
[Federal Register Volume 88, Number 159 (Friday, August 18, 2023)]
[Notices]
[Pages 56702-56705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17752]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2021-0109; Notice No. 2023-04]


Hazardous Materials: Frequently Asked Questions--Incident 
Reporting

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice.

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SUMMARY: On March 22, 2022, PHMSA announced an initiative to convert 
historical letters of interpretation (LOI) applicable to the Hazardous 
Materials Regulations that have been issued to specific stakeholders 
into broadly applicable frequently asked questions (FAQ). On December 
9, 2022, PHMSA finalized the first set of FAQ and announced the topic 
for the next FAQ. This notice contains the second set of FAQ.

DATES:  Interested persons are invited to submit comments on or before 
September 18, 2023. Comments received after that date will be 
considered to the extent practicable.

ADDRESSES: You may submit comments identified by the Docket Number 
PHMSA-2021-0109 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Docket Management System; Room W12-140 on 
the ground floor of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
Docket Number (PHMSA-2021-0109) for this notice. To avoid duplication, 
please use only one of these four methods. All comments received will 
be posted without change to the Federal Docket Management System (FDMS) 
and will include any personal information you provide.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public. DOT posts these comments, without edit, 
including any personal information the commenter provides, to http://www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy.
    Confidential Business Information (CBI): CBI is commercial or 
financial information that is both customarily and actually treated as 
private by its owner. Under the Freedom of Information Act (FOIA) (5 
U.S.C. 552), CBI is exempt from public disclosure. If your comments 
responsive to this notice contain commercial or financial information 
that is customarily treated as private, that you actually treat as 
private, and that is relevant or responsive to this notice, it is 
important that you clearly designate the submitted

[[Page 56703]]

comments as ``CBI.'' Please mark each page of your submission 
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent 
to Arthur Pollack, Standards and Rulemaking Division, (202) 366-8553, 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001. Any commentary that PHMSA receives which is not specifically 
designated as CBI will be placed in the public docket for this notice.

FOR FURTHER INFORMATION CONTACT: Arthur Pollack, Standards and 
Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    The March 22, 2022, notice announced an initiative to convert 
historical LOI applicable to the Hazardous Materials Regulations (HMR) 
\1\ that have been issued to specific stakeholders into broadly 
applicable FAQ 2 3 to facilitate better public understanding 
and awareness of the HMR. PHMSA also requested comment on the 
initiative and solicited input on the prioritization of future sets of 
FAQ. FAQ are not substantive rules--themselves--and do not create 
legally enforceable rights, assign duties, or impose new obligations 
not otherwise contained in the existing regulations and standards. 
Instead, FAQ are intended as an aid to demonstrate compliance with the 
relevant regulations. An individual who can demonstrate compliance with 
the FAQ is likely to be able to demonstrate compliance with the 
relevant regulations. If a different course of action is taken by an 
individual, the individual must be able to demonstrate that its conduct 
is in accordance with the regulations.
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    \1\ 49 CFR parts 171-180
    \2\ Hazardous Materials: Frequently Asked Questions--
Applicability of the Hazardous Material Regulations. 87 FR 16308 
(March 22, 2022), available at: https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations.
    \3\ Hazardous Materials: Frequently Asked Questions-
Applicability of the Hazardous Material Regulations (Dec. 9, 2022), 
available at: https://www.federalregister.gov/documents/2022/12/09/2022-26808/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations.
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II. Purpose of the FAQ Initiative

    This initiative provides additional value to PHMSA's Online Code of 
Federal Regulations (oCFR) tool.\4\ The oCFR tool is an interactive 
web-based application that allows users to navigate between all content 
connected to an HMR citation, including LOI. The oCFR tool includes the 
ability to sort, filter, and export search results. Upon completion of 
this initiative, PHMSA's Office of Hazardous Materials Safety (OHMS) 
will be able to achieve efficiencies for other more complex or novel 
requests for LOI and devote resources to other hazardous materials 
transportation safety projects. This initiative will allow resources to 
be made available for other improvement-related operations such as 
petitions for rulemakings, public outreach and engagement, and 
economically beneficial regulatory and policy improvements. In the 
section of this notice titled ``Frequently Asked Questions: Immediate 
notice of certain hazardous materials incidents and detailed hazardous 
materials incident reports,'' PHMSA is publishing its second set of FAQ 
developed under this initiative.
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    \4\ PHMSA's Online CFR (oCFR), available at: https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr.
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III. Frequently Asked Questions

    Immediate notice of certain hazardous materials incidents and 
detailed hazardous materials incident reports.
    The requirements for incident reporting and notification are 
outlined under Subpart B to Part 171 of the HMR. Specifically, 
Sec. Sec.  171.15 and 171.16 address immediate notice of certain 
hazardous materials incidents and detailed hazardous materials incident 
reports. Section 171.15 provides criteria requiring immediate 
notification of unintentional hazardous materials releases to the 
National Response Center. Each person making a report under Sec.  
171.15 is also required to fill out DOT Form F 5800.1 within 30 days of 
discovery of the incident as required by Sec.  171.16. Over the years, 
OHMS has received more than fifty requests for LOI concerning the 
provisions of Sec. Sec.  171.15 and 171.16. Therefore, as noted above, 
to facilitate better public understanding and awareness of the HMR, the 
FAQ pertaining to incident reporting and notification are as follows:
    1. Question: Who is responsible for completing and submitting a 
detailed hazardous materials incident report?
    Answer: As specified in Sec.  171.16(a), each person in physical 
possession of a hazardous material when an incident occurs must file a 
Hazardous Materials Incident Report on DOT Form F 5800.1 to the 
Department. See Sec.  171.16(b) for information on providing and 
retaining copies of the incident report, details of where to obtain the 
forms, and where to file the forms.
    2. Question: How long do I have to submit a written incident 
report?
    Answer: In accordance with Sec.  171.16(a), a person must submit a 
detailed incident report within 30 days of discovery of the incident to 
the Department.
    3. Question: Who is responsible for providing immediate notice by 
telephone if an incident occurs that meets the criteria in Sec.  
171.15(b)?
    Answer: As specified in Sec.  171.15(a), each person in physical 
possession of a hazardous material when an incident occurs must provide 
notice by telephone to the National Response Center (NRC) 1-800-424-
8802 (toll free) or 1-202-267-2675 (toll call). Any person who performs 
or is contractually responsible to perform any of the HMR functions is 
legally responsible under the regulations for their proper performance.
    4. Question: How long do I have to provide notice by telephone to 
the National Response Center (NRC) when an incident occurs that meets 
the criteria in Sec.  171.15(b)?
    Answer: In accordance with Sec.  171.15(a), a person must provide 
notice by telephone as soon as practical but no later than 12 hours 
after the occurrence of any incident described in Sec.  171.15(b). Any 
reporting delay beyond what is necessary to safely secure the scene of 
the incident is not permitted.
    5. Question: If an incident occurs resulting in the closure of an 
access road (i.e., on-ramp, off-ramp, jug-handle, or slip-road) to a 
major highway, is the closure of the access road leading to a highway 
considered a ``road closure'' and subject to the hazmat reporting 
requirements in Sec.  171.15?
    Answer: The answer is yes. Components of a highway, such as access 
roads and interchange areas that provide access to highways--including 
interstate highways--are considered components of a ``major 
transportation artery or facility,'' and are thus subject to the 
requirements in Sec.  171.15(b)(1)(iv).
    6. Question: Is an incident report required if, during the loading/
unloading operation, the consignee discovers or observes a leak from a 
cargo tank motor vehicle (CTMV) or other bulk packaging?
    Answer: If an incident occurs while the carrier that delivered the 
hazardous material is observing or participating in the unloading 
operation, the incident

[[Page 56704]]

must be reported because the carrier is deemed to be in possession of 
the hazardous material at that point--i.e., the incident occurred 
during transportation. For these incidents, the carrier transporting 
the CTMV or other bulk packaging must complete a DOT Form F 5800.1 
hazardous materials incident report.
    However, if an incident occurs or is discovered while a consignee 
is unloading a hazardous material from a transport vehicle or emptying 
a bulk packaging after the carrier has delivered the material and left 
the premises, the incident is not required to be reported because the 
incident occurs or is discovered after transportation has ended. As 
such, the consignee is not required to file a DOT Form F 5800.1 report 
for an undeclared shipment or a damaged or leaking shipment that is 
discovered after the carrier has delivered the hazardous material. 
Please note that it is possible that a release of this nature is 
subject to local, state, or federal reporting requirements. We suggest 
you contact the U.S. Environmental Protection Agency (EPA) at 1-800-
424-9346. Additionally, if a person is injured or killed Occupational 
Safety & Health Administration (OSHA) reporting may be required--OSHA's 
24-hour hotline is 1-800-321-6742. See 29 CFR 1904.39 for requirements 
specific to reporting fatalities, hospitalizations, amputations, and 
losses of an eye as a result of work-related incidents to OSHA.
    7. Question: Under Sec.  171.16, a hazardous materials incident 
report (DOT Form F 5800.1) must be filed when an undeclared hazardous 
material is discovered. What is an ``undeclared hazardous material''?
    Answer: As defined in Sec.  171.8, an undeclared hazardous material 
is a hazardous material that is subject to any hazardous communication 
requirements and is offered for transportation in commerce without any 
visible indication to the person accepting the hazardous material for 
transportation that a hazardous material is present. Additionally, 
undeclared hazardous materials provide no indication on either an 
accompanying shipping document, or the outside of a transport vehicle, 
freight container, or package to the person accepting the hazardous 
material for transportation that a hazardous material is present.
    8. Question: What information is required on the incident report 
form for an undeclared shipment?
    Answer: The nature of an undeclared shipment is such that complete 
information about the shipment may not be known at the time of 
discovery. If the undeclared shipment is discovered because material 
was released from the package during transportation, then the 
information in Part II and Part III of the incident report should be 
completed to the extent that specific information is known. Similarly, 
Parts IV and V of the report concerning the consequences of the 
incident should also be completed. If the undeclared shipment is 
discovered and no material was released from the package, then the 
person filing the report should provide as much information as 
possible, including the carrier information in item 10 of Part II, the 
shipper/offeror information in item 11 of Part II, and the shipment 
origin and destination information in items 12 and 13 of Part II. For 
all reports related to undeclared shipments, the events that led to the 
discovery of the undeclared shipment should be included in Part VI of 
the report. Finally, for all reports related to undeclared shipments, 
Part VIII should be completed to provide contact information. For 
information that is not known at the time the undeclared shipment is 
discovered, an indication on the report that the information is not 
known is acceptable.
    9. Question: Is immediate notification to the National Response 
Center (NRC) required if a package of radioactive material is damaged 
during transportation but the radioactive material itself has not been 
released from its inner packaging--which provides shielding--and the 
damage does not result in radioactive contamination or excessive 
radiation exposure?
    Answer: The answer is yes. Under Sec.  171.15, if a radioactive 
material package is broken, even if the inner packaging remains intact, 
an immediate notification to the NRC is required. See also About 
Incident Reporting (June 25, 2019), available at: https://www.phmsa.dot.gov/hazmat-program-management-data-and-statistics/data-operations/incident-reporting.
    10. Question: Must the person who files an incident report keep a 
copy of the incident report?
    Answer: The answer is yes. A copy, written or electronic, of the 
incident report must be available within 24 hours of a request for the 
report by an authorized representative or special agent of the 
Department of Transportation (DOT) and must be retained for two years. 
See Sec.  171.16(b)(3) for requirements specific to retention of an 
incident report.
    11. Question: Where must I keep a copy of an incident report after 
I file it with PHMSA?
    Answer: The report must be accessible through your company's 
principal place of business or, if maintained elsewhere, be made 
available at your principal place of business within 24 hours of a 
request for the report if maintained at other than the reporting 
person's principal place of business. See Sec.  171.16(b)(3) for 
requirements specific to retention of an incident report.
    12. Question: Where can a filer get a copy of the DOT Form F 
5800.1?
    Answer: Electronic copies are available at: https://www.phmsa.dot.gov/hazmat-program-development/data-operations/incident-report-form. In addition, the Guide for preparing HazMat Incidents 
Reports is available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/reporting_instructions_rev.pdf
    13. Question: How much hazardous materials may be unintentionally 
released during the hookup and breakdown of loading and unloading hoses 
before a person would be required to submit a Hazardous Materials 
Incident Report on DOT Form F 5800.1?
    Answer: There are exceptions to release reporting, provided the 
incident is not otherwise subject to immediate telephone notification 
pursuant to Sec.  171.15. For example, as provided in Sec.  
171.16(d)(1), the incident reporting requirements do not apply to a 
release of a minimal amount of hazardous materials from: (1) a vent, 
for materials for which venting is authorized; (2) the routine 
operation of a seal, pump, compressor, or valve; or (3) the connection 
or disconnection of loading or unloading lines, provided that the 
release does not result in property damage.
    14. Question: Is a carrier required to file an incident report in 
accordance with Sec.  171.16 for a release from a motor vehicle fuel 
tank or from a motor vehicle's hydraulic, cooling, or lubrication 
systems?
    Answer: The answer is no. The HMR govern the transportation of 
hazardous materials in commerce. Fluids in a motor vehicle's fuel tank, 
hydraulic, cooling, and lubrication system are not ``transported in 
commerce.'' See Sec.  171.1 pertaining to applicability of the HMR; see 
also 49 U.S.C. 5101 et seq. Therefore, the reporting requirements in 
Sec. Sec.  171.15 and 171.16 do not apply. Please note that it is 
possible that a release of this nature is subject to local, state, or 
federal reporting requirements. We suggest you contact the U.S. 
Environmental Protection Agency (EPA) at 1-800-424-9346.
    15. Question: Is an incident report required if a box, drum, or 
similar packaging is discovered to be leaking

[[Page 56705]]

after the shipment is delivered to the consignee?
    Answer: Incidents that are discovered after transportation--i.e., 
any movement of hazardous materials by any mode, and any loading, 
unloading, or storage incidental thereto--has ended, are not subject to 
the incident reporting requirements under the HMR. See Sec.  171.1(c) 
for provisions pertaining to transportation functions.
    16. Question: Is immediate notice required under Sec.  171.15 for 
an incident that leads to a ``road closure'' when no hazardous material 
is released as a result of the incident?
    Answer: The answer is yes. Regardless of whether a hazardous 
material is actually released, if a major transportation artery or 
facility is closed or shut down for one hour or more, the incident must 
be reported in accordance with Sec.  171.15. In addition, under Sec.  
171.16(a)(1), any time immediate notice is required under Sec.  
171.15(b), a written report is also required within 30 days of the 
discovery of an incident.
    17. Question: When an incident occurs involving a package of 
hazardous material containing only a residue of hazardous material, as 
described in Sec.  173.29, is an incident report required?
    Answer: A package containing only a residue of hazardous material 
is not excepted from incident reporting. See 173.29(a). Section 
171.16(d) provides exceptions from incident reporting, which include 
some scenarios that could apply to a packaging containing only a 
residue. However, there are no specific provisions that apply to empty 
packagings containing a residue of a hazardous material. There are 
scenarios where an incident report must be filed, such as when a 
Packing Group (PG) II hazardous material released from a drum 
containing only residue of the hazardous material.
    18. Question: A discovery of a hazardous materials incident is made 
after transportation has ended. May the consignee file an incident 
report?
    Answer: The answer is yes. A person may file an incident report for 
a hazardous material release or incident--even when not required--if 
any of the circumstances set forth in Sec.  171.15(b) or Sec.  
171.16(a) have occurred.

IV. Future FAQ Topics

    With the completion of this set of FAQ specific to incident 
reporting, PHMSA will begin consideration for its next set of FAQ based 
on public input received. As such, PHMSA will continue concurrent work 
on future FAQ notices and subsequent topics may include FAQ pertaining 
to classification, hazard communication, hazardous substances, 
hazardous wastes, modal-specific requirements, or packaging. Finally, 
PHMSA will consider comments and concerns received before finalizing 
the above FAQ on the website.

    Issued in Washington, DC, on August 14, 2023, under authority 
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2023-17752 Filed 8-17-23; 8:45 am]
BILLING CODE 4910-60-P


