Interpretation Response #11-0228 ([Council on the Safe Transportation of Hazardous Articles, Inc.] [Mr. Tom Ferguson])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 06/27/2012

Company Name: Council on the Safe Transportation of Hazardous Articles, Inc.

Individual Name: Mr. Tom Ferguson

Location State: VA Country: US

View the Interpretation Document

Response text:

June 27, 2012

Mr. Tom Ferguson, PG, CHMM, DGSA
Technical Consultant
Council on the Safe Transportation of Hazardous Articles, Inc.
7803 Hill House Court
Fairfax Station, VA 22039

Ref. No. 11-0228

Dear Mr. Ferguson:

This responds to your request for clarification of certain responsibilities under Part 175 of the Hazardous Materials Regulations (HMR; Parts 171-180). In your letter, you ask a series of questions related to operational, implementation, and logistical matters of the recently adopted provisions in § 175.25 of the HMR. I apologize for the delay in responding to your request and any inconvenience it may have caused. Your questions are paraphrased and answered as follows:

Q1. Section 175.25(b)"Ticket Purchase: Is the intent of amendments to this section adopted in the January 19, 2011 final rule (76 FR 3308; PHMSA-2009-0126 (HM-215K)) to require a carrier to provide the permitted and forbidden text or pictorials by Jan 1, 2012 and the passenger acknowledgement provisions by Jan 1, 2013?

A1. While §175.25(b) took effect January 1, 2012, the passenger acknowledgement portion of the rule is scheduled to take effect January 1, 2013.

Q2. Is Ticket Purchase defined anywhere in the regulations within or beyond the HMR? Not all passengers are issued tickets. For example, does this section apply to non-revenue or employee travel?

A2. As defined in 14 CFR 241.03 and for the purpose of this response, a non-revenue passenger means a person traveling free or under token charges, except those expressly named in the definition of revenue passenger; a person traveling at a fare or discount available only to employees or authorized persons of air carriers or their agents or only for travel on the business of the carriers; and an infant who does not occupy a seat.

Section 175.25(b) notification requirements apply to ticketed passengers only. However, non-revenue passengers, airline employees traveling as passengers onboard, and other non-ticketed passengers remain subject to requirements of the HMR, and actions by non-ticketed passengers can affect the safety of an air carrier"s operation. While § 175.25 does not define specific notification requirements for non-ticketed passengers, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Aviation Administration (FAA) solicit input on best practices for notification of all passengers (ticketed and non-ticketed) for inclusion in a future FAA advisory circular.

Q3. Do the requirements of § 175.25 apply to third party travel sites operated by travel agents and online travel retailers (Orbitz, Expedia, Travelocity, etc.)? If so, is it the responsibility of the carrier or the travel agent/retailer to provide the required passenger notification? The International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), at Part 8:1.1.3, states "Any organization or enterprise other than an operator (such as a travel agent)... should provide passengers with information about the types of dangerous goods"" Thus, it appears the ICAO Technical Instructions places the responsibility to notify passengers in these situations on the third party provider, and not the carrier.

A3. The requirements of § 175.25 apply to the aircraft operator. The aircraft operator is responsible for ensuring that passengers receive the notifications required by § 175.25, regardless of whether the ticket is purchased directly from the aircraft operator or via a third party source. The aircraft operator can meet its obligations by relying on the notifications provided to the passenger by a third party, but the aircraft operator is ultimately responsible for compliance with the rule. PHMSA and FAA solicit input on best practice arrangements between aircraft operators and third party travel organizations for inclusion in a future FAA advisory circular on passenger notification.

Q4. In a situation where a customer purchases a ticket over the phone (e.g., by calling a reservation center), what constitutes compliance with the rule? Do PHMSA and FAA expect a verbal reading of § 175.25(a)(1) and (2), or would a simplified statement that guides them to additional information (i.e., carrier website) suffice?

A4. A simplified statement may be acceptable, and may actually be the preferred means of compliance. PHMSA and FAA solicit input on best practices for passenger notification via telephone for inclusion in a future FAA advisory circular.

Q5. Is dual acknowledgement (at the time of ticket purchase " paragraph (b), and time of check-in " paragraph (c)) intentional? If a passenger acknowledges at the time of ticket purchase, could a record of that acknowledgement also be used to meet the acknowledgement in section § 175.25(c)?

A5. The dual acknowledgement during ticket purchase and check-in is intentional and required for compliance.

Q6. In a Rule 240 scenario where a passenger is re-accommodated on another carrier due to canceled flights or other reasons, would a third check-in acknowledgement be required?

A6. Although an aircraft operator may meet its obligations by relying on notifications provided to the passenger by a third party, the aircraft operator is ultimately responsible for compliance with the rule. PHMSA and FAA solicit input on best practice arrangements during re-accommodation situations for inclusion in a future FAA advisory circular on passenger notification.

Q7. In a bulk purchase or charter situation, would a single individual responding on behalf of their party be acceptable for compliance with § 175.25(b) and (c)? Would such an acknowledgement be acceptable for military charters as well?

A7. Both § 175.25(b) and (c) allow for acknowledgement by a person acting on the passenger"s behalf. While this allows for acknowledgement by a single individual, PHMSA and FAA solicit input on best practices for notification of passengers in bulk purchase, charter flight, or similar situations for inclusion in a future FAA advisory circular.

Q8. Is the actual language in § 175.25(a)(1) and (2) required in all cases? If so, how does a carrier provide notice of additional materials forbidden beyond those covered in the general language? The ICAO Technical Instructions do not require specific language but instead require the carrier to develop their own language and format.

A8. The information provided in § 175.25(a)(1) and (2) is required, but the specific wording used in the HMR is not required. Further, no part of § 175.25 is intended to prevent aircraft operators or other individuals from providing additional information to passengers regarding the safe transport of hazardous materials. PHMSA and FAA solicit input on best practices for conveying hazardous materials safety information, including the information provided in § 175.25(a)(1) and (2), for inclusion in a future FAA advisory circular on passenger notification.

Q9. This rule applies to 14 CFR 129 foreign carriers that operate from the U.S. Currently, there are 14 types of hazmat listed in the ICAO Technical Instructions, at 8;1.1, as "permitted with the approval of the operator." Thus, there may be considerable differences between each U.S. and foreign airline as to what is "permitted or forbidden" by each operator. Note that the ICAO Technical Instructions, at 8;1.1.3 and 8;1.1.4, do not require the types "permitted" either - only the types of hazmat "forbidden" needs to be communicated. If a passenger checks-in with a foreign carrier and then transfers to a domestic carrier, does the original check in notification satisfy the passenger notification for the domestic leg as well?

A9. The aircraft operator may meet their obligations by relying on notifications provided to the passenger by a third party, but the aircraft operator is ultimately responsible for compliance with the rule. PHMSA and FAA solicit input on best practice arrangements between foreign and domestic air carriers for inclusion in a future FAA advisory circular on passenger notification.

Q10. In the case of remote check-in and boarding, where the passenger checks in at a remote location and checks baggage as well, such as a resort, cruise line, or military charter situations, does the carrier have the responsibility to notify the passenger, or is the resort, cruise line, or military branch responsible for notification? Under these scenarios, a non-carrier operation performs the check-in function. Therefore, the carrier has limited or no contact with the passenger during the check-in process. An example would include a military charter originating from a U.S. military installation.

A10. The requirements of § 175.25 apply to the aircraft operator. The aircraft operator is responsible for ensuring that passengers receive the notifications required by § 175.25, regardless of whether the passenger checks-in directly with the aircraft operator or via a third party source. Although the aircraft operator may meet its obligations by relying on notifications provided to the passenger by a third party, but the aircraft operator is ultimately responsible for compliance with the rule. PHMSA and FAA solicit input on best practice arrangements between aircraft operators and third party organizations for inclusion in a future FAA advisory circular on passenger notification.

Q11. Lithium batteries have received a significant amount of attention by regulatory and enforcement entities over the last 5 years. Much of this attention is due to incidents involving such batteries, including incidents occurring in passenger baggage. Yet, the current language in § 175.25 does not mention lithium batteries. Is it acceptable for a carrier to develop independent language that conveys the intent of the language in § 175.25(a)(1) and (2) but varies in content to address recent incidents or trends? May this language be used as an alternative to the language contained in § 175.25(a)? We strongly believe the restrictive language indicated in § 175.25 is ineffective in communicating hazardous material dangers and restrictions in passenger baggage to the traveling public.

A11. The information provided in § 175.25(a)(1) and (2) is required, but the specific wording used in the HMR is not. Further, no part of § 175.25 is intended to prevent aircraft operators or other individuals from providing additional information to passengers regarding the safe transport of hazardous materials. The FAA fully supports inclusion of information regarding lithium battery hazards in passenger notifications. PHMSA and FAA solicit input on best practices for conveying hazardous materials safety information, including the information provided in § 175.25(a)(1) and (2), for inclusion in a future FAA advisory circular on passenger notification.

This response was coordinated with FAA. Additionally, PHMSA and FAA will co-sponsor a public meeting on this issue in the very near future. We will announce the location, date and time of the meeting in the Federal Register once details are finalized.

I trust this satisfies your concerns. Please contact us if we can be of further assistance.

Sincerely,

Charles E. Betts
Director, Standards and Rulemaking Division

175.25

Regulation Sections