{"operation":"document","citation":"11-0228","title":"Council on the Safe Transportation of Hazardous Articles, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-06-27","effective_on":null,"summary":"11-0228 response to Council on the Safe Transportation of Hazardous Articles, Inc. concerning 175.25.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0228.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0228.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0228","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110228.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nJUN 2 7 2012\nMr. Tom Ferguson, PG, CHMM, DGSA\nTechnical Consultant\nCouncil on the Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court\nFairfax Station, VA 22039\nRef. No. 11-0228\nDear Mr. Ferguson:\nThis responds to your request for clarification of certain responsibilities under Part 175 of the\nHazardous Materials Regulations (HMR; Parts 171-180). In your letter, you ask a series of\nquestions related to operational, implementation, and logistical matters of the recently adopted\nprovisions in § 175.25 of the HMR. I apologize for the delay in responding to your request and\nany inconvenience it may have caused. Your questions are paraphrased and answered as\nfollows:\nQl. Al. 02. A2. Section 175.25(b)-Ticket Purchase: Is the intent of amendments to this section\nadopted in the January 19, 2011 final rule (76 FR 3308; PHMSA-2009-0126 (HM-\n215K)) to require a carrier to provide the permitted and forbidden text or pictorials by\nJan 1, 2012 and the passenger acknowledgement provisions by Jan 1, 2013?\nWhile §175.25(b) took effect January 1, 2012, the passenger acknowledgement portion\nof the rule is scheduled to take effect January 1, 2013.\nIs Ticket Purchase defined anywhere in the regulations within or beyond the HMR?\nNot all passengers are issued tickets. For example, does this section apply to non-\nrevenue or employee travel?\nAs defined in 14 CFR 241.03 and for the purpose of this response, a non-revenue\npassenger means a person traveling free or under token charges, except those expressly\nnamed in the definition of revenue passenger; a person traveling at a fare or discount\navailable only to employees or authorized persons of air carriers or their agents or only\nfor travel on the business of the carriers; and an infant who does not occupy a seat.\nSection 175.25(b) notification requirements apply to ticketed passengers only.\nHowever, non-revenue passengers, airline employees traveling as passengers onboard,\nand other non-ticketed passengers remain subject to requirements of the HMR, and\nactions by non-ticketed passengers can affect the safety of an air carrier's operation.\nWhile § 175.25 does not define specific notification requirements for non-ticketed\npassengers, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and\n\n<<<PAGE 2>>>\n\nQ3. A3. Q4. A4. Q5. AS. Q6. A6. the Federal Aviation Administration (FAA) solicit input on best practices for\nnotification of all passengers (ticketed and non-ticketed) for inclusion in a future FAA\nadvisory circular.\nDo the requirements of§ 175.25 apply to third party travel sites operated by travel\nagents and online travel retailers (Orbitz, Expedia, Travelocity, etc.)? If so, is it the\nresponsibility of the carrier or the travel agent/retailer to provide the required passenger\nnotification? The International Civil Aviation Organization Technical Instructions for\nthe Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), at Part\n8:1.1.3, states \"Any organization or enterprise other than an operator (such as a travel\nagent) ... should provide passengers with information about the types of dangerous\ngoods ... \" Thus, it appears the ICAO Technical Instructions places the responsibility to\nnotify passengers in these situations on the third party provider, and not the carrier.\nThe requirements of§ 175.25 apply to the aircraft operator. The aircraft operator is\nresponsible for ensuring that passengers receive the notifications required by § 175.25,\nregardless of whether the ticket is purchased directly from the aircraft operator or via a\nthird party source. The aircraft operator can meet its obligations by relying on the\nnotifications provided to the passenger by a third party, but the aircraft operator is\nultimately responsible for compliance with the rule. PHMSA and FAA solicit input on\nbest practice arrangements between aircraft operators and third party travel\norganizations for inclusion in a future FAA advisory circular on passenger notification.\nIn a situation where a customer purchases a ticket over the phone (e.g., by calling a\nreservation center), what constitutes compliance with the rule? Do PHMSA and FAA\nexpect a verbal reading of§ 175.25(a)(l) and (2), or would a simplified statement that\nguides them to additional information (i.e., carrier website) suffice?\nA simplified statement may be acceptable, and may actually be the preferred means of\ncompliance. PHMSA and FAA solicit input on best practices for passenger notification\nvia telephone for inclusion in a future FAA advisory circular.\nIs dual acknowledgement (at the time of ticket purchase- paragraph (b), and time of\ncheck-in- paragraph (c)) intentional? If a passenger acknowledges at the time of ticket\npurchase, could a record of that acknowledgement also be used to meet the\nacknowledgement in section§ 175.25(c)?\nThe dual acknowledgement during ticket purchase and check-in is intentional and\nrequired for compliance.\nIn a Rule 240 scenario where a passenger is re-accommodated on another carrier due to\ncanceled flights or other reasons, would a third check-in acknowledgement be required?\nAlthough an aircraft operator may meet its obligations by relying on notifications\nprovided to the passenger by a third party, the aircraft operator is ultimately responsible\nfor compliance with the rule. PHMSA and FAA solicit input on best practice\n2\n\n<<<PAGE 3>>>\n\nQ7. A7. Q8. A8. Q9. A9. QlO. arrangements during re-accommodation situations for inclusion in a future FAA\nadvisory circular on passenger notification.\nIn a bulk purchase or charter situation, would a single individual responding on behalf\nof their party be acceptable for compliance with§ 175.25(b) and (c)? Would such an\nacknowledgement be acceptable for military charters as well?\nBoth§ 175.25(b) and (c) allow for acknowledgement by a person acting on the\npassenger's behalf. While this allows for acknowledgement by a single individual,\nPHMSA and FAA solicit input on best practices for notification of passengers in bulk\npurchase, charter flight, or similar situations for inclusion in a future FAA advisory\ncircular.\nIs the actual language in§ 175.25(a)(1) and (2) required in all cases? If so, how does a\ncarrier provide notice of additional materials forbidden beyond those covered in the\ngeneral language? The ICAO Technical Instructions do not require specific language\nbut instead require the carrier to develop their own language and format.\nThe information provided in§ 175.25(a)(l) and (2) is required, but the specific wording\nused in the HMR is not required. Further, no part of§ 175.25 is intended to prevent\naircraft operators or other individuals from providing additional information to\npassengers regarding the safe transport of hazardous materials. PHMSA and FAA\nsolicit input on best practices for conveying hazardous materials safety information,\nincluding the information provided in§ 175.25(a)(l) and (2), for inclusion in a future\nFAA advisory circular on passenger notification.\nThis rule applies to 14 CPR 129 foreign carriers that operate from the U.S. Currently,\nthere are 14 types of hazmat listed in the ICAO Technical Instructions, at 8;1.1, as\n\"permitted with the approval of the operator.\" Thus, there may be considerable\ndifferences between each U.S. and foreign airline as to what .is \"permitted or forbidden\"\nby each operator. Note that the ICAO Technical Instructions, at 8;1.1.3 and 8;1.1.4, do\nnot require the types \"permitted\" either- only the types of hazmat \"forbidden\" needs to\nbe communicated. If a passenger checks-in with a foreign carrier and then transfers to a\ndomestic carrier, does the original check in notification satisfy the passenger\nnotification for the domestic leg as well?\nThe aircraft operator may meet their obligations by relying on notifications provided to\nthe passenger by a third party, but the aircraft operator is ultimately responsible for\ncompliance with the rule. PHMSA and FAA solicit input on best practice arrangements\nbetween foreign and domestic air carriers for inclusion in a future FAA advisory\ncircular on passenger notification.\nIn the case of remote check-in and boarding, where the passenger checks in at a remote\nlocation and checks baggage as well, such as a resort, cruise line, or military charter\nsituations, does the carrier have the responsibility to notify the passenger, or is the\nresort, cruise line, or military branch responsible for notification? Under these\n3\n\n<<<PAGE 4>>>\n\nAlO. Qll. All. scenarios, a non-carrier operation performs the check-in function. Therefore, the carrier\nhas limited or no contact with the passenger during the check-in process. An example\nwould include a military charter originating from a U.S. military installation.\nThe requirements of§ 175.25 apply to the aircraft operator. The aircraft operator is\nresponsible for ensuring that passengers receive the notifications required by § 175.25,\nregardless of whether the passenger checks-in directly with the aircraft operator or via a\nthird party source. Although the aircraft operator may meet its obligations by relying\non notifications provided to the passenger by a third party, but the aircraft operator is\nultimately responsible for compliance with the rule. PHMSA and FAA solicit input on\nbest practice arrangements between aircraft operators and third party organizations for\ninclusion in a future FAA advisory circular on passenger notification.\nLithium batteries have received a significant amount of attention by regulatory and\nenforcement entities over the last 5 years. Much of this attention is due to incidents\ninvolving such batteries, including incidents occurring in passenger baggage. Yet, the\ncurrent language in§ 175.25 does not mention lithium batteries. Is it acceptable for a\ncarrier to develop independent language that conveys the intent of the language in\n§ 175.25(a)(l) and (2) but varies in content to address recent incide1_1ts or trends? May\nthis language be used as an alternative to the language contained in§ 175.25(a)? We\nstrongly believe the restrictive language indicated in § 175.25 is ineffective in\ncommunicating hazardous material dangers and restrictions in passenger baggage to the\ntraveling public.\nThe information provided in§ 175.25(a)(l) and (2) is required, but the specific wording\nused in the HMR is not. Further, no part of§ 175.25 is intended to prevent aircraft\noperators or other individuals from providing additional information to passengers\nregarding the safe transport of hazardous materials. The FAA fully supports inclusion\nof information regarding lithium battery hazards in passenger notifications. PHMSA\nand FAA solicit input on best practices for conveying hazardous materials safety\ninformation, including the information provided in§ 175.25(a)(l) and (2), for inclusion\nin a future FAA advisory circular on passenger notification.\nThis response was coordinated with FAA. Additionally, PHMSA and FAA will co-sponsor a\npublic meeting on this issue in the very near future. We will announce the location, date and\ntime of the meeting in the Federal Register once details are finalized.\nI trust this satisfies your concerns. Please contact us if we can be of further assistance.\n·rector, Standards and Rulemaking Division\n4\n\n<<<PAGE 5>>>\n\ns+evens\n§ 11!>·.26\nAi~ I :J.CAO\nIJ--01.1...8\nCOUNCIL ON SAFE TRANSPORTATION\nOF HAZARDOUS ARTICLES, INC.\nSeptember 14, 2011\nPresident\nRobert Heinrich\nNovartis Pharmaceuticals\nRobert.Heinrich@novartis.com\nFirst Vice President\nDonald Bossow\nDiversey, Inc.\ndonald.bossov.@diversey com\nSecond Vice Presidentffreasurer\nJohn D' Aloia\nMary Kay, Inc.\njohn.d'aloia@mkcorp.com\nSecretary\nJeanne Zmich\nLabel master\nJEANNEZ@alc·net.com\nExecutive Committee Member\nRichaJ'd Lattimer\nEli Lilly and Company\nRLattimer@lilly.com\nBoard of Directors\nLes Adolph\nAmerican Airlines\nLes.Adolph@aa.com\nSean Broderick\nProcter & Gamble Distributing LLC\nBroderick.sp@pg.com\nDavid Evans\nPurolator Courier Ltd.\ndevans2@purolator.com\nAmy Fischesser\nSun Chemical Corporation\namy.fischesser@na.sunchem.com\nJames Jahnke\nMerck and Co\njames.jahnke@merck.com\nDave Madsen\nAutoliv, Inc.\nDave.Madsen@autoliv.com\nRich Moskowitz\nAmerican Trucking Associations, Inc.\nrmoskowitz@trucking.org\nChristopher Palabrica, CPM, CHMM\nMays Chemical Co.\nchrisp@mayschem.com\nDanWieten\nToyota Motor Sales, USA, Inc.\ndan_ wieten@toyota. com\nGeneral Counsel\nRichard Schwe1tzer, PLLC\nMs. Janet Mclaughlin\nOffice of Security and Hazardous Materials Safety\nFederal Aviation Administration\n800 Independence Ave, SW\nSuite 300, Room 315\nWashington, DC 20591\nMr. Michael Stevens\nStandards and Rulemaking Division\nPipeline and Hazardous Materials Safety Division\nEast Building\n1200 New Jersey Avenue, S.E.\nWashington, DC 20590\nDear Ms. Mclaughlin and Mr. Stevens,\nThe Council on Safe Transportation of Hazardous Articles (COSTHA)\nrequests clarification regarding implementation of the new passenger\nsignage requirements adopted in Docket PHMSA-2009-0126 (HM-\n215K). Specifically, we have a number of practical implementation\nquestions our members have identified related to the new language of\n§175.25.\nCOSTHA is a not-for-profit organization representing manufacturers,\nshippers, distributors, carriers, freight forwarders, trainers, packaging\nmanufacturers and others associated with the hazardous materials\ntransportation industry. In addition to promoting regulatory compliance\nand safety in hazardous materials transportation, COSTHA assists its\nmembers and the public in evaluating the practicality and efficacy of\nlaws, rules and regulations for the safe transportatidn and distribution\nof hazardous materials. Included within our membership is the Air\nCarrier Roundtable, a group of seventeen (17) passenger and cargo\nair carriers.\nIn HM-215K, PHMSA adopted significant changes to the requirements\nof passenger signage in §175.25. These modifications were made as\nharmonization to the 2011-2012 International Civil Aviation\nOrganization Technical Instructions on the Safe Transportation of\nDangerous Goods By Air (ICAO Tl}. The result is an increase in the\nnumber of times a passenger has the opportunity to receive notices\nabout hazardous materials in baggage, and the penalties associated\nwith failing to comply with the hazardous material requirements.\n§175.25 remains different from the ICAO Tl in several areas including\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court Fairfax Station, VA 22039 Phone: 703/451-4031 Fax: 703/45h4207\nmail@costha.com www.costha.com\n\n<<<PAGE 6>>>\n\nthe specified language contained in §175.25(a)(1) and (2). The ICAO Tl does not mandate the\nactual language, only the requirement to notify. Therefore carriers subject to the US Hazardous\nMaterial Regulations (HMR) encounter greater challenges implementing the new requirements\nthan carriers who follow the ICAO Tl only. Further, when US carriers operate in foreign\nlocations, airport authorities often control the ticketing and gate areas, limiting the ability for\ncarriers to place signage at all.\nCOSTHA supports the concept of putting this information in areas most likely utilized by\npassengers during the ticket purchase/check-in process. However, technology has changed\ndramatically in the last 10 years. The ticket purchase, ticket issuing, and check-in processes do\nnot resemble the practices of the past. Thus changes to the signage and passenger notification\nrequirements are not as easily implemented as simply \"changing the airport signage\". Carriers\nhave faced numerous obstacles in maintaining signage as airport authorities continually remove\nor modify permanent signage, leaving the carrier in a potentially non-compliant situation. Third\nparty or online ticket sales have increased, further reducing the carriers' ability to reach the\npassenger directly before they arrive at the airport. And remote or mobile check-in limits the\namount of time the passenger actually spends at a ticket counter or carrier help desk. The\nmodified language in §175.25 may provide opportunities to reach passengers more efficiently\ngiven these changes to procedures. But it also creates additional obstacles.\nThe COSTHA Air Carrier Roundtable has identified a number of questions which have been\nasked by carrier marketing, sales, technology, and compliance personnel. These questions are\nnot meant to be an indication of unwillingness to comply with the intent of §175.25. But given\nthe history of enforcement regarding airport signage, COSTHA would like these questions\nformally answered so that our members may fully understand their obligations and\nresponsibilities with regards to hazardous material signage and notification.\n1. § 175.25(b)- Ticket Purchase: Is the intent of this section of the rule to have Carriers\nprovide the permitted and forbidden text or pictorials by Jan 1, 2012 with the Passenger\nacknowledgement portion of the rule by Jan 1, 2013?\n2. Is Ticket Purchase defined anywhere in the regulations within or beyond the HMR? Not\nall passengers are issued tickets. For example, does this section apply to Non-Revenue\nor employee travel?\n3. Do the requirements of §175.25 apply to third party travel sites such as Travel Agents\nand online travel retailers (Orbitz, Expedia, Travelocity, etc.)? If so, is it the\nresponsibility of the carrier or the travel agent/retailer to provide the required notification?\nThe ICAO Tl Part 8:1.1.3 states \"Any organization or enterprise other than an operator\n(such as a travel agent) ... should provide passengers with information about the types of\ndangerous goods ... \". Thus it appears ICAO puts the responsibility to notify in these\ncases on the third party provider, not the carrier.\n4. In a situation where a Customer purchases a ticket over the phone (by calling a\nReservation Center), what would constitute compliance with the rule? Does\nPHMSA/FAA expect a reading of §175.25(a)(1) and (2), or would a simplified statement\nand guiding them to additional information (i.e. Carrier website) suffice?\n5. Is the dual acknowledgement (at the time of ticket purchase- paragraph (b), and time of\ncheck-in- paragraph (c)) intentional? If a Passenger makes the acknowledgement at\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com\n\n<<<PAGE 7>>>\n\nthe time of ticket purchase, could record of that acknowledgement be used to meet the\nacknowledgement in section §175.25(c)?\n6. In a Rule 240 scenario where a Passenger is re-accommodated on another Carrier due\nto canceled flights or other reasons, would a third check-in acknowledgement be\nrequired?\n7. In bulk purchase and/or charter situation, would a single individual responding on behalf\nof their party be acceptable for compliance with §175.25(b) and (c)? Would such an\nacknowledgement be acceptable for military charters as well?\n8. Is the actual language in §175.25(a)(1) and (2) required in all cases? If so, how does a\ncarrier provide notice of additional materials forbidden beyond those covered in the\ngeneral language? The ICAO Tl does not require specific language but instead requires\nthe carrier to develop their own language and format.\n9. This rule applies to Part 129 foreign carriers that operate from the US. Currently there\nare 14 types of hazmat listed in ICAO Tl 8; 1.1 as permitted \"with the approval of the\noperator.\" Thus there may be considerable differences between each US and foreign\nairline as to what is \"permitted or forbidden\" on each operator. Note that ICAO Tl 8; 1.1.3\nand 8; 1.1.4 do not require the types \"permitted\" either- only the types of hazmat\n\"forbidden\" need be communicated. If a passenger checks in with a foreign carrier and\nthen transfers to a domestic carrier, does the original check in notification cover the\npassenger for the domestic leg as well?\n10. In the case of remote check-in and boarding where the passenger checks in at a remote\nlocation and checks baggage as well, such as resort, cruise line, or military charter\nsituations, does the carrier have the responsibility to notify the passenger, or does the\nresort, cruise line, or military branch have the notification responsibility? In these cases,\na non-carrier operation performs the check-in function. Therefore, the carrier has limited\nor no contact with the passenger during the check-in process. An example would\ninclude a military charter originating from a US Military base.\n11. Lithium batteries have received significant attention by both regulatory and enforcement\nofficials over the last 5 years. Much of this attention is due to incidents involving such\nbatteries, including incidents in passenger baggage. Yet the current language does not\nmake mention of lithium batteries at all. Is it acceptable for a carrier to develop\nindependent language that conveys the intent of the language in §175.25(a)(1) and (2)\nbut varies in content to address recent incidents or trends? May this language be used\nas an alternate to the language contained in §175.25(a)? We strongly believe the\nrestrictive language indicated in § 175.25 is ineffective in communicating hazardous\nmaterial dangers and restrictions in passenger baggage to the traveling public.\nMany of the questions are very detailed and point to related regulations within the air carrier\nindustry. If you need clarification on any of these questions, please do not hesitate to ask.\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com\n\n<<<PAGE 8>>>\n\nThese questions address technology concerns, and technology modifications take time to\nimplement. Given the January 2012 implementation deadline for part of the new rule, carriers\nhave a limited amount of time to implement these new requirements. COSTHA appreciates your\ntimely review and response on these questions.\nBest Regards,\nTom Ferguson\nTechnical Consultant\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com","truncated":false,"body_characters":22285}