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APPENDIX 5.-THE ISSUANCE OF EXEMPTIONS IN ALASKA

COMMENTS ON PROPOSED REGULATIONS FOR TITLE I OF THE TRANSPORTATION SAFETY ACT OF 1974 CONCERNING THE SAFE TRANSPORTATION OF HAZARDOUS MATERIALS BY AIRCRAFT

(By Senator Mike Gravel)

I strongly urge the Department of Transportation to take a long look at the unique problems of the State of Alaska before publishing final regulations for implementation of Title I of the Transportation Safety Act of 1974.

Alaska has constantly been forced to seek exceptions to nationwide procedure in fuel-related matters. This is a result of a lack of awareness at the level of the Federal Government about the modes of transportation in the State. The aircraft is the primary mode of transportation and commerce in Alaska, similar to the truck or train in the Lower 48. Construction on the Trans-Alaska Pipeline is dependent upon deliveries of both human and industrial essentials in large quantities by aircraft. Remote villages that experience fuel delivery problems and fuel shortage problems are not linked by road or rail to fuel distribution centers and must have fuel flown in. Aircraft are the only mode of delivery for these communities on a year-round basis. Consequently, the need for adequate fuel is greater in Alaska than in an economy and society based on surface transportation. In light of this fact, Alaska received an exception to the initial Fuel Allocation program implemented in 1973.

In the present situation, Congress has passed a law to provide for the safe transportation of hazardous materials aboard commercial aircraft. As the Department of Transportation prepares to implement this legislation through the regulation procedure, officials in Washington have again lost sight of the unique situation in Alaska. As has been well documented in public testimony, the proposal that all decisions be made in Washington, D.C. rather than at the local level and the proposal that applications for exemptions be made 120 days prior to becoming effective, except in the case of emergencies, do not allow the flexibility required for the smooth conduct of transportation and commerce in Alaska. Communications and transportation in the bush are bad and the outlying villages do not have time to appeal to Washington if they need snowmobile gas, home heating fuel, or fuel to power electric generators in an emergency situation.

The Federal Aviation Administration has recognized this problem in the past. Smooth working relationships have been established with FAA authorities in obtaining waivers to move hazardous substances ranging from gasoline to explosives. A system is presently in effect which allows decisions on waivers to be made within an hour's time of the request on the spot. The Department of Transportation has already recognized the nature to the problem in one instance. There should be a clear recognition of Alaska's unique situation in the present case. I feel that there are several options that Bureau of Hazardous Materials should pursue in the present situation.

(1) Better enforcement of existing regulations

I share the concern of the Congress for the safety of both the crew and passengers on any aircraft. If the Bureau is concerned about safe transportation of hazardous materials, they should provide effective on-site inspection to enforce safety procedures.

(2) "Phasing in" of the new procedures

The proposed regulations would end the delivery of all hazardous materials after October 16 in Alaska for at least 120 days, the time required to process an application for exemption. This time period encompasses the winter months, when fuel deliveries are vital to the survival of small outlying communities experiencing sub-zero temperatures. The Bureau should treat renewal applications on a priority basis, with a considerably shortened processing period, while subjecting new applications to new procedures.

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(3) Local decision-making power on exemption applications

The Bureau should continue the practice of allowing decisions to be made on applications for exemptions on the local level and on short notice. As cited above, emergencies that rise in the outlying regions of Alaska cannot be handled in the 120 days provided for in the proposed regulations. Nor can they be handled in the 30 days provided for in emergency situations. Nor can the decision be made by officials in far-off Washington, D.C. Alaskans must have rapid access to fuel on short notice and this can be accomplished by giving on-site inspectors the authority to grant exemptions for the transportation of hazardous materials. (4) Public rule-making providing specifications for the safe transportation of hazardous materials

The Bureau should publish specifications for the handling of hazardous materials in aircraft. This action would allow on-site inspection to be supplemented by specific guidelines from the Bureau, while reserving final authority to the local inspectors. Centralized decision-making mechanisms in Washington, D.C. have failed in the past to recognize the unique needs of Alaska. Any attempt to centralize procedure in this case will be devastating to Alaskan commerce and dangerous to Alaskan citizens.

I urge the Department of Transportation to take notice of these suggestions and work for procedures for the safe transportation of hazardous materials that will be amenable to the interests of Alaska.

Congressman JACK BROOKS,

NOVEMBER 5, 1975.

Chairman, Committee on Government Operations, U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: Thank you very much for the opportunity to present my views at these oversight hearings on the new federal regulations relating to the transportation of hazardous materials.

As you know, Alaska is vastly different from the other states of the union in many ways. Of importance to these hearings is that transportation systems in Alaska are significantly different from those elsewhere. We have few roads or other forms of surface transportation and as a result there is a heavy reliance on air transportation. People's day-to-day lives are altered dramatically over what may appear to be minor changes in the administration of transportation through the air.

This is very much the situation that applies to the new laws relating to hazardous materials. Acceptance of the philosophy presented by the Materials Transportation Bureau of the Department of Transportation notice of proposed rulemaking for the "Carriage of Hazardous Materials Aboard Aircraft", (14 CFR Part 103, Docket 128; Notice No. 75-8) is absolutely necessary for the orderly conduct of commerce in the State of Alaska. Action to the contrary would result in chaos in the lives of people in the vast area of Alaska.

Alaskans are united in this observation and it is my hope that the Committee will carefully consider this situation and approve this philosophy. I am convinced that administrative safeguards do exist to insure that the intent of the legislation relating to the transportation of hazardous materials is upheld. Thank you for your consideration of this important matter affecting my state and for the opportunity to express my views.

Sincerely,

DON YOUNG, Congressman for all Alaska.

[14 CFR PART 103]

[Docket No. 128; Notice No. 75-9]

CARRIAGE OF HAZARDOUS MATERIALS ABOARD AIRCRAFT

NOTICE OF PROPOSED RULE MAKING

The Materials Transportation Bureau (MTB) is considering a series of amendments to Part 103 which would codify into that body of permanent regulations authority which in the past has been granted through the granting of administrative relief from various regulatory restirctions. They were granted

by the Federal Aviation Administration on a case-by-case basis, to transport, subject to specific terms and conditions, certain materials on cargo-only aircraft when there was no other practicable means of transportation.

Each proposed amendment is based on the experience and favorable record of safety associated with the carriage of the material concerned over the last several years under exemptions or authorizations to deviate from the existing requirements of Part 103.

ACCESSIBILITY ON SINGLE PILOT, SMALL CARGO-ONLY AIRCRAFT

Section 103.31(b) of Title 14 CFR requires hazardous materials acceptable only for cargo aircraft to be carried in a location accessible to a crewmember in flight. Compliance with this regulation requires the presence of at least two crewmembers aboard the aircraft, even though only one person may be required to fly it. Materials that are not accessible to a crewmember in flight are subject to the quantity limitations prescribed for inaccessible materials in § 103.19 (a) and (c). As a consequence, the utilization of a small, cargo aircraft capable of operation by a single pilot is severely handicapped by the regulation due to its payload limitations and the expense of adding an additional crewmember.

The restriction imposed by § 103.31 (b) bars the use of a small, single pilot aircraft to transport materials such as gasoline and other flammable liquids to remote communities, isolated sites of exploration teams, and other facilities located in areas not served by ground transportation or where roads can only be used during certain months, unless some administrative relief from that restriction is granted.

For a number of years the FAA, acting under the provisions of 14 CFR 103.5, has issued authorizations for small, single pilot cargo-only aircraft to deviate from the accessibility requirements of § 103.31 (b) to make deliveries of essential hazardous materials within the State of Alaska and other remote areas when other means of transportation were not practicable or in emergencies.

In view of the excellent safety record of operations involving the carriage of hazardous materials in small aircraft pursuant to the conditions and limitations prescribed in those authorizations, the MTB proposes to amend § 103.31(b) by relieving small, single pilot, cargo-only aircraft from the accessibility requirements of that paragraph while being used to transport hazardous materials to places which cannot be supplied by other means of transportation. The MTB believes these small aircraft operations can be conducted under the proposed amendment at a level of safety equivalent to that otherwise achieved through compliance with Part 103. Section 103.19 (a) and (c) which also deals with accessibility would also be amended to reject the amendment to § 103.31 (b).

DOT SPECIFICATION 17E-CONTAINERS FOR FUEL

Section 103.33 (c) (1) of Title 14 CFR allows certain limited supplies of fuel to be carried by small passenger-carrying aircraft and helicopters in Alaska and other remote areas, in metal containers that are either DOT Specification 2A containers of not more than 5 gallons capacity, each packed in DOT Specification 12B fiberboard boxes, in one of three DOT specification wooden boxes, or in a non-specification wooden box at least 1⁄2-inch thick. Section 103.33 (c) (2) allows the use of any 10-gallon container of at least 28-gauge metal, if packed in one of the three DOT specification wooden boxes, or the 12-inch wooden box. The Specification 2A container is required to be constructed of 28-gauge metal (0.0129 inch minimum thickness). A DOT Specification 17E container of 5-gallon capacity is required to be constructed of 24-gauge metal (0.0209 inch minimum thickness). Thus, a 5-gallon 17E is more than 60% thicker than the Specification 2A. A 24-gauge container is more resistant to puncture than a 28gauge container by an order of 800 inch-pounds to 600 inch-pounds. It is MTB's conclusion that a 24-gauge 17E drum, alone, is at least equivalent in integrity to a 28-gauge Specification 2A container packed in a Specification 12B fiberboard box. Accordingly, MTB proposes to amend § 103.33 (c) by adding DOT Specification 17E containers of not more than 5 gallons capacity as a packaging authorized for use under that section.

ACCUMULATED EXPERIENCE UNDER EXEMPTIONS AND AUTHORIZATIONS TO DEVIATE

Section 103.9 provides that no person may carry any dangerous materials in a cargo-only aircraft except those that: (1) are specified in 49 CFR 172.5 as ac

ceptable for shipment by rail express; (2) do not exceed the maximum quantity for each outside container specified in 49 CFR 172.5 for rail express; and (3) are packaged, marked, and labeled as specified in 49 CFR Part 173 for shipment by rail express.

Over the past several years the need to deliver a number of particular commodities classified as hazardous materials to remote places in Alaska and elsewhere has given rise to the development of sets of special limitations and conditions for allowing those commodities to be transported by the only available means of transportation (i.e., cargo-only aircraft) in quantities in excess of the standard limitations prescribed for rail express in § 172.5. As a result, considerable experience has been gained and the techniques for safe transportation of these larger quantities of essential commodities have been perfected.

Therefore, the MTB proposes to add a § 103.37 to Part 103 expressly authorizing cargo-only aircraft operating under special limitations and conditions designed to assure a high level of safety, to deliver to places not served by other practical means of transportation certain hazardous materials which the MTB believes have been demonstrated through the FAA's exemption and deviation authorization experience to be fully capable of being safely transported.

EXPLOSIVES FOR USE IN BLASTING OPERATIONS

To meet the need for explosives to perform essential blasting operations and to conduct geological testing activities at remote locations, it has been necessary for exemptions and authorizations to deviate from the rail express prohibitions relating to Explosives A. In each case, the carriage of the explosives has been subject to specific requirements to assure a high level of safety. Air cargo-only transportation of commercial explosives has been performed under these controlled conditions for avalanche control, firefighting in wilderness areas, tunnel and other major earth-moving construction in areas inaccessible by surface transportation, and oil and other mineral exploration and extraction activities in remote areas.

Therefore, the MTB proposes to incorporate into the permanent body of regulations governing the transportation of hazardous materials the authority to transport explosives for blasting operations as the exclusive cargo on cargo-only aircraft to remote places. Blasting caps would be authorized for carriage on separate flights under the same conditions or with other non-hazardous cargo when placed in special packaging designed and constructed to contain the explosive force of the blasting caps should they be initiated.

FLAMMABLE LIQUIDS IN 55-GALLON CONTAINERS

Gasoline and certain other flammable liquids, as defined in 49 CFR 173.115(a), are limited for rail express and thus also for cargo-only aircraft to a maximum quantity of 10 gallons for each outside container by 49 CFR 172.5.

A Special Federal Aviation Regulation (SFAR), No. 28, was issued on March 28, 1974 (39 FR 12337, published April 5, 1974), to permit the carriage of flammable liquids, other than pyroforic liquids, in cargo-only aircraft within the State of Alaska in quantities that exceed the maximum quantity limitations of 49 CFR 172.5 but are not in excess of 55 gallons per outside container. As set forth in the preamble to SFAR No. 28, the principal reason for its adoption was to meet the demand for flammable liquids in areas of Alaska where other means of transporting larger quantities are unavailable or impracticable.

This demand was met for a number of years prior to issuance of that SFAR and since its expiration in March of this year through the issuance of deviation authorizations under § 103.5.

In addition to Alaska, a number of requests for deviation authorizations to carry flammable liquids in quantities in excess of the limitations of 49 CFR 172.5 via cargo-only aircraft to remote places elsewhere in the United States (primarily in the Pacific Northwest) have been granted during recent years. A review of operations under SFAR No. 28 and the related deviation authorizations indicates that no accidents or incidents have been recorded as a result of these operations.

Therefore, the MTB proposes to incorporate into the permanent body of regulations governing the transportation of hazardous materials the authority to transport gasoline and certain other flammable liquids used primarily for heating purposes by cargo-only aircraft in 55-gallon or smaller drums to remote places.

FLAMMABLE LIQUIDS IN INSTALLED BULK TANKS

The carriage of flammable liquids such as gasoline in bulk tanks, the installation of which has been approved under a supplemental type certificate has been permitted, pursuant to the exemption authority in Part 11 of the Federal Aviation Regulations (14 CFR Part 11) under certain limited circumstances. This means of transporting large quantities of flammable liquids has been employed for several years to supply the needs of isolated villages, exploration teams, Alaskan pipeline related operations, and other facilities not served by ground transportation or only seasonally served.

In view of these facts, the MTB proposes to authorize the carriage of certain flammable liquids to remote places where there are no other means of transportation in supplemental type certificate approved bulk tank installations subject to certain conditions developed and perfected through the exemption process experience. These conditions and limitations would, for the most part, govern the loading and unloading and carriage of liquids in the approved bulk tanks. Interested persons are invited to submit views and comments on the proposal. A public hearing will be held for that purpose at 9:30 a.m. on October 23, 1975, in the third floor auditorium of Federal Office Building 10A (commonly referred to as the FAA Building) located at 800 Independence Avenue SW., Washington, D.C. Interested persons not desiring to present oral presentations are invited to submit their comments in writing. Comments should refer to the docket number and be submitted to: Docket Section, Materials Transportation Bureau, U.S. Department of Transportation, Trans Point Building, Washington, D.C. 20590. All comments received before the close of business on November 6, 1975, will be considered, and will be available in the docket for examination both before and after the closing date. Comments received after the closing date and too late for consideration will be treated as suggestions for future rule making.

To the extent the proposals made herein may be adopted, the MTB contemplates combining them with those it adopts in new Part 175 of 49 CFR proposed under Docket HM-112 (39 FR 3022, January 24, 1974).

In consideration of the foregoing it is proposed to amend 14 CFR Part 103 as follows:

1. Revise § 103.19 (a) and (c) to read as follows:

§ 103.19 Quantity limitations.

(a) Except as provided in § 103.31 (b) in the case of small, single pilot, cargoonly aircraft being used when other means of transportation are not available or impracticable, no person may carry more than 150 pounds net weight of nonflammable compressed gas in any inaccessible cargo pit or bin on any aircraft.

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(c) Except as provided in § 103.31 (b) in the case of small, single pilot, cargoonly aircraft being used when other means of transportation are not available or impracticable, no person may carry more than 50 pounds of any article that is subject to this part (other than an article specified in paragraph (a) or (b) of this section and magnetized materials) in any inaccessible cargo pit or bin of any aircraft.

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(b) Except in the case of a small, single pilot aircraft being used where other means of transportation are not available or impracticable, each person carrying materials acceptable only for cargo aircraft shall carry those articles in a location accessible to a crewmember in flight. When materials acceptable for cargoonly aircraft are carried on a small, single pilot, cargo-only aircraft being used where other means of transportation are not available or impracticable, they may be carried in a location that is not accessible to the pilot, subject to the following conditions:

(1) No person other than the pilot, an FAA inspector, the shipper or consignee of the material or a representative of the shipper or consignee so designated in writing, or a person necessary for handling the material may be carried on the aircraft.

(2) The pilot must be provided with written instructions on characteristics and proper handling of the material.

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