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Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

By:  McCarthy, Sweeney, Lawrence Bierlein

By:  Norman Mineta, Secretary of Transportation

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

By: Thomas Sherman

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

As you know, on behalf of Federal Express Corporation, I asked DOT to initiate a public process to clarify the matter of "constructive knowledge" as it is applied under the hazardous materials statute and regulations. The public meeting on the referenced docket is scheduled for November 14, 2001.

I have heard from Mr. Frank Black of the Air Transport Association as well as from shippers and affected carriers in other modes of transportation, about the difficulty in travel and and their ability to focus on this important issue when so many competing concerns are taking precedence. I understand that Mr. Black has asked for the docket to be postponed until some later date, perhaps Spring 2002, when circumstances would permit the proper allocation of sufficient time and participation to this effort.

On behalf of Federal Express, I support Mr. Black's request. The issue we have raised requires resolution but, under the circumstances, we believe the process would benefit from the broader input that would be more likely at a later date. Accordingly, we support ATA's request for postponement (not cancellation) of this public process, both in the form of the meeting that was scheduled, and the comment period related to that meeting.

By:  McCarthy, Sweeney, Lawrence Bierlein

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

By:  Jackie Goff

By:  Jackie Goff

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

By:  Jackie Goff

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

We recognize that the Department is in the beginning stages of developing guidance on this subject; however, it is difficult to comment on specific factual scenarios where none were proposed. We recommend that the Department propose a draft guidance document that sets forth examples of factual scenarios that likely would demonstrate constructive knowledge of a violation of the hazardous materials regulations.  The Department should then solicit additional public comment on the draft document.  ATA stands ready to assist the Department in developing guidance on this important issue.

By:  Richard Moskowitz

On behalf of Federal Express Corporation, which has been active in the discussion of this subject to date and was among those requesting this public proceeding, I hereby offer the following comments. We also intend to participate in the public meeting, and will augment the written record as necessary at that time. Fed Ex is a major air and ground carrier of packaged materials, including a substantial number of DOT-regulated dangerous goods. We understand that U.S. dangerous goods transportation law makes a carrier liable for a civil penalty for accepting undeclared dangerous goods, if a reasonable person acting in the circumstances and exercising reasonable care would have known that the shipment being offered in fact contained dangerous goods.

No clear understanding of this so-called constructive knowledge standard has been developed. The "formal interpretation" issued by RSPA on June 4, 1998, concludes it is impractical to list specific criteria and, further, says that each case must be judged after the fact by the "fact-finder" -- presumably either an agency inspector or Administrative Law Judge. As a result, carrier training programs have not been able to use a clear standard for teaching employees, and inspection personnel have varied widely in their interpretation of constructive knowledge. Often the carrier's liability is only definable after-the-fact, by an inspector having the benefit of hindsight, and not having to handle the millions of packages per day that many carriers handle.

We very much appreciate the opening of this public process. To address this concern, we believe DOT should articulate and publish a clearer standard for determining when a carrier may be construed to have had knowledge that dangerous goods were in an otherwise undeclared and apparently acceptable shipment (i.e., it was not leaking), thereby making the carrier liable for a civil penalty for having accepted that shipment for carriage. Thereafter we believe this standard could be embodied in carrier employee training and DOT compliance inspectors' training and procedures.

By:  McCarthy Sweeney, Lawrence Bierlein

While IME supports the development of a guidance document, we also acknowledge that it is “impossible … to lay down a general rule by which to determine what facts are sufficient to excite inquiry.” 58 Am Jur 2d §11. It seems clear, however, that Federal Express is not requesting DOT to prepare an exhaustive list of what information will or will not confer constructive knowledge in every circumstance. Rather, the carrier industry is requesting DOT’s continued assistance in helping the industry to better appreciate the types of information that DOT considers “telling” and/or “suspect” and, so, to help the industry devise more targeted and effective training programs to identify potential undeclared shipments of hazardous goods. In this regard, IME is wholly supportive of the request made by Federal Express.

By:  Institute of Makers of Explosives, Susan Flanagan

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

We do not believe this subject can be addressed and laid to rest in a single public session. We recommend, therefore, that consideration be given now to a subsequent session or sessions, of perhaps a narrower group of representatives, to further develop this concept and to prepare one or more draft documents for public comment. We also believe a separate public meeting and comment period should be scheduled to address a separate but related issue -- the potential liability of those who report regulatory discrepancies. The FAA and other safety agencies have worked with success with discrepancy reporting systems in which, under specific guidelines, the reporting party is granted immunity from further prosecution even if a violation is described in the report. Today these reporting immunities do not extend by their terms to dangerous goods regulatory situations, but we believe they should.

Yes,, it is true that some employees or companies that might otherwise be liable for the violation might escape prosecution. We believe, however, that the increased volume of reporting, and the safety benefits to the agency and to the public of receiving that information, far outweigh the relatively small amounts of civil penalty payments that might be garnered through an enforcement proceeding. Today carriers who report discrepancies often find themselves the subject of investigation and prosecution, even if the primary violation was the responsibility of a shipper or other person. This agency practice serves to discourage submission of information, when in reality the agency programs need more of this type of information, not less. Therefore, in addition to continuing to consider the constructive knowledge issue in the current proceeding, we ask that the Department open a related public inquiry into the benefits o f extending limited immunity to those who report dangerous goods regulatory discrepancies and violations.

By:  Lawrence Bierlien

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

By:  Institute of Makers of Explosives, Susan Flanagan, 202.429.9280

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceedings

Interested parties are invited to submit comments for consideration by DOT in developing additional guidance as to when a reasonable person offering, accepting or transporting a hazardous material in commerce would be deemed to have knowledge of facts giving rise to a violation of Federal hazardous material transportation law or the Hazardous Materials Regulations. DATES: Public meeting. The public meeting will be held on June 19, 2002, from 9 a.m. to 4 p.m. The meeting will end before 4:00 p.m. if all topics have been addressed and all participants heard.

In a letter to the Secretary of Transportation, Federal Express Corporation asked DOT to develop further guidance on what constitutes ``constructive knowledge'' that a carrier is deemed to have of the presence of hazardous materials when the carrier accepts a shipment for transportation. Federal Express stated that carriers lack ``essential criteria defining constructive knowledge of undeclared hazardous materials, that would allow the carriers to design and implement a viable system for training their employees, and for identifying and reporting discrepancies, without being subjected to second-guessing after a shipment has been transported.''

By:  Jackie Goff

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

As noted earlier by the representatives of the Federal Express Corporation, the question of an air carrier's "constructive knowledge" only seems to arise when undeclared hazardous materials/dangerous goods make their way into a carrier's cargo system. This occurs when shippers violate the regulations and tender improperly identified shipments. Due to the failure of the shippers to comply with their obligations, shipments are accepted by the carriers.

This issue also surfaces when undeclared hazardous materials are present in passengers' checked or carry on baggage. The air carrier is also responsible to report any and all of these occurrences. However, even with heightened security measures airport screeners are trained only to look for specific items that are specified within the TSA Security directives.

We believe that DOT can and should do more to address undeclared hazardous materials shipments. Although ATA and its members will continue to work diligently in this field, we recommend more focused action and approach by all of DOT to combat a problem that all of us are faced with at some time. We will help to the extent possible, but this situation cannot be resolved without more effective government outreach. It also will not be resolved by placing the primary enforcement burden on the carrier, instead of the shipper of undeclared cargo, where it belongs.

By:  Air Transport Association of America, Frank Black

In keeping with my previous position expressed herein, that more attention should be focused upon offerors of DG, it would follow that those responsible for initializing the transport, those who prepare DG packages, to have equal or greater frequency of training than the carriers. Perhaps this would eliminate much of the non compliance we witness presently. Thirtysix months is a long interval for such responsible parties with such great responsibility, and more frequent training would lend those parties a greater competence in these duties and more expertise to the practice of tendering DG.

By:  AirNet Systems, Carl Bennett

UPS believes there is a need for a clear-eyed examination of DOT's enforcement policy on constructive knowledge.' We believe the current application of this doctrine risks creating an enforcement program that promotes an adversarial climate of the "hunter and the prey," instead of a climate that promotes constructive improvements to the system and promotes compliant behavior. When DOT stringently applies the constructive knowledge standard, the simple truth is that it fails to adequately promote an atmosphere of compliance in the regulated community, because bad behavior is ill-defined, and good behavior is not clearly rewarded. If DOT will consider this set of issues from the standpoint of promoting an atmosphere of compliance, today's meeting, and subsequent policy decisions, have the potential to generate profound and lasting benefits for the public good.

By:  United Parcel Service, Samuel Elkind

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

We would like to raise an issue related to the topics of discussion listed in this notice. Once the enforcement policy issues discussed at the June 19, 2002 public meeting are resolved, we strongly recommend that penalty guidelines consistent with those published by RSPA in Appendix A to Subpart D of 49 CFR Part 107 be published by all of the operating administrations, including the Coast Guard. Besides those of RSPA, the only other penalty guidelines published in CFR format for general availability are those of the Federal Railroad Administration. It is vital that all regulated entities have access to such guidelines for all modes of transportation.

By:  Dangerous Goods Advisory Council, Alan Roberts

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

By:  Constructive Knowledge and MSDSs, Patrick O'Connor

Hazardous Materials:  Knowledge Required for Civil Penalty Enforcement Proceeding

It is our belief that the OST must do a better job in communicating the duties of the shipper to more potential shippers, passengers and mailers. It is not uncommon for a customer of an airline to not know that regulations are set forward by the DOT for shipment of items from Live Animals to Dangerous Goods. In many cases, shippers are not familiar with the Code of Federal Regulations, the numbering system or how the regulations apply to them. In other cases, shippers do not recognize the need to follow tariffs offered by the airline community or the International Civil Aviation Organization.

By:  American, Lester Adolph

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

VOHMA's primary focus is to improve the understanding and application of laws and regulations governing the maritime and intermodal transportation of hazardous cargoes and to foster the safe handling of such shipments. As such, VOHMA appreciates the importance of hazmat compliance and the need for vigorous enforcement. At the same time, VOHMA believes carriers ought not to be exposed to civil liability based on an overly broad "constructive knowledge" standard that is determinable only in hindsight and is based on unpredictable and subjective factors.

By:  Sher Blackwell, Jeffrey Lawrence

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

By:  Logistic and Commerce Counsel, William McCurdy

By:  United Parcel Service, Samuel Elkind

Hazardous Materials: Knowledge Required for Civil Penalty Enforcement

We continue to urge clarification of the standard of constructive knowledge by using examples of the readily apparent facts that would support such a finding. In other words, when a shipment is otherwise undeclared, what markings or indications on transportation shipping documents should support a finding that the accepting carrier "knew" the shipment contained dangerous goods? We also encourage listing examples of facts that are not considered readily apparent and would not be used for this purpose.

By:  McCarthy Sweeney, Lawrence Bierlein

Hazardous Materials:  Knowledge Required for Civil Penalty Enforcement Proceeding

Our members urge continuation of the constructive knowledge discussion to ensure that the standards used in carrier training programs and by compliance inspectors will be clearer to all parties_ The comments/questions at the recent public meeting reflected the commitment of the carriers to make every effort to comply with the regulations as well as the immediate need for written clarification that will facilitate compliance. Our members endorse the idea offered by Federal Express of illustrating the concept of constructive knowledge by publishing specific examples of "readily apparent facts" that could result in civil penalty liability to an accepting carrier. ATA again volunteers to participate in this effort as part of a working group, including affected government and industry representatives, to develop this guidance and refine the standards. We urge the DOT to publish the final work product.

Our members also urge the opening of a public and agency discussion as soon as possible on the concept of what the spokesman from UPS called a "safe haven" for carriers that reports regulatory discrepancies and undeclared shipments to the government Several years ago ATA petitioned for this policy (and supplied a copy of our earlier petition with our June 19 comments), and we continue to press the agency to move forward on this. The public interest would benefit from a more focused approach that facilitates the carriers' voluntary disclosure of violations by shippers and encourages problem solving at the root of the problem - that is, education and corrective action against shippers who fail to comply with shipping regulations.

By:  ATA, Frank Black

Carriers, as the public's last defense, should, and DuPont believes do, have an obligation to make a reasonable, affirmative effort to protect the public from improper or unauthorized shipment of hazardous materials which can result in spills and other incidents. This effort should be in addition to the obligations of shippers to properly prepare, package, label, placard and document hazardous materials shipments. Failure to exercise "reasonable care" to protect the public in such cases should result in fines or other penalties. The duty to act with "reasonable care" should apply equally to all - including shippers and carriers - of those involved in the distribution of hazardous materials.

The DOT should assist this effort by helping to better define minimum obligations which carriers, shippers and others engaged in the distribution of hazardous materials, owe the public and which would be imposed upon them under RSPA's definition of "constructive knowledge". The practices which DuPont has suggested above as well as those referenced by Federal Express, if codified and included in appropriate rulemakings or other guidelines, would help define what these minimum obligations are and further enhance the safe transportation of hazardous materials which shippers, carriers and the DOT owe to the public.

By:  William McCurdy

December 31, 1997

Re: Air Transport Association Petition for an Amendment

By: Frank Black

May 1, 2001

Re: Debra Straus Letter to Jackie Goff in Response to Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceedings

By: Office of Chief Counsel, Enforcement Division, Debra Straus

October 5, 2001

Re: Air Transport Association Letter to Jackie Goff in Response to Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceedings

By: Frank Black

October 19, 2001

Re: Postponement of Public Meeting and Extension of Comment Period

By: Thomas Sherman

May 14, 2002

Re: AirNet Express Letter to Tom Sherman in Response to Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceedings

By: Edward Bonekemper, III

OST-01-10380 - Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

March 1, 1997

Re: Update on the Globally Harmonized System of Classification

By: Andy Altemos

OST-01-10380 - Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

June 19, 2002

Transcript of the Hearing on Wednesday, June 19, 2002

By: Beta Reporting and Videography Services

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