Hazardous materials: Incident reporting requirements and Detailed Hazardous Materials Incident Report form; revision,

[Federal Register: March 23, 1999 (Volume 64, Number 55)]

[Proposed Rules]

[Page 13943-13947]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr23mr99-25]

[[Page 13943]]

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

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

RIN 2137-AD21

Hazardous Materials: Revisions to the Incident Reporting Requirements and the Detailed Hazardous Materials Incident Report DOT Form F 5800.1

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

SUMMARY: This ANPRM solicits comments on the merits of revising the current incident reporting requirements of the Hazardous Materials Regulations and the Hazardous Materials Incident Report form (DOT Form F 5800.1). The Federal hazardous material transportation law requires the Secretary of Transportation to maintain a facility and technical staff sufficient to maintain a central reporting system to develop a statistical compilation on casualties and conduct reviews on hazardous materials transportation. Any changes resulting from this rulemaking are intended to increase the usefulness of data collected for risk analysis and management by government and industry and, where possible, provide relief from regulatory requirements.

DATES: Send your comments on or before June 21, 1999.

ADDRESSES: Address your comments to the Dockets Management System, U.S. Department of Transportation, Room PL 401, 400 Seventh St., SW., Washington, DC 20590-0001. You must identify the docket number, RSPA- 99-5013 (HM-229) at the beginning of your comments, and you should submit two copies of your comments. If you wish to receive confirmation that RSPA has received your comments, include a self-addressed stamped postcard. You may also submit your comments by E-mail to rules@rspa.dot.gov. The Dockets Unit 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.

Electronic Access

You may review all comments received by the Dockets Office on the Internet at http://dms.dot.gov. It is available 24 hours a day, 365 days a year. An electronic copy of this document may be downloaded from the Federal Register Electronic Bulletin Board Service at (202) 512- 1661. Internet users may reach the Federal Register's home page at: http://www.nara.gov/nara/fedreg and the Government Printing Office's database at http://www.access.gpo.gov/su__docs or the Office of Hazardous Materials Safety at http://rspa.dot.dov/rulemake.htm. You may obtain copies of DOT Form F 5800.1 and the instruction booklet for completing DOT Form F 5800.1 at the Office of Hazardous Materials Safety's web site at http://hazmat.dot.gov/spills.htm or http:// hazmat.dot.gov/ohmforms.htm#incidents.

FOR FURTHER INFORMATION CONTACT: Diane LaValle, at the Office of Hazardous Materials Standards, telephone (202) 366-8553 or Kevin Coburn, at the Office of Hazardous Materials Planning & Analysis, telephone (202) 366-4555, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

1. Background

   On March 4, 1995, the President directed all Federal agencies to perform an extensive review of each of their regulations and eliminate or revise those requirements that are outdated or in need of reform. As a result of its review of the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180), the Research and Special Programs Administration (RSPA, ``we'') is considering revisions to the incident reporting requirements in Secs. 171.15 and 171.16 and the incident report form, DOT Form F 5800.1.

   Following a meeting between DOT and members of several trade associations concerning hazardous materials incident reporting, the Association of American Railroads sponsored a workgroup with segments of the transportation community to discuss the DOT Form F 5800.1 and reporting requirements of Secs. 171.15 and 171.16. The workgroup meetings were held during the winter of 1997-98. Participants included representatives of all four transportation modes, shippers, container manufacturers, and labor. The workgroup drafted suggestions and submitted them to RSPA. We developed questions based on input from these meetings, the DOT modal agencies, other concerned individuals, and our own initiative. We are now requesting comments on the merits of revising the requirements of Secs. 171.15 and 171.16 for incident reporting and revising DOT Form F 5800.1.

   Currently Sec. 171.15 provides criteria requiring immediate notification of unintentional hazardous materials releases to the National Response Center. Each carrier making a report under Sec. 171.15 is also required to fill out DOT Form F 5800.1 as required by Sec. 171.16. Additionally, carriers are currently required to fill out DOT Form F 5800.1 for unintentional releases when the conditions of Sec. 171.16 are met. We use the data and information we collect:

   ‹bullet› As an aid in evaluating the effectiveness of the existing regulations.

   ‹bullet› To assist in determining the need for regulatory changes to cover changing transportation safety problems.

   ‹bullet› To determine major problem areas so that the attention of the Department may be more suitably directed to those areas.

   We are considering expanding the reporting requirements in Secs. 171.15 and 171.16 to include circumstances that are not currently required to be reported. For example, some questions concern reporting of undeclared shipments of hazardous materials whether or not there is a release. We are also considering expanding the reporting requirements to persons other than carriers. Other questions concern reporting of damage to packagings, especially bulk packagings such as cargo tanks, whether or not there has been a release. We anticipate that a modest increase in reporting potentially high-consequence incidents would be offset by reduced reporting requirements for incidents with less serious potential impacts.

   This advance notice of proposed rulemaking (ANPRM) is designed to evaluate the need for any change in reporting requirements, to obtain more useful information from DOT Form F 5800.1 submissions and to reduce the regulatory burden on industry. Any changes would be based on both our own initiative and suggestions made by various members of industry. This ANPRM is also consistent with the goals of the President's Regulatory Reinvention Initiative.

2. Impact on Small Businesses

   Section 610 of the Regulatory Flexibility Act of 1980 (Pub. L. 96- 354), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires agencies to conduct periodic reviews of rules that have or will have a significant economic impact on a substantial number of small business entities. The purpose of the reviews is to determine

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   whether such rules should be continued without change, or should be amended or rescinded, consistent with the objectives of applicable statutes, to minimize any significant economic impact of the rules on a substantial number of such small entities. The reviews are to consider: (1) The continued need for the rule; (2) the nature of complaints or comments received from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules or with state or local government rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. This ANPRM provides an opportunity for small entities to submit information relevant to this review.

3. Plain Language

   RSPA intends to revise the Hazardous Materials Incident Report and Secs. 171.15 and 171.16 in plain language. Clearer rules will improve both compliance and enforceability. Interested persons are encouraged to submit draft regulatory language they believe clearly and simply communicates regulatory requirements.

   We request written comments from interested persons concerning regulatory changes and clarifications that will simplify completion of the Hazardous Materials Incident Report. Interested persons may submit draft regulatory language and comments suggesting ways to write the requirements for reporting hazardous materials incidents which would promote understanding and compliance. Comments that provide reasons and factual data are especially helpful.

4. Questions

   Questions on revising DOT Form F 5800.1 and the associated sections of the HMR generally fall within five categories. These categories are:

   ‹bullet› General Issues.

   ‹bullet› Telephonic Notification.

   ‹bullet› Written Reports.

   ‹bullet› DOT Form F 5800.1.

   ‹bullet› Customer Uses and Needs.

   ‹bullet› National Transportation Safety Board recommendations.

   An exact copy of the current DOT Form F 5800.1 is included with this ANPRM as an aid to the reader. In addition, Secs. 171.15 and 171.16 are set forth in their entirety, as follows:

   Sec. 171.15--Immediate Notice of Certain Hazardous Materials Incidents

   (a) At the earliest practicable moment, each carrier who transports hazardous materials (including hazardous wastes) shall give notice in accordance with paragraph (b) of this section after each incident that occurs during the course of transportation (including loading, unloading and temporary storage) in which:

   (1) As a direct result of hazardous materials--

   (i) A person is killed; or

   (ii) A person receives injuries requiring his or her hospitalization; or

   (iii) Estimated carrier or other property damage exceeds $50,000; or

   (iv) An evacuation of the general public occurs lasting one or more hours; or

   (v) One or more major transportation arteries or facilities are closed or shut down for one hour or more; or

   (vi) The operational flight pattern or routine of an aircraft is altered; or

   (2) Fire, breakage, spillage, or suspected radioactive contamination occurs involving shipment of radioactive material (see also Secs. 174.45, 175.45, 176.48, and 177.807 of this subchapter); or

   (3) Fire, breakage, spillage, or suspected contamination occurs involving shipment of infectious substances (etiologic agents); or

   (4) 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

   (5) 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 Department even though it does not meet the criteria of paragraph (a) (1), (2) or (3) of this section.

   (b) Except for transportation by aircraft, each notice required by paragraph (a) of this section shall be given to the Department by telephone (toll-free) on 800-424-8802. Notice involving shipments transported by aircraft must be given to the nearest FAA Civil Aviation Security Office by telephone at the earliest practical moment after each incident in place of the notice to the Department. Notice involving etiologic agents may be given the Director, Centers for Disease Control, U.S. Public Health Service, Atlanta, Ga., (800) 232-0124, in place of the notice to the Department or (toll call) on 202-267-2675. Each notice must include the following information:

   (1) Name of reporter.

   (2) Name and address of carrier represented by reporter.

   (3) Phone number where reporter can be contacted.

   (4) Date, time, and location of incident.

   (5) The extent of injuries, if any.

   (6) Classification, name, and quantity of hazardous materials involved, if such information is available.

   (7) Type of incident and nature of hazardous material involvement and whether a continuing danger to life exists at the scene.

   (c) Each carrier making a report under this section shall also make the report required by Sec. 171.16.

   Note: Under 40 CFR 302.6 EPA requires persons in charge of facilities (including transport vehicles, vessels and aircraft) to report any release of a hazardous substance in a quantity equal to or greater than its reportable quantity, as soon as that person has knowledge of the release, to the U.S. Coast Guard National Response Center at (toll free) 800-424-8802 or (toll) 202-267-2675.

   Sec. 171.16--Detailed Hazardous Materials Incident Reports

   (a) Each carrier who transports hazardous materials shall report in writing, in duplicate, on DOT Form F 5800.1 (Rev. 6/89) to the Department within 30 days of the date of discovery, each incident that occurs during the course of transportation (including loading, unloading, and temporary storage) in which any of the circumstances set forth in 171.15(a) occurs or there has been an unintentional release of hazardous materials from a package (including a tank) or any quantity of hazardous waste has been discharged during transportation. If a report pertains to a hazardous waste discharge:

   (1) A copy of the hazardous waste manifest for the waste must be attached to the report; and

   (2) An estimate of the quantity of the waste removed from the scene, the name and address of the facility to which it was taken, and the manner of disposition of any removed waste must be entered in Section IX of the report form (Form F 5800.1) (Rev. 6/89).

   (b) Each carrier making a report under this section shall send the report to the Information Systems Manager, DHM-63 , Research and Special Programs Administration, Department of Transportation, Washington, DC 20590-0001; and, for incidents involving transportation by aircraft, a copy of the report shall also be sent to the FAA Civil Aviation Security Office nearest the location of the incident. A copy of the report shall be retained, for a period of two years, at the carrier's principal place of business, or at other places as authorized and approved in writing by an agency of the Department of Transportation.

   (c) Except as provided in paragraph (d) of this section, the requirements of paragraph (a) of this section do not apply to incidents involving the unintentional release of a hazardous material--

   (1) Transported under one of the following proper shipping names:

   (i) Consumer commodity.

   (ii) Battery, electric storage, wet, filled with acid or alkali.

   (iii) Paint and paint related material when shipped in packagings of five gallons or less.

   (2) Prepared and transported as a limited quantity shipment in accordance with this subchapter.

   (d) The exceptions to incident reporting provided in paragraph (c) of this section do not apply to:

   (1) Incidents required to be reported under 171.15(a);

   (2) Incidents involving transportation aboard aircraft;

   (3) Except for consumer commodities, materials in Packing Group I; or

   (4) Incidents involving the transportation of hazardous waste.

   General Issues

   1. Should the hazardous materials incident reporting requirements be

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      extended to persons other than carriers (such as freight forwarders, warehouse operators, consignees, etc.)?

   2. Should RSPA require reporting of any incident involving discovery of an undeclared shipment of a hazardous material whether or not there is a release of the hazardous material? Should the expanded requirement apply only to incidents discovered by a carrier during transportation? Should the expanded requirement apply to discovery by a consignee or other person during or following delivery of the material?

      Telephonic Notification (see Sec. 171.15)

   3. Currently, immediate notification is required for incidents where estimated carrier or other property damage exceeds $50,000. Is this monetary reporting threshold reasonable? Should it be modified or eliminated? If modified, to what amount? Why?

   4. Should any other current requirements for immediate notification be modified or eliminated? If so, explain your suggested modification, the reasons for the modification, and anticipated impacts.

   5. Should RSPA require immediate telephonic notification for any other type of incident?

   6. In addition to notifying the National Response Center, should a carrier also be required to give immediate telephonic notification of an incident to the person who offered the hazardous material for shipment?

   7. If an incident requiring immediate telephonic notification occurs at the location of an offeror or consignee, should the offeror or consignee be required to provide the notification? Should such notification be in addition to, or instead of notification from the carrier? What would be the usefulness and burdens associated with such a requirement?

      Written Reports (see Sec. 171.16)

   8. Is the current regulatory language clear as to when a written incident report is required? If not, what changes should RSPA make?

   9. To provide a broader perspective for risk management in more critical hazardous material transportation situations, should additional information be collected through the incident reporting system to document successful performance and better gauge the integrity of packaging? For instance, should information be collected on certain highway accidents whether or not a hazardous material has been released? Would an appropriate definition of ``accident'' for reporting purposes be ``any collision, rollover, jack-knife, or departure from the roadway''? Should additional reporting be limited to certain packagings or materials such as--

      ‹bullet› Cargo tanks, portable tanks, and IM portable tanks with a capacity greater than 1000 gallons;

      ‹bullet› Cylinders containing flammable gas with a water capacity greater than 100 pounds;

      ‹bullet› Explosives in packaging greater than 50 pounds; or

      ‹bullet› Toxic-by-inhalation liquids or gases in any quantity and packaging?

      Should such additional reporting be limited to situations where there is exposure to fire or damage to the packaging? Should reporting be required for railway accidents that do not involve the unintentional release of hazardous materials, or do mechanisms exist to adequately capture this information apart from DOT Form F 5800.1?

   10. Should RSPA expand the exceptions in Sec. 171.16(c) to include any other hazardous material; class, division, or packing group; or quantity limitations? If so, indicate the exception and why.

   11. Is there a spill quantity of an excepted material that should trigger incident reporting? For example, a spill of paint from a packaging with a capacity of less than 5 gallons is not reportable. Should a spill of a certain quantity of hazardous material be reportable regardless of the capacity of the packaging in which it was contained (e.g., a release from numerous small packagings)?

       DOT Form F 5800.1 (See Appendix)

   12. Should RSPA develop an abbreviated incident report form for incidents of low severity? What criteria could be used as a threshold? What minimal information should be required for a low severity incident?

   13. Should DOT Form F 5800.1 be structured to more accurately describe the cause and manner of a packaging failure? How could this be done to better capture human causal factors?

   14. Would replacing the current check boxes on DOT Form F 5800.1, sections V 24 and VI 25 thru 29, with numerically coded responses or other means to better identify how the incident occurred, increase the difficulty or lengthen the time it takes to complete the report?

   15. Would replacing the boxes on DOT Form F 5800.1, section VIII parts 41 thru 45, with numerically coded responses or other means to identify the reasons why the packaging failed, increase the difficulty or lengthen the time it takes to complete the report?

   16. What additional fields, if any, should be included on the report form to indicate the amount of hazardous material that was initially in the package?

   17. Would the information required by section VII of the report form be easier to understand if column C was removed, column A was renamed ``Inner Package'', and column B was renamed ``Outer Package''? Why?

   18. Should there be either separate sections on DOT Form F 5800.1 for reporting bulk and non-bulk packagings or a separate incident report form for these packagings?

   19. Should we require more specific incident location data, such as mile-post or street address, if available? How difficult would it be to obtain and report this information? What additional benefit would the information provide?

   20. How can better information be provided on DOT Form F 5800.1 as to the transportation phase of an incident (e.g., when the incident most likely occurred?)

   21. Should RSPA require updates to Section V 18 through V 23, the incident consequences fields, if additional or better data are available after the incident report form was submitted to DOT? Should RSPA set an amount or percentage change to trigger filing of a supplemental report?

   22. Should better information on release duration be collected (for example, the length of time a vapor is dispersed)? How could this be done?

   23. How can RSPA acquire better information on failures, such as estimated dimensions of cracks or punctures?

   24. What burden would you incur from a requirement to submit copies of photographs in your possession when specified criteria are met?

   25. Should reporting of information concerning duration of an evacuation be included on the incident report form?

   26. Should RSPA add an additional section to the incident report form to include information regarding who was injured or required hospitalization (e.g., general public, employees, or emergency response personnel)?

   27. Should RSPA add a section to the incident report form to identify the UN packing group, if any, of the hazardous material and the packaging?

   28. Are you aware of other Federal reporting forms that duplicate information required by DOT Form F 5800.1? If so, how could RSPA link the necessary transportation data to other required Federal reporting forms?

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       Customer Uses and Needs

   29. What data and information do you use from the incident report form and for what purpose?

   30. What additional data not now collected on the incident report form should be collected and for what purpose would it be used?

   31. Should access to incident data be available via the Internet? If only select data could be provided because of cost or technology considerations, what data would be most useful to you?

   32. RSPA is considering optional electronic filing of incident reports by facsimile (fax), electronic mail (e-mail), and Internet. Do you have recommendations concerning implementation of electronic filing? Are there other means of electronic filing that RSPA should consider?

   33. How would you use a tracking system for DOT Form F 5800.1 submissions and processing status?

       National Transportation Safety Board (NTSB) Recommendations

       Recommendation R-89-52 states that RSPA should:

       Establish procedures that require carriers reporting hazardous materials incidents under the provisions of 49 CFR 171.16 to notify shippers whose hazardous materials shipments are involved.

   34. In accordance with NTSB recommendation R-89-52, what would be the potential benefits or impacts of requiring carriers (other than private motor carriers) reporting hazardous materials incidents under 49 CFR 171.16 to notify shippers whose hazardous materials shipments are involved in the incident being reported?

       Recommendation H-92-6 states that RSPA should:

       Implement, in cooperation with the Federal Highway Administration, a program to collect information necessary to identify patterns of cargo tank equipment failures, including the reporting of all accidents involving DOT specification cargo tanks.

   35. In accordance with NTSB recommendation H-92-6, how could RSPA, in cooperation with FHWA, improve the current incident reporting program to collect information identifying patterns of cargo tank equipment failures, including reporting of all accidents involving a DOT specification cargo tank, whether or not a release occurred?

5. Regulatory Analyses and Notices

   1. Executive Order 12866 and DOT Regulatory Policies and Procedures

      This ANPRM 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 rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

      The costs and benefits associated with this rulemaking are considered to be so minimal as to not warrant preparation of a regulatory impact analysis or regulatory evaluation. This determination may be revised as a result of public comment.

   2. Executive Order 12612

      This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12612 (``Federalism''). Federal law expressly preempts State, local, and Indian tribe requirements applicable to the transportation of hazardous material that cover certain subjects and are not substantively the same as the Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:

      (i) The designation, description, and classification of hazardous material;

      (ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

      (iii) The preparation, execution, and use of shipping documents pertaining to hazardous material and requirements respecting the number, content, and placement of those documents;

      (iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

      (v) the design, manufacturing, fabrication, marking, maintenance, reconditioning, repairing, or testing of a package or container which is represented, marked, certified, or sold as qualified for use in the transportation of hazardous material.

      This proposed rule concerns the written notification, recording, and reporting of the unintentional release in transportation of hazardous materials. If adopted as final, this rule would preempt any State, local, or Indian tribe requirements concerning this subject unless the non-Federal requirements are ``substantively the same'' (see 49 CFR 107.202(d)) as the Federal requirements.

      Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a regulation concerning any of the covered subjects after November 16, 1990, DOT must determine and publish in the Federal Register the effective date of Federal preemption. That effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. RSPA requests comments on what the effective date of Federal preemption should be for any new requirements RSPA may propose concerning the specified covered subject.

   3. Executive Order 13084

      This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive order 13084 (``Consultation and Coordination with Indian Tribal Governments''). Because this proposed rule would not significantly or uniquely affect the Indian tribal communities, the funding and consultation requirements of the Executive Order do not apply.

   4. Regulatory Flexibility Act

      This ANPRM requests information on a series of questions which will be used to develop a proposal to amend provisions of the HMR addressing incident reporting, including the report form. RSPA anticipates that this rulemaking action will generally reduce burdens for most persons required to submit hazardous materials incident reports, some of whom are small entities. Since there are no specific proposals in this ANPRM, there are not costs to be evaluated. If a rulemaking is proposed, the impacts are anticipated to be so minimal as not to warrant preparation of a regulatory impact analysis. Therefore, I certify that this rulemaking action will not have a significant economic impact on a substantial number of small entities.

   5. Paperwork Reduction Act

      Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. This ANPRM does not propose any new information collection burdens.

   6. 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.

   7. Unfunded Mandates Reform Act

      This rulemaking would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector.

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      Issued in Washington, DC on March 17, 1999, under the authority delegated in 49 CFR part 106. Alan I. Roberts, Associate Administrator for Hazardous Materials Safety.

      [FR Doc. 99-7040Filed3-22-99; 8:45 am]

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