[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Rules and Regulations]
[Pages 53413-53423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24799]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 172 and 174
[RSPA Docket No. 2006-26322 (HM-206F)]
RIN 2137-AE21
Hazardous Materials: Revision of Requirements for Emergency
Response Telephone Numbers
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: In this final rule, PHMSA is amending the Hazardous Materials
Regulations to clarify requirements governing emergency response
information services provided by arrangement with hazardous materials
offerors (shippers). In order to preserve the effectiveness of these
arrangements for providing accurate and timely emergency response
information, PHMSA is requiring basic identifying information (offeror
name or contract number) to be included on shipping papers. This
information will enable the emergency response information provider to
identify the offeror on whose behalf it is accepting responsibility for
providing emergency response information in the event of a hazardous
materials incident and obtain additional information about the
hazardous material as needed.
DATES: Effective Date: The effective date of this final rule is
November 18, 2009.
Voluntary Compliance Date: PHMSA is authorizing immediate voluntary
compliance beginning November 18, 2009.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials
[[Page 53414]]
Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration.
SUPPLEMENTARY INFORMATION:
I. Background
On July 2, 2007, PHMSA issued a notice of proposed rulemaking
(NPRM; 72 FR 35961) proposing to make a narrow, clarifying change to
the requirements of the Hazardous Materials Regulations (HMR; 49 CFR
Parts 171-180) applicable to emergency response telephone numbers on
shipping papers. With limited exceptions not applicable here (refer to
Sec. Sec. 172.600(d) and 172.604(c)), the HMR require shipments of
hazardous materials to be accompanied by shipping papers and other
documentation designed to communicate to transport workers and
emergency responders the hazards associated with a specific shipment.
This information must include the immediate hazard to health; risks of
fire or explosion; immediate precautions to be taken in the event of an
accident; immediate methods for handling fires; initial methods for
handling spills or leaks in the absence of fire; and preliminary first
aid measures. The information must be in writing, in English, and
presented on a shipping paper or related shipping document (see Sec.
172.602).
In addition to written emergency response information, Sec.
172.604(a) of the HMR requires a person who offers (offeror) a
hazardous material for transportation in commerce to list an emergency
response telephone number on the shipping paper. The emergency response
telephone number must connect a caller to the offeror or to a person
capable of and accepting responsibility for providing detailed
information about the hazardous materials shipment. The emergency
response telephone number is used by emergency responders and transport
workers to obtain detailed, product-specific information, including
directions for remedial measures to be taken in the event of an
incident during transportation.
The telephone number must be answered by a person who is
knowledgeable about the material being shipped and possesses
comprehensive emergency response and incident mitigation information
for that material, or has immediate access to a person who possesses
such knowledge. Under this standard, ``immediate access'' requires the
emergency response information to be provided to the emergency
responder or transportation worker promptly and with no undue delay.
Additionally, the emergency response telephone number must be active,
with no limitations, during the entire time a shipment is in
transportation, including storage incidental to movement and intermodal
shipments that are transferred from one carrier to another for
continued transportation. Simply stated, the term ``storage incidental
to movement'' means storage occurring between the time a hazardous
material is offered for transportation and the time it is delivered to
the consignee (see Sec. 171.8 for complete definition for ``storage
incidental to movement'').
As currently required in Sec. 172.604(b), if the offeror uses the
services of an emergency response information provider (ERI provider),
the offeror must ensure that the ERI provider has up-to-date
information on the hazardous material and that the ERI provider is
capable of and has accepted responsibility for providing detailed
emergency response information applicable to the hazardous material.
As discussed in the preamble to the NPRM, we have become aware of a
number of problems associated with emergency response telephone numbers
on shipping papers, specifically related to the increasing use by
offerors of ERI providers to comply with the requirements of Sec.
172.604. In such situations, the original offeror enters into a
contract or agreement with an agency or organization (industry
associations may offer this service to their members) accepting
responsibility for providing detailed emergency response information in
accordance with Sec. 172.604(b). The telephone number on the shipping
paper is the telephone number of the ERI provider, but the original
offeror is not required to include a notation to this effect on the
shipping paper, nor is the name of the original offeror required to
appear on the shipping paper. Thus, the identity of the person who
arranged with the ERI provider is not readily available through
shipping documentation.
This problem is exacerbated because, under the HMR, a carrier or
freight forwarder preparing a shipping paper for the continued movement
of a hazardous material in commerce may rely on information provided by
the original offeror for the preparation of the new shipping paper (for
example, the classification of the material, the compatibility of the
material with the packaging being used, or the emergency response
telephone number), so long as the carrier or freight forwarder
exercises due care. For example, a carrier or freight forwarder may
rely on an emergency response telephone number provided by a preceding
offeror unless it is aware (or should be aware) of facts indicating the
emergency response telephone number is not operative (such as when the
offeror has not contracted with the ERI provider) and does not meet the
requirements of Sec. 172.604(b).
The initial shipment of hazardous materials may be handled by
several entities before reaching its final destination. For example, a
motor carrier may accept a shipment from the originating offeror for
transportation and deliver the material to a freight forwarder to
arrange continued transportation. The freight forwarder may prepare
shipping papers using the emergency response telephone number provided
by the originating offeror. The freight forwarder may then arrange for
continued shipment of the hazardous material by rail; a rail carrier
may prepare shipping documentation using the information, including the
emergency response telephone number, provided by the freight forwarder.
The shipping documentation accompanying the shipment may or may not
include the name of the originating offeror. In cases where the
originating offeror arranges with an emergency response service to
provide telephone service, the nexus between the offeror and ERI
provider may be lost as new shipping papers are prepared at each stage
of transportation. For example, when new shipping papers are prepared
for continued transportation of the hazardous materials, the original
offeror's name is typically removed and replaced with the subsequent
offeror's name. When the initial offeror is also the ERI registrant,
that information is no longer available when the emergency responder
calls the ERI provider.
Without the name of the offeror who arranged for an emergency
response service, an ERI provider may not be able to communicate the
product-specific information that was provided by the original offeror.
This could result in a serious problem if transportation workers or
emergency response personnel must use the telephone number to request
assistance in handling an accident or emergency. Most ERI providers
will attempt to provide assistance whether or not they can verify that
an offeror arranged for emergency response service. However, without
the identification of the particular offeror who has made arrangements
with the service, it may not be possible for the emergency response
service to quickly access information specific to the material involved
in an incident, thereby defeating the purpose of the requirement in
Sec. 172.604 to enable transport workers and emergency
[[Page 53415]]
response personnel to expeditiously obtain detailed information about a
hazardous materials shipment. A delay or improper response due to lack
of accurate and timely emergency response information may place
emergency response personnel, transportation workers, and the general
public at increased risk. Expeditious identification of the hazards and
direction for appropriate handling and clean up associated with
specific hazardous materials is critical in mitigating the consequences
of hazardous materials incidents.
To remedy this problem, in the NRPM we proposed to require that
when an ERI provider is used to comply with the requirements of Sec.
172.604, the offeror must be identified on the originating shipping
paper and any subsequent shipping papers that use the ERI provider's
emergency response telephone number. Specifically, we proposed to:
1. Require the offeror who made the arrangement with the ERI
provider to be identified on the shipping paper. Any party preparing a
shipping paper would be required to identify the original offeror, by
name or contract number, with the emergency response telephone number
indicated on the shipping paper, and clearly note the identification in
association with the emergency response telephone number, or insert and
identify its own emergency response telephone number conforming to the
requirements in Subpart G of Part 172.
2. Clarify that any person preparing a subsequent shipping paper
for continued transport of hazardous materials must include the
original offeror's name if that offeror is the registrant for the
emergency response telephone service. Again, the name of the original
offeror or its contract number with the ERI provider would be required
to be included on the shipping paper, or the person preparing
subsequent shipping papers must insert and identify by name its own
valid emergency response number conforming to the requirements in
Subpart G of Part 172.
3. We also proposed the following clarifications:
--To clarify that international telephone numbers used to comply with
the emergency response telephone number requirement must include the
country code, and city code as appropriate.
--To clarify that the emergency response telephone number requirements
do not apply to transport vehicles or freight containers containing
lading that has been fumigated and displays the FUMIGANT marking, as
required by Sec. 173.9 of the HMR, unless other hazardous materials
are present in the cargo transport unit.
II. Comments to the NPRM
A total of 23 persons submitted comments to the NPRM, representing
industry associations, emergency responders, emergency response
information services, offerors, carriers, and the general public. The
comments may be accessed via http://www.regulations.gov and are as
follows:
1. Arkema, Inc.--PHMSA-2006-26322-02.
2. The FPL Group--PHMSA-2006-26322-04.
3. Jerry Shipman--PHMSA-2006-26322-06.
4. Institute of Makers of Explosives (IME)--PHMSA-2006-26322-07.
5. International Vessel Operators Hazardous Materials Association
(VOHMA)--PHMSA-2006-26322-08 and 09.
6. American Trucking Associations (ATA)--PHMSA-2006-26322-10.
7. United Parcel Service (UPS)--PHMSA-2006-26322-11.
8. Air Products and Chemicals (Air Products)--PHMSA-2006-26322-12.
9. Aviation Suppliers Association (ASA)--PHMSA-2006-26322-13.
10. Council on Radionuclides and Radiopharmaceuticals, Inc.
(CORAR)--
PHMSA-2006-26322-14.
11. Association of American Railroads (AAR)--PHMSA-2006-26322-15.
12. Council on Safe Transportation of Hazardous Articles (COSTHA)--
PHMSA-2006-26322-16.
13. National Association of Chemical Distributors (NACD)--PHMSA-
2006-26322-17.
14. Veolia ES Technical Solutions LLC (Veolia)--PHMSA-2006-26322-
18.
15. The Chemical Emergency Transportation Center (CHEMTREC)--PHMSA-
2006-26322-19.
16. Fed Ex Express (Fed Ex)--PHMSA-2006-26322-20.
17. American Pyrotechnics Association (APA)--PHMSA-2006-26322-21.
18. Utility Solid Waste Activities Group (USWAG)--PHMSA-2006-26322-
22.
19. International Association of Fire Chiefs (IAFC)--PHMSA-2006-
26322-23.
20. National Paint & Coatings Association (NPCA)--PHMSA-2006-26322-
24.
21. Veolia Environmental Services (Veolia)--PHMSA-2006-26322-25.
22. Lighter Association, Inc.--PHMSA-2006-26322-26.
23. Dangerous Goods Advisory Council (DGAC)--PHMSA-2006-26322-27.
III. Revisions to the HMR Adopted in This Final Rule
In this rulemaking we are requiring the offeror who is registered
with the ERI provider, as reflected by the provider's telephone number
on shipping papers, to be identified on the shipping paper.
Specifically, we are revising the HMR to:
1. Require an offeror who has made an arrangement with an ERI
provider to be identified on the shipping paper in clear association
with the emergency response telephone number. In response to comments,
we are clarifying that if the name of the offeror is prominently and
clearly listed elsewhere on the shipping paper, it need not also be
listed in association with the emergency response telephone number.
2. Clarify that any person preparing a subsequent shipping paper
for continued transport of a hazardous materials shipment must include
the offeror's name (whether the original or subsequent offeror) that is
the registrant for the ERI provider and that will be in use for the
continued transportation of the shipment. The name of the original or
subsequent offeror or its contract number with the ERI provider must be
included on the shipping paper. If the original or subsequent offeror
is not continuing as the registrant with the ERI provider, the person
preparing subsequent shipping papers must insert and identify by name
its own valid emergency response telephone number conforming to the
requirements in Subpart G of Part 172.
3. Clarify that the person answering the ERI provider's telephone
number transmits all written information in English.
4. Clarify that international telephone numbers used to meet the
emergency response telephone number requirement must include the
international access code or a ``+'' sign as a placeholder for the
international access code, country code, and city code as appropriate.
5. Clarify the term ``clear association'' with respect to the
placement of the identity of the registrant of the ERI provider.
6. Clarify the current requirement for the emergency response
telephone number to be provided on the shipping paper in a ``clearly
visible'' location.
7. Clarify that the emergency response telephone number
requirements do not apply to transport vehicles or freight containers
containing lading that has been fumigated and displays the FUMIGANT
marking, as required by
[[Page 53416]]
Sec. 173.9 of the HMR, unless other hazardous materials are present in
the cargo transport unit.
The amendments in this final rule are intended to fill a gap that
was unforeseen when we initially adopted these requirements in 1989
under Docket HM-126C (54 FR 27138, 06/27/89). The amendments in this
final rule will help to ensure that transportation workers and
emergency response personnel are provided with accurate and timely
information about the hazardous materials involved in a transportation
accident or other emergency. This final rule will also serve to
eliminate delays in transportation due to lack of such information, and
eliminate problems created when compliance personnel are not able to
verify emergency response telephone numbers.
IV. Discussion of Comments
As discussed in detail below, we received comments that are mostly
supportive of our proposal to require basic identifying information to
be included on shipping papers and some that are not supportive.
However, some comments express concerns on certain provisions and
request additional revisions. Some comments, such as defining the term
``interlining carrier'' and adopting authorization to use electronic
data information are beyond the scope of this rulemaking and,
therefore, are not addressesd in this final rule.
DGAC agrees that it is necessary to have a clear linkage between
the offeror making arrangements with an ERI provider and the provider's
emergency response telephone number, but recommends that we address
this issue as part of our ongoing initiative to identify ways to
promote faster, more efficient communication among shippers, carriers,
and emergency responders through the use of electronic data exchange
technologies. This initiative is a long-term project that may not be
completed for several years. This final rule is intended to minimize
delay or improper response resulting from a lack of accurate and timely
emergency response information. Absent regulatory action, emergency
response personnel, transportation workers, and the general public
could be placed at increased risk. Thus, we do not believe delaying
this rulemaking is justified.
Of the commenters supporting the intent of this rulemaking, VOHMA
comments that valuable time is lost when shipments are delayed while
emergency responders or enforcement officers are attempting to obtain
or verify emergency response information and their efforts are
obstructed because the party who arranged with the ERI provider is not
noted on the shipping papers. CHEMTREC, an ERI provider, comments that
for the arrangement between the registrant and CHEMTREC to work
effectively, the registrant must be identified on the shipping paper.
The IAFC comments that first responders can prevent or reduce the
amount of damage or injury at the scene if they have specific
information on the hazardous materials and also states that the safety
of the public and emergency responders, and the impact on business
operations can depend on quickly obtaining comprehensive and correct
information.
A detailed discussion of comments to the NPRM follows.
A. Reliance on Original Information
Several commenters, including Fed Ex and UPS, ask us to restate the
clarification that was published under Docket HM-223A (70 FR 43638) and
reiterated in the HM-206F NPRM. The clarification addressed a carrier
relying on information provided by the original or previous offeror of
the hazardous material.
As stated in the NPRM's preamble (72 FR 25962), the definition of a
``person who offers or offeror'' includes ``any person who performs, or
is responsible for performing, any pre-transportation function required
under this subchapter for transportation of the hazardous material in
commerce.'' The definition further provides that a carrier is not an
offeror when it performs a function as a condition of accepting a
hazardous material shipment for continued transportation without
performing a pre-transportation function (see definition for ``pre-
transportation function'' in Sec. 171.8). In accordance with Sec.
171.2(f), an offeror and carrier may rely on information provided by a
previous offeror or carrier unless it knows or a reasonable person
acting in the circumstances and exercising reasonable care would know,
that the information provided is incorrect. Under Sec. 5123(a)(1) of
the Federal hazardous materials transportation law (Federal hazmat law,
49 U.S.C. 5101 et seq.), a person acts knowingly when the person has
actual knowledge of the facts giving rise to the violation; or a
reasonable person acting in the circumstances and exercising reasonable
care would have that knowledge.
An offeror or an interconnecting carrier who knowingly or willfully
provides incorrect information to a subsequent carrier, or a subsequent
carrier who knowingly accepts and continues to use inaccurate
information, is in violation of the HMR. A civil or criminal penalty
(see Sec. Sec. 107.329 and 107.333) may be assessed against any person
subject to the HMR who knowingly or willfully offers for transportation
or transports a hazardous material in a manner not complying with the
HMR.
To reiterate, a carrier, freight forwarder, or other entity may
rely on the previous information unless the entity has knowledge that
the information is incorrect. Ensuring correct information is the
responsibility of the person preparing shipping papers, and any person
with knowledge of incorrect information may not continue to use that
information. Communication between the original and subsequent offeror
before the shipment reaches the subsequent offeror may be warranted in
cases when confusion exists on whether the original offeror's ERI
provider will continue to be used.
B. Use of Emergency Response Number by Subsequent Offerors
Some commenters read the NPRM as proposing to require the original
offeror to maintain its emergency response information telephone number
for subsequent offerors when no agreement has been authorized by the
original offeror. For example, IME requests that we correct or confirm
its understanding that the ``option'' to use the originating offeror's
emergency response number applies only to that offeror's shipment. The
commenters state that they support the intent of the rule, but that we
appear to be expanding the requirement for originating offerors to
provide and monitor emergency response information telephone numbers
beyond the delivery of the shipment to the destination on the original
offeror's shipping papers.
The commenters have misread the NPRM. We did not propose to require
the original offeror to maintain an emergency response telephone number
throughout subsequent offerors' movements of hazardous materials. We
proposed only that the existing requirement for the notation of an
emergency response telephone number be augmented by the inclusion of
the registrant's name or contract number with the ERI provider. This
rulemaking was prompted, in part, because some subsequent carriers when
preparing new shipping papers were omitting the initial registrant's
name, inserting their own name, but retaining the initial offeror's ERI
provider for which the initial offeror was the registrant. Whether in
cases where the previous offeror's ERI provider was intended to end
upon acceptance of the shipment by
[[Page 53417]]
the subsequent offeror or was intended to be active for the subsequent
offeror, the identifying link to the ERI provider was lost and the
telephone number was no longer operative for the shipment.
Whether the original or previous offeror's ERI provider's telephone
number remains active for a subsequent offeror is a matter of agreement
between the two parties. A subsequent offeror may not assume that it
has authorization to use the original or previous offeror's emergency
response telephone number.
C. Use of the Terms ``Emergency Response Service Provider'' and
``Emergency Response Information Provider''
DGAC and CHEMTREC comment that our use of the term ``emergency
response service provider'' connotes a range of emergency services
beyond that required by the emergency response telephone number and may
lead to confusion. The commenters suggested the use of the term
``emergency response information provider.'' We agree the term provides
clarity and have made the revision.
Veolia states that the term ``emergency response information'' is
defined in Sec. 172.602(a) as the minimum information that must be
made available, but that in Sec. 172.604(a)(2), when describing the
information that must be maintained by the emergency response
information provider, we use the phrase ``comprehensive emergency
response and incident mitigation information.'' Veolia requests that we
remove the latter phrase in Sec. 172.604 and replace it with
``emergency response information.'' We note concerning this comment
that the two sections are intended for two different purposes. Section
172.602 refers to the emergency response information that must be
printed on or attached to the shipping paper, while Sec. 172.604 is
specific to the emergency response telephone number. The person manning
the emergency response information telephone number must be able to
provide specific and detailed information about the hazardous material
(for example, characteristics of the material and comprehensive
emergency response information) to supplement and expand on the written
emergency response information provided with the shipping paper, such
as the Emergency Response Guide (ERG), including comprehensive
emergency response and incident mitigation information. The person
should have the capability of contacting the shipper for additional
information and/or have immediate access to such information. For this
reason, we are not making the requested change.
D. Comprehensive Knowledge of the Shipment and Needs of Emergency
Response Personnel
Some commenters express concern about obtaining the most
comprehensive knowledge regarding the specific hazardous materials
being shipped, stating that the only way to do this is through direct
access to the offeror. ATA states that the NPRM does not directly
address the problem of ensuring that emergency responders will have
direct access to the offeror. Air Products suggests that if a
subsequent carrier or freight forwarder prepares its own subsequent
shipping papers and uses an ``outside'' ERI provider, the subsequent
offeror and provider may not have the necessary information to properly
advise emergency responders on the scene. APA states that the emergency
response telephone number, hazardous materials description and
manifests should carry over throughout an intermodal shipment from the
initial offeror to the final consignee. (As a note: APA contracts with
a third party emergency response provider who provides detailed
emergency response information conforming to Sec. 172.604. APA members
may participate in the service and register through APA, and APA
submits the participant list to the ERI provider; thus, each member is
individually registered.) IAFC states that general reference materials
are not substitutes for direct contact with the offeror who has the
most knowledge of the product.
We agree with the commenters that the offeror will have the most
comprehensive knowledge about a specific hazardous material. That is
why the HMR requirement for the emergency response telephone number
allows for and, indeed, anticipates that the number provided by the
original offeror will often be utilized throughout transportation from
the original offeror to the consignee. We remind offerors and ERI
providers that Sec. 172.604(a)(2) requires the telephone number to be
that of a person who is either knowledgeable of the hazardous material
being shipped and has comprehensive emergency response and incident
mitigation information for that material, or has immediate access to a
person who possesses such knowledge and information. We agree with
IAFC's point that knowledgeable contacts require more than a rote
reading from general reference materials, such as the ERG. Offerors
must meet the existing comprehensive emergency response requirement by
supplying the ERI provider and subsequent offerors, as applicable, with
complete and detailed information relevant to the hazardous material,
and subsequent offerors must also supply any ERI provider that they
engage for themselves with the additional information supplied to them
by the original or previous offeror. We remind the reader that Sec.
172.604(b) currently requires the ERI provider to have detailed
information concerning the hazardous material and specifies that ``the
person offering a hazardous material for transportation who lists the
telephone number of an agency or organization shall ensure that the
agency or organization has received current information on the material
as required by paragraph (a)(2),'' which specifies comprehensive and
incident mitigation information for the material. Again, a rote reading
alone is not sufficient.
COSTHA contends that the existing emergency response telephone
number requirement fully meets the needs of emergency response
personnel and that we should only clarify the existing requirement that
all hazardous materials shipping documentation must include an
emergency response contact number representing the number supplied by
the offeror. The Lighter Association also questions the advantage of
the identification of the party who is registered with the provider,
stating that products such as lighters go through many hands (sales
agents, distributors, retailers and other third parties) and that often
the identity of the party registered with the provider is not known.
The Lighter Association asserts that identification of the material by
hazard class on the shipping paper and the marking and placarding
requirements are sufficient and states that the registrant most likely
is ``not going to be readily available.''
These commenters appear to have misread the NPRM. The purpose of
the NPRM proposals is to enable emergency responders and transportation
workers to readily obtain information from a third-party provider, not
for them to obtain the information from the registrant. When the
provider is called and the registrant cannot be matched with the
product, the provider attempts (with no obligation when an offeror is
not registered) to respond with general information applicable to the
shipping description, but the product specific information cannot be
obtained because the identity of the registrant is not known. Providing
comprehensive information for any hazardous material is critical to
ensure that emergency response personnel and transportation workers are
equipped with the means to
[[Page 53418]]
respond appropriately and as swiftly as possible to a hazardous
material situation. Such information is particularly important if the
hazardous material is shipped under a generic shipping name (e.g.,
flammable liquid n.o.s.) where complete emergency response information
may depend on an in-depth knowledge of the hazardous constituents of
the material. If the emergency response information provider cannot
identify the registrant, then the complete and product specific
information about the hazardous material cannot be provided to the
emergency responders.
We cannot emphasize enough that lack of complete information
applicable to the hazardous material being transported impacts the
ability of emergency response personnel to properly, safely and
expeditiously take action when an incident occurs. Crucial delays can
occur with the response and clean up process when the identity of the
offeror registered with the ERI provider is not reflected on the
shipping paper. The delays may result in serious risks to people and
the environment, and may also disrupt the continued transportation of
shipments when emergency responders and transportation workers are
pressed to take valuable time on the scene of an incident to obtain
emergency response information. CHEMTREC asks us to inform the
regulated community that it makes it known to each person registering
with CHEMTREC that either the previous offeror should be indicated on
the shipping paper (if continuing to maintain an emergency response
telephone number), or the party that has taken on the offeror function
should itself be registered.
E. Format on Shipping Papers
Several commenters request that we provide a specific format for
the identification of the registrant of the ERI provider, stating that,
as proposed, it may not always be clear who is registered with the ERI
provider. For example, COSTHA notes that shipments being consolidated
into one freight container may contain materials from more than one
offeror, with each providing a separate emergency response telephone
number and that many less-than-truckload (LTL) carriers create
manifests or delivery receipt documents that provide the original
offeror's name and emergency response contact information. COSTHA
states that to create shipping documents to include the offerors' name
or contract number registered with the ERI provider would be confusing
to emergency personnel and create more errors.
With respect to multiple shipments being consolidated into one
freight container, currently, when more than one emergency response
telephone number is needed for consolidated hazardous materials, the
various emergency response telephone numbers are required to be noted
following the applicable shipping descriptions. We do not agree that
the addition of registrant information in association with the
applicable telephone number will create confusion.
Veolia is supportive of the rulemaking, but requests that when the
offeror noted on the shipping paper is the registrant of the ERI
provider, no need exists to reenter the offeror's name near the
emergency response telephone number. Similarly, DGAC states its
assumption that the offeror's identity is not required to be repeated
if the identification is noted ``elsewhere'' on the shipping document,
particularly with international shipments.
We continue to be concerned that if the registrant with an ERI
provider is not clearly identified, the nexus between the registrant
and the provider will be lost. However, we agree with the commenters
that if the registrant is prominently, clearly and readily identified
elsewhere on the shipping paper--e.g., the offeror listed on the
shipping paper is also the registrant and clearly identified--then the
registrant need not also be listed in association with the emergency
response telephone number. Subsequent entities in the transportation
chain (carriers, freight forwarders, etc.) that prepare new shipping
papers must ensure that the name or the contract number of the original
offeror, if that offeror's ERI telephone number remains in effect, is
provided in association with the emergency response telephone number,
unless prominently identified elsewhere.
CHEMTREC states that precious time is lost when the caller on the
scene of an incident is having trouble identifying the registered
offeror because of the lack of uniformity of the information on
shipping papers. CHEMTREC also comments (and we agree) about the
necessity of taking care when preparing new shipping papers with regard
to ensuring that the name or contract number is not inadvertently
altered, which can create problems and delays in correctly identifying
the registered offeror. We received complaints that the telephone
number is also difficult to quickly identify when its positioning on
the shipping paper is located near other text in a manner that blends
the telephone number with other text (such as when using small,
difficult-to-read font size), thereby rendering the number difficult to
locate and/or to read.
Based on the comments received concerning the necessity of a
standard format for the registrant information, we are revising the
regulatory text to read that the identification of the registrant of
the emergency response telephone number provider must be placed
immediately before, after, above or below the telephone number, unless
the registrant is prominently, clearly and readily identified elsewhere
on the shipping paper as discussed earlier in this preamble. This
should provide sufficient flexibility for the creation of a shipping
paper while ensuring that the registrant is clearly identified. In
addition, considering the exception being incorporated in this final
rule and based on the comments specific to being unable to quickly
identify the registered offeror as well as identify and easily read the
telephone number itself, we are revising the regulatory text by
clarifying the meaning of ``clearly visible'' and ``prominently,
clearly and readily identifiable'' in Sec. 172.604(a)(3)(ii) and
(b)(2), respectively. We are making this clarification so that there is
no question as to the intent of the requirement, including that it
encompasses the readability of the information (registered offeror and
telephone number), as well as the location.
F. International Access Codes
Several commenters request clarification in the regulatory text
regarding the use of international emergency response telephone
numbers. DGAC suggests an expansion of the text to make clear that the
international access code, country code and city code must be included
when the emergency response telephone number is an international call.
We agree and in this final rule have revised the regulatory text in
Sec. 172.604(a) accordingly. Additionally, we are adding the use of
the ``+'' (plus) sign, which we understand is already commonly used in
international commerce, as an option to noting the specific
international access code. Each country has an international access
code used to dial out of the country and a country calling code used to
dial into a country. Generally, the international access code is
replaced with a ``+'' (plus) sign for telephone numbers published for
international calling. The plus sign is a universal prefix and means
that the caller must use the specific prefix assigned to his or her
country. Many telephones allow the plus sign to be entered, although
the method may vary. For example, most GSM (global system for mobile
communications) mobile
[[Page 53419]]
phones allow the plus sign to be entered by either holding the ``0''
(zero) key or striking the ``*'' (asterisk) key twice; the plus sign is
automatically converted to the correct international access code.
UPS asks whether requiring country and city codes prohibits the use
of a toll-free telephone number. This requirement does not prevent the
use of a toll-free telephone number, provided an emergency responder
can dial the number as it appears on the shipping paper without
stopping to look up international access, country and city codes, and
provided the toll-free telephone number meets the requirements in
Subpart G of Part 172, including the current requirement in Sec.
172.604(a)(2) that specifies a telephone number may not entail a call
back (such as an answering service, answering machine, or beeper
device) and identity provision adopted in this final rule.
G. Notification of the Pilot-in-Command
UPS is concerned that the requirements for the Notification of
Pilot-in-Command (NOTOC) contains ``extraneous'' information and cites
a petition for rulemaking (P-1487) in which UPS requests a thorough
review of the NOTOC requirements. We will address the UPS petition in a
future rulemaking.
H. Costs and Time Needed To Implement
Some commenters believe that the provision in this final rule will
impose significant costs and be difficult and time consuming to
implement for carriers and offerors. UPS states that the requirement
will impact: (1) The design of shipping papers by impinging on scarce
available space, (2) the programming of computer systems by requiring
reprogramming of countless systems used to print the information, (3)
communication protocols between UPS's customers and UPS's internal
systems, and (4) enforcement protocols used by inspectors. UPS
estimates its costs will be between $1 million to $1.5 million and
entail 40--60 weeks of work to make the change. UPS states that
programming resources will need to be allocated and system changes will
need to be tested. COSTHA requests a review of expenses associated with
adopting the requirement and an extension of the compliance date if we
proceed with the final rule.
We disagree with the commenters who state that the adoption of the
revision to the HMR would be too costly and time consuming to
implement. The emergency response telephone number is currently
required on shipping papers. Adding a notation to identify the person
who contracted with the ERI provider and reprogramming the shipping
papers should not add the significant time and cost to the degree these
commenters suggest. Also, it is our understanding that the notation for
the identity of the person registered with an ERI provider is currently
relatively common industry practice. The costs associated with this
rulemaking are considerably outweighed by the safety benefits resulting
from faster and more efficient responses to accidents and emergencies.
Moreover, the final rule will reduce transportation delays incurred
when emergency responders must spend time to obtain product specific
information.
UPS and Fed Ex request a two-year extended compliance date. We
believe the revision in this rulemaking addresses a critical safety
issue and that a two-year extended compliance date is an excessive
amount of time to implement the notation on shipping papers. However,
to minimize costs associated with reprogramming computer systems and
implementing the notation, we agree to provide an extended compliance
date until October 1, 2010 to minimize the costs for those businesses
that have not already incorporated the identity of the emergency
response telephone number provider's registrant into their shipping
paper format. A one-year extended compliance date will also allow
sufficient time to include this revision into training programs,
complete changes to systems supporting shipping papers, and deplete
current stocks of shipping papers if necessary.
UPS asked that the revisions in this final rule be made effective
at the same time as the next publication of the International Civil
Aviation Organization's (ICAO) Technical Instructions for the Safe
Transportation of Dangerous Goods by Air (ICAO Technical Instructions).
We plan to submit the revision for US Variation 12 (emergency response
telephone number) to ICAO before its next publication, which is
scheduled to be effective on January 1, 2010.
I. Editorial Correction and Additional Revisions
UPS asked us to explain our reason for deleting the word ``or'' in
Sec. 172.604(a)(3)(i). The proposed deletion was an error and has been
corrected in this final rule.
ASA and UPS state that the wording in Sec. 172.201(d) is not
consistent with the ``fuller requirement'' in Sec. 172.604(b) and
request that we repeat the Sec. 172.604(b) text in Sec. 172.201(d).
UPS' objection is that in the NPRM, Sec. 172.201(d) referred to
identification of the ``person'' and did not reference ``or contract
number.'' The proposed Sec. 172.201(d) clearly stated: ``* * * a
shipping paper must contain an emergency response telephone number and,
if utilizing an emergency response information telephone number service
provider, identify the person who has a contractual agreement with the
service provider, as prescribed in subpart G of this part.''
Identifying the person in accordance with Subpart G is a clear
statement and consistent with the treatment of references throughout
the HMR. Repeating the particulars is redundant, but in this final rule
we are adding a parenthetical ``(by name or contract number)''
following the word ``person.''
VOHMA requests that we revise Sec. 174.26 to clarify that the
requirement to include the identifying information adopted in this
final rule applies. We have made the clarification.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget. This proposed rule is a non-
significant rule under the Regulatory Policies and Procedures of the
Department of Transportation [44 FR 11034].
The amendments in this final rule should not result in significant
costs to add the required information to shipping papers. The emergency
response telephone number is currently required on the shipping paper.
Adding a notation to identify the person who arranged with an ERI
provider should not add any significant time to the process of
completing a shipping paper or to the cost of providing it. Moreover,
the notation on a shipping paper of the identity of the person who made
arrangements with an emergency response information telephone service
is currently common industry practice for the initial offeror.
Additionally, we are providing an exception from the requirement where
the name of the initial offeror is prominently and clearly shown
elsewhere on the shipping paper.
As discussed earlier in this preamble, UPS estimates that it will
incur costs between $1 million to $1.5 million and entail 40-60 weeks
of work to make the change. UPS asserts that programming resources will
need to be allocated and the system changes will need to be tested. We
recognize that the provisions of this final rule will result in
additional
[[Page 53420]]
compliance costs. Therefore, we are adopting a one-year transition
period for offerors and carriers to implement the changes adopted in
this final rule. This extended transition period will help to offset
costs by providing ample time for offerors and carriers to modify
systems and otherwise adapt their processes by implementing the changes
during a phase-in mode. Such a phase-in implementation method will
afford offerors and carriers the opportunity to incorporate the
revision into training programs and complete changes to systems
supporting shipping papers (and deplete current stocks of shipping
papers if necessary) during a period of time that may coincide with
scheduled training programs and routine or upcoming upgrades and
revisions to computer systems.
As a further note, considering that the notation is already
relatively common industry practice for the initial offeror, and
considering that we are also providing an exception from the
requirement (which was not included in the NPRM), the implementation of
the revision will not be applicable to the greater numbers of
responsible parties as presented in the NPRM.
Given the importance of complete and detailed information to swift
and effective response to hazardous materials incidents and mitigation
of the potentially harmful consequences of those incidents, we believe
the benefits of the provisions of this final rule will substantially
outweigh the costs that may result. The benefits include saving lives,
preventing injuries, avoiding damage to property and the environment,
averting costly cleanup, evacuations, closures (such as roads and
businesses) and damage mitigation, and reducing associated
transportation delays. The availability of accurate, complete and
quickly obtained information significantly improves response efforts
during transportation incidents and emergencies, and benefits offerors,
carriers, emergency personnel and the public.
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria set forth in Executive Order 13132 (``Federalism''). This
final rule will preempt State, local and Indian Tribe requirements but
will not have substantial direct effects on the States, the
relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
The Federal hazmat law contains an express preemption provision (49
U.S.C. 5125(b)), preempting State, local, and Indian Tribe requirements
on covered subjects, as follows:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subject item (3) above and would
preempt State, local, and Indian Tribe requirements not meeting the
``substantively the same'' standard. Federal hazmat law provides at
section 5125(b)(2) that, if DOT issues a regulation concerning any of
the covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
a final rule and not later than two years after the date of issuance.
The effective date of Federal preemption for this rule is 90 days from
the publication date of this final rule.
C. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria set forth in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have Tribal implications, and does not impose substantial
direct compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines the rule is not expected to have a
significant impact on a substantial number of small entities. In this
case, although the requirements of this final rule will apply to a
substantial number of small entities, none would sustain significant
economic impact as a result of the rule.
Identification of potentially affected small entities. Businesses
likely to be affected by this final rule are persons who offer for
transportation or transport hazardous materials in commerce, including
hazardous materials manufacturers and distributors; freight forwarders,
transportation companies, including air, highway, rail, and vessel
carriers and hazardous waste generators.
Unless alternative definitions have been established by the agency
in consultation with the Small Business Administration (SBA), the
definition of ``small business'' has the same meaning as under the
Small Business Act. Since no such special definition has been
established, we employ the thresholds published by SBA for
establishments that will be subject to the proposed amendments if
adopted. Based on data for 2002 compiled by the U.S. Census Bureau,
more than 95 percent of persons that would be affected by this rule are
small businesses.
Related Federal rules and regulations. There are no related Federal
rules or regulations governing the transportation of hazardous
materials in domestic or international commerce.
Consideration of alternate proposals for small businesses. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where it is
possible to do so and still meet the objectives of applicable
regulatory statutes. In the case of hazardous materials transportation,
it is not possible to establish exceptions or differing standards and
still accomplish our safety objectives.
Conclusion. While the amendments in this final rule would apply to
a substantial number of small entities, there will not be a significant
impact on those entities. This final rule revises the HMR's emergency
response telephone requirements to enable ERI providers and others
providing such service to supply the required HMR emergency response
information to first responders. The impact of this new requirement is
not expected to be significant; the indication of the emergency
response telephone number on shipping papers is a current requirement
and the notation of the identity of the emergency response information
telephone provider's registrant is currently common industry practice
for the initial offeror. We are providing an exception that will
include a number of offerors, and we are providing a one-year delayed
compliance date. The problem, as discussed in the preamble of this
[[Page 53421]]
rulemaking, primarily arises from subsequent carriers omitting the
registrant's name when preparing new shipping papers for a shipment
continuing on to its final destination. Our amendment to add the
identification of the telephone number's registrant to shipping papers
will eliminate an obstruction that could interfere with the
transmission of crucial emergency response information to first
responders on the scene of an incident. Additionally, the amendment
will serve to eliminate delays in transportation due to lack of
information, and eliminate enforcement problems stemming from possible
invalid emergency response telephone number violations.
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.
E. Paperwork Reduction Act
By requiring that additional information be included on certain
shipping papers, this final rule may result in an increase in annual
paperwork burden and costs under OMB Control No. 2137-0034. PHMSA
currently has an approved information collection under OMB Control
Number 2137-0034, ``Hazardous Materials Shipping Papers and Emergency
Response Information'' expiring on May 31, 2011.
Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d), Title 5,
Code of Federal Regulations requires that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requests.
This notice identifies a revised information collection request
that PHMSA submitted to OMB for approval based on the requirements in
this final rule. PHMSA has developed burden estimates to reflect
changes in this final rule. PHMSA estimates that the total information
collection and recordkeeping burden, including the revisions resulting
from this final rule, would be as follows:
OMB Control No. 2137-0034
Annual Number of Respondents: 250,000.
Annual Responses: 260,000,000.
Annual Burden Hours: 6,609,167.
Annual Costs: $6,675,258.67.
Requests for a copy of this information collection should be
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-10), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor,
PHH-10, Washington, DC 20590-0001, Telephone (202) 366-8553.
F. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$120.7 million or more to either State, local or Tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
G. Environmental Assessment
The National Environmental Policy Act (NEPA), Sec. Sec. 4321-4375,
requires Federal agencies to analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order Federal agencies to conduct an environmental review considering
(1) the need for the proposed action, (2) alternatives to the proposed
action, (3) probable environmental impacts of the proposed action and
alternatives, and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b).
Purpose and Need. As discussed elsewhere in this preamble, we have
become aware of a number of problems associated with emergency response
telephone numbers on shipping papers, specifically related to the
increasing use by offerors of ERI providers to comply with the
requirements of Sec. 172.604. In such situations, the original offeror
enters into a contract or agreement with an agency or organization
(industry associations may offer this service to their members)
accepting responsibility for providing detailed emergency response
information in accordance with Sec. 172.604(b). The telephone number
on the shipping paper is the telephone number of the ERI provider, but
the original offeror is not required to include a notation to this
effect on the shipping paper, nor is the name of the original offeror
required to appear on the shipping paper. Thus, the identity of the
person who arranged with the ERI provider is not readily available
through shipping documentation. Without the name of the offeror who
arranged for an emergency response service, an ERI provider may not be
able to communicate the product-specific information that was provided
by the original offeror. This could result in a serious problem if
transportation workers or emergency response personnel must use the
telephone number to request assistance in handling an accident or
emergency. Most ERI providers will attempt to provide assistance
whether or not they can verify that an offeror arranged for emergency
response service. However, without the identification of the particular
offeror who has made arrangements with the service, it may not be
possible for the emergency response service to quickly access
information specific to the material involved in an incident, thereby
defeating the purpose of the requirement in Sec. 172.604 to enable
transport workers and emergency response personnel to expeditiously
obtain detailed information about a hazardous materials shipment. A
delay or improper response due to lack of accurate and timely emergency
response information may place emergency response personnel,
transportation workers, and the general public at increased risk.
Expeditious identification of the hazards and direction for appropriate
clean up associated with specific hazardous materials is critical in
mitigating the consequences of hazardous materials incidents.
Alternatives. PHMSA considered the following alternatives:
No action--Under this alternative, we would continue to permit
shippers to provide an emergency response telephone number for an ERI
provider with no indication of the entity that arranged for the ERI
provider's services. This alternative does not address the identify
safety problem. Thus, it was not selected.
Require the shipping paper to include the name or contract number
of the person arranging for the ERI provider's services--Under this
alternative, we would require a shipper who utilizes an ERI provider to
comply with the provisions of Sec. 172.604 to include his name or
contract number so that the ERI provider can readily retrieve and
provide shipment-specific information in the event of an accident or
emergency. This will allow for faster, more efficient emergency
response to incidents. This is the selected alternative.
Analysis of Environmental Impacts. Hazardous materials are
substances that may pose a threat to public safety or the environment
during transportation
[[Page 53422]]
because of their physical, chemical, or nuclear properties. The
hazardous material regulatory system is a risk management system that
is prevention-oriented and focused on identifying a safety hazard and
reducing the probability and quantity of a hazardous material release.
Hazardous materials are categorized by hazard analysis and experience
into hazard classes and packing groups. The regulations require each
shipper to classify a material in accordance with these hazard classes
and packing groups; the process of classifying a hazardous material is
itself a form of hazard analysis. Further, the regulations require the
shipper to communicate the material's hazards through use of the hazard
class, packing group, and proper shipping name on the shipping paper
and the use of labels on packages and placards on transport vehicles.
Thus the shipping paper, labels, and placards communicate the most
significant findings of the shipper's hazard analysis. A hazardous
material is assigned to one of three packing groups based upon its
degree of hazard--from a high hazard Packing Group I to a low hazard
Packing Group III material. The quality, damage resistance, and
performance standards of the packaging in each packing group are
appropriate for the hazards of the material transported.
Releases of hazardous materials, whether caused by accident or
deliberate sabotage, can result in explosions or fires. Radioactive,
toxic, infectious, or corrosive hazardous materials can have short- or
long-term exposure effects on humans or the environment. Generally,
however, the hazard class definitions are focused on the potential
safety hazards associated with a given material or type of material
rather than the environmental hazards of such materials.
Under the HMR, hazardous materials may be transported by aircraft,
vessel, rail, and highway. The potential for environmental damage or
contamination exists when packages of hazardous materials are involved
in accidents or en route incidents resulting from cargo shifts, valve
failures, package failures, loading, unloading, collisions, handling
problems, or deliberate sabotage. The release of hazardous materials
can cause the loss of ecological resources and the contamination of
air, aquatic environments, and soil. Contamination of soil can lead to
the contamination of ground water. For the most part, the adverse
environmental impacts associated with releases of most hazardous
materials are short-term impacts that can be reduced or eliminated
through prompt clean-up/decontamination of the accident scene.
The amendments in this final rule will improve the effectiveness of
the HMR by enabling emergency responders on the scene of a hazardous
materials incident to quickly and efficiently identify hazards and
mitigate potential risks to the environment. There are no significant
environmental impacts associated with amendments in this final rule.
Consultation and Public Comment. As discussed above, PHMSA
published an NPRM to solicit public comments on our proposal. A total
of 23 persons submitted comments, including industry associations,
shippers, carriers, ERI providers, emergency responders, and private
citizens.
H. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), which may also be found at http://dms.dot.gov.
List of Subjects
49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Rail
carriers, Railroad safety, Reporting and recordkeeping requirements.
0
In consideration of the foregoing, we are amending 49 CFR Chapter I as
follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
0
1. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
0
2. In Sec. 172.201, revise paragraph (d) to read as follows:
Sec. 172.201 Preparation and retention of shipping papers.
* * * * *
(d) Emergency response telephone number. Except as provided in
Sec. 172.604(c), a shipping paper must contain an emergency response
telephone number and, if utilizing an emergency response information
telephone number service provider, identify the person (by name or
contract number) who has a contractual agreement with the service
provider, as prescribed in subpart G of this part.
* * * * *
0
3. Revise Sec. 172.604 to read as follows:
Sec. 172.604 Emergency response telephone number.
(a) A person who offers a hazardous material for transportation
must provide an emergency response telephone number, including the area
code, for use in the event of an emergency involving the hazardous
material. For telephone numbers outside the United States, the
international access code or the ``+'' (plus) sign, country code, and
city code, as appropriate, must be included. The telephone number must
be--
(1) Monitored at all times the hazardous material is in
transportation, including storage incidental to transportation;
(2) The telephone number of a person who is either knowledgeable of
the hazardous material being shipped and has comprehensive emergency
response and incident mitigation information for that material, or has
immediate access to a person who possesses such knowledge and
information. A telephone number that requires a call back (such as an
answering service, answering machine, or beeper device) does not meet
the requirements of paragraph (a) of this section; and
(3) Entered on a shipping paper, as follows:
(i) Immediately following the description of the hazardous material
required by subpart C of this part; or
(ii) Entered once on the shipping paper in a prominent, readily
identifiable, and clearly visible manner that allows the information to
be easily and quickly found, such as by highlighting, use of a larger
font or a font that is a different color from other text and
information, or otherwise setting the information apart to provide for
quick and easy recognition. This provision may be used only if the
telephone number applies to each hazardous material entered on the
shipping paper, and if it is indicated that the telephone number is for
emergency response information (for
[[Page 53423]]
example: ``EMERGENCY CONTACT: * * *'').
(b) The telephone number required by paragraph (a) of this section
must be -
(1) The number of the person offering the hazardous material for
transportation when that person is also the emergency response
provider. The name of the person identified with the emergency response
telephone number must be entered on the shipping paper immediately
before, after, above, or below the emergency response telephone number
unless the name is entered elsewhere on the shipping paper in a
prominent, readily identifiable, and clearly visible manner that allows
the information to be easily and quickly found; or
(2) The number of an agency or organization capable of, and
accepting responsibility for, providing the detailed information
required by paragraph (a)(2) of this section. The person who is
registered with the emergency response provider must ensure that the
agency or organization has received current information on the material
before it is offered for transportation. The person who is registered
with the emergency response provider must be identified by name or
contract number on the shipping paper immediately before, after, above,
or below the emergency response telephone number in a prominent,
readily identifiable, and clearly visible manner that allows the
information to be easily and quickly found.
(c) A person preparing shipping papers for continued transportation
in commerce must include the information required by this section. If
the person preparing shipping papers for continued transportation in
commerce elects to assume responsibility for providing the emergency
response telephone number required by this section, the person must
ensure that all the requirements of this section are met.
(d) The requirements of this section do not apply to--
(1) Hazardous materials that are offered for transportation under
the provisions applicable to limited quantities; and
(2) Materials properly described under the following shipping
names:
Battery powered equipment.
Battery powered vehicle.
Carbon dioxide, solid.
Castor bean.
Castor flake.
Castor meal.
Castor pomace.
Consumer commodity.
Dry ice.
Engines, internal combustion.
Fish meal, stabilized.
Fish scrap, stabilized.
Refrigerating machine.
Vehicle, flammable gas powered.
Vehicle, flammable liquid powered.
Wheelchair, electric.
(3) Transportation vehicles or freight containers containing lading
that has been fumigated and displaying the FUMIGANT marking (see Sec.
172.302(g)) as required by Sec. 173.9 of this subchapter, unless other
hazardous materials are present in the cargo transport unit.
PART 174--CARRIAGE BY RAIL
0
4. The authority citation for part 174 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.
0
5. In Sec. 174.26, revise paragraph (b) to read as follows:
Sec. 174.26 Notice to train crews.
* * * * *
(b) A member of the crew of a train transporting a hazardous
material must have a copy of a document for the hazardous material
being transported showing the information required by part 172 of this
subchapter, including the requirements in Sec. 172.604(b) applicable
to emergency response information.
Issued in Washington, DC, on October 6, 2009 under authority
delegated in 49 CFR part 1.
Cynthia Douglass,
Acting Deputy Administrator.
[FR Doc. E9-24799 Filed 10-16-09; 8:45 am]
BILLING CODE 4910-60-P