More than two years ago, this column reported on Advanced Notice of Proposed Rulemaking HM-229, which solicited comments on the Department of Transportation's (DOT) proposed revisions to its hazardous materials incident-reporting requirements. That proposal suggested that DOT Form F 5800.1, which had not been revised in a decade, be amended to capture new data that could be used to assess causal relationships for packaging failures during transportation. On July 3, 2001, DOT published Notice of Proposed Rulemaking HM-229, which reported the comments that had been submitted and proposed sweeping changes to incident-reporting requirements.

The eight-part report form proposed in the Federal Register is five pages long. DOT estimates that it will take an average of 1.6 hours to complete, even though the agency also proposes to eliminate the collection of inconsequential data by establishing new threshold quantities that trigger submission of the report. In a move that seems to make good sense, DOT further proposes to extend the reporting responsibility by requiring "the person in physical control of a hazardous material during transportation" to report an incident. But in another recent notice of proposed rulemaking, HM-223, DOT seeks to limit the definition of the term "transportation" in such a way that some wonder whether that definition might put the ball back in the carriers' court when it comes to incident reporting. DOT also proposes to require updated reports over a period of one year from the date of occurrence if a fatality results from injuries suffered as a result of the hazardous material release, if corrections regarding the material or packaging are required, or if updated damage costs become available.

Further complicating matters is the possibility that recent National Transportation Safety Board (NTSB) recommendations related to data collection may be influencing this docket. For example, NTSB suggests that "success stories"—incidents in which there were no releases—be reported in order to assess the packaging's integrity. The agency also suggests that the reporting party be required to notify the shipper when a packaging has failed. That recommendation is intended to ensure that the person who prepares the package for transportation is aware that a failure occurred. But it could be difficult to comply with in some cases because the shipper of record listed on the shipping papers may actually be a distributor, freight forwarder, or other intermediary and not the person who was responsible for selecting and filling the packaging. Information required to complete other fields on the proposed form, such as the value of the "material loss," may only be known by the manufacturer, which is likely to guard it closely for commercial reasons.

Another new wrinkle would require carriers to file a report when they discover undeclared hazardous materials during transportation, regardless of whether or not a release has occurred. Currently, the Federal Aviation Authority (FAA) is the only modal administration that requires carriers to report such undeclared shipments. Most observers agree that undeclared hazardous materials represent unacceptable hazards in transportation, and they support the reporting of accidental releases involving such shipments. Some, however, question whether it is right to delegate a regulated responsibility like policing undeclared shipments to the carrier; they fear that carriers may be cited for failing to report undeclared hazardous materials even in cases when they had no idea that undeclared hazardous materials were present.