Air Carrier Hazardous Materials Passenger Notification Requirements: Acceptable Means of Compliance

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of public meeting and related information.

SUMMARY:

This notice is to advise interested persons that the Federal Aviation Administration (FAA), in coordination with the Pipeline and Hazardous Materials Safety Administration (PHMSA), will conduct a public meeting to discuss Air Carrier Hazardous Materials Passenger Notification Requirements and Acceptable Means of Compliance with 49 CFR 175.25. The public meeting, to be held on August 16th, 2012 in Washington, DC, is intended to provide interested persons with an opportunity to submit comments and participate in discussions concerning the acceptability of various means of compliance with federal hazardous materials regulations.

DATES:

August 16th, 2012; from 1 p.m. to 4 p.m.

Meeting Location

Airlines for America, 1301 Pennsylvania Ave. NW., 11th Floor, Washington, DC 20004.

Any person wishing to attend the public meeting (in person or via telephone) should send an email to 9-AWA-ASH-ADG-HAZMAT@faa.gov with the subject line “Attendee Information for Passenger Notification Meeting” no later than the close of business on August 9th, 2012. Please include the names and contact information (Organization/Email/Address/Telephone Number) for any individuals planning to attend, and indicate whether attendance will be in person or via telephone. Providing this information will allow us to send you meeting documents prior to the meeting, assist us in recordkeeping for the meeting, facilitate the security screening process for entry into the building on the day of the meeting, and ensure adequate seating space and telephone conference lines for all attendees.

We are committed to providing equal access to this meeting for all participants. If you need alternative formats or other reasonable accommodations, please call (202) 385-4916 or email: 9-AWA-ASH-ADG-HazMat@faa.gov with your request by the close of business on August 9, 2012.

Attendees will be required to check in with the security desk in the building lobby, 1st floor. When they get to the 11th floor, a receptionist will guide them to the meeting room.

Conference Call Information: Telephone conference capability will be provided to allow participation from interested individuals who are unable to attend the meeting in person. To join the telephone conference, call (605) 475-3200 and enter passcode 981243#.

Prior to the meeting, copies of documents for the Air Carrier Hazardous Materials Passenger Notification Requirements Public Meeting and the meeting agenda will be distributed by email to all individuals who register as participants at the meeting.

Comment Submission: Stakeholders are encouraged to submit comments prior to the August 16th, 2012 public meeting by emailing to 9-AWA-ASH-ADG-HAZMAT@faa.gov. Please mark submissions with the subject line “Comments for Passenger Notification Public Meeting.” After the meeting, all comments received will be posted without change to the following Web site, including any personal information: http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/hazmat/aircarrier_info/.

FOR FURTHER INFORMATION CONTACT:

Kenneth Miller, Federal Aviation Administration, Office of Hazard Materials Safety (ADG-1), 800 Independence Ave. SW., Washington, DC 20591. Email: kenneth.miller@faa.gov. Phone: 202-385-4916

SUPPLEMENTARY INFORMATION:

I. Background

49 CFR 175.25 defines requirements for notification at air passenger facilities of hazardous materials restrictions. One primary purpose for this rule is to enhance public safety awareness regarding the carriage of hazardous materials onboard aircraft, either as carry-on items or in checked baggage. Improved public safety awareness in this area increases passenger compliance with applicable 49 CFR requirements, thus enhancing overall aviation safety by reducing the likelihood of inappropriate items being transported onboard aircraft.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) amended 49 CFR 175.25 on January 19, 2011 (76 FR 3382). The amendments included requirements for passenger notification during ticket purchase and check-in. The amended rule has an effective date of January 1, 2013. While PHMSA has the primary responsibility for issuing 49 CFR regulations, the FAA has primary responsibility for overseeing compliance with these regulations as they pertain to air transportation. PHMSA and the FAA have received numerous inquiries regarding specific interpretations of the amended requirements and the acceptability of certain means of compliance with the revised rules.

II. Purpose of Public Meeting

The FAA seeks to collaborate with the air passenger transportation community in defining and implementing a standard means of compliance with the 49 CFR 175.25 requirements. FAA envisions this collaboration occurring through the following process:

Step 1—Initial Public Meeting (the subject of this announcement, discussed in detail below).

Step 2—FAA posting for public comment a draft advisory circular describing one acceptable means of compliance with 49 CFR 175.25. This means of compliance would be the recommended standard for compliance.

Step 3—FAA posting of a final advisory circular, including dispositions to comments received on the draft advisory circular.

FAA, in coordination with PHMSA, is holding this public meeting to provide an opportunity for all interested parties to comment on the FAA's plan for collaboration with the air passenger transportation community. This meeting is also intended to provide an opportunity for all interested parties to provide input on the standard means of compliance for 49 CFR 175.25.

The FAA and PHMSA also seeks input on the anticipated implementation timeline for a standard means of compliance with 49 CFR 175.25 requirements, relative to the current effective date for amendments to 49 CFR 175.25 adopted in 76 FR 3382. Stakeholders are encouraged to submit questions, comments, recommendations, and other input in advance. (Please see the Comment Submission section above.)

III. Clarification Questions Regarding 49 CFR 175.25

In preparation for this public meeting, the FAA and PHMSA are providing responses below to questions regarding specific interpretations of the 49 CFR 175.25 rule. The following questions were submitted to the FAA by the Council on Safe Transportation of Hazardous Materials (COSTHA).

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 FAA and PHMSA 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 Web site) suffice?

A4. A simplified statement may be acceptable, and may actually be the preferred means of compliance. The FAA and PHMSA 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. The FAA and PHMSA 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. The FAA and PHMSA 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. The FAA and PHMSA 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.