AVIATION (NATIONAL TRANSPORTATION SAFETY BOARD RULES OF PRACTICE) / This dry title belies the practical significance of these new rules that the Pilot’s Bill of Rights ordered the NTSB to implement. The NTSB sits as an appellate panel to FAA administrative proceedings regarding airmen’s certificates to operate aircraft. These rules are promulgated over FAA disagreement on specific points.

“Rules of Practice in Air Safety Proceedings”

Final Rule. September 19, 2013.

At issue here is the balance of power between a pilot controverting the terms of his or her licensure with the Federal Aviation Administration (FAA), and the FAA.

As occurs in other aviation policy settings, here there are material policy differences between the FAA and NTSB and the FAA comments to these rules changes and responses by the NTSB reflect them.

General idea: More fairness to pilots subject to FAA actions against their certificates, emphasizing more timely and complete access to information the FAA (prosecuting authority in such cases) has against the subject pilots 

The highlights:

  1. Rules designed to encourage the FAA to get its Enforcement Investigative Report to the pilot, or the FAA risks NTSB dismissal of the action or other appropriate corrective action against the FAA’s case.
  2. Federal Rules of Evidence and Federal Rules of Civil now apply “to the extent practicable”.
  3. Pilots will now have the right to appeal final NTSB orders in either federal district court or the federal court of appeals.

RAILROADS (TANK CAR TRANSLOADING AFTER HEATING) / U.S. Federal Railroad Administration issues guidance in parts: (1) “Safety precautions and recommended guidance for persons responsible for unloading or transloading hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading”; and (2) “Reminds such persons of current regulatory requirements addressing this type of operation”.

“Safety Advisory Guidance: Heating Rail Tank Cars To Prepare Hazardous Material for Unloading or Transloading.”

Safety Advisory Guidance. July 12, 2013.

Federal Register announcement refers to National Transportation Safety Board investigations of:

(1) An incident February 18, 1999 in which a 20,000-gallon rail tank car was propelled by an explosion 750 feet over multi-story storage tanks at the Essroc Logansport cement plant near Clymer, Indiana due to a sudden and catastrophic rupture of the tank car.

(2) An incident September 13, 2002 in which “a 24,000-gallon-capacity rail tank car containing about 6,500 gallons of hazardous waste catastrophically ruptured at a transfer station at the BASF Corporation chemical facility in Freeport, Texas” – and “the force of the explosion propelled a 300-pound rail tank car dome housing about1/3mile away from the rail tank car”, and “about 660 gallons of the hazardous material oleum” were released.  

The agency’s summary was as follows:

“This guidance provides safety precautions and recommended guidance for persons responsible for unloading or transloading1 hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading. Further, this guidance reminds such persons of current regulatory requirements addressing this type of operation. PHMSA is issuing this guidance in coordination with the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), and in consultation with the Federal Railroad Administration (FRA).

“As defined in § 171.8, Transloading means the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of continuing the movement of the hazardous material in commerce.”

The agency’s guidance was as follows:

“Several Federal agencies share responsibility for the safety regulations of rail tank car unloading or transloading operations involving hazardous material—DOT (PHMSA and FRA), OSHA, and EPA. PHMSA, in coordination with OSHA and EPA, and in consultation with FRA, is issuing this safety advisory guidance to offer guidance on heating of a rail tank car to prepare solidified or viscous hazardous material products contained in the rail tank car for unloading or transloading. Based on existing regulatory requirements, we have assembled and coordinated the following guidance to raise awareness of those requirements and the risks associated with heating rail tank cars. This guidance does not include all of the aspects applicable to the safe heating of rail tanks cars; rather, it focuses on the issues raised in the NTSB recommendations as a result of its investigations into the two incidents cited above.

“Procedures. The shipper or facility operator, if not the same, should develop written safe operating procedures to be used when hazardous materials are heated in a rail tank car for unloading or transloading. The procedures should, at a minimum, establish hazard controls necessary to protect workers, the public, and the environment from adverse consequences, and include:

  • Detailed information regarding the chemical characteristics of the material such as, melting temperature, flash point, the degree to which the hazardous material expands as a result of heating, and additional risk if the hazardous material reacts with air or water.;
  • The pressure created by heating the rail tank car at which the material may safely be unloaded or transloaded from the rail tank car;
  • Active monitoring and recordkeeping requirements of the internal tank pressure and material temperature during the heating process. The heating process should be monitored with time intervals (such as hourly) that are dependent upon the nature and history of materials being heated;
  • Potential consequences of deviations from standard operating procedures and how to identify, control and respond to those consequences; and
  • Training of all entities involved in the unloading or transloading process.

“These procedures should be maintained in a location where they are immediately available to employees responsible for the heating, unloading or transloading operation. These procedures should clearly define employees’ roles and responsibilities for the heating of a rail tank car, as well as the roles and responsibilities of contractor personnel that are employed at a facility to conduct the operations for heating of a rail tank car.

“Monitoring. The facility operator should be knowledgeable of the chemical properties of all of the materials involved in the heating process, including the reactivity of those materials, and ensure that the heating process (i.e., pressure, temperature, and heating rate) applied to the rail tank car, and the pressure and temperature inside the rail tank car should be monitored to ensure that it does not result in over-pressurization of the rail tank car.

Monitoring should be conducted at the necessary frequency as heating continues until the material reaches its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading. Certain chemicals, such as a material that can undergo rapid exothermic decomposition, may require more frequent or even continuous monitoring during heating. Monitoring of the tank pressure and the temperature of the hazardous material includes measures to ensure that the heating rate does not result in over pressurization of the rail tank car.

As an additional aspect of monitoring, the facility operator may, when practical and safe, and the physical state of the material allows, sample the material that is in the rail tank car to verify the material and its chemical and physical properties. The rail tank car contents should be monitored at multiple times as heating continues until the material is determined to be at its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading.

“Designated Employee. The facility operator should designate an employee responsible for monitoring the heating process. Prior to the onset of operation, the designated employee should be made thoroughly knowledgeable of the nature and properties of the material contained in the rail tank car and procedures to be followed in the event of an emergency. In the event of an emergency, the designated employee should have the ability and authority to take responsive action.

“Training. Hazardous materials employees involved in heating rail tank cars for unloading or transloading operations should be trained in all aspects of the heating process that each employee is responsible for performing. Further, the level of training for each employee should correlate with that employee’s level of exposure to hazardous materials at the facility where rail tank cars are heated for unloading or transloading. Please refer to the Section III for a discussion of specific training obligations under applicable Federal regulations.”

REMARKS / National Transportation Safety Board issues report on its safety study regarding crashes of “single unit trucks” (Large trucks having a gross vehicle weight of over 10,000 pounds with non-detachable cargo units and with all axles attached to a single frame) – Significance: “single unit trucks” are exempt from many regulations that apply to tractor-trailer rigs. Comment: NTSB under the leadership of Chairman Deborah A.P. Hersman continues its admirable focus on proactive and preventive safety measures across transport modes.

NTSB announcement available here.

Synopsis of full NTSB report available here.

AVIATION (NATIONAL TRANSPORTATION SAFETY BOARD) / The National Transportation Safety Board is soliciting public comment on a possible revision of its standard form for information on specified aviation accidents and incidents, its “NTSB Form 6120.1”/ “The Pilot/Operator Aircraft Accident/ Incident Report Form” is used in “determining the facts, conditions, and circumstances for aircraft accident prevention activities and for statistical purposes”. Its 17 separate categories are consequential for those faced with the task of providing salient information to the NTSB about an aircraft accident or incident.

“Agency Information Collection Activity: Submission for OMB Review; Comment Request.” 

May 7, 2013. Request To Reinstate A Previously Approved Information Collection

“The NTSB notes it has been using NTSB Form 6120.1 for several years to collect information concerning certain aviation accidents and incidents. The Continue reading

NTSB INVESTIGATION OF BOSTON LOGAN 787 LITHIUM ION BATTERY COMBUSTION / As earlier announced all five members of the NTSB Board held two days of a formal hearing in furtherance of the NTSB’s investigation of the Boston Logan incident. In a brief but noteworthy wrap-up after the second day, NTSB Chairman Herseman made two noteworthy statements: (1) “[W]e do not know the cause of the JAL battery failure”; and (2) the following questions remain “just as pressing” after the two days’ hearings – “[1] how best to certificate emerging technology to ensure safety, and [2] whether the certification process is flexible enough to incorporate new knowledge”.

As I observed in the Comments section a few days ago on this subject, the FAA’s April 19 press release announcing that, “the FAA will issue instructions to operators for making changes to the aircraft and will publish in the Federal Register the final directive that will allow the 787 to return to service with the battery system modifications”. 

And consistent with that the FAA followed up April 26 with an airworthiness directive in the Federal Register reported in this blog here 

Where do the above two developments – the April 26 airworthiness directive and the NTSB’s two days of hearings on April 22 and 23 – leave the flying public? 

1. The NTSB expressly acknowledges that it has reached no conclusion as to the cause of the combustion incidents occurring to the 787 lithium ion battery system, and that the Japan Transport Safety Board had not reached any  conclusion on the matter either (the two incidents occurred with 787’s registered on the Japanese air registry. 

3. In the April 19 press release and the April 26 airworthiness directive at least the FAA does not offer any conclusion on the cause nor does it state any intent to so conclude at any future time. 

4. The FAA in the April 26 airworthiness directive acknowledges the existence of an “unsafe condition” with respect to the 787 lithium ion battery system, and acknowledges the same with respect to its earlier airworthiness directives relating to the matter. 

5. The airworthiness directive is in the form of a final rule: “… [W]e find that notice and opportunity for prior public comment are impracticable and would defeat the Agency’s [FAA’s] regulatory objective, and that good cause exists for making this amendment [i.e., airworthiness directive that supersedes a prior one, as earlier amended] effective in less than 30 days.” 

6. The airworthiness directive, although acknowledging (as all airworthiness directives do) a “dangerous condition”, does not assert that such airworthiness directive will render the aircraft system to be actually safe: In the FAA’s words, the airworthiness directive “will address the unsafe condition”. 

7. “The purpose of the [airworthiness directive] is to allow the aircraft to return to service as soon as possible by mandating a modification that will address the unsafe condition.” 

The above summary is based upon my own careful reading and re-reading of FAA and NTSB statements of the past 10 days. In particular note: 

1. The disconnect between the NTSB’s own reservation of judgment following its April 22 and 23 investigative hearing versus what amounts to an FAA green light to fly the 787 without concluding what the problem was in the first place is set forth in the official documents. 

2. Also note the FAA’s statement that the decision to issue this airworthiness directive and allow the 787 to operate – without having concluded what caused the combustion incidents – is a function of commercial factors combustion (“The purpose of this AD is to allow the aircraft to return to service as soon as possible by mandating a modification that will address the unsafe condition.”). 

REMARKS / Driver and operator texting remains a huge policy concern as National Transportation Safety Board specifically cites it in an accident report for a fatal helicopter accident, and U.S. DOT Federal Highway Traffic Safety Administration releases new study on its dangers. COMMENT: Given emphasis by NTSB Chair Hersman on her agency’s “10 most wanted” policy achievements and this U.S. DOT study driver and operator distraction remains a central policy concern – and it should.

NTSB report news story available here. 

NTSB document on determination of probably cause available here.

U.S. DOT NHTSA study available here.    

Add to it this week’s report of a medical flight helicopter accident in which texting by the pilot reportedly played a role. This week’s medical flight accident story relating to texting available here.

REMARKS / Lithium ion batteries now front & center with the NTSB: Public forum scheduled for April 12-13 with all five members part of a “Board of Inquiry” – both their “use” (e.g., and “shipping” of them. COMMENT: Between multiple earlier “shipping” incidents of combustion in flight, and two recent occurrences of 787 Dreamliner combustion during their “use” in auxiliary power units, the NTSB is taking a leading role in the response – complementing and perhaps superseding the policy role of the FAA.

This past week’s announcement of the public forum caps much NTSB attention to the phenomenon of the lithium ion battery’s risks of combustion during flight. See Federal Register announcement here.

Most recently, the safety agency has taken a high profile role in the aftermath of the lithium ion battery combustion incidents in “use” in auxiliary power units of the 787 at Narita and Logan Airports, respectively. This led to an “Interim Factual Report” on March 7, 2013. See report copy here.

The public forum announced this past week will encompass such “use” in APU’s – but extends also to lithium ion batteries as freight as well (and not restricted to the air cargo context. See agenda released by NTSB with panels and subjects to be addressed here.

Quite clearly this NTSB initiative intrudes upon the subject matter currently the subject of FAA rule-making as regards “shipping” of lithium ion batteries by air. See past posts on this blog here and here.

REMARKS / Last week addressed a fine-tuning process on positive train control (PTC). Congress has spoken and the Federal Railroad Administration has issued the final rule. But the exact form is subject to a continuing debate – witness two recent inputs. COMMENTS: Though each would dislike any hint of disharmony, NTSB and Association of American Railroads are likely future rivals to persuade the Federal Railroad Administration – and ultimately the Congress.

Last week’s “Comments” observed that, like rock n’ roll, Positive Train Control is here to stay. But make no mistake: Recent statements of the National Transportation Safety Board’s Chair Deborah Hersman, on one side, and the Association of American Railroads, on the other, reflect starkly conflicting views on the future policy, scope and above all the timing of PTC.    

NTSB Chair Deborah A.P. Hersman in three tweets:

“Hersman: We acknowledge that there are real hurdles to clear – in particular for public operators who do not have the available capital.”

“Hersman: What we need to hear about is not what can’t be done, but what can be done.”

“Hersman: Our work is hard. But it’s harder when our recs go unheeded and we see same accidents over & over and more lives cut short.”

And in a longer quote cited by “Logistics Management” Deborah A.P. Hersman dispensed with any diplomatic niceties:   

“The railroad community should have solved this by now,” she said. “Some of you have been involved in PTC pilots or tests dating back decades. 20 years ago I worked for members of Congress that supported these types of programs. We can do better. It is time to refocus on rail safety and [PTC]. The rails are safer and stronger, but there is still some distance to go. Railroads have so many tremendous growth opportunities and a role to play in our nation’s economy and its future. [Rails] could be carrying more of the load and carrying it more safely and efficiently.”

The AAR counters that the deadline as it stands now (2015) is just not feasible:

Legal take-away:

Note that the debate is not truly between a regulator and the Class I’s, or even the Congress and the Class I’s. Right now it’s the NTSB and Chair Hersman in particular that are making the case for more aggressive PTC implementation.

For the most part, we are not hearing from either the Federal Railroad Administration or the  transportation committees in Congress on the specifics of this debate.

Practical take-away:

How “real” is the 2015 deadline? Watch for two factors:

First, who is Federal Railroad Administration Administrator between now and then?  Would the White House take an interest? It might be that an Administration reputed to take aggressive regulatory stances might not focus on PTC as such. It might be too sector-specific and miss the public visibility test.

Second, what incidents if any take place between now and then? Many connect the Graniteville, S.C. and Minot, N.D. tragedies with subsequent passage of the Federal Rail Safety Improvement Act of 2007.

Another visible tragic accident could easily catapult the PTC issue out of the sector-specific category with corresponding focus on implementing PTC on its present 2015 deadline.