# Hazardous Materials: Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report Form; Correction

- **operation:** document
- **citation:** 69 FR 30114
- **title:** Hazardous Materials: Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report Form; Correction
- **source type:** rulemaking
- **agency:** Research and Special Programs Administration
- **status:** historical
- **official:** true
- **published on:** 2004-05-26
- **effective on:** 2005-01-01
- **summary:** On December 3, 2003, RSPA published a final rule under Docket No. RSPA-99-5013 (HM-229) to update and clarify requirements in the Hazardous Materials Regulations applicable to incident reporting requirements and the Hazardous Materials Incident Report (HMIR) DOT Form F 5800.1. In response to appeals submitted by persons affected by the December 3, 2003 final rule, this final rule amends certain requirements, and makes minor editorial corrections. This final rule is effective January 1, 2005. The effective date for the final rule published on December 3, 2003 has been extended from July 1, 2004 to January 1, 2005.
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Federal Register, Volume 69 Issue 102 (Wednesday, May 26, 2004) [Federal Register Volume 69, Number 102 (Wednesday, May 26, 2004)] [Rules and Regulations] [Pages 30114-30132] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 04-11398] [[Page 30113]] ----------------------------------------------------------------------- Part VI Department of Transportation ----------------------------------------------------------------------- Research and Special Programs Administration ----------------------------------------------------------------------- 49 CFR Part 171 Hazardous Materials: Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report Form; Correction; Final Rule Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules and Regulations [[Page 30114]] ----------------------------------------------------------------------- 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 Incident Reporting Requirements and the Hazardous Materials Incident Report Form; Correction AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule; response to appeals and correction. ----------------------------------------------------------------------- SUMMARY: On December 3, 2003, RSPA published a final rule under Docket No. RSPA-99-5013 (HM-229) to update and clarify requirements in the Hazardous Materials Regulations applicable to incident reporting requirements and the Hazardous Materials Incident Report (HMIR) DOT Form F 5800.1. In response to appeals submitted by persons affected by the December 3, 2003 final rule, this final rule amends certain requirements, and makes minor editorial corrections. This final rule is effective January 1, 2005. The effective date for the final rule published on December 3, 2003 has been extended from July 1, 2004 to January 1, 2005. DATES: Effective Date: This final rule is effective on January 1, 2005. The effective date for the final rule published on December 3, 2003 has been extended from July 1, 2004 to January 1, 2005. Only the revised DOT Form F 5800.1 (01-2004) specified in this final rule will be accepted for incidents occurring on or after January 1, 2005. Filers must use the previous DOT Form F 5800.1 (Rev 6/89) form for all incidents up to and including December 31, 2004. FOR FURTHER INFORMATION CONTACT: T. Glenn Foster, (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration, or Kevin Coburn, (202) 366-4555, Office of Hazardous Materials Planning & Analysis, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. SUPPLEMENTARY INFORMATION: I. Background On December 3, 2003, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-229 (68 FR 67746) revising incident reporting requirements of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) and the Hazardous Materials Incident Report Form DOT F 5800.1. Specifically, the final rule: Revised the hazardous materials incident report form; Provided for electronic filing of incident reports; Established one-call reporting of hazardous materials incidents; Expanded reporting requirements to persons other than carriers; Expanded reporting exceptions; Provided criteria for telephonic notification; Provided criteria for updates to incident reports; Required reporting of undeclared shipments of hazardous materials; Required reporting of non-release incidents involving cargo tanks; Provided definitions of ``Undeclared Hazardous Material'' and ``Unintentional Release''; and Eliminated redundant or unnecessary regulations. In addition, the December 3 final rule revised the HMR to address three recommendations from the National Transportation Safety Board (NTSB): Consistent with NTSB Recommendation H-92-6, established a program to collect information necessary to identify patterns of cargo tank equipment failures, including the reporting of all accidents involving a DOT specification cargo tank, with or without a release of hazardous materials. Consistent with NTSB recommendation R-89-52, set forth procedures being implemented to ensure there is feedback to shippers when an incident has occurred. Consistent with NTSB recommendation H-99-58, established a specific time period for reporting incidents meeting criteria in Sec. 171.15 (telephonic notification). II. Appeals The following organizations and one individual submitted appeals to the December 3, 2003 final rule, in accordance with 49 CFR Part 106: The Air Transport Association (ATA-Air); the American Trucking Associations (ATA-Trucking); the Association of American Railroads (AAR); the National Propane Gas Association (NPGA); the National Tank Truck Carriers, Inc. (NTTC); the Petroleum Transportation & Storage Association (PTSA); and Mr. John V. Currie. The appellants expressed concern about several revisions included in the final rule. In addition, two appellants asked for a revision to the effective date of the final rule. The issues raised by the appellants are discussed in detail below. A. Appeals Granted Electronic Filing--The December 3 final rule revised Sec. 171.16 (b) to require each person reporting under this section to submit a written or electronic HMIR to the Information Systems Manager at the Research and Special Programs Administration. Mr. John Currie stated that as drafted, Sec. 171.16(b)(1) could be interpreted to require both the submission of a written and electronic HMIR. We agree that the language is unclear and could lead to unnecessary submissions of duplicate reports. Therefore, in this final rule, we are adding the word ``or'' between the addresses for written and electronic submittal of the HMIR to clarify that either a written or electronic report must be submitted, not both. Revised Hazardous Materials Incident Form DOT F 5800.1--The December 3 final rule revised the HMIR Form DOT F 5800.1 and instructions. AAR requested that RSPA reconsider eliminating certain required information on the HMIR that AAR considers unnecessary and difficult to obtain. AAR notes that, as drafted, the instructions following Item 23 instruct the filer to skip Part III ``Packing Information'' and proceed to Part IV, which AAR believes was not RSPA's intent. However, if Part III is to be completed, AAR takes issue with two points related to Item 28, found in Part III. The first point is discussed here; the second point can be found under the ``Appeals Denied'' section of this document. Item 28 requires the identification of the manufacturer and model number for any valve or device that failed on a tank car. AAR stated that this poses a problem if the specification plates containing this information are missing or obscured. The builder of the tank car may not be able to provide this information on the HMIR if subsequent owners or lessees have changed valves. Railroads would be compelled to rely on the efforts of car owners for this information in order to complete the required entry on the incident report form. This reliance on an outside party could jeopardize the thirty-day filing requirement. AAR believes RSPA should require this information to be clearly marked on valves and other devices at all times, if RSPA determines it is necessary. We agree with AAR's comment regarding reference to the guidance immediately following Item 23 of the HMIR. As drafted, the instructions omit Part III and instruct the filer to proceed [[Page 30115]] directly to Part IV for a hazardous materials incident, or a specification cargo tank 1,000 gallons or greater containing any hazardous material that received structural damage to the lading retention system that requires repair and did not have a release. This was not our intent. One of our objectives is to acquire accurate and complete data on incidents. In this final rule, we are removing the supplemental guidance immediately following Item 23 from the HMIR. We also agree with AAR's concern regarding reporting the manufacturer and model number for any valve or device that failed on a tank car. In this final rule, we are retaining the requirement to specify the ``type'' of valve or device that failed during an incident. However, we are amending the requirement to provide the manufacturer and model number for any valve or device that failed on a tank to include the words ``if present and legible.'' B. Appeals Denied Effective Date of the Final Rule--The December 3, 2003 final rule established the effective date of this rule as July 1, 2004. ATA-Air and ATA-Trucking request RSPA to reconsider the July 1, 2004 effective date. ATA-Air requests that RSPA allow carriers to begin complying with the new rules (other than those applicable to discoveries of undeclared hazardous materials) earlier than July 1, 2004. ATA-Air notes that many companies have pre-established training schedules and could begin their employees on the new requirements immediately. In addition, rather than expecting employees to retain the new incident reporting information for several months, the Association contends it would be beneficial to apply the training immediately. The appellant sees no potential concern if the carriers begin following the revised requirements earlier than currently required. ATA-Trucking recommends that RSPA delay the effective date for 12 months following the publication of guidance implementing the electronic filing procedures and provide a three-month transitional period for the new system. The appellant states industry bears significant costs, including the revision of internal computer software and employee training, whenever an information requirement is revised. The appellant asserts the July 1, 2004 effective date would not provide industry adequate time to train its employees. In addition, this appellant notes the HM-229 NPRM called for the implementation of a variety of electronic filing methods, including facsimile, electronic mail, and internet-based filing options. The appellant states the final rule does not provide for electronic filing. Instead, RSPA indicated that it is ``in the process of developing the capability to allow electronic submission of the form and bulk transfer, and will issue an advisory notification upon completion.'' ATA-Trucking explains that, ``* * * depending upon the date electronic filing options go live, motor carriers will have to train their employees on the new form and then subsequently train them to implement the electronic filing options.'' The appellant contends this ``* * * will force industry to incur unnecessary training expenses.'' ATA-Trucking also believes ``there should be a period of time (i.e., three months) following the effective date, where the use of the existing HMIR form would result in a formal warning, rather than a notice of violation and civil penalty.'' The appellant believes a provision by RSPA ``* * * would help companies with multiple facilities train each potentially affected person,'' thus avoiding situations of non-compliance. The appellant notes that because most companies have already approved technical and informational projects for 2004 and finalized their 2004 capital budgets, it will be difficult to implement an informational change before the 2005 budget year. RSPA does not agree that we have not addressed electronic filing methods. We fully anticipate an operational electronic system by the effective date of the final rule, which, as previously stated, is the earliest date the revised form will be accepted. RSPA also recognizes that filers of the revised incident report may benefit from a tutorial phase for training purposes and orientation, and anticipates an interactive incident report form on our Web site prior to the effective date. This development will provide accessibility by filers and downloading capabilities of the revised form. In addition, RSPA is making available a dedicated facsimile phone line to facilitate this alternate reporting option. We are reconfiguring our computer software programs to accept electronic submissions via the Web site, and providing an electronic version of the form that can be completed, printed, and mailed or faxed to RSPA. Finally, a bulk transfer system is being developed to allow for batch transmittals of multiple incident reports. We reiterate that an advisory notification will be issued upon completion and availability of these alternate methods of incident report filing. We do not agree that an immediate effective date, nor a delay of the effective date for 12 months following the publication of guidance implementing the electronic filing procedures with a three-month transitional period for the new system, is necessary, therefore these appeals are denied. However, we are extending the effective date until January 1, 2005 to provide companies with additional time for training and familiarization with the new HMIR. We reiterate that only the revised DOT Form F 5800.1 (01-2004) specified in this final rule will be accepted for incidents occurring on or after January 1, 2005. Filers must use the previous DOT Form F 5800.1 (Rev 6/89) form for all incidents up to and including December 31, 2004. Expansion of Reporting Requirements to Persons other than Shippers--The December 3 final rule revised the HMR to expand the requirement to report incidents to the person in physical possession of a hazardous material at the time an incident occurs during transportation. ATA-Trucking states that RSPA is ``* * * handcuffed by the jurisdictional decisions made in connection with the HM-223 rulemaking'' and ``* * * has excluded unloading activities performed by non-carrier personnel from the scope of the hazardous materials incident reporting requirements.'' The appellant asserts that ``* * * RSPA's decision to exclude activities performed by the consignee will reduce the quantity of hazardous materials incident reports by RSPA.'' In addition, it states that ``* * * the quality of the information RSPA receives will be impacted, as the data will be over-weighted with packaging failures that occur during accidents, while the number of reports received from packaging failures that occur under normal conditions of transportation and are only discovered during the unloading process will be artificially under-weighted.'' RSPA's ``* * * decision to exempt consignees from the requirement to complete incident reports undermines the fundamental purpose of the Hazardous Materials Incident Reporting system, which is to collect meaningful data on the performance of DOT packaging standards under conditions normally incidental to transportation.'' ATA-Trucking recommends RSPA reconsider this aspect of the final rule and expand the hazardous materials incident reporting obligation to individuals responsible for the unloading of hazardous materials. We disagree. The reporting requirements found in Sec. Sec. 171.15 and 171.16 pertain to incidents that occur [[Page 30116]] during transportation, including storage incidental to transportation. The issues posed by the appellant concern whether incidents involving pre-transportation functions are reportable under Sec. Sec. 171.15 and 171.16. While pre-transportation functions, such as shipper loading operations when a carrier is not present, are regulated under the HMR, they have not been and are not subject to the incident reporting requirements under this rulemaking because incidents related to pre- transportation functions occur prior to the beginning of transportation in commerce. Therefore, the status of reporting these pre- transportation functions has not been changed by either the HM-229 or HM-223 (68 FR 61905) final rules. Regarding our decision to exempt consignees from incident reporting, we point out that consignees have never been subject to incident reporting (except for consignees unloading rail cars in accordance with Sec. 174.67). The clarifications in HM-223 are consistent with our long-standing interpretations of our statutory authority. In addition, we note that carrier reports, including reports by carriers involved in unloading hazardous materials at consignee facilities, are and have been sufficient to enable us to receive accurate information about packaging failures that occur during normal transportation operations. For these reasons, the ATA-Trucking's appeal concerning the expansion of reporting requirements to the person in physical possession of a hazardous material at the time an incident occurs in transportation is denied. Reporting Non-Release Incidents Involving Cargo Tanks--The December 3 final rule requires an HMIR be submitted when a specification cargo tank with a capacity of 1,000 gallons or greater containing any hazardous material suffers structural damage to the lading retention system or damage that requires repair to a system intended to protect the lading retention system, even if there is no release of hazardous material. NTTC, ATA-Trucking, NPGA, and PTSA appealed this provision on the basis that it: (1) Is vague; (2) removes the certainty of whether to file an incident report; (3) could not be enforced in an equitable manner; and (4) places carriers in a compliance trap. The appellants recommend the provision either be deleted or modified to include a statement referencing damage requiring test and inspection of cargo tanks as set forth in Sec. 180.407(b). NTTC contends a product could be loaded into a cargo tank that was not designed for or otherwise suitable for the product, resulting in a compromise of the lading retention system. In a second example, NTTC describes a carrier driver relinquishing control of the cargo tank to a shipper before the unit is staged for loading. Damage that may result from these activities might not be discovered for a considerable amount of time. NTTC does not believe RSPA addressed these concerns in the final rule and reiterates them in its appeal to this rulemaking. NTTC believes RSPA has unfairly and unwisely placed tank truck carriers in a ``compliance trap'' and wonders if tank truck operators will have to perform `` * * * detailed internal and external inspections of all lading retention systems after each `near-miss'?'' NTTC states RSPA justified this requirement by relying on a decade-old report by the NTSB (PB92-917220) and questions the relevancy of that report and recommendations. NTTC states the NTSB report contains only data of so- called ``rollover'' accidents involving cargo tank motor vehicles; all of the incidents in the report involved releases of hazardous materials in the environment and pertained to measurable specification shortages on vehicles that have previously been addressed by RSPA and the Federal Motor Carrier Safety Administration (FMCSA). NTTC states that if RSPA truly believes ``accurate (`near miss' or `close call') data will prevent safety gaps,'' as well as determine `` * * * how to allocate limited funds of the regulated community to provide the greatest safety benefits, RSPA would be remiss in not extending such reporting to all specification packagings.'' As an alternative, NTTC suggests the following modification: ``A specification cargo tank with a capacity of 1,000 gallons or greater containing any hazardous material is damaged to the extent that it becomes subject to 49 CFR Sec. 180.407(b).'' ATA-Trucking states that in addition to `` * * * artificially limiting the number of reports received from incidents discovered during unloading, RSPA has expanded the number of reports it will collect by expanding the incident reporting requirement to bulk cargo tanks that suffer certain damage that does not result in a release of hazardous materials.'' ATA-Trucking believes this ``standard for reporting damage in the absence of a release is vague and will potentially lead to instances of non-compliance.'' ATA-Trucking supports the proposal crafted by NTTC. ATA-Trucking believes NTTC's proposal `` * * * would create objective reporting criteria and reduce instances of non-compliance resulting from the uncertainty of whether to file an incident report'' * * * ATA-Trucking recommends RSPA eliminate the tank truck operator's obligation to file a hazardous materials report when no hazardous material has been released or in the alternative, amend Sec. 171.16(a)(3) to reference Sec. 180.407(b) as suggested by NTTC. NPGA also `` * * * opposes the last portion of this provision and believes the collection of this incident information will not provide the type of data sought by RSPA that would result in increased safety.'' NPGA believes this provision is `` * * * vague, fails to provide the regulated parties the requisite certainty to enable compliance, and will lead to inconsistent enforcement in the field.'' NPGA reminds RSPA of its comments during the rulemaking stage noting the genesis of HM-229 was the HM-225A negotiated rulemaking between the cargo tank industry and DOT. NPGA argues that more data is not better data. NPGA notes RSPA's HM-229 preamble discussion `` * * * that such reporting can provide information concerning packaging integrity.'' This final rule expands the incident database `` * * * to include ``near miss'' or ``close call'' incidents, which `` * * * have the potential for significant consequences.'' NPGA believes the vagueness of this regulation creates uncertainty as to when a report should be filed. `` * * * Multiple instances of less serious damage could lead to a form of damage considered more serious, thus necessitating a report filing.'' NPGA recommends RSPA delete the phrase `` * * * even if there is no release of hazardous material'' from Sec. 171.16(a)(3), and modify the provision to reference Sec. 180.407(b) as suggested by NTTC. NPGA contends this section `` * * * is much more familiar to the industry and provides a form of criteria for filing reports that the currently adopted provision lacks.'' PTSA states this provision is vague, will lead to uneven compliance and inconsistent enforcement, and places a greater and unwarranted compliance burden on small business petroleum marketers. According to PTSA, `` * * * petroleum marketers are likely to incur undeserved civil penalties and unjustified safety rating scores * * *'' PTSA states that the ability for small business petroleum marketers to obtain certainty of compliance is vital to ensure the safe transportation of hazardous materials and maintain a competitive edge against larger hazardous materials carriers with more compliance resources. PTSA believes the information collected from non- [[Page 30117]] release incidents is subjective and disagrees with RSPA's belief that information collected can provide valuable data on packaging integrity. PTSA argues the terms ``near miss'' or ``close call'' in the preamble are too ambiguous to provide any degree of certainty. PTSA believes that `` * * * only engineering studies, under controlled conditions and involving expert analysis can provide the objective information regarding packaging integrity that RSPA seeks to collect.'' PTSA recommends RSPA eliminate the requirement for reporting under Sec. 171.16(a)(3) involving incidents where no release occurs. If RSPA chooses not to follow this recommendation, PTSA contends that a less desirable, but more acceptable alternative would be to amend Sec. 171.16(a)(3) to reference Sec. 180.407(b) as suggested by NTTC. RSPA disagrees with the appellants. We believe the revisions in this final rule encompass and exceed the conditions in Sec. 180.407(b) by requiring a more detailed accounting of incidents involving hazardous materials, providing specific failure codes, expanding the reporting requirements to persons other than carriers, and defining an ``undeclared hazardous material'' and ``unintentional release.'' We rationalize that ``structural damage'' is any damage that causes a person to ask the question implied in Sec. 180.407(b)(2)--was the cargo tank damaged to an extent that its lading retention capability may be affected? If the damage is sufficient to trigger the repair of the cargo tank, an HMIR should be filed. Consequently, if the question is answered affirmatively, testing and inspection are also required. While RSPA recognizes that some judgment may still be involved, we do not foresee this causing a significant number of new reports being generated. In addition, such reporting will provide us with a better idea of the number of cargo tanks involved in accidents with at least some damage to the lading retention or lading protection system. As noted in the December 3 final rule, information gathered on damage to certified cargo tanks of 1,000 gallons or more that do not result in a release will be analyzed over the next several years to determine its usefulness in practice and if further rulemaking is necessary. As also noted in the December 3 final rule, RSPA may address requiring additional information for other bulk packagings in a future rulemaking. For these reasons, the appeals of NTTC, ATA-Trucking, NPGA, and PTSA regarding the reporting of non-release incidents involving cargo tanks are denied. Reporting Undeclared Shipments of Hazardous Materials--The December 3 final rule revised Sec. 171.16 to require a person who discovers an undeclared hazardous material to submit an HMIR. ATA-Air requests reconsideration of the new requirement ``* * * in light of the current airport security environment, which did not exist during the comment period * * *'' of the final rule. This appellant notes the Transportation Security Administration (TSA) inspects checked baggage, resulting in a dramatic increase in the volume of such discoveries, and `` * * * the consumer-goods nature of most items found merits consideration.'' ATA-Air states that the revised four-page HMIR is an unnecessary burden and duplicates carriers' existing discrepancy reporting obligations for the same items under 49 CFR Sec. 175.31.'' ATA-Air also stated that RSPA is required by the Paperwork Reduction Act (PRA) `` * * * to avoid such complication and duplication, particularly in view of carriers' dire financial circumstances and sharply reduced staffing * * *'' in the wake of September 11, 2001. The appellant disputes that the average number of incident reports from 1997-2000 is representative of current experience. The appellant stated that RSPA's analysis cited under the PRA section in the final rule preamble `` * * * should be updated to take into account the greatly increased volume of discoveries stemming from TSA screening.'' ATA-Air suggests RSPA defer implementation of this aspect of the rule until these issues are resolved. ATA-Air recommends RSPA `` * * * convene an advisory committee to bring together all stakeholders, including RSPA, Federal Aviation Administration (FAA), ATA-Air, and the carriers, to develop a workable solution to these issues.'' ATA-Air urges RSPA to `` * * * re-open the comment period for this aspect of the final rule, and revise the rule in accordance with those supplemental comments.'' RSPA agrees with the appellant that the potential for the discoveries of undeclared shipments has greatly increased due to heightened awareness of airport security following the tragic September 11, 2001 attacks. However, in Sec. 171.16(d)(3) of the December 3 final rule, we provided an exception from reporting hazardous material discovered in an air passenger's checked or carry-on baggage during the airport screening process. In addition, we acknowledge the potential for burdensome and duplicative discrepancy reporting obligations and refer the filer to Sec. 175.31 of the HMR for discrepancy reporting by carriers. For these reasons, ATA-Air's appeal concerning the reporting of undeclared shipments of hazardous materials is denied. Requirements To Update the Incident Report--The December 3 final rule amended the HMR to require that an HMIR must be updated within one year of the date of occurrence of the incident whenever one or more of the following occur: (1) A death results from injury caused by a hazardous material; (2) there was a misidentification of the hazardous material or package information on a prior incident report; (3) damage, loss or related cost that was not known when the initial incident report was filed becomes known; or (4) damage, loss, or related cost changes by $25,000 or more, or 10% of the prior total estimate, whichever is greater. ATA-Trucking requests that with the exception of an incident that results in a death subsequent to the filing of the report, RSPA reconsider the obligation to update the incident report. The appellant states that although the preamble `` * * * references comments filed by industry indicating a substantial burden associated with this aspect of the final rule, RSPA has done little more than quote from these comments.'' ATA-Trucking also stated ``RSPA performed no analysis of the burden associated with this requirement or the benefit of the update requirement (i.e., the number of updates that would result in a material impact upon RSPA's analyses). Instead, RSPA justified the update requirement with * * *'' two sentences. ATA- Trucking asserts that ``RSPA has a legal obligation to analyze the issue and discuss its conclusion in the final rule,'' and that RSPA `` * * * failed to respond meaningfully to these comments.'' ATA-Trucking recommends RSPA reconsider this requirement of the final rule by narrowing the scope of updating requirements to instances where a death occurs subsequent to the filing of an HMIR. We disagree. RSPA believes the criteria outlined in the December 3 final rule to update an incident report are essential in monitoring the results of hazardous materials incidents. By establishing a requirement to report subsequent developments of hazardous materials incidents, RSPA is better equipped to increase the accuracy of the incident reporting database, highlight packaging shortcomings, and identify deficiencies in the handling and transportation of hazardous materials. In addition, we believe the factors necessary to warrant an additional update are severe enough to demand their addition to the incident report [[Page 30118]] database. For example, a carrier involved in an incident involving black powder reported damages of $120,000, however, subsequent evaluation by the Federal Highway Administration (FHWA) estimated costs of $25 million in terms of impacts due to traffic delays. We believe that better determinations of overall costs by carriers when filing the initial HMIR will minimize the need for subsequent updated reports. We disagree that an analysis of the burden associated with this requirement or the benefit of the update requirement was not performed. As previously stated in the December 3 final rule, we estimate approximately 800 incidents reported each year would require an update at a cost on average of $6.00 per company, or $4,800.00. An analysis of the associated costs to update the approximately 800 incident reports can be found in the regulatory evaluation as referenced under ``Executive Order 12866 and DOT Regulatory Policies and Procedure'' of the ``Regulatory Analyses and Notices'' section of the December 3 final rule, as well as the ``Potential Cost Impacts'' heading found under the ``Regulatory Flexibility Act'' of the December 3 final rule. For these reasons, ATA-Trucking's appeal is denied. Revised Hazardous Materials Incident Form DOT F 5800.1--The December 3 final rule revised the HMIR and instructions. AAR requests that RSPA reconsider certain required information on the HMIR that AAR considers unnecessary and difficult to obtain. The appellant asserts the shipper/offeror's hazardous materials registration number required by Item 11 of the form is not readily available to carriers. The appellant believes that ``* * * railroads will have difficulty acquiring the shipper's registration number within the thirty (30) day filing limit specified in Sec. 171.16(a),'' therefore, registration numbers should be required on shipping papers if their inclusion is viewed as necessary by RSPA. In addition, the appellant is concerned that report numbers for reports filed by fire, police, and emergency responders required by Item 31 of the form are not readily available, and it does not perceive a need by RSPA for this information. The appellant contends this lack of easily accessible information presents another opportunity to exceed the thirty (30) day filing limit. We disagree that the inclusion of the registration number of a shipper/offeror as required in Item 11, and an emergency responder's report number as required in Item 31 are unnecessary. This information is vital to constructing a thorough and comprehensive database of incident reports and subsequent responses by emergency personnel. This cross-reference information provides RSPA with an enhanced capability to identify the effectiveness of existing regulations and industry operational procedures, focus on potential problems areas such as training and the handling and transportation of hazardous materials, improve analysis of hazardous materials incidents, and extend outreach to shippers of incidents involving materials they have offered for transportation. In addition, RSPA believes registration numbers can be acquired from the shipper/offeror during the standard notification between shippers and carriers that would normally follow in the aftermath of a hazardous materials incident. Likewise, a fire, police, or emergency responder report number can be obtained by the person in physical possession of the shipment from the responder at the time of an incident. For these reasons, AAR's petitions regarding Items 11 and 31 are denied. AAR notes that, as drafted, the instructions following Item 23 instruct the filer to skip Part III ``Packing Information'' and proceed to Part IV. The appellant does not believe this was RSPA's intention. We agree, and address this issue under the ``Appeals Granted'' section of this document. AAR further states that if Part III is to be completed, it takes issue with two aspects of Item 28, found in Part III of the form. The first point regarding reporting the manufacturer and model number for any valve that failed on a tank car can be found under the ``Appeals Granted'' section of this document. The second point is discussed here. Item 28 requires a filer to indicate material of construction, design pressure, shell thickness, and head thickness as part of the packing construction and test information. AAR contends the tank car specification is previously required to be supplied for Item 26a; thus negating the need to provide the construction information requirement of Item 28. We do not agree with AAR's appeal regarding the request for material of construction, design pressure, shell thickness, and head thickness required by Item 28 of the incident report. While Item 26a requires the identification markings of packagings, only the specification requirements can be obtained, not the actual pressure or thickness of an individual tank car. RSPA has determined that this information is necessary to gauge the effectiveness of packagings in the event of an incident, and can utilize this feedback to determine if future rulemakings pertaining to packaging specifications and minimal requirements are warranted. Therefore, AAR's petition to omit the requirement to report material of construction, design pressure, shell thickness, and head thickness in Item 28 is denied. C. Clarification A concerned industry member suggested that the definition of an ``undeclared hazardous material'' as revised in the December 3 final rule could be interpreted to exclude a shipment described as ``freight all kinds.'' This is not our intention. A key objective of this final rule is to focus on defining and identifying undeclared hazardous material shipments. Undeclared shipments are a high priority and concern within the Department, especially in light of the increased safety environment that has become prevalent following the September 11, 2001 attacks. Our intent in this rule is to discover undeclared hazardous material shipments that have been buried or hidden in order to prevent damage to property, loss of life, or lack of communication to emergency responders. In that regard, we are amending the definition of ``undeclared shipments'' in Sec. 171.8 to assist in further clarifying the regulations as follows: Undeclared hazardous material means a hazardous material that is: (1) Subject to any of the hazard communication requirements in subparts C (Shipping Papers), D (Marking), E (Labeling), and F (Placarding) of Part 172 of this subchapter, or an alternative marking requirement in Part 173 of this subchapter (such as Sec. Sec. 173.4(a)(10) and 173.6(c)); and (2) offered for transportation in commerce without any visible indication to the person accepting the hazardous material for transportation that a hazardous material is present, on either an accompanying shipping document, or the outside of a transport vehicle, freight container, or package. III. Regulatory Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not a significant action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is not a significant action under the Regulatory Policies and Procedures of the Department of Transportation. The revisions adopted in this final rule do not alter the cost-benefit analysis and conclusions contained in the Regulatory Evaluation prepared for the December 3, 2003 final rule. The Regulatory Evaluation is [[Page 30119]] available for review in the public docket for this rulemaking. B. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (``Federalism''). This final rule preempts state, local, and Indian tribe requirements, but does not propose any regulation that has 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 hazardous materials transportation law, 49 U.S.C. 5101- 5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts state, local, and Indian tribe requirements on certain covered subjects. Covered subjects are: (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 material; 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 number (4) above and preempts state, local, and Indian tribe requirements not meeting the ``substantively the same'' standard. This final rule is necessary to increase the usefulness of data collected for risk analysis and management by government and industry and, where possible, provide relief from regulatory requirements. Federal hazardous materials transportation law provides at Sec. 5125(b)(2) that, if we issue a reg
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