By Frits Wybenga, Senior Technical Advisor    July, 2007

On Monday, July 2, 2007, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published its HM-206F Notice of Proposed Rulemaking (NPRM) on Revision of Requirements for Emergency Response Telephone Numbers. In his report, Mr. Wybenga discusses the background behind the rulemaking, the changes brought forth, and analyzes the impacts of the rulemaking. This includes his assessment of PHMSA’s assertion that this a minor regulatory change with minimal impact.

On Monday, July 2, 2007, PHMSA published its HM-206F Notice of Proposed Rulemaking (NPRM) on Revision of Requirements for Emergency Response Telephone Numbers. PHMSA considers this a minor regulatory change with minimal impact, estimating the annual burden hours attributable to the change at 1805 hours for the entire industry at a total annual cost of $1805 (probably an error). Some who have to implement the change may disagree.

The main purpose of the rule is to enable a third party emergency response information provider such as CHEMTREC® to correctly match emergency response information in its data system with a substance involved in an incident. To accomplish this, PHMSA proposes to amend its requirements for a 24 hour emergency response telephone number in §172.604 by requiring any company having made arrangements with a third party emergency response information provider to always be identifiable on the shipping paper.

Background
In the preamble, PHMSA notes that the International Vessel Operators Hazardous Materials Association (VOHMA) requested the revisions to the emergency response telephone number requirements. PHMSA has indicated that the VOHMA letter should be included in the HM-206F Docket Management System file. As an aside, anyone with an interest in Electronic Data Interchange for hazmat shipping may find the VOHMA letter to DOT interesting.

When it comes to the emergency response telephone number, a common concern of VOHMA members is that when a hazardous materials shipment accompanied by a shipping paper arrives by vessel from an overseas location and is handed off to a railroad, the identity of the overseas offeror may be lost when the railroad prepares its “train consist”, the electronic document used by railroads in interlining freight, including hazardous materials.

Under the regulations, only the first rail carrier must be provided a hazmat shipping paper. When hazmat moves between rail carriers, the consist is used to electronically transmit the relevant shipping paper information to the next rail carrier and to satisfy the hazmat information requirements in §174.26 (notice to train crews). The consist is also used as a billing document and the railroads typically identify the party being billed for the transportation costs as the offeror. The party being billed depends on the contractual arrangements made but could be the vessel operator or a freight forwarder instead of the offeror registered with the emergency response information provider (registered offeror). No provision is normally made for including on the consist the registered offeror in the event they are not the billable party. Consequently the linkage between the registered offeror and the third party emergency response information provider they contracted with may be lost in the preparation of the consist.

Without this linkage, organizations such as CHEMTREC® have a more difficult time connecting emergency response data in their system with the substance involved in an incident. Sometimes the linkage can be reconstructed while in other cases less specific information is substituted for the company specific data CHEMTREC® could provide under ideal conditions. In any case the inability to quickly connect emergency response data with a chemical involved in an incident is a less than satisfactory situation.

In addition to frustrating timely provision of accurate emergency response information, there have also been enforcement issues. To verify that an offeror has actually contracted with a third party emergency response information provider, Federal Railroad Administration inspectors are known to call the third party emergency response provider to ascertain if the offeror identified on the consist is registered. In one case, a freight forwarder was prosecuted in federal criminal court for having used the number of a third party emergency response information provider contracted by an overseas offeror even though the documentation the freight forwarder provided to the railroad listed the overseas offeror. Fortunately the judge presiding over the case finally dismissed the case but there were still considerable costs to those involved.

In the above court case, the freight forwarder had the right to use the emergency response telephone number contracted by the overseas offeror. In the preamble to the HM-223A final rule as well as the HM-206F NPRM preamble, PHMSA stated, “a carrier or freight forwarder preparing a shipping paper may rely on information provided by the original offeror in preparing the new shipping paper.” Use of the telephone number is normally part of the information provided by the original offeror. Similarly, the railroad consist would seem to satisfy the HMR in that it provided the information required by Part 172. Even though international regulations (IMO, ICAO) require the identity of the consignor, the HMR do not. As such the railroad was not required to identify the intitial offeror (consignor).

The above case does point out a deficiency with the regulations as now written. Namely, there is currently no requirement to identify who has made the arrangements with the third party emergency response information provider. Without knowing who has arranged for provision of emergency response information, the third party information provider may not be able to access the data sheets corresponding to the material involved in a hazmat accident. It is this deficiency that HM-206F seeks to correct.

It appears the PHMSA attorneys have included a bit of saber rattling in the preamble text by saying:

Any person subject to the HMR, who by action or inaction and with  knowledge of incorrect information, prevents immediate access to emergency response information creates a potential safety hazard and is  in violation of the HMR. Additionally, an offeror or an interconnecting carrier who knowingly or willfully provides incorrect information to a  subsequent carrier, or a subsequent carrier who knowingly accepts and  continues to use inaccurate information, is in violation of the HMR. A  civil or criminal penalty (see Sec. Sec. 107.329 and 107.333) may be assessed against any person subject to the HMR who knowingly or willfully offers for transportation or transports a hazardous material in a manner not complying with the HMR.

They do not link this statement with any particular action; but taken in context, they seem to be implying that obscuring the linkage between the registered offeror and the third party emergency response information provider is a violation of the HMR. However, if this is their message, it is clearly questionable in that HMR do not even require the offeror to be identified on the shipping paper.

The Changes Proposed in HM-206F
In addition to addressing the main issue noted above, PHMSA is also making minor adjustments to other provisions pertaining to emergency response telephone requirements in §172.604. The changes are as follows:

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