When should a carrier or driver reasonably be expected to know if a shipper has violated hazardous materials transportation laws?
That’s basically the question the U.S. Department of Transportation hopes to clarify through a public meeting and a call for public comments.
Federal law gives DOT the authority to assess civil penalties against anyone who “knowingly” violates federal hazmat transportation rules. It also states that a person acts “knowingly” when he or she has actual knowledge of the violation or when “a reasonable person, acting in the circumstances and exercising reasonable care, would have that knowledge.”
DOT’s Research and Special Programs Administration attempted to clarify the issue further in a 1998 interpretation, which said that a carrier knowingly violates the regulations when it has actual or “constructive” knowledge that a shipment containing hazardous material hasn’t been properly packaged, marked, labeled or described on a shipping paper.
Even if the hazardous material is undeclared or hidden, “all relevant facts must be considered to determine whether or not a reasonable person acting in the circumstances and exercising reasonable care would realize the presence of a hazardous materials,” it continued. It also said that carrier employees who accept packages for transportation must be trained to recognize a “suspicious package.”
In a recent letter to the Secretary of Transportation, Federal Express asked the agency to develop further guidance. While it did not dispute the interpretation, the company noted that it fails to provide fair warning to carriers as to when they will be charged with having “constructive knowledge” of an undeclared hazardous shipment.
DOT will address the issue in a public hearing to be held Nov. 14 at DOT headquarters. Discussion topics will include the shipper’s responsibility to properly package and label hazardous material, the carrier’s responsibility to review packaging and documentation, when a “reasonable person” should have knowledge of a hazmat violation, and training for shipper and carrier personnel.
Those who cannot attend the meeting are invited to submit written comments by mail or electronically via the Dockets Management System at http://dms.dot.gov. Refer to docket number OST-01-10380. Written comments must be submitted before Dec. 14.