Department-Wide Program Evaluation of the Hazardous Materials Transportation Program (HM Program Evaluation)

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

Research and Special Programs Administration

Department-Wide Program Evaluation of the Hazardous Materials

Transportation Program (HM Program Evaluation)

AGENCY: Office of Inspector General (OIG) and Research and Special

Programs Administration (RSPA), DOT.

ACTION: Notice of meetings and request for comments.

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SUMMARY: The Department of Transportation (DOT) is announcing a series

of three HM Program Evaluation Focus Group Meetings to discuss issues

with interested stakeholders concerning DOT's hazardous materials

safety programs and to request comments form parties unable to attend

the series of meetings. Each meeting will concentrate on a specific

topic and likely involve six to ten members pre-selected from the

hazardous materials community for each focus group. Other interested

parties are invited to observe each meeting and will be given the

opportunity to ask questions and raise issues. Focus Group Meeting #1

will focus on the ``Effectiveness and Adequacy of DOT's Hazardous

Materials Regulatory Program.'' Focus Group Meeting #2 will focus on

the ``Effectiveness of DOT's Approach for Gaining Compliance.'' Focus

Group Meeting #3 will focus on ``Measuring DOT's Performance in

Hazardous Materials Safety.'' This action is in support of the internal

DOT-wide Program Evaluation of the Hazardous Materials Transportation

Programs (HM Program Evaluation) which DOT announced in the Federal

Register on March 9, 1999. The HM Program Evaluation will document and

assess the effectiveness of DOT's hazardous materials transportation

safety programs in order to improve safety and environmental

protection. Your participation in these HM Program Evaluation Focus

Group Meetings and responses to the issues raised in this notice and

during the meetings will assist DOT in identifying issues that the HM

Program Evaluation team may address and evaluate as it continues its

efforts.

DATES: Comment Date: Comments must be received on or before August 27,

1999.

Public Meeting Dates: Public meetings will be held on July 22,

1999, August 11, 1999, and August 17, 1999. Meetings are scheduled from

9 a.m. to 4:00 p.m.

ADDRESSES: Written Comments: Address written comments to HM Program

Evaluation Team, U.S. Department of Transportation, 400 Seventh Street,

SW, Room 2438, Washington, DC 20590-0001. Persons wishing to receive

confirmation of receipt of their comments should include a self-

addressed stamped postcard. You may also submit comments by e-mail at:

``[email protected]''.

Public Meetings: The July 22, 1999 meeting will be held in Room

2230 of the DOT Headquarters Building (Nassif Building) 400 Seventh

Street, SW, Washington, DC 20590-0001. The August 11, 1999, meeting

will be held in the Illinois/Minnesota Rooms of the FAA Building, 2300

East Devon Avenue, Des Plaines, IL. The August 17, 1999, meeting will

be held in Room 2230 of the DOT Headquarters Building (Nassif Building)

400 Seventh Street, SW, Washington, DC 20590-0001.

FOR FURTHER INFORMATION CONTACT: Jackie A. Goff, 202-493-0326, or

George Whitney, 202-366-4831, Co-Chairs, HM Program Evaluation Team,

U.S. Department of Transportation; Room 2438, 400 Seventh Street SW,

Washington, DC 20590-0001. For information on facilities or services

for individuals with disabilities or to request special assistance at

the meetings, contact Ms. Goff or Mr. Whitney. If you are unable to

attend one or more of these meetings or wish to provide additional

comments, we welcome your written responses no later than August 27,

1999. If you would like your comments considered during a specific

meeting for which you will be unable to attend, your comments should be

received by the team at least 5 working days prior to that specific

meeting and sent to the DOT address provided above or e-mailed to:

``[email protected]''.

I. Background

On March 9, 1999, DOT published a Notice in the Federal Register

(64 FR 11528) announcing the initiation of an internal Department-wide

Program Evaluation of the Hazardous Materials Transportation Programs

(HM Program Evaluation). In that Notice it was announced that the HM

Program Evaluation team is staffed by 10 full-time persons, including

at least one full-time person from the OIG and RSPA and each of the

following Operating Administrations: The United States Coast Guard

(USCG); the Federal Aviation Administration (FAA); The Federal Highway

Administration (FHWA); and the Federal Railroad Administration (FRA).

The HM Program Evaluation team is examining the Federal hazardous

materials transportation law, the program structure defined by the

delegation of authority within DOT, and assessing program delivery. The

HM Program Evaluation is intended to allow DOT to determine the

effectiveness of the current hazardous material programs, including the

division of responsibilities across and within modes, and the

allocation of resources dedicated to specific functions. The HM Program

Evaluation is also focusing on cross-modal issues and will include an

analysis and critique of DOT's current program intervention tools

including regulation, education, training,

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outreach, inspection, and enforcement. This will position DOT to

potentially increase safety and environmental protection when hazardous

materials are in commerce.

The scope of the HM Program Evaluation is limited to those

activities covered by 49 CFR Part 106 (Rulemaking Procedures), Part 107

(Hazardous Materials Program Procedures), and the Hazardous Materials

Regulations (HMR), 49 CFR Parts 171-180. International shipments of

hazardous materials are also included in the scope of the HM Program

Evaluation to permit a review of the International Maritime Dangerous

Goods Code (IMDG) and the International Civil Aviation Organization's

Technical Instructions on the Transportation of Dangerous Goods by Air

(ICAO), both of which are authorized by HMR as alternative standards

for many of the requirements in the HMR for shipments destined for

export or that are being imported. The team will be examining whether

the current programs are achieving the stated purpose of the Federal

hazardous materials transportation law.

II. HM Program Evaluation Meetings and Issues

DOT's intent is to use information gathered during three focus

group meetings to further develop issues for consideration by the HM

Program Evaluation team. We anticipate that each focus group will

consist of approximately six to ten pre-selected individuals from the

hazardous materials community. To maximize the benefits of the focus

groups, they will be comprised of individuals having expertise in

hazardous materials transportation who are likely to be affected by the

outcome of the HM Program Evaluation. Our aim is that members of the

focus groups will be representative of the community of shippers,

carriers, packaging manufacturers, hazmat employees, enforcement

personnel, emergency responders, trade associations, labor

representatives and other interested parties involved with the

transportation of hazardous materials. In addition to the focus group

members, other interested parties are invited to observe at each focus

group meeting. They will have an opportunity to raise issues and ask

questions. The issues to be discussed during the three different focus

groups are outlined below.

Focus Group Meeting #1, Washington, DC, July 22, 1999: ``Effectiveness

and Adequacy of DOT's Hazardous Materials Regulatory Program''

Focus Group Meeting #1 will focus primarily on issues involving the

effectiveness and adequacy of DOT's regulatory program. Rulemaking

procedures for the hazardous materials program are in 49 CFR Part 106.

These procedures address petitions for rulemaking, advance notices and

notices of proposed rulemaking, final rules, interim final rules, and

direct final rules. In addition to these procedural rules, the

rulemaking process is governed by a variety of statutes and Executive

Orders. Procedures concerning exemptions to regulations are in 49 CFR

Part 107. Exemptions authorize the regulated industry to perform

functions that are not otherwise authorized by the Hazardous Materials

Regulations. The regulatory scheme requires that the agency must find

that the exemption establishes a level of safety at least equal to that

required by the regulation. If the regulations do not establish a level

of safety, the agency must find that the exemption is consistent with

the public interest.

In Focus Group Meeting #1, we are interested in determining how

well DOT's hazardous materials regulatory system is minimizing risk.

The hazardous materials regulatory system is designed to reduce the

risks associated with the transportation of hazardous material

shipments. Reduction of risk is the major way in which DOT improves the

overall level of safety in the transportation system. Questions related

to this issue include:

Based on your experiences with the regulatory system for

hazardous materials (domestic and international), can you identify

areas in which deficiencies exist that increase the risk of shipping

hazardous materials?

How would you describe your experiences in attempting to

comply with the regulations contained in 49 CFR in terms of their ease

of use and your perception that you take the required actions to reduce

the risk of hazardous materials in transportation?

What, if any, measures could DOT implement that would

lower the risk that hazardous materials may pose while in the

transportation system?

Another aspect that has the potential to impact the safety of the

transportation system is the act of shipping or transporting undeclared

hazardous materials (undeclared or ``hidden'' shipments are shipments

offered for transportation, or subsequently transported, that are not

identified as hazardous materials as required by regulation). DOT is

generally only made aware of an undeclared shipment of hazardous

materials after a related accident or incident occurs or if it is

otherwise reported to DOT. Questions related to this issue include:

To what extent are you aware of any problems associated

with undeclared shipments of hazardous materials?

What detection methods, if any, have you implemented to

recognize potential shipments of undeclared hazardous materials?

What prevention methods would you offer to DOT to reduce

the practice of shipping or transporting undeclared shipments?

Are undeclared shipments a result of ignorance or

willfulness? Please describe.

What is your experience concerning undeclared shipments

occurring within the different modes of transportation (air, highway,

rail and water)?

Do you believe that either the risk level or volumes of

activities associated with undeclared shipments is equal among the

modes? Please describe.

An important segment of the Hazardous Materials Regulations is

hazard communication. Hazard communication under the HMR is addressed

in five components: Shipping papers, marking, labeling, placarding, and

emergency response information. Questions related to this issue

include:

To what extent does the current regulatory system provide

adequate hazard communication information on shipments in transit?

Are there other sources of information that provide hazard

communication information and could they become the basis for an

industry standard? For example, is there other information or documents

in use related to hazardous materials in transit besides the

information provided on a shipping paper that could be standardized or

combined in one document?

The regulatory system permits the establishment of exceptions and

exemptions that are intended to safely and efficiently expedite the

movement of certain hazardous materials. Questions related to this

issue include:

Do exceptions and exemptions complicate the understanding

of the regulations?

Do exceptions and exemptions achieve an adequate level of

safety?

How would you recommend that DOT achieve its intended goal

of safely and efficiently moving hazardous materials differently given

the industry need for and benefit of these alternatives?

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What do you see as the major enforcement or emergency

response concerns related to DOT's use of exceptions and exemptions?

Focus Group Meeting #2, Chicago, IL, August 11, 1999: ``Effectiveness

of DOT's Approach for Gaining Compliance''

Focus Group Meeting #2 will focus primarily on issues involving

reducing violations, means of intervention, and improving compliance

with the regulations. To improve the level of compliance by industry

DOT focuses its efforts at a variety of intervention points in the

transportation system, including activities at the packaging,

manufacturer, offeror and transporter stages. Intervention methods

include regulations, education, training, outreach, inspection and

enforcement. With respect to intermodal shipments, more than one modal

administration has the opportunity to intervene with the same shipment

as it passes from one mode of transportation to another.

DOT engages in numerous activities to provide information and

improve awareness of and compliance with the safety requirements. These

outreach activities include: Publishing notices in the Federal

Register; issuing press releases; using Internet web pages; conducting

training seminars and public meetings; participating in stakeholder

conferences; and distributing pamphlets, brochures, videos, and CD

ROMS.

In Focus Group Meeting #2, we are interested in determining how

effective DOT's approach is for reducing violations and increasing

compliance. Questions related to this issue include:

Historically, compliance inspection data reveal that

placarding and shipping paper deficiencies are the most cited

violations. How would you recommend that DOT increase compliance in

these areas?

Based on your experiences with DOT, please comment on

which of DOT's intervention methods are most effective (regulations,

education, training, outreach, inspection and enforcement). Why?

Where do you believe DOT's intervention could be most

effective (at the packaging, manufacturer, offeror or transporter

stages) and what intervention approach should DOT employ?

What are your observations and experiences regarding the

depth and quality of DOT's compliance inspections? Please be specific,

if possible, in your comments with respect to individual operating

administrations within DOT (USCG, FAA, FHWA, FRA, and RSPA).

Are DOT inspectors helpful in providing compliance

assistance and in explaining non-complying conditions? If possible,

please be modal specific.

What current DOT outreach efforts (e.g., informational

pamphlets, seminars, classroom training and on-site assistance) do you

have experience with and which are the most effective?

What other, if any, DOT outreach activities do you

suggest?

DOT's efforts to influence the level of compliance with the HMR

involve use of the civil penalty assessment process including notices

of probable violation, final orders, administrative law judge hearings,

ticketing, and alternative means of dispute resolution, including

alternatives to traditional enforcement. Questions related to this

issue include:

Do you believe civil penalties are effective in gaining

compliance?

Can you recommend ways to improve the civil penalty

program?

What are your major concerns about the process DOT uses

for determining the penalty amounts in relationship to a violation of

the HMR?

The HMR include training requirements which are intended to ensure

employees are competent to fulfill their roles; however, the adequacy

of the scope or frequency of the required training is unknown. DOT has

observed that many shippers and carriers employ the services of third-

party trainers (i.e., non-governmental parties who provide training on

the HMR). Questions related to this issue include:

Do you believe the existing training standards are

adequate to ensure all personnel responsible for the safe

transportation of hazardous materials understand the pertinent

requirements of the HMR?

If not, how would you modify the training or employee

competency requirements to improve this aspect of the safety scheme?

DOT currently uses a variety of approaches to work with state

personnel to gain compliance with the HMR. These approaches include:

(1) Providing funding to states to increase compliance with the HMR

through the deployment of wide-scale inspections and enforcement

activities; (2) using a mix of Federal and state inspectors in some of

DOT's operating administrations; and (3) conducting inspections and

other activities using only Federal DOT inspectors. Questions related

to this issue include:

How effective are DOT's different approaches of using

Federal and/or state personnel as an intervention practice?

Please explain if, and why, one approach is better than

another.

Domestic and foreign shipper practices have the potential to

significantly affect hazardous materials safety and influence the level

of compliance with the HMR. Deficiencies discovered by modal inspectors

are typically tracked back to the original shipper to rectify the

deficiency. Such corrective follow up is more difficult for import

shipments. Effective outreach overseas is a challenge. Questions

related to this issue include:

If you are an importer of hazardous materials, how

frequently do you receive hazardous materials that do not comply with

the regulations?

To the extent that there are non-complying shipments, what

do you believe is the major reason (ignorance or willfulness)? Please

describe.

Focus Group Meeting #3, Washington DC, August 17, 1999: ``Measuring

DOT's Performance in Hazardous Materials Safety''

Focus Group Meeting #3 will focus primarily on issues involving

DOT's performance measures as it relates to minimizing the risk of

hazardous materials transportation. In this meeting, we are concerned

about DOT's performance with regard to reducing HM safety risks and in

determining the best measures of success.

In DOT's Performance Plan for Fiscal Year 2000, the primary

hazardous materials safety performance goal is to reduce the number of

serious HM incidents in transportation (to 411 or fewer in the year

2000 from a peak of 464 in 1996.) DOT defines a serious hazardous

materials incident as one that involves a fatality or major injury due

to a hazardous material, closure of a major transportation artery or

facility or evacuation of six or more persons due to the presence of a

hazardous material, or a vehicle accident or derailment resulting in

the release of a hazardous material.

Trends in serious incidents in the past decade have been fairly

stable--averaging about 407 per year since 1990. In a typical year,

serious hazardous materials incidents account for 10-15 deaths (with

the notable exception of 1996, when the ValueJet crash resulted in 110

deaths,) and fewer than 300 major injuries. Because of the inherent

risk in handling and transporting hazardous materials, there are limits

to how far the number of incidents could be reduced. Furthermore,

serious incidents often require mitigation measures that are mode

specific and might not benefit all hazardous materials operations.

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There are safety advocates who maintain that any unintentional

release, large enough to be reportable, is a flag indicating safety

risks or flaws in operating and handling procedures. Minimizing these

releases, many experts argue, should be the goal of the regulatory

agencies. Looking at all reported hazardous materials incidents--

serious and non-serious--there has been an overall decline since the

high of 16,000 in 1983, with the numbers fluctuating between fewer than

10,000 in 1990 to under 14,000 last year. Assessing changes in the

total number of incidents to be used as a measure of effectiveness in

conjunction with close integration of the incident reporting system in

the entire process of hazardous materials intervention--from training,

inspection, and enforcement--could be used by DOT to identify the

underlying causes of many incidents.

In Focus Group Meeting #3, we are interested in gauging DOT's

success and in developing appropriate measures or candidate measures.

Questions related to this issue include:

Are serious incidents the best measure of our success in

reducing risk in hazardous materials transportation?

Is the goal of reducing the number of serious incidents by

a targeted amount the best alternative?

Would trends in all unintentional releases of hazardous

materials be a better indicator of how well we have succeeded in

controlling the risk of hazardous materials in transportation?

How can we best measure the success of the hazardous

materials program? How would you evaluate the overall effectiveness of

the hazardous materials intervention program in addressing the level of

risk hazardous materials pose in transportation?

Issued in Washington, DC on June 30, 1999.

Jackie A. Goff,

Co-Chair, Hazardous Materials Program Evaluation Team.

George Whitney,

Co-Chair, Hazardous Materials Program Evaluation Team.

[FR Doc. 99-17175 Filed 7-6-99; 8:45 am]

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