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In April 1973, the Aviation Consumer Action Project and the Air Line Pilots Association filed an action to require the Secretary of Transportation and the Federal Aviation Administration to conduct a public hearing on each application from a shipper or carrier for an exemption from the requirements imposed by the FAA's hazardous materials regulations.

While the case was pending in the district court, the Hazardous Materials Transportation Act was signed into law. The Act requires the Secretary of Transportation to designate hazardous materials and prescribe regulations governing their safe transportation. Section 107(a) of the Act authorizes the Secretary to issue exemptions from these regulations and the direct statutory requirements. That section also requires that a notice of an application for issuance or renewal of such exemption be published in the Federal Register and that the Secretary afford an opportunity for public comment on such application. Section 114 of the Hazardous Materials Transportation Act provides that "any order ***, regulation, ***, license, or privilege issued" before January 3, 1975, "shall continue in effect according to its terms" until repealed or modified by the Secretary or a court; but the Secretary is to "take all steps necessary" to bring them into conformity with the Act "as soon as practicable," but in any event within two years. Thus, section 114 of the Act continues in effect regulations promulgated prior to the date of enactment of the Hazardous Materials Transportation Act. Therefore, pending development and implementation of necessary organizational, procedural, and logistic changes to adapt the overall hazardous materials program to the new Act, we have continued to follow the exemption procedures promulgated under the old law, and still in effect. Those procedures do not call for notice in the Federal Register and public comment. It is this practice which the district court held invalid in its June 27, 1975, order, from which an appeal is now being taken.

It was and still is the Department's position that section 107(a) of the Hazardous Materials Transportation Act, including its notice and public comment requirements, does not become effective until after the Secretary has prescribed procedures for the issuance of exemptions under the Hazardous Materials Transportation Act. For that section expressly provides that: "The Secretary, in accordance with procedures prescribed by regulation, is authorized to issue or renew, ***, an exemption from the provisions of this" act, "and from regulations issued under" this act.

In an affidavit filed in support of the Government's motion for a stay of the district court's order pending appeal, John W. Barnum, Deputy Secretary of Transportation, stressed that the issuance of final regulations to implement the provisions of section 107 of the Hazardous Materials Transportation Act is a "task of the highest importance." He then set forth a firm, prompt schedule that would be followed by the Materials Transportation Bureau for the issuance of proposed regulations, receiving public comments, and promulgating final regulations. Pursuant to that schedule, on August 4, 1975, proposed regulations were published in the Federal Register. Both written and oral comments have been received on those proposed regulations. Public hearings have been held in Washington and Anchorage. We are now in the course of reviewing the comments with a view to making necessary adjustments in the proposed procedures before issuing them.

The body of administrative actions that would be considered exemptions within the meaning of section 107 comprehend a wide range of actions that in the past have been issued under separate procedures of several operating administrations within the Department of Transportation, including the Federal Aviation Administration. In addition, section 107 establishes significant new procedural requirements in connection with administrative handling and issuance of hazardous materials exemptions.

In view of the centralization and transfer of the authority to issue exemptions and the plan for implementation of the new procedures, it was considered necessary to establish interim procedures which would minimize the confusion that applicants for exemption are likely to experience during the conversion period and which would avoid unnecessary disruptions in essential movements of goods covered by such exemptions.

Those interim procedures became effective on July 7, 1975, and are expected to terminate on October 16, 1975, the proposed effective date of the procedural regulations to implement section 107 of the Hazardous Materials Transportation

Act. Under the interim procedures, applications for exemptions from regulations governing the transportation of hazardous materials by air, except in the case of air transportation applications requiring priority treatment, are being prepared by applicants following existing FAA procedures and then filed with the Director, Office of Hazardous Materials Operations, Materials Transportation Bureau, for his issuance or denial.

Air transportation applications requiring priority treatment, that is, of articles for the protection of life or property, continue to be received and acted upon by the FAA. Application for this kind of treatment is submitted as provided in section 103.5 of the Federal Aviation Regulations to FAA Headquarters or to the appropriate FAA District Office and the action taken by the FAA is in accord with the procedures spelled out in that section.

In summary, therefore, from January 3, 1975, to July 7, 1975, the FAA issued exemptions from the provisions of law and regulations governing the transportation of hazardous materials by air under procedures existing prior to the enactment of the Hazardous Materials Transportation Act. When the exemption was not limited in its application to air transportation, the FAA, acting in conjunction with one or more of the other operating administrations through the Hazardous Materials Regulations Board, would issue the exemption. These intermodal exemptions carried the title of "Special Permits." From July 7, 1975, to the present, the Materials Transportation Bureau and the FAA have been issuing exemptions under the interim procedures previously discussed. When the interim procedures terminate on October 16, 1975, it is then expected that exemptions dealing with the air transportation of hazardous materials will be processed under the procedural regulations being developed through the rulemaking process by the Materials Transportation Bureau to implement the requirements of section 107 of the Hazardous Materials Transportation Act.

INSPECTION, TRAINING AND EDUCATIONAL EFFORTS

Inspection, training and educational efforts by the Office of Hazardous Materials Operations, Materials Transportation Bureau, have been carried on to assist the FAA and other modal administrations, other government agencies, the private sector, and the general public to understand as well as comply with the Department's hazardous materials regulations.

During the past year, OHMO or its predecessor, the former OHM, has conducted nine seminars including two in Alaska. There were 2,155 persons in attendance. Eight of the nine seminars were geared to include air transportation of hazardous materials. During this same period of time, headquarters personnel of OHMO conducted surveillance visits to 235 shipper and carrier facilities. The purpose was to monitor the degree of compliance with the regulations by those regulated and to determine the more common types of violations. One hundred forty-eight of these visits involved shippers by air, air carriers, and air freight forwarders. A sampling of violations discovered points up vividly that the problem of noncompliance lies mainly with shippers. Violations include those dealing with the packaging, marking, labeling, documentation, and certification requirements. To further aid those having to comply with hazardous materials regulations, OHMO has created numerous training and education aids in the form of handout materials. OHMO has distributed over half a million handout materials during the past year in response to public and DOT modal administration requests and during hazardous materials seminars and training programs. Approximately 15 films are also available for distribution to industry personnel and are used by the Department in their training programs, seminars, and Transportation Safety Institute courses. These handouts and films deal with labeling, classification, and packaging criteria applicable to hazardous materials transportation. The courses conducted by the Transportation Safety Institute on the air transportation of hazardous materials have been offered to FAA inspectors since 1973 and to industry personnel since 1974.

RECOMMENDATIONS OF THE TASK FORCE

On January 16, 1975, the Deputy Secretary of Transportation established a task force to make a complete and informed review of the hazardous materials presently being moved in air commerce. The Task Force Report made seven

recommendations. The first suggests that serious consideration be given to prohibiting carriage of certain hazardous materials in air commerce.

There are approximately 1,400 hazardous materials listed by name in the Department's regulations. Presently 450 of these are not permitted to be transported aboard passenger-carrying aircraft; 150 are not permitted aboard cargoonly aircraft. On January 24, 1974, the Hazardous Materials Regulations Board published a notice of proposed rulemaking, HM-112, proposing a comprehensive revision on nearly all hazardous materials regulations. Among other things, HM-112 proposes to prohibit the transportation of an additional 59 materials aboard passenger-carrying aircraft.

Adoption of these prohibitions would accomplish the following:

1. Virtually all explosives would be banned from both passenger and cargo-only aircraft.

2. Known pyroforic and most spontaneously combustible materials would be forbidden in air transport.

3. All identified self-reactive and thermally unstable materials would be forbidden in air transport.

4. All water reactive materials would be forbidden aboard passenger aircraft and allowed in limited quantities aboard cargo aircraft. New labeling and marking requirements will aid in the identification and proper handling of these materials.

5. Special packaging requirements would be imposed for the air transportation of materials corrosive to aluminum. Rulemaking has been completed that establishes quantitative criteria for identifying those materials corrosive to aluminum. Lack of data concerning the specific corrosion rates addressed by the Task Force Report requires considerable more effort by the Department before the Task Force recommendation can be fully implemented.

6. Flammable liquids which have been identified by name and appear as new entries in the HM-112 proposal have been screened and all liquids with a known boiling point less than 100° F. and a flash point less than 20° F. would be prohibited on passenger aircraft.

It is anticipated that materials qualifying as "strong oxidizers" will be banned in air transport. Experimental test procedures are being finalized for testing the ignition and burning characteristics of oxidizers when mixed with red oak sawdust.

The United Nations has recently divided organic peroxides into packaging sub-groups based on degrees of hazard. OHMO is currently reviewing the UN work for its possible implications on the Task Force recommendation to prohibit organic peroxides in air commerce.

To implement the Task Force recommendation on toxic gases and liquids while taking into consideration information received on the HM-112 proposal, the Materials Transportation Bureau will have to revise the classification system for toxic materials. A study is underway to evaluate a large number of liquids to determine the temperature at which the vapor pressure of the liquid is sufficient to produce a lethal concentration in air. A re-evaluation of the criteria for classification of toxic or poison material is also scheduled.

There has been some difficulty in establishing criteria to identify irritating materials because of the variation in sensitivity to odor and irritation by individuals. The Department has regulations classifying "riot control agents" as irritating materials. These "riot control agents" are not authorized for transport aboard passenger aircraft.

Recommendation (b) of the Task Force Report suggested that the requirement for crew accessibility to hazardous materials aboard cargo-only aircraft be relaxed. The Task Force provided its rationale for this recommendation in their Report and concluded that "... the need for accessibility of hazardous materials cargo while in flight will be greatly reduced as such materials are in fact prohibited in the future." Until a more complete consideration is given to Task Force Recommendation (a) pertaining to the kinds of materials that should be prohibited aboard aircraft, we believe that the current accessibility requirements should be retained except for special circumstances such as the transportation of hazardous materials in single pilot aircraft or in aircraft used for delivery to remote areas that are not serviced by any other means of transportation.

Recommendation (c) of the Report suggests that the current hazardous quantity limitations for inaccessible cargo pits or bins on aircraft be deleted. We be

lieve that implementation of this recommendation be presently limited to certain kinds of hazardous materials transported into remote areas aboard single pilot, cargo-only aircraft and to certain consumer commodities and drugs. Full implementation would not be appropriate until more complete consideration is given to Task Force Recommendation (a) pertaining to kinds of materials that should be prohibited aboard aircraft.

Recommendation (d) of the Report would require that copies of the Department's hazardous materials regulations be kept in each air carrier terminal where hazardous materials are accepted for transportation. We agree with the Task Force on this point. However, it has often been difficult for air carriers to obtain copies of the regulations. It is necessary to assure ready availability of the regulations prior to imposition of such a requirement on air carriers. If such a requirement is imposed on air carriers, it should be imposed on shippers and surface carriers of hazardous materials.

In response to Task Force Recommendations (e) and (f), the FAA conducted a survey to review air carrier compliance with FAA Advisory Circular 103-3. The Circular is a guide to air carriers on FAA requirements for maintaining manuals and providing training programs for the guidance and instruction of personnel involved with the carriage or handling of hazardous materials. The FAA inspectors conducting the survey were to assure that copies of DOT regulations are maintained at carrier facilities and that all personnel requiring hazardous materials training be trained in the use of those regulations. The inspectors were also to advise the carriers on the appropriate relationships between DOT regulations and certain industry publications referred to as ATA Tariff 6-D and the IATA regulations. Results of the survey have been received by FAA Headquarters for review. One recurring complaint of the carriers was their inability to maintain up-to-date copies of DOT regulations at their facilities. The same problems associated with the implementation of Recommendation (d) pertain to the implementation of Recommendations (e) and (f). Therefore, the accessibility of regulations and the results of the survey should be considered before any modification to FAA Advisory Circular 103–3 is made. The form of the final regulations under HM-112 will also have a bearing on the extent to which the Circular should be modified.

The final recommendation of the Task Force states that: "Hazardous materials in air commerce should be viewed on a system basis. Enforcement and training should start at the source the shipper and container manufacturer-and continue through the surface modes of transportation to the ultimate final carrier. Training should be on a continuing basis and compliance wth the regulations should be vigorously enforced." We wholeheartedly endorse this recommendation. The authority recently vested in the Secretary by the Hazardous Materials Transportation Act over manufacturers of containers and packaging for hazardous materials and the expanded civil penalty authority under that Act will have a very positive effect on our enforcement and training efforts.

Upon completion of the rule-making actions on the procedural regulations to implement the new Act, we will be devoting our attention to the implementation of regulations applicable to container and packaging manufacturers. In addition, a complete revision and consolidation of the regulations pertaining to carriers by rail, highway, air, and water is presently the subject of outstanding rulemaking action under Docket HM-112 mentioned earlier. This is a significant effort involving, for example, the first complete revision of the hazardous materials regulations applicable to railroads since 1922.

This completes my prepared statement.

[Whereupon, at 12:37 p.m.. the subcommittee adjourned, to reconvene subject to the call of the Chair.]

APPENDIXES

APPENDIX 1.-FAA SUBMISSIONS TO ADDITIONAL SUBCOMMITTEE QUESTIONS

Question 1. Supply a yearly budgetary breakdown from FY 68 to FY 77, and proposed estimates for FY 78 and FY 79, for the man-year, salary, expense, and research funds devoted to the regulation of hazardous materials.

Answer. Prior to FY 74, the FAA did not have a separate identifiable budget item for the hazardous materials program. However, operations inspectors assigned to field offices conducted routine inspection of hazardous materials moving by air to determine compliance with applicable regulations as part of their overall surveillance inspection and enforcement activities. Because we recognized the need to strengthen field and headquarters staffing in order to stay abreast of the ever-increasing shipments of hazardous materials by air, we requested a FY 74 budget allocation of 21 additional positions for this purpose. FY 74 tentative allowances incuded the additional positions earmarked for the Hazardous Materials Program and all regions were directed to take immediate action to appoint full-time hazardous materials coordinators. Following is a breakout of man-years and salary expense associated with the 21 coordinator positions.

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Question 2. Supply a yearly personnel breakdown from FY 69 to FY 77, and proposed estimates for FY 78 and FY 79, for full-time hazardous materials administrators and coordinators.

Answer. Prior to FY 74, FAA did not have a separate identifiable budget item for the hazardous materials program. The FAA had one full-time person assigned to hazardous materials work and added a second during the last quarter of FY 1973. The FY 74 approved budget allocated 21 positions for full-time coordinators: 18 regional positions and three in Washington Headquarters. FY 75 added one Washington position making a total of 22 positions. At present, there are no plans to add any more full-time hazardous materials coordinators.

Question 3. What is the percentage of time spent by hazardous materials administrators and coordinators on the inspection of hazardous materials and the enforcement of hazardous materials regulations.

Answer. Four specialists on the Headquarters Hazardous Materials Staff spend 100 percent of their time on developing and implementing FAA policy on hazardous materials.

There are 18 full-time hazardous materials coordinators in the field who devote 100 percent of their time to hazardous materials enforcement, inspection, and

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