DOT REVIEWS KNOWLEDGE BEHIND HAZMAT VIOLATIONS
The U.S. Transportation Department is seeking input from the industry as to when a “reasonable” person offering, accepting or transporting a hazardous material would have knowledge of a violation of federal laws, which determines if civil penalties apply.
In its regulations, DOT’s Research and Special Programs Administration has used the “knowingly” standard to assess civil penalties under the Hazardous Material Transportation Act. This standard if a person has “actual knowledge of the facts that give rise to the violation” or when a person should have known the facts that caused the violation.
The DOT secretary received a letter from Federal Express Corp.’s lawyer requesting the government to develop further guidance on what constitutes “constructive knowledge” that a carrier knows it has accepted unlawful hazardous shipments.
Federal Express’ letter said “essential criteria defining constructive knowledge of undeclared hazardous materials, that would allow the carriers to design and implement a viable system for training employees, and for identifying and reporting discrepancies, without being subjected to second-guessing after a shipment has been transported.”
The DOT said “a carrier knowingly violates the HMR (hazardous materials regulations) when the carrier accepts or transports a hazardous material with actual or constructive knowledge that a package contains a hazardous material which has been packaged, marked, labeled, and described on a shipping paper as required by the HMR.” The agency emphasized that carriers must exercise “reasonable care” to “determine whether hazardous materials have been improperly offered.”
FedEx didn’t dispute this interpretation, but said “as it has been applied (in enforcement proceedings, this interpretation) fails to provide fair warning to carriers as to when they will be charged with constructive knowledge of having accepted undeclared hazardous materials shipments.”
The DOT secretary responded to FedEx by advising the department’s director of intermodal hazardous materials program to develop further guidance on “constructive knowledge.”
The DOT will hold a public meeting in Washington regarding knowledge-based hazardous materials violations. The meeting topics will be:
* Responsibilities of a hazardous materials shipper to properly classify, package, mark and label, describe materials on shipping paper, and provide placards to a carrier.
* Responsibilities of a carrier when it accepts any shipment to review documentation that accompanies the shipment and inspect the cargo for hazardous materials.
* When a reasonable person should have constructive knowledge of the potential presence of a hazardous material based on available information.
* Methods used to train personnel who prepare, accept and handle hazardous materials.
Written comments may also be sent to Dockets Management System, U.S. Department of Transportation, Room PL-401, 400 Seventh St., SW., Washington, D.C. 20590-0001, or by e-mail at http://dms.dot.gov , by Dec. 14.