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I thought you would like to know this in the light of your particular concern-transportation safety.

Go ahead, sir.


Mr. RANDALL. Please proceed.

Mr. REED. Thank you. The National Transportation Safety Board is pleased to appear before your committee today to present its views concerning implementation of the Hazardous Materials Transportation Act of 1974 with respect to air transportation.

I am John H. Reed, Chairman. With me, on my right, are Mr. Fritz L. Puls, General Counsel; on my left, Mr. Ludwig Benner, Jr., Chief of the Hazardous Materials Safety Division; and on my far left, Mr. James T. Childs, Safety Recommendations Manager, Bureau of Aviation Safety.

As you know, the Safety Board on several occasions has expressed concerns about the issuance of exemptions from hazardous materials regulations, and about efforts to insure compliance with regulations governing air carriage of hazardous materials.

Our recommendations have addressed the technical inadequacy of petitions for exemptions, and the expansion of activities under procedures governing such exemptions. We have described controversies that arise if exemptions have to be withdrawn for safety reasons, and the private rulemaking nature of the procedures.

Inadequacies in assuring compliance with regulations have been addressed in recommendations calling for a telegraphic alert, increased inspections, accelerated training, improved shipment acceptance procedures, new compliance checklists, improved pilot notification procedures, and better dissemination of regulatory requirements. We were, therefore, pleased that these safety problem areas were addressed by Public Law 93-633.

After passage of that act, one of the first actions of the Department of Transportation's newly established Materials Transportation Bureau was the publication of proposed procedures governing application for and processing of applications for exemptions from its regulations. (See app. 2.)

Although the need for a safety analysis is discussed in the preamble to the proposed rulemaking in docket HM 127, the Safety Board concluded that a requirement for submittal and consideration of a safety analysis which, in accordance with the act, is to be prescribed by the Secretary of Transportation, was not included in the proposed rules. The information required of applicants would not result in a clear presentation of specific safety concerns. If these safety concerns are not clearly delineated, some risks that need to be controlled may be overlooked.

Before such an analysis can be required, it is necessary for the Secretary to prescribe its form and content. Accordingly, we have recommended that the Secretary prescribe the form and content for a safety analysis statement to accompany applications for exemptions to the MTB regulations. A copy of our letter to the Secretary is attached. I would ask that it be made a part of the record.

Mr. RANDALL. Without objection, it is so ruled.

[The letter follows:]

Secretary of Transportation,
Washington, D.C.

Washington, D.C., September 25, 1975.


The National Transportation Safety Board has reviewed the Materials Transportation Bureau's (MTB) "Hazardous Materials Regulations-Proposed Exemption Procedures" in Docket HM 127, Notice 75-7, published in the Federal Register on August 4, 1975. These procedures would be used in applying for and the processing of applications for exemptions from the MTB regulations governing the transportation of hazardous materials which, except for bulk transportation by water and certain ships' supplies, govern the movement of such materials by any mode of transportation.

The Safety Board has concluded that the proposed exemption procedures do not fulfill the intent of Section 107 of the Hazardous Materials Transportation Act, which calls for "a safety analysis as prescribed by the Secretary to justify the grant of such exemption." The information required by the proposed 49 CFR 107.5(b)(4), (5), (6), (7), and (9) will not result in a clear presentation of specific safety concerns and does not constitute a safety analysis. If the safety concerns are not clearly delineated, the MTB will not have the information it needs to establish the proper regulatory safeguards in each case, and some risks that need to be controlled may be overlooked.

An applicant for an exemption to MTB regulations should be required to prepare a formal safety analysis statement which would (1) identify the ways persons could be injured with respect to the quantity and form of the materials to be transported, (2) identify the specific risks for which the applicant considers it necessary to establish safety control measures, based on 107.5(b) (9) (i) and (ii) of the proposed exemption procedure, and (3) describe measures which would control or eliminate these risks. This procedure would assure that applicants focus on the safety problems which need to be considered. Also, the data derived from the procedure could be used as base data in future risks analyses. Therefore, the National Transportation Safety Board recommends that the Secretary of Transportation:

(1) Prescribe the content and form for a safety analysis statement to accompany applications for exemptions to the Materials Transportation Bureau's regulations. (Recommendation HM-75-1) (Class I)

(2) Revise Proposed 49 CFR 107.5(b) (9) to require submission of a safety analysis statement, in the form prescribed by the Secretary of Transportation, to support the applicant's belief that his proposed exemption will achieve the level of safety specified in 49 CFR 107.5 (b) (9) (i) and (ii). (Recommendation HM75-2) (Class I)

A copy of this letter is being sent to the Materials Transportation Bureau, with the request that it be considered a response to the Notice of Proposed Rulemaking in HM Docket 127, Notice 75–7.

Personnel from our Bureau of Surface Transportation Safety are available if further information or assistance is required.

REED, Chairman, MCADAMS, BURGESS, and HALEY, Members, concurred in the above recommendations. THAYER, Member, did not participate.

JOHN H. REED, Chairman.

Mr. REED. We further recommended that a requirement for such statements be incorporated into the proposed exemption procedures.

This would insure that applicants focus on the safety problems which need to be considered before exemptions are granted. Requests for permits observed in our investigations have been weak in this respect.

We recognize that formal safety preanalysis of applications for exemptions may involve some additional effort or delay. Nevertheless, the need for identification and consideration of the safety risks is just as important for exemptions as for regulatory amendment. An adequate analysis of the proposal should fulfill this need.

If the methods for controlling risks associated with petitions for exemptions were specified in the regulations, most of the demand for exemptions could probably be eliminated. The recent publication of proposed amendments to regulations governing air carriage of hazardous materials in remote areas illustrates this principle. The safety analysis statements we recommended should help identify such risks and simplify the Department's task of complying with the risk evaluation duties imposed by section 109 of the act.

Among the Federal Aviation Administration actions affecting compliance, we believe several are noteworthy.

First, responding to a Safety Board recommendation, the FAA in its March 1975 amendment 103-23 to the Federal Air Regulations established a requirement that operators of aircraft inspect hazardous materials packages for apparent compliance with the regulations. This change added a compliance checkpoint to the transportation system, and highlighted the carrier's duty to verify that shipments are in compliance with the regulations.

However, the Board's recommendation contained in A-74-26 (see p. 49), which would have added another incentive for compliance, was rejected by the FAA. In that recommendation, we asked the FAA to require carriers to notify the shipper and the FAA when a shipment or its documentation deviates in any manner from the regulations. Implementation of that recommendation would get shippers involved in the problem at the time their shipments are found not to comply with the regulations. This early involvement should improve compliance levels.

Second, the July 11, 1974, FAA report on its own hazardous materials program was also useful, because it documented some of the problems within that program. The FAA's conclusions corroborated the indications of compliance problems which emerged from the Safety Board's investigations. (See app. 6.)

However, its conclusion that regulations governing these subjects are adequate seems inconsistent with information developed in our risk concepts study and our investigation of the Pan American World Airways cargo aircraft crash in Boston in November 1973. The DOT Task Force recommendations that certain hazardous materials be prohibited in air commerce, and that FAA's interpretation of "assessibility" be amended are additional indications of a still unmet need for improved regulations.

Third, DOT FAA Order 800.34 dated August 6, 1974, provided a documented and orderly description of the hazardous materials air shipment surveillance and inspection practices for enforcement personnel. The sample problems given in the appendix seem particularly instructive and useful to the user. They also illustrate the continuing

need for a user-oriented format for the hazardous materials regulations, along the lines proposed on January 24, 1974, by the Hazardous Materials Regulations Board in its docket HM 112, notice 73-9.

In another development, the March 19, 1975, report of the DOT Task Force on Hazardous Materials in Air Commerce also reinforced many of the Safety Board findings in its Pan American/Boston investigation.

Publication of the Task Force findings should contribute further toward the resolution of the problems discussed, if the recommendations are implemented. We are aware of no specific plans to do so at this time.

We are aware of several actions taken by air carriers and various associations concerned with assuring compliance with the regulations, and such actions should improve prospective compliance levels.

In summary, Mr. Chairman, many actions to improve compliance have been taken in the past year by the Government, air carriers, and associations. Hearings such as this will stimulate the efforts that already have been taken.

Mr. Chairman, that concludes my prepared statement. I would be happy to answer any questions you or the committee may have. Mr. RANDALL. Thank you very much, Mr. Reed.

In your appendix which you submitted for committee files, did you include any of your safety recommendations?

Mr. REED. Yes, sir, the one we sent to the Secretary of the Department of Transportation calling for the specific safety analysis.

Mr. RANDALL. All right.

I was concerned by your statement on page 2, where you state that "Although the need for a safety analysis is discussed in the preamble to the proposed rulemaking in docket HM 127 . . ." your Board, and I assume the National Transportation Safety Board is referred to here, "concluded that a requirement for submittal and consideration of a safety analysis"-which is provided in the act, be prescribed.

So, you say that the requirements for a safety analysis which the 1974 act required to be prescribed by the Secretary of the Department of Transportation were not in fact included in the DOT's proposed exemption procedures?

Can you shed any light on why this was not done?

Mr. REED. No, Mr. Chairman. I cannot explain why it was not done. It was mentioned, as I indicated, in the preamble, but we felt it should be more specific.

If I might elaborate just a bit. It is our belief that, to be adequate, a safety analysis should systematically identify how harm can occur during the proposed transportation, and the safeguards needed to control those risks that are unacceptable.

It should include more than container engineering considerations, because engineering problems constitute only one element in the accident sequence during which people can get hurt or products damaged. The entire sequence needs to be considered to insure discovery of the safety problems to assure their control more effectively and efficiently. I think, to boil it down in lay language, we would propose that every risk be identified-every possible thing that could take place be listed-and then determine what can be done to negate that risk.

This is the approach we use when we investigate an accident. We utilize a safety analysis to determine what caused an accident. We list every possible cause and then go through an elimination process. So what we are suggesting to the Department is that they employ the same procedure before an accident happens.

Mr. RANDALL. What you are saying, in lay language, is that there should be some identification and listing of the risks posed by the transportation of a hazardous material, and that this simply has not been done.

Mr. REED. Yes, sir. We do not believe that the proposed rulemaking would require the needed safety analysis.

Mr. RANDALL. I don't know if it is a question of being clearer or unclear. You said that it was simply not included in the proposed rules.

Mr. REED. That was our interpretation of the rulemaking.

Mr. RANDALL. All right.

Perhaps you are not the best witness on this, but I will query you on it anyway.

In the same thread of thought that we were talking about here— you said that adequate analysis-this safety preanalysis, that you are talking about-of the petitions for exemptions may cause a little delay. However, it should certainly enhance safety standards. You go on to say that: "If the methods for controlling risks associated with petitions for exemptions were specified in the regulations," then you believe many of the requests would be eliminated.

That is a good point. But another important question is how many exemptions were applied for that were not granted-if any?

Mr. REED. No, sir. I am not familiar with that. I do not believe we would have that information.

Mr. RANDALL. We have a mysterious figure of about 17 percent, though I am advised that this figure is for exemptions, and does not include waivers or special permits.

My time is up. Ms. Abzug?

MS. ABZUG. I appreciate your testimony in that it deals with further guidelines for determining when there should be an exemption after a safety analysis. I think that requiring additional statements with respect to the effect of an exemption for safety purposes would make a difference. I think you are quite right.

On the other hand, my question to you is-are you satisfied with both the act and the exemptions to begin with? Do you think that they sufficiently plug the loopholes for transportation of hazardous materials that can create danger? Let's get to the substance.

We had a discussion while you were in the room with the Pilots' Association, for example, on the question of radioactive materials such as plutonium. I am not happy about the end product of that discussion, nor, do I think, are the pilots or most people who are concerned with safety. We have really not plugged that fully; we have left a big loophole with the question of exemption for medical and research purposes. What do you say about that?

Mr. REED. With regard to your first question-if we are satisfied with the act-we feel that the issues that we pointed out to the committee were included in the act. I think now the question is, will the law be properly implemented?

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