Safety Recommendation A-98-071

The DOT's letter describes a variety of actions it has taken to address this recommendation, including obtaining the authority to open and examine packages suspected of containing hazardous materials; requiring a written report whenever a package containing undeclared hazardous material is discovered; bringing enforcement actions against carriers who accept undeclared hazardous materials; and providing guidance and training on how to recognize undeclared hazardous materials offered for shipment.

While all of these initiatives likely will result in improvements in overall hazardous materials transportation safety, including the detection of undeclared shipments in all modes, none of these initiatives focuses directly on the detection of undeclared hazardous materials as addressed in the recommendation. The DOT's letter also indicates that in 2004 it conducted cost/benefit analyses of possible rulemaking. Based on these analyses, the DOT concluded that it cannot issue the regulations recommended because such rulemaking is not cost beneficial.

The Safety Board concluded in its report of the Newburgh accident that the transportation of undeclared hazardous materials on airplanes remains a significant problem, and more aggressive measures to address it were needed. The DOT acknowledged in its current response that the threat to all cargo-and passenger-carrying aircraft from undeclared shipments of hazardous materials is one of the most serious concerns that the DOT faces.

The Safety Board notes that the purpose of the recommended action was to address the point made by the DOT in its letter that "Most undeclared shipments result from ignorance on the part of both passengers and shippers as to their obligations under the Hazardous Materials Regulations (HMR)." The DOT has initiated efforts to educate shippers on what constitutes hazardous materials, but the Board remains concerned that shippers of hazardous materials may answer negatively if they are asked only whether they are shipping hazardous materials. It was to address this concern that this recommendation was issued.

The Safety Board believes that requiring shippers to ask a series of simple questions (Is the material shipped flammable? Corrosive?) and record answers on a written form will do more to reduce the shipment of undeclared hazardous materials than the described guidance and training alone will do. The DOT's letter references General Accounting Office (GAO) Study 03-22, "Aviation Safety: Undeclared Air Shipments of Dangerous Goods and USDOT's Enforcement Approach." The Board notes that the GAO study describes a program by the U. S. Postal Service (USPS) that complies with the Board's recommendation.

The USPS's program features a series of simple questions about an item offered for shipment that will reveal to a postal clerk whether the package may contain hazardous materials. USPS shippers sign a written statement with their responses, and USPS clerks are trained on the questions to be asked and interpreting answers of concern. Successful implementation of this program by the USPS clearly demonstrates that the DOT could implement a parallel program carried out by air carriers.

The Safety Board is surprised by the results of the cost/benefit study and disagrees that the recommended action would not be cost beneficial. The Board believes that there will be little cost to taking the recommended action beyond printing forms with a series of standard questions and training shipping company personnel on interpreting the answers. The GAO study also addressed the use of technology to identify and characterize undeclared shipments, noting that the x-ray and explosive-detection equipment used by the Transportation Security Administration to screen passenger carry-on and checked baggage is not designed to detect many types of dangerous goods.

Therefore, improvements in cargo screening technology are still needed. As the GAO study indicated, "improper or undeclared shipments of dangerous goods are particularly dangerous in air transport because there is little room for error or time to take corrective action if a problem occurs in flight." Clearly, potentially great benefits will result from preventing a hazardous materials spill on an aircraft.

The Safety Board does not believe the DOT's actions are responsive to this recommendation. Opening and inspecting packages suspected of containing hazardous materials will be effective only for packages that create suspicions of a problem such as those emitting an odor, showing discoloration, or causing a fire. Such inspections will take place after they are accepted for shipment, and will not avoid shipment, which is the goal of the recommendation. Similarly, a requirement for written reports that are submitted following the shipment of undeclared hazardous materials will not prevent their shipment.

Finally, educating shippers and shipping companies about hazardous materials is beneficial, but the Board believes this is unlikely to fully address the issue that the DOT has identified (ignorance on the part of shippers as to their obligations under the HMR).

The Safety Board notes that this recommendation is now 7 1/2 years old, although the Board asked for action within 2 years. However, the DOT has not taken the recommended action and has indicated that it does not plan to do so. Consequently, Safety Recommendation A-98-71 is classified "Closed-Unacceptable Action." Although the Board has closed this recommendation, we will continue to monitor this issue and discuss it in future pertinent accident investigations.

Letter Mail Controlled 10/31/2005 3:25:21 PM MC# 2050503: The threat posed to all-cargo and passenger-carrying aircraft by undeclared shipments of hazardous materials is one of the most serious safety concerns the Department faces. It is also one of the most difficult to mitigate. Most undeclared shipments result from ignorance on the part of both passengers and shippers as to their obligations under the Hazardous Materials Regulations (HMR). The Department is taking a number of steps to address this recommendation:

In response to the Department's legislative proposal, the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (Title VII of the Safe, Accountable, Flexible and Efficient Transportation Equity Act- A Legacy for Users), was enacted August 10,2005. This provides the Department expanded authority to open and examine packages suspected to contain a hazardous material, to remove a package from transportation if it poses an imminent safety hazard, and to impose emergency restrictions (including out-of-service orders) to abate an imminent safety hazard. Temporary regulations to implement this authority are required to be issued by October 11, 2005.

Final regulations must be issued by August 10,2006. The Pipeline and Hazardous Materials Safety Administration (PHMSA), formerly the Research and Special Programs Administration, revised its reporting requirements to require a written report whenever a carrier discovers a package containing undeclared hazardous materials. Previously, PHMSA had to rely on voluntary reports from industry regarding undeclared shipments. These new reporting requirements will help define the extent of the problem, establish trends and help gauge the effectiveness of efforts to reduce undeclared shipments.

The PHMSA issued advisory guidance alerting carriers to know their shippers and recommending enhanced industry awareness of the types of materials being shipped. The Federal Aviation Administration (FAA) published a final rule in the Federal Register on October 7,2005 to revise its training regulations to require air carriers to include training on how to identify undeclared hazardous materials. This rule requires recognizing scientific names, package shapes, and destinations that are typical of hazardous materials.

The FAA and PHMSA continue to bring enforcement actions against shippers of undeclared hazardous materials and also against carriers who accept an undeclared shipment with actual or "constructive knowledge" that a package contains hazardous materials. The PHMSA previously published an interpretation in the Federal Register emphasizing that a "carrier may not ignore readily aparent facts that indicate that a shipment actually contains a hazardous material governed by the HMR despite the fact that it is not marked, labeled, placarded, or described on a shipping paper as containing a hazardous material." The Department has thoroughly reviewed possible rulemaking in this area.

In its 2/28/2005 report to Congress, "Open Statutory Mandates Regarding Pipeline and Hazardous Materials Safety," the DOT wrote: DOT is conducting research on the technologies and is also examining a number of possible regulatory changes. NTSB is disappointed that little has been accomplished on shipping papers and classifies this recommendation as, "open, unacceptable response."

On August 21, 2000, the DOT wrote to the Safety Board and reported on various activities that it was pursuing to reduce the threat of undeclared shipments of hazardous materials. Among these was a flagship initiative to examine the feasibility of using new, noninvasive screening technologies for cargo, mail, and baggage screening. The Safety Board responded by letter on January 5, 2001, that it was pleased by the DOT's efforts to develop these new technologies.

The Safety Board stated, however, that little had been accomplished to require persons offering shipments for air transportation to provide written responses, on shipping papers, to inquiries about hazardous characteristics of the shipment. The intent of this recommendation, as stated in our original recommendation letter dated August 12, 1998, was to (". . .include answering individual and specific questions about whether a package contains a substance that might be classified hazardous (e.g., 'does this package contain a substance that might be corrosive [or flammable, a poison, an oxidizer, etc.]')."

The Safety Board would appreciate learning of any current, completed, or planned activities taken in response to this recommendation. If there are no such activities, please inform the Board so that we may close the recommendation. Copies of the recommendation letter and our letter of January 5, 2001, are enclosed for your reference.

THE SAFETY BOARD BELIEVES THAT THESE ACTIVITIES ARE RESPONSIVE TO THE SECOND PART OF THIS RECOMMENDATION, AND URGES THE DOT TO CONTINUE THESE PROGRAMS. THE SAFETY BOARD IS DISAPPOINTED, HOWEVER, THAT LITTLE HAS BEEN ACCOMPLISHED IN REQUIRING PERSONS OFFERING SHIPMENTS FOR AIR TRANSPORTATION TO PROVIDE WRITTEN RESPONSES, ON SHIPPING PAPERS, TO INQUIRIES ABOUT HAZARDOUS CHARACTERISTICS OF THE SHIPMENT. THE BOARD NOTES THAT THE RECOMMENDATION ASKED THAT THIS ACTION BE COMPLETED WITHIN 2 YEARS AND THAT 2 YEARS HAVE NOW PASSED. THE DOT'S LETTER DESCRIBES ONLY TWO ACTIVITIES--THOSE OF TRANS WORLD AIRLINES AND FEDERAL EXPRESS--THAT ARE RESPONSIVE TO THE RECOMMENDATION.

THE DOT NOTES THAT BOTH OF THESE ACTIVITIES WERE INITIATED BY THE AIRLINES, NOT IN RESPONSE TO ANY DOT ACTIONS. THE DOT ALSO INDICATES THAT IT IS EXAMINING A NUMBER OF REGULATORY CHANGES, AND THAT ITS REVIEW WILL NOT BE COMPLETED UNTIL APRIL 2001, WHEN, THE SAFETY BOARD NOTES, SIGNIFICANT ADDITIONAL TIME WILL BE REQUIRED FOR ANY REGULATORY DEVELOPMENT. ALTHOUGH THE BOARD IS PLEASED BY THE DOT'S EFFORTS TO DEVELOP NEW SCREENING TECHNOLOGIES FOR CARGO, MAIL, AND BAGGAGE, THE LACK OF PROGRESS IN REQUIRING THAT A PERSON OFFERING ANY SHIPMENT FOR AIR TRANSPORTATION PROVIDE WRITTEN RESPONSES, ON SHIPPING PAPERS, TO INQUIRIES ABOUT HAZARDOUS CHARACTERISTICS OF THE SHIPMENT IS UNACCEPTABLE.

PENDING DEVELOPMENT OF SUCH A REQUIREMENT, A-98-71 IS CLASSIFIED "OPEN--UNACCEPTABLE RESPONSE."

Letter Mail Controlled 08/29/2000 4:07:15 PM MC# 2001167 THIS IS ONE OF SEVERAL SAFETY BOARD RECOMMENDATIONS TO THE DEPARTMENT CONCERNED WITH REDUCING THE NUMBER OF UNDECLARED SHIPMENTS OF HAZARDOUS MATERIALS. THE THREAT POSED BY UNDECLARED HAZARDOUS MATERIALS SHIPMENTS IS ONE OF THE MOST SERIOUS AND COMPLEX SAFETY PROBLEMS WE FACE. THIS IS PARTICULARLY TRUE FOR UNDECLARED SHIPMENTS ON AIRCRAFT. OUR EXPERIENCE INDICATES THAT MOST UNDECLARED SHIPMENTS RESULT FROM IGNORANCE ON THE PART OF BOTH PASSENGERS AND SHIPPERS AS TO THEIR OBLIGATIONS UNDER THE HAZARDOUS MATERIALS REGULATIONS (HMR), RATHER THAN FROM KNOWING DISREGARD OF THE APPLICABLE REGULATORY REQUIREMENTS.

TWO-THIRDS OF UNDECLARED SHIPMENTS ON PASSENGER AIRCRAFT REPORTED TO THE FAA ARE FOUND IN PASSENGER BAGGAGE. THE REMAINING ONE-THIRD IS FOUND IN CARGO SHIPMENTS. MOREOVER, THE PROBLEM OF UNDECLARED SHIPMENTS IS NOT LIMITED TO AVIATION BUT INCLUDES SHIPMENTS THAT GO BY SURFACE MODES OF TRANSPORTATION ONLY, AS WELL AS SHIPMENTS DESTINED FOR AIRPORTS THAT TRAVEL BY MOTOR VEHICLE. REDUCING THE THREAT OF UNDECLARED HAZARDOUS MATERIALS SHIPMENTS IS ONE OF MY HIGHEST PRIORITIES.

I HAVE ESTABLISHED A DOT HAZARDOUS MATERIALS FLAGSHIP INITIATIVE THAT HIGHLIGHTS OUR PRIORITIES FOR THE HAZARDOUS MATERIALS PROGRAM THROUGH THE END OF FISCAL YEAR 2001 AND IDENTIFIES AS A MAJOR ACTION AREA THE REDUCTION IN UNDECLARED SHIPMENTS. A CROSS-MODAL TEAM, LED BY THE RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION (RSPA) WITH PARTICIPATION FROM EACH OF THE DEPARTMENT'S OPERATING ADMINISTRATIONS WITH HAZARDOUS MATERIALS RESPONSIBILITIES, IS FOCUSING ON THIS PROBLEM. THIS FLAGSHIP INITIATIVE SETS FORTH A COMPREHENSIVE STRATEGY FOR ACHIEVING MEASURABLE IMPROVEMENTS.

THIS STRATEGY, DETAILED BELOW, INCLUDES OUTREACH AND EDUCATION EFFORTS, DEVELOPMENT OF NONINVASIVE SCREENING TECHNOLOGIES, INCREASED INSPECTION AND ENFORCEMENT EFFORTS, AND REGULATORY INITIATIVES. PERHAPS THE SINGLE MOST EFFECTIVE APPROACH FOR REDUCING UNDECLARED HAZARDOUS MATERIALS SHIPMENTS IS INCREASED OUTREACH AND EDUCATION FOR BOTH AIRLINE PASSENGERS AND CARGO SHIPPERS. RSPA HAS PRODUCED A POSTER WITH WORDS AND GRAPHICS TO IDENTIFY HAZARDOUS MATERIALS THAT ARE PROHIBITED IN PASSENGER BAGGAGE.

THIS POSTER HAS BEEN WIDELY DISTRIBUTED TO BOTH AIRPORTS AND AIRLINES, AND IT CAN BE USED BY AIR CARRIERS TO MEET THEIR OBLIGATION UNDER THE HMR TO DISPLAY NOTICES OF THE REQUIREMENTS APPLICABLE TO THE CARRIAGE OF HAZARDOUS MATERIALS ON BOARD AIRCRAFT. ON THEIR OWN INITIATIVE, MANY AIRLINES HAVE TAKEN ACTIONS TO MAKE PASSENGERS AND CARGO SHIPPERS AWARE OF THE DANGERS OF UNDECLARED HAZARDOUS MATERIALS ON AIRCRAFT. FOR EXAMPLE, TRANS WORLD AIRLINES QUESTIONS PASSENGERS AS TO WHETHER LUGGAGE CONTAINS HAZARDOUS MATERIALS, AND IT HAS POSTED WARNING SIGNS AT ITS CHECK-IN COUNTERS THAT GO BEYOND THE REQUIREMENTS OF THE HMR.

PLEASE INFORM THE BOARD OF DOT'S CURRENT AND PLANNED ACTIVITIES IN RESPONSE TO THIS RECOMMENDATION, AND THE PLANNED COMPLETION DATE OF THESE ACTIVITIES. DOT'S RESPONSE TO THIS RECOMMENDATION MAY BE DISCUSSED AT A BOARD MEETING CURRENTLY SCHEDULED FOR 7/25/00, INVOLVING FEDERAL EXPRESS.

THE SAFETY BOARD STAFF NOTED THAT THE RECOMMENDATION FOR WRITTEN RESPONSES TO INQUIRIES ABOUT HAZARDOUS CHARACTERISTICS OF SHIPMENTS AND THE NEED TO DEVELOP OTHER PROCEDURES AND TECHNOLOGIES TO IMPROVE THE DETECTION OF UNDECLARED HAZARDOUS MATERIALS WAS INTENDED FOR CARGO SHIPMENTS. HOWEVER, THE BOARD NOTES THAT TECHNOLOGIES DEVELOPED TO DETECT UNDECLARED HAZARDOUS MATERIALS IN CARGO SHIPMENTS MAY ALSO BE USED TO IDENTIFY UNDECLARED HAZARDOUS MATERIALS IN PASSENGER BAGGAGE.

RSPA AND THE FAA, IN A ONE DOT EFFORT, ARE WORKING TOGETHER TO ADDRESS THE INTENT OF THIS RECOMMENDATION IN THE AREAS OF INFORMATION DISSEMINATION, CERTIFICATION OF SHIPMENTS, DATA COLLECTION, TRAINING, AND INSPECTION AND INVESTIGATION. THE SAFETY BOARD APPRECIATES THE EFFORTS BY THE DOT TO IMPROVE THE SAFETY OF AIR TRANSPORTATION BY FOCUSING ITS EFFORTS ON THE DETECTION OF UNDECLARED HAZARDOUS MATERIALS. HOWEVER, THE BOARD WOULD LIKE FURTHER INFORMATION ON TWO KEY AREAS. THE GOAL OF THIS RECOMMENDATION WAS TO REQUIRE A PERSON OFFERING A PACKAGE FOR AIR SHIPMENT TO CERTIFY, IN WRITING, THAT THE PACKAGE CONTAINS NO HAZARDOUS MATERIALS.

THE DOT REPLY DID NOT CLEARLY STATE THE PROCESS IT INTENDS TO IMPLEMENT TO MEET THIS PART OF THE RECOMMENDATION. FURTHER INFORMATION REGARDING PROPOSED DOCUMENTS OR INTENDED PROCESSES WOULD HELP CLARIFY THIS IMPORTANT ISSUE. SECONDLY, THE RECOMMENDATION INCLUDED A REQUEST THAT THE DOT LOOK AT TECHNOLOGY AS A MEANS OF DETECTING UNDECLARED HAZARDOUS MATERIALS. THE PROPOSED ACTIONS DISCUSSED IN THE LETTER, SUCH AS REGULATIONS TO REQUIRE AIR CARRIER EMPLOYEES TO BE TRAINED TO LOOK FOR SIGNS OF UNDECLARED HAZARDOUS MATERIALS SHIPMENTS, ARE POSITIVE STEPS. HOWEVER, THE BOARD ALSO URGED THE DEVELOPMENT OF TECHNOLOGIES TO IMPROVE THE DETECTION OF UNDECLARED HAZARDOUS MATERIALS.

WE WOULD APPRECIATE INFORMATION ON ANY ACTION UNDERWAY TO IDENTIFY OR DEVELOP APPLICABLE TECHNOLOGIES. PENDING FURTHER INFORMATION AS NOTED ABOVE, A-98-71 IS CLASSIFIED "OPEN--ACCEPTABLE RESPONSE."

Letter Mail Controlled 5/5/99 5:01:59 PM MC# 990471 STAFF FROM RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION (RSPA) AND THE OFFICE OF TRANSPORTATION POLICY DEVELOPMENT MET WITH YOUR STAFF TO DISCUSS AND CLARIFY THE INTENT OF THE RECOMMENDATION. WE WERE INFORMED THAT THE RECOMMENDATION APPLIES ONLY TO AIR CARGO SHIPMENTS, NOT PASSENGER BAGGAGE. RSPA AND THE FAA, IN A ONE DOT EFFORT, ARE WORKING TOGETHER TO ADDRESS THE INTENT OF THIS RECOMMENDATION IN THE AREAS OF INFORMATION DISSEMINATION, CERTIFICATION OF SHIPMENTS, DATA COLLECTION, TRAINING, AND INSPECTION AND INVESTIGATION.

INFORMATION DISSEMINATION: A JOINT RSPA/FAA ADVANCE NOTICE OF PROPOSED RULEMAKING IS BEING PREPARED THAT WOULD REQUIRE AIR CARRIERS TO MAKE AVAILABLE A 24-HOUR TELEPHONE NUMBER THAT PROVIDES SPECIFIC INFORMATION ON HAZARDOUS MATERIALS SHIPMENTS. CERTIFICATION OF SHIPMENTS: FAA HAS BEEN WORKING WITH THE ONE DOT HAZARDOUS MATERIALS PROGRAM EVALUATION TEAM ON THE ISSUE OF CERTIFICATION OF SHIPMENTS. ON 1/25/99, FAA PROVIDED THE TEAM WITH A WORKING PAPER. THE TEAM WILL CONSIDER THE FEASIBILITY OF DEVELOPING RULEMAKING PROPOSING TO REQUIRE THAT ALL AIR SHIPPERS CERTIFY THAT THEIR SHIPMENTS ARE SAFE FOR TRANSPORTATION.

THERE IS A CURRENT REQUIREMENT FOR PASSENGER CARRYING AIRCRAFT ONLY THAT SHIPPERS OF AIR CARGO COMPLETE A SHIPPERS SECURITY ENDORSEMENT WHEN OFFERING CARGO FOR TRANSPORTATION. HOWEVER, THIS REQUIREMENT DOES NOT APPLY TO ALL-CARGO CARRIERS. THE ONE DOT HAZARDOUS MATERIALS PROGRAM EVALUATION TEAM IS EVALUATING THE FEASIBILITY OF EXTENDING THIS REQUIREMENT TO ALL-CARGO CARRIERS. FAA HAS A DANGEROUS GOODS TREND ANALYSIS CONTRACT THAT WILL EXAMINE INFORMATION CONTAINED IN THE DEPARTMENT'S DATA BASES TO IDENTIFY THE TRENDS THAT MAY BE EVIDENT CONCERNING KNOWN HAZARDOUS MATERIALS SHIPMENTS. FAA ANTICIPATES COMPLETING THE STUDY BY MAY 1999.

THE CURRENT CONTRACT IS AN ATTEMPT TO DRAW TOGETHER FOUR EXISTING DATA BASES: RSPA'S HMIS AND UNISHIP DATA BASES, AND FAA'S EIS AND AAIRS DATA BASES. TRAINING: RSPA'S BUDGET FOR FY 2000 REQUESTS SIX NEW EMPLOYEES (FIVE IN THE REGIONS AND ONE AT HEADQUARTERS) TO CONDUCT OUTREACH TRAINING PROGRAMS FOR SHIPPERS ON HOW TO IDENTIFY HAZARDOUS MATERIALS SHIPMENTS. FAA IS PREPARING A NOTICE OF PROPOSED RULEMAKING (NPRM) THAT WOULD REQUIRE EMPLOYEES OF "WILL NOT CARRY" AIR CARRIERS (CARRIERS THAT DO NOT TRANSPORT HAZARDOUS MATERIALS) TO BE TRAINED TO IDENTIFY POSSIBLE HAZARDOUS MATERIALS SHIPMENTS.

THE NPRM WILL ALSO PROPOSE THAT EMPLOYEES OF REPAIR STATIONS THAT HANDLE HAZARDOUS MATERIALS IN THE COURSE OF THEIR WORK BE TRAINED TO RECOGNIZE HAZARDOUS MATERIALS AND KNOW WHAT ACTIONS TO TAKE TO ENSURE THAT IF HAZARDOUS MATERIALS ARE TO BE SHIPPED, THEY ARE PROPERLY TAGGED. INSPECTION AND INVESTIGATION: THE DEPARTMENT HAS INTRODUCED A BILL TO AUTHORIZE APPROPRIATIONS FOR HAZARDOUS MATERIALS TRANSPORTATION SAFETY THAT INCLUDES A NEW SECTION EXTENDING INSPECTION AND INVESTIGATION AUTHORITY TO THE DEPT. OF TRANSPORTATION (DOT) INSPECTORS.

Letter Mail Controlled 3/1/99 3:51:48 PM MC# 990187