Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 53413 

203.1003 Requirements. 

(b) Notification of possible contractor 

violation. Upon notification of a 

possible contractor violation of the type 

described in FAR 3.1003(b), coordinate 

the matter with the following office: 

DoD Inspector General, Investigative 

Policy and Oversight, Contractor 

Disclosure Program, 400 Army Navy 

Drive, Suite 1037, Arlington, VA 22202– 

4704; Toll-Free Telephone: 866–429– 

8011. 

203.1004 [Amended] 

■ 3. Section 203.1004 is amended in 

paragraph (b)(2)(ii) by removing 

‘‘Washington, DC 22202–2884’’ and 

adding in its place ‘‘Arlington, VA 

22202–4704’’. 

[FR Doc. E9–25066 Filed 10–16–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

RIN 0750–AG33 

Defense Federal Acquisition 

Regulation Supplement; Restriction on 

Research and Development—Deletion 

of Obsolete Text (DFARS Case 2009– 

D005) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to remove obsolete text 

addressing a restriction on awards to 

foreign entities for DoD research and 

development. The restriction 

implemented a statutory provision that 

is no longer in effect. 

DATES: Effective Date: October 19, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0328; 

facsimile 703–602–7887. Please cite 

DFARS Case 2009–D005. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule removes DFARS 

225.7016, Restriction on Research and 

Development, since the underlying 

statutory provision (Section 744 of the 

DoD Appropriations Act for Fiscal Year 

1973 (Pub. L. 92–570)) is no longer in 

effect. Section 744 of Public Law 92–570 

prohibited the use of DoD 

appropriations to make an award to any 

foreign corporation, organization, 

person, or entity, for research and 

development in connection with any 

weapon system or other military 

equipment, if a U.S. corporation, 

organization, person, or entity was 

equally competent and willing to 

perform at a lower cost. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subparts in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2009–D005. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 225 and 

252 

Government procurement. 

Amy G. Williams, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Parts 225 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 225 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 225—FOREIGN ACQUISITION 

225.7016 [Removed] 

■ 2. Section 225.7016 is removed. 

225.7017, 225.7017–1, 225.7017–2, 

225.7017–3, and 225.7017–4 

[Redesignated] 

■ 3. Sections 225.7017, 225.7017–1, 

225.7017–2, 225.7017–3, and 225.7017– 

4 are redesignated as sections 225.7016, 

225.7016–1, 225.7016–2, 225.7016–3, 

and 225.7016–4 respectively. 

225.7016–3 [Amended] 

■ 4. Newly designated section 

225.7016–3 is amended in paragraph 

(b), in the second sentence, by removing 

‘‘225.7017–3’’ and adding in its place 

‘‘225.7016–3’’. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.225–7018 [Amended] 

■ 5. Section 252.225–7018 is amended 

in the introductory text by removing 

‘‘225.7017–4’’ and adding in its place 

‘‘225.7016–4’’. 

[FR Doc. E9–25067 Filed 10–16–09; 8:45 am] 

BILLING CODE 5001–08–P 

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. 

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 


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53414 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 

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 §§ 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 

§ 172.602). 

In addition to written emergency 

response information, § 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, productspecific 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 § 171.8 

for complete definition for ‘‘storage 

incidental to movement’’). 

As currently required in § 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-todate 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 § 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 § 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 § 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 § 172.604 to enable 

transport workers and emergency 


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Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 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 § 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 

§ 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 


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53416 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 

§ 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 pretransportation function (see definition 

for ‘‘pre-transportation function’’ in 

§ 171.8). In accordance with § 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 § 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 §§ 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 


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Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 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 § 172.602(a) as the minimum 

information that must be made 

available, but that in § 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 § 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 § 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 § 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 § 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 § 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 


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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 § 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 § 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 


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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 

§ 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 

§ 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 § 172.201(d) is not consistent with 

the ‘‘fuller requirement’’ in § 172.604(b) 

and request that we repeat the 

§ 172.604(b) text in § 172.201(d). UPS’ 

objection is that in the NPRM, 

§ 172.201(d) referred to identification of 

the ‘‘person’’ and did not reference ‘‘or 

contract number.’’ The proposed 

§ 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 

§ 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 


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53420 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 

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 


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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), §§ 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 § 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 § 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 § 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 § 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 


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53422 Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 

because of their physical, chemical, or 

nuclear properties. The hazardous 

material regulatory system is a risk 

management system that is preventionoriented 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. 

■ 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 

■ 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. 

■ 2. In § 172.201, revise paragraph (d) to 

read as follows: 

§ 172.201 Preparation and retention of 

shipping papers. 

* * * * * 

(d) Emergency response telephone 

number. Except as provided in 

§ 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. 

* * * * * 

■ 3. Revise § 172.604 to read as follows: 

§ 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 


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Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Rules and Regulations 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 § 172.302(g)) 

as required by § 173.9 of this 

subchapter, unless other hazardous 

materials are present in the cargo 

transport unit. 

PART 174—CARRIAGE BY RAIL 

■ 4. The authority citation for part 174 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128; 49 CFR 

1.53. 

■ 5. In § 174.26, revise paragraph (b) to 

read as follows: 

§ 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 § 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 


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