[Federal Register Volume 64, Number 129 (Wednesday, July 7, 1999)]
[Notices]
[Pages 36734-36737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17175]


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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,

[[Page 36735]]

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.

[[Page 36737]]

    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]
BILLING CODE 4910-60-P