (EPA) at 1-800-424-9346.
15. Question: Is an incident report required if a box, drum, or
similar packaging is discovered to be leaking
[[Page 56705]]
after the shipment is delivered to the consignee?
Answer: Incidents that are discovered after transportation--i.e.,
any movement of hazardous materials by any mode, and any loading,
unloading, or storage incidental thereto--has ended, are not subject to
the incident reporting requirements under the HMR. See Sec. 171.1(c)
for provisions pertaining to transportation functions.
16. Question: Is immediate notice required under Sec. 171.15 for
an incident that leads to a ``road closure'' when no hazardous material
is released as a result of the incident?
Answer: The answer is yes. Regardless of whether a hazardous
material is actually released, if a major transportation artery or
facility is closed or shut down for one hour or more, the incident must
be reported in accordance with Sec. 171.15. In addition, under Sec.
171.16(a)(1), any time immediate notice is required under Sec.
171.15(b), a written report is also required within 30 days of the
discovery of an incident.
17. Question: When an incident occurs involving a package of
hazardous material containing only a residue of hazardous material, as
described in Sec. 173.29, is an incident report required?
Answer: A package containing only a residue of hazardous material
is not excepted from incident reporting. See 173.29(a). Section
171.16(d) provides exceptions from incident reporting, which include
some scenarios that could apply to a packaging containing only a
residue. However, there are no specific provisions that apply to empty
packagings containing a residue of a hazardous material. There are
scenarios where an incident report must be filed, such as when a
Packing Group (PG) II hazardous material released from a drum
containing only residue of the hazardous material.
18. Question: A discovery of a hazardous materials incident is made
after transportation has ended. May the consignee file an incident
report?
Answer: The answer is yes. A person may file an incident report for
a hazardous material release or incident--even when not required--if
any of the circumstances set forth in Sec. 171.15(b) or Sec.
171.16(a) have occurred.
IV. Future FAQ Topics
With the completion of this set of FAQ specific to incident
reporting, PHMSA will begin consideration for its next set of FAQ based
on public input received. As such, PHMSA will continue concurrent work
on future FAQ notices and subsequent topics may include FAQ pertaining
to classification, hazard communication, hazardous substances,
hazardous wastes, modal-specific requirements, or packaging. Finally,
PHMSA will consider comments and concerns received before finalizing
the above FAQ on the website.
Issued in Washington, DC, on August 14, 2023, under authority
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2023-17752 Filed 8-17-23; 8:45 am]
BILLING CODE 4910-60-P