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Report to the Ranking Minority Member, Subcommittee on Aviation,
Committee on Transportation and Infrastructure, House of
Representatives:
United States General Accounting Office:
GAO:
January 2003:
Aviation Safety:
Undeclared Air Shipments of Dangerous Goods and DOTs Enforcement
Approach:
Aviation Safety:
GAO-03-22:
GAO Highlights:
Highlights of GAO-3-22, a report to the Ranking Member, Subcommittee
on
Aviation, Committee on Transportation and Infrastructure, House of
Representatives:
January 2003:
Aviation Safety:
Undeclared Air Shipments of Dangerous Goods and DOTs Enforcement
Approach:
Why GAO Did This Study:
When shipments of dangerous goods (hazardous chemical substances that
could endanger public safety or the environment, such as flammable
liquids or radioactive materials) are not properly packaged and
labeled
for air transport, they can pose significant threats because there
is
little room for error when something goes wrong in flight. To better
understand the risks posed by improper (undeclared) air shipments,
we assessed what is known about their nature and frequency, what key
mechanisms are in place to prevent their occurrence, and what the
Department of Transportation (DOT) and the Postal Service do to
enforce
federal regulations for shipping dangerous goods by air.
Figure 1 shows how DOT regulates the air transport of dangerous goods
in the United States.
What GAO Found:
Little is known about the nature and frequency of undeclared
shipments
of dangerous goods. While major carriers and the Postal Service
believe
such shipments are rare, their belief is based mainly on inspections
of
problem shipments, such as those that leak. Statistically valid,
generalizable data are not available and would be difficult to obtain,
not only because more inspections would entail costly delays for
carriers but also because Constitutional protections limit DOTs and
the Postal Services inspection authority. DOT is seeking greater
authority to open potentially problematic shipments for inspection,
but its efforts are not limited to air transport and would not enable
DOTs Federal Aviation Administration (FAA) to obtain statistically
valid, generalizable data on the nature and frequency of undeclared
air shipments. A change in the law requiring that shippers consent to
the opening of packages for inspection might be appropriate for air
transport and would enable FAA to obtain such data. FAA could then
identify the resources and actions needed to address the problem.
Federal regulations create a framework for transporting dangerous
goods safely, and outreach to shippers and carriers helps to prevent
undeclared shipments. Private industry does business primarily with
known shippers (those that have shown they comply with the
regulations). The Postal Service cannot restrict its business to
known shippers, but it requires customers to bring packages weighing
16 ounces or more to a post office for screening. Carriers and the
Postal Service both train their employees to screen for undeclared
shipments.
The Postal Service and FAA monitor and enforce compliance with federal
regulations for transporting dangerous goods by air. However, the
Postal Service cannot fine violators and seldom takes criminal
action, since most violations are inadvertent. FAAs enforcement
guidance calls for documenting the reasons for any changes in the
fines its inspectors initially propose. GAOs review of enforcement
case files indicates that the reasons for changes were not always
documented. FAA largely attributes changes to the results of
penalty negotiations. Because FAA is not always following its
guidance, it cannot ensure that its fines are appropriate or
consistent.
Figure 1: Air Transport of Dangerous Goods Authorized by DOT:
[See PDF for image]
Sources: Research and Special Programs Administration, Department of
Transportation, and 1998 Nova Development Corporation.
What GAO Recommends:
GAO recommends that DOT improve its enforcement approach by (1)
determining whether the unique characteristics of air transport
warrant the development of a legislative proposal that would enhance
DOTs authority to inspect packages shipped by air and (2) requiring
FAA to strengthen its policy on documenting the reasons for changes
to the amounts of the recommended fines.
www.gao.gov/cgi-bin/getrpt?GAO-03-22.
To view the full report, including the scope
and methodology, click on the link above.
For more information, contact Gerald Dillingham at (202)-512-2384
or dillinghamg@gao.gov.
Contents:
Letter:
Results in Brief:
Background:
Shipments of Undeclared Dangerous Goods Can Have Serious Consequences,
but Their Nature and Frequency Are Difficult to Estimate:
Government and Industry Rely on Several Mechanisms to Prevent Dangerous
Goods Shipments from Compromising Safety:
For DOT, Inadequate Documentation, and for the Postal Service, Lack of
Civil Penalty Authority Hamper Enforcement of Dangerous Goods
Regulations:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Scope and Methodology:
Appendix I: FAAs Dangerous Goods Informational Brochure
for Passengers:
Appendix II: Mailability of Dangerous Goods, by DOT Class:
Appendix III: Data Collected by DOT Agencies on Dangerous
Goods Incidents and Enforcement Actions:
Appendix IV: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Acknowledgments:
Tables:
Table 1: Dangerous Goods Classes and Descriptions:
Table 2: DOT Databases Tracking Information on the Air Transportation
of Dangerous Goods:
Figures:
Figure 1: Air Transport of Dangerous Goods Authorized by DOT:
Figure 2: Dangerous Goods Cargo Containers:
Figure 3. FAAs Dangerous Goods Enforcement Process (for Civil Penalty
Cases):
Abbreviations:
AAIRS: Airport and Air Carrier Information Reporting System:
C.F.R.: Code of Federal Regulations:
DOT: Department of Transportation:
EIS: Enforcement Information System:
FAA: Federal Aviation Administration:
GAO: General Accounting Office:
HMIRS: Hazardous Materials Information Reporting System:
HMR: Hazardous Materials Regulations:
RSPA: Research and Special Programs Administration:
TSA: Transportation Security Administration:
UNISHIP: Unified Shipper Enforcement Data System:
Letter:
January 10, 2003:
The Honorable William O. Lipinski
Ranking Minority Member
Subcommittee on Aviation
Committee on Transportation and Infrastructure
House of Representatives:
Dear Mr. Lipinski:
Each day, businesses, individuals, and government agencies package and
ship dangerous goods on ships, trains, trucks, and airplanes.[Footnote
1] Dangerous goods are by definition chemical, including infectious,
substances (or anything containing such substances) that pose a threat
to public safety or the environment during transportation. When these
goods are properly packaged, labeled, and stowed onboard, they can be
transported safely, but when they are not, they can pose significant
threats to people and property. Improper, or undeclared,[Footnote 2]
shipments of dangerous goods are particularly dangerous in air
transport because there is little room for error or time to take
corrective action if a problem occurs in flight--a lesson learned
tragically in 1996 when a ValuJet plane crashed in Florida after oxygen
generators caught fire in the planes cargo compartment.
To better understand the overall risks that undeclared shipments of
dangerous goods can pose to aviation safety, we examined the Department
of Transportations (DOT) and the U.S. Postal Services monitoring of
the transportation of dangerous goods by commercial cargo and passenger
aircraft, although we focused primarily on cargo aircraft. As agreed
with your office, we addressed three researchable questions:
* What do DOT, the Postal Service, and others involved in the
commercial air transport of dangerous goods know about the nature and
frequency of undeclared shipments?
* What are the key mechanisms the federal government and private
industry have in place to prevent dangerous goods shipments from
compromising aviation safety?
* What do DOT and the Postal Service do to enforce federal regulations
for shipping dangerous goods by air?
We focused our review primarily on the shipments of dangerous goods
onboard cargo aircraft, in part, because more types and quantities of
dangerous goods are permitted on cargo aircraft than on passenger
aircraft. To address these questions, we analyzed recent reports by DOT
on its dangerous goods programs and on the threat that carrying such
goods can pose, particularly when the shipments are undeclared. We
reviewed research on methods that might be used to estimate the
frequency of undeclared shipments, and we consulted with both GAO and
academic experts in these methods. To determine the extent to which
undeclared shipments may occur, we interviewed officials of four major
carriers that handle over 60 percent of annual air freight traffic in
the United States, and we visited the premises of three of these
carriers to review their procedures for identifying and preventing
undeclared dangerous goods shipments. We also reviewed the results of a
joint effort by the Federal Aviation Administration (FAA) and the U.S.
Customs Service, which has the authority to inspect and search
international shipments, to detect, among other things, undeclared
dangerous goods shipments. We interviewed Postal Service, FAA, and
other DOT officials with various oversight responsibilities for
dangerous goods transportation. To evaluate FAAs enforcement strategy,
we examined the agencys assessments in 30 cases. These cases were
randomly selected to fairly represent the full range of over 2,000
cases in the database. While the number of cases we tested was too
small for us to estimate the extent to which FAAs enforcement strategy
was followed in the entire database, our examination allowed us to
describe the types of practices that occur at critical points in the
penalty assessment process. Our detailed scope and methodology appears
at the end of this report.
Results in Brief:
DOT, the Postal Service, and major carriers know that undeclared air
shipments of dangerous goods occur and can have serious consequences,
but they lack statistically valid, generalizable data to reliably
estimate the nature and frequency of such shipments, assess their
risks, profile potential violators, and allocate resources optimally
for prevention, detection, and correction. DOT researchers have
concluded that data are not available to reliably estimate the nature
and frequency of dangerous goods shipments or assess their risks.
Carriers maintain that such shipments are rare, but their views are
based almost entirely on the occurrence of incidents--shipments that
were opened after a leak, spill, odor, or other anomaly suggested a
potential problem--rather than on information about shipments that gave
no cause for opening. Technological, economic, and legal hurdles
combine to make estimates of undeclared dangerous goods shipments
difficult. The current less intrusive screening equipment is not
designed to detect many types of dangerous goods, and therefore opening
packages is the only reliable means of obtaining information on
undeclared shipments. While carriers generally obtain the consent of
shippers to open packages that they accept for shipment, they seldom
open packages because doing so is too slow and costly to be practicable
except when incidents occur. Under the Fourth Amendment to the
Constitution, which prohibits unreasonable searches and seizures, DOT
may generally not open and inspect packages without a search warrant or
the shippers consent. The Postal Service treats First Class or Express
mail packages traveling by air as being sealed against inspection and
protected by the Fourth Amendment. Without the authority to open
packages for inspection, neither DOT nor the Postal Service is in a
position to gather data on undeclared shipments of dangerous goods.
To prevent dangerous goods shipments from compromising safety, the
federal government relies on regulation, research, and outreach, and
private industry relies on policies for dealing with known shippers
(a DOT term for shippers that have demonstrated their previous business
history), other restrictions on customers or the materials they carry,
training, and sanctions. Federal regulations create a framework for
transporting dangerous goods safely. If DOT finds that these
regulations are insufficient to ensure safety, it can sponsor and has
sponsored research to determine how it should modify the regulations.
DOT and the Postal Service also provide information to the public on
materials that may not be shipped by air. Carriers try to prevent
dangerous goods shipments from compromising safety by dealing
preferentially with known shippers. In addition, some carriers accept
fewer types of dangerous goods for shipment than the law allows. While
the Postal Service cannot limit its business to known shippers, it
restricts the materials it accepts for shipment and requires shippers
to bring packages weighing 16 ounces or more to a post office, where
employees can ask questions about the contents. Carriers, including the
Postal Service, also train their employees to be a first line of
defense against undeclared shipments. Finally, carriers may require
shippers to take remedial training or may refuse to do business with
them if they repeatedly violate the dangerous goods regulations.
To evaluate the effectiveness of and enforce federal regulations for
shipping dangerous goods by air, DOT collects data on incidents
involving dangerous goods, monitors shippers and carriers
performance, and assesses civil penalties. DOT has the authority to
either assess civil penalties or seek criminal enforcement action
against violators. Within DOT, FAA is responsible for enforcing
compliance with the regulations for shipping dangerous goods by air,
while the Transportation Security Administration, which is scheduled to
be transferred to the new Department of Homeland Security, is
responsible for the security of cargo shipments. To ensure that
appropriate civil penalties are assessed, FAAs enforcement guidance
requires the agency to consider the compliance history of violators
across all modes of transportation. This guidance was difficult for FAA
to follow because most operating administrations were not submitting
current enforcement data to DOT. DOT has directed its operating
administrations to submit current enforcement data to a centralized
database, so that the administrations can obtain current information on
the compliance history of violators across the modes. To ensure that
similar cases are treated consistently and fairly, FAAs enforcement
guidance also requires the agency to document the reasons for any
reduction in a recommended civil penalty. Our analysis of FAAs case
files indicates that the agency is not always following this policy. We
are recommending that FAA document its penalty assessments, as
required, so that it can demonstrate that it is handling similar cases
consistently.
The Postal Service also collects data on actual releases of dangerous
goods being transported, monitors the compliance of shippers and
carriers, and can seek criminal penalties for violations of its
regulations; however, it cannot impose civil penalties for such
violations. According to industry officials, many dangerous goods
violations result from ignorance. Under such circumstances, the Postal
Service maintains, civil penalties may be appropriate and would make it
easier to recover the sometimes substantial costs of cleanup and
damages. DOTs hazardous materials reauthorization proposal includes a
provision that would allow the Postal Service to impose civil
penalties.
This report contains recommendations to DOT that FAA evaluate the need
for additional inspection authority to obtain statistically valid data
on undeclared air shipments of dangerous goods and document its penalty
assessments, as required, so that it can demonstrate that it is
handling similar cases consistently. DOT agreed with our
recommendations, and DOT and the Postal Service generally agreed with
the facts in our report. Both DOT and the Postal Service provided
clarifying and technical comments, which we incorporated as
appropriate.
Background:
DOT regulates tens of thousands of dangerous goods, which can include
poisons, pesticides, radioactive materials, and explosives.[Footnote
3] About 20 percent of these goods may not travel by air at all. As
shown in figure 1, the remainder may travel on passenger or cargo
aircraft, or both.
Figure 1: Air Transport of Dangerous Goods Authorized by DOT:
[See PDF for image]
[End of figure]
Using a United Nations classification system, DOT divides all dangerous
goods into nine general classes according to their physical, chemical,
biological, and nuclear properties. Most of the dangerous goods that
may not travel by air at all are the most highly explosive, toxic,
oxidizing, self-reactive, or flammable chemical substances or articles
in their class. In addition to prohibiting some types of dangerous
goods from being carried by air at all, DOT restricts the types and
amounts of other dangerous goods that any individual passenger or cargo
aircraft may carry. For both passenger and cargo aircraft, DOT spells
out these restrictions in four ways:
* By name--dangerous goods that represent an unacceptable hazard on
aircraft or are known to have caused an aircraft fire or explosion,
such as chemical oxygen generators, are specifically forbidden by name.
* By hazard class and subdivision--certain subdivisions of the classes
of dangerous goods are known to be highly reactive or toxic (for
example, most explosives and all spontaneously combustible materials),
so DOT excludes them from passenger flights.
* By quantities contained per outer package--DOT restricts on passenger
aircraft the quantity of certain substances or the number of articles
that may be present in the outermost shipping containers in the cargo
hold. For example, DOT allows the carriage of up to 30 liters of
certain highly flammable liquids per outer package on cargo aircraft,
but imposes limits of 1 liter or less on passenger aircraft.
* By packaging integrity--dangerous goods must be packaged so as to
protect the integrity of the shipment and safeguard against accidental
leaks or spills.
For passenger aircraft, whose cargo areas are divided into multiple
compartments, DOT also restricts the aggregate quantities of dangerous
goods that may be carried per cargo compartment. Figure 2 shows the
kinds of containers in which dangerous goods typically travel in these
cargo compartments.
Figure 2: Dangerous Goods Cargo Containers:
[See PDF for image]
[End of figure]
Dangerous goods permitted onboard passenger aircraft include dry ice
and solvents; cargo aircraft may also carry materials such as paint or
medical waste. Table 1 provides a complete listing of the nine classes
of dangerous goods, their descriptions, an example for each class, and
some of the restrictions DOT places on the carriage of each by type of
aircraft.
Table 1: Dangerous Goods Classes and Descriptions:
Class: 1; Description: Explosives; Example(s): Fireworks; Cargo
aircraft restrictions: Most are forbidden; Passenger aircraft
restrictions: Most are forbidden.
Class: 2; Description: Gases; Example(s): Propane; Cargo aircraft
restrictions: Most are permitted within quantity limitations; Passenger
aircraft restrictions: Most are forbidden.
Class: 3; Description: Flammable liquids; Example(s): Acetone, lighter
fluid, paints; Cargo aircraft restrictions: Most are permitted, except
those that are toxic by inhalation; Passenger aircraft restrictions:
Most are permitted within quantity limitations.
Class: 4; Description: Flammable solids; Example(s): Safety matches;
Cargo aircraft restrictions: Most are permitted within quantity
limitations; others are forbidden (for example, spontaneously
combustible materials); Passenger aircraft restrictions: Most are
permitted within quantity limitations.
Class: 5; Description: Oxidizers and organic peroxides; Example(s):
Swimming pool chemicals; Cargo aircraft restrictions: Most are
permitted within quantity limitations; others are forbidden (for
example, temperature-controlled organic peroxides); Passenger aircraft
restrictions: Most are permitted within quantity limitations.
Class: 6; Description: Toxic materials and infectious substances;
Example(s): Regulated medical waste, motor fuel anti-knock mixtures;
Cargo aircraft restrictions: Most are permitted within quantity
limitations, exceptions for subsidiary risks[A] or those that are toxic
by inhalation; Passenger aircraft restrictions: Most are permitted
within quantity limitations.
Class: 7; Description: Radioactive materials; Example(s): Uranium
hexafloride; Cargo aircraft restrictions: b; Passenger aircraft
restrictions: b.
Class: 8; Description: Corrosive materials; Example(s): Batteries,
cleaning compounds; Cargo aircraft restrictions: Most are permitted
within quantity limitations; Passenger aircraft restrictions: Most are
permitted within quantity limitations.
Class: 9; Description: Miscellaneous dangerous goods; Example(s):
Asbestos; Cargo aircraft restrictions: Most are permitted within
quantity limitations; Passenger aircraft restrictions: Most are
permitted within quantity limitations.
Source: U.S. Department of Transportation, RSPA.
[A] Subsidiary risk means that the dangerous good also meets the
definition of one or more other classes.
[B] For nearly all radioactive materials, the Department of
Transportations Research and Special Programs Administration (RSPA)
spells out restrictions in terms of the radiological reading that comes
from the package rather than a quantity limit (as it does for other
classes of dangerous goods).
[End of table]
According to the U.S. Census Bureaus most recent survey on the
movement of hazardous goods in the United States, class 3 dangerous
goods (flammable liquids, such as paint) account for the greatest
portion (by weight) of the nine classes of dangerous goods shipped by
air. However, the vast majority of flammable liquids travel by other
modes. The percentage of total shipments made by air was greatest for
radioactive materials (class 7)--just over 8 percent of the total
radioactive tonnage shipped in 1997 was shipped by air. According to
FAA, cargo aircraft, such as those operated by the major delivery
services FedEx and United Parcel Service, Inc. (UPS), carry about 75
percent of the nations dangerous goods air shipments. The remaining 25
percent travel onboard passenger aircraft in cargo compartments.
Ensuring the safe transportation of dangerous goods by air is a shared
responsibility of federal agencies, shippers, and airlines--the success
of which ultimately depends on the efforts of thousands of individuals
every day. Within DOT, the following have responsibility for dangerous
goods:
* The Research and Special Programs Administration (RSPA) regulates the
transportation of dangerous goods by truck, train, ship, pipeline, and
plane. It decides which materials to define as hazardous; writes the
rules for packaging, handling, and carrying them; and prescribes
training requirements for shippers and carriers dangerous goods
employees. RSPA, along with the other DOT operating administrations
that operate and manage dangerous goods programs,[Footnote 4] conducts
inspections and investigations to determine compliance with dangerous
goods laws and regulations for all modes of transportation and, where
appropriate, initiates enforcement actions against those it finds not
to be in compliance. RSPA maintains a database for closed dangerous
goods enforcement actions from these operating administrations, and
another database that tracks dangerous goods incidents from these
operating administrations.
* The Office of Intermodalism, reporting to the Secretary of
Transportation, is responsible for implementing recommendations from a
March 2000 evaluation of DOTs dangerous goods program,[Footnote 5]
coordinating intermodal and cross-modal dangerous goods activities, and
coordinating DOT-wide outreach activities. For example, in 2001, to
improve awareness of dangerous goods incidents occurring during
shipments, this office sent out letters to shippers most frequently
identified in RSPAs dangerous goods incident database.
* FAA carries out responsibilities for ensuring compliance with the
rules for transporting dangerous goods by air. In addition, FAA
assesses carriers operations and investigates dangerous goods
incidents or accidents. FAA also has other responsibilities, including
those relating to the prosecution and adjudication of enforcement
actions against those found to have violated the dangerous goods rules.
The Postal Service is both a carrier and a shipper of dangerous goods
because it not only carries shipments on aircraft that it leases, but
it also sends U.S. mail onboard commercial passenger and cargo
airlines. As a result, the airlines carrying U.S. mail rely on the
Postal Service as a first line of defense in ensuring the safety of the
packages they accept for transport and in preventing the shipment of
anything that should not travel by air.
Shippers--whether they are businesses or individuals--have the primary
responsibility for ensuring the safety of their dangerous goods
shipments. They are required to train their employees to package their
shipments safely and to tell the carriers to whom they deliver these
shipments that they contain dangerous goods. Carriers share some of the
responsibility for the safe transportation of dangerous goods. They do
so by training their employees to handle these shipments properly, to
identify likely instances of improper shipments (such as those
containing undeclared dangerous goods), and to verify that the indirect
air carriers from whom they accept consolidated cargo shipments have
FAA-approved security programs in place to prevent explosive or
incendiary devices from being placed onboard.[Footnote 6] Carriers are
also responsible for reporting to DOT any instance of noncompliance
they discover.
Shipments of Undeclared Dangerous Goods Can Have Serious Consequences,
but Their Nature and Frequency Are Difficult to Estimate:
From tragic accidents over the years and day-to-day experience in
handling cargo traffic, DOT and major carriers know that shipments of
undeclared dangerous goods can have disastrous consequences. The nature
and frequency of such shipments--and, by extension, the amount of
effort that should be put into stopping them--are difficult to estimate
because of data limitations. However, the inability of commercially
available screening equipment to detect many types of dangerous goods,
the costs of delaying shipments to inspect them, and restrictions
against opening certain packages may preclude the collection of data.
Consequences of Carrying Undeclared Dangerous Goods Have Been Serious
and Remain a Concern:
Undeclared and other improper shipments of dangerous goods can pose a
high risk because of the nature of air transportation. In recent years,
both RSPA and FAA have expressed concern about undeclared dangerous
goods shipments. In its departmentwide March 2000 evaluation of the
dangerous goods program, DOT reported that the United States has a
relatively good safety record, given the amounts of dangerous goods
that are shipped by all modes of transportation each year. However, DOT
added that the potential still remains for dangerous goods incidents
with catastrophic consequences, and, even though relatively small
amounts of dangerous goods travel by air (compared with other modes of
transportation), a single mishap can have serious consequences. For
example, FAA has reported the following incidents:
* In 1996, a major passenger airline carried undeclared dangerous
goods--calcium hypochlorite and liquid bleach--on a flight from
California to Jamaica. Upon arrival, airport personnel discovered smoke
coming from the aircrafts cargo doors and encountered toxic fumes when
they opened the cargo compartment. The box of undeclared dangerous
goods was leaking and burst into flames shortly after the airport
personnel removed it from the cargo hold.
* In 1998, an undeclared shipment of electric storage batteries
(considered wet because they contain either electrolyte acid or
alkaline corrosive battery fluid) burst into flames while en route by
truck to an airport, where it had been scheduled to be placed aboard a
major passenger carriers aircraft.
* In 1999, a major cargo carrier transported an undeclared shipment of
liquefied petroleum gas from Portland, Oregon, to New York on a
regularly scheduled cargo flight. One day after arriving in New York,
the package burst into flames at the carriers sorting facility.
Three of the four major carriers we interviewed and DOT expressed
concern about the safety of carrying dangerous goods. According to
these three carriers, even though they discover relatively few
undeclared shipments, their greatest safety concern in the air
transportation of these goods is prompted by the undeclared shipments-
-particularly those they do not detect before accepting them. They
expressed this concern over not knowing how much of the volume of
undeclared dangerous goods they do not find, because these shipments
present a greater risk than do those that shippers properly declare.
The major cargo carriers we interviewed and the Postal Service agreed
that ignorance or misunderstanding of the rules for transporting
dangerous goods is by far the most common reason why shippers fail to
properly declare their dangerous goods shipments. According to one
carrier, in very limited instances, shippers will deliberately not
declare their shipments even when they know they are breaking the
rules. However, no carrier cited cost as a reason why shippers fail to
declare their shipments, even though shipping costs are usually higher
for dangerous goods than for nondangerous goods. An official from one
carrier stated that he had never seen a case of a shipper willfully
failing to properly declare a dangerous goods shipment because of cost
concerns. Furthermore, at the Postal Service, it is doubtful that cost
is a cause of undeclared shipments, because the Postal Service does not
charge more for carrying these shipments than it does for carrying
those that are not hazardous; all of the Postal Services charges are
based on weight and class, regardless of the contents.
Data Limitations Make Estimates of Undeclared Dangerous Goods Shipments
Difficult:
According to a 1999 threat assessment published by DOTs Volpe
Center,[Footnote 7] three types of data that are needed to thoroughly
assess the risks of carrying declared and undeclared dangerous goods by
air were unavailable. These were:
* what amounts of dangerous goods are shipped by class and division
(for all modes of transportation),
* how often incidents related to dangerous goods involve undeclared
shipments, and:
* what amounts and what types of undeclared dangerous goods are shipped
by air.
Without these data, the Volpe Center was limited to assessing the
threat from dangerous goods instead of the risk. The danger associated
with a specific item is its threat, while the likelihood that the
threat will actually result in harm is its risk. Assessing risk,
according to the Volpe Center, requires some indication of the
likelihood that dangerous goods will be present on an aircraft--and the
data to determine this likelihood were not available.
Volpe Center officials attempted to find or compile data sources that
would allow them to estimate the total amount of various dangerous
goods that might be shipped (for example, over the course of a year),
but they were unsuccessful. They found no single source of such data
and were not able to piece together data sources. For example, Volpe
Center staff attempted to compile data from chemical manufacturers to
identify the total amounts of their products that move by air and the
related distribution chain (that is, the amounts that move by other
modes); this information would enable them to identify aggregate
amounts of certain dangerous goods that shippers should be declaring,
which would be a first step in working toward an estimate of undeclared
shipments. However, the industry sources the Volpe Center consulted
considered such information proprietary and would not share it. Volpe
Center staff also considered assembling cargo manifest information from
the airlines, because these records indicate for each flight the
amounts and types of dangerous goods the aircraft is carrying. However,
Volpe Center staff said the airlines informed them that these data are
not in a form usable for such an analysis. Even if the manifest
information were available, data on the overall amounts of dangerous
goods shipments (such as the Volpe Center sought from the chemical
industry) would still be necessary before this manifest information
could be useful for estimating undeclared dangerous goods shipments.
According to Volpe Center staff, the limitations in the amount and
quality of data on dangerous goods shipments make estimating how many
shipments contain undeclared dangerous goods more difficult. Our
experts in applied research and methodology agreed, noting that certain
hidden populations methods might be useful for estimating the amount
of undeclared dangerous goods shipments,[Footnote 8] but only if data
limitations such as those the Volpe Center identified were overcome. A
Massachusetts Institute of Technology expert in transportation research
with whom we met agreed that none of the known methods for estimating
hidden populations would be feasible for undeclared dangerous goods.
The major carriers we interviewed said they most commonly identify
undeclared dangerous goods (after accepting them for shipment) when
some occurrence prompts them to open a package or, in the case of the
Postal Service, to set the package aside for further investigation
(because the Postal Service generally cannot open such a package
without a search warrant). Most often, this happens when a package
leaks, spills, breaks open, or emits an odor, and the carrier or Postal
Service employees identify the occurrence as potentially a dangerous
goods incident.[Footnote 9] One carrier also indicated that
occasionally packages open as a result of handling or must be opened
when they lose their address labels. In some of these instances, the
company has discovered undeclared dangerous goods. This same company
also noted that, on rare occasions, it learns of undeclared dangerous
goods from informants--employees of either the company that shipped the
package or competitors of that company.
The carriers we interviewed reported that, although they have the
consent of shippers to open packages that have been accepted for
shipment, they seldom discover undeclared dangerous goods. Although
they did not cite a specific percentage, they described shipments of
undeclared dangerous goods as very rare and a handful. The numbers
are believed to be similarly small for the Postal Service--officials
estimated that declared dangerous goods represent less than one-tenth
of 1 percent of their shipments, and the percentage of these shipments
that is undeclared is very small. The Volpe Center reported in a 1999
threat assessment that undeclared dangerous goods shipments made up
about 0.05 percent of the shipments of several large cargo carriers,
but this estimate was based on the recollections of the carriers of how
many incidents they typically report to RSPA.
Because estimates by the Volpe Center, major carriers, and the Postal
Service are based on reported incidents or memory, they are incomplete.
Moreover, these estimates refer only to those undeclared shipments that
resulted in dangerous goods incidents--they do not include undeclared
shipments that never gave carriers cause to open them. As a result,
according to the Volpe Center, there are no valid figures for the
numbers of dangerous goods shipments that do not comply with
regulations for transportation by air.[Footnote 10]
Additionally, when a carrier reports an incident to DOT, RSPA does not
currently require the carrier to report whether the shipper properly
declared the dangerous goods. Consequently, the estimates of undeclared
shipments reported by the Volpe Center and by carriers to us may not
include all of the incidents carriers discovered, because the estimates
are based on memory and are therefore subject to error. RSPA plans to
remedy this limitation by requiring carriers to report whether
dangerous goods shipments involved in incidents were declared or
undeclared. To do so, RSPA is modifying its incident-reporting
paperwork (Form 5800.1) to more systematically collect and analyze
information on undeclared shipments. RSPA expects to complete this and
other ongoing revisions to its incident-reporting form by spring 2003.
Technological, Economic, and Legal Hurdles Also Make Estimates of
Undeclared Dangerous Goods Shipments Difficult:
Technological limitations complicate efforts to estimate the incidence
of undeclared dangerous goods shipments. Ideally, technologies
generally considered to be less intrusive, such as X-ray or explosives-
detection equipment, could be used to identify and characterize
undeclared shipments. The Transportation Security Administration
(TSA)[Footnote 11] is currently using this equipment to screen
passenger carry-on and checked baggage for weapons and explosives, and,
under the Aviation and Transportation Security Act,[Footnote 12] TSA
must ensure that a system is in operation to screen, inspect, or
otherwise provide for the security of all air cargo to be transported
in all cargo aircraft as soon as practicable. However, X-ray and
explosives-detection equipment is not designed to detect many types of
dangerous goods.[Footnote 13] In the future, technology may enable the
rapid, less intrusive screening of packages, but in the near term,
opening packages remains the best way to obtain information on the
nature and frequency of undeclared shipments.
Economic obstacles--particularly the costs of opening packages after
accepting them--also make it difficult to estimate the nature and
frequency of undeclared dangerous goods shipments. According to each of
the major carriers we interviewed, the volume of cargo that these
airlines carry each day is tremendous. For example, the carriers stated
that they carry from at least 1.3 million to more than 2 million
shipments each night, a small fraction of which contain dangerous
goods. Because the carriers typically guarantee delivery on nearly all
of the shipments they carry (such as within 24 hours or 2 business
days), anything that slows their ability to move shipments could
compromise their ability to meet their guarantees to their customers
and, as a result, hurt their competitive position in their industry.
Although the carriers we interviewed told us that they obtain the
consent of shippers to open packages, they also said they seldom do
open packages. Carriers and an association representing cargo and
passenger airlines stressed that they are not in the business of
opening packages, particularly when shippers are primarily responsible
for ensuring the integrity and proper declaration of those packages.
The carriers indicated that they have confidence in and place a great,
ongoing emphasis on their up-front screening to prevent shippers from
offering them undeclared dangerous goods in the first place. Opening
packages without probable cause to do so would also be costly to the
carriers because they would be responsible for repackaging anything
they found to be properly declared--and dangerous goods require
special, more expensive packaging than other shipments. Although
carriers remain concerned about the possibility of undeclared shipments
they may miss, to date the frequency with which they discover shipments
of undeclared dangerous goods does not, in their view, justify a step
as disruptive and costly as systematically opening a random or targeted
selection of shipments.
Because the Fourth Amendment to the Constitution prohibits unreasonable
searches and seizures and neither DOT nor the Postal Service has
obtained the consent of owners to have their packages opened for
inspection, neither agency may conduct or require random or targeted
intrusive inspections of domestic cargo shipments to look for
undeclared dangerous goods. Although FAA may remove a package from an
aircraft and take such emergency actions if it reasonably believes that
the package presents an immediate threat, it has no authority,
generally, to open and inspect a package without a warrant or without
the owners consent.
The Postal Service may inspect Parcel Post packages. However, packages
sent as First Class or Express mail traveling by air may not be
inspected.[Footnote 14] The mail classification schedule recommended by
the Postal Rate Commission and adopted by the Postal Service does not
distinguish between letters and packages, treating both as sealed
against inspection and protected by the Fourth Amendment. Thus, these
packages are protected to the same extent as letters, and all First
Class and Express mail is treated as protected by the Fourth Amendment.
DOT Has Teamed with the U.S. Customs Service to Obtain Information on
Undeclared Dangerous Goods in International Shipments:
To obtain more information on the nature and frequency of undeclared
dangerous goods in air transport, FAA has teamed with the U.S. Customs
Service, which has the authority to inspect and search international
cargo (imports and exports). Specifically, the Customs Service can and
does randomly open and inspect international cargo for purposes such as
ensuring that shippers have paid the proper tariffs. Most recently, in
June and July 2000, the U.S. Customs Service and FAA together conducted
inspections of passenger carry-on and checked bags and cargo aboard
flights that were entering or departing from the United States at 19
domestic airports.[Footnote 15] This series of inspections found that:
* 8 percent of targeted cargo shipments (those whose tariff codes
indicated that their contents might be hazardous) contained undeclared
dangerous goods,
* 1 percent of passenger carry-on bags contained undeclared dangerous
goods, and:
* just under 0.5 percent of passenger checked baggage contained
undeclared dangerous goods.
The undeclared dangerous goods in the cargo shipments included
flammable liquids, fuel control units, aerosols, fire extinguishers,
and devices powered by flammable liquid. In the passengers checked and
carry-on bags, the Customs-FAA teams found aerosols, lighters,
flammable liquids, safety matches, compressed flammable gases, and
automotive batteries. The Customs-FAA team randomly selected the
passenger baggage it inspected, but for the cargo, the team matched
tariff codes for commodity imports and exports with a dangerous goods
trigger list to determine which shipments to inspect.[Footnote 16]
Increased Inspection Authority That DOT Is Seeking Would Not Produce
Statistically Valid Data and Does Not Distinguish between Air and Other
Modes of Transportation:
DOT has tried several times to clarify and expand its authority to
inspect and open certain packages when its inspectors suspect a
violation of the dangerous goods regulations. In its 1997, 1999, and
2001 reauthorization proposal, DOT sought the authority to access,
open, examine, and, if need be, remove a package from transportation if
it had an objectively reasonable and articulable belief that the
package might contain undeclared dangerous goods.[Footnote 17]
According to DOT, this authority, which is specific to all modes, would
require its officers or inspectors to have a particularized and
objective basis for suspecting a violation, such as a pattern of
shipping undeclared dangerous goods, in order to open an unmarked
package. DOT further stated that this enhanced authority would enable
it to more effectively detect potential violations and to ensure that
it took the appropriate remedial actions. According to DOT officials,
its reauthorization proposal has not been enacted for reasons unrelated
to the merits of its request for additional inspection authority.
Because DOTs reauthorization proposal applies equally to all modes of
transportation, it would, if approved, allow DOT to follow up on
problem shippers across the modes. However, the proposal would also
extend the governments inspection authority without regard to the
differences inherent in transporting dangerous goods by different
modes. The same distinctions between air and the other modes that
justify more stringent regulations for transporting dangerous goods by
air might also justify greater inspection authority for packages
shipped by air.
A primary objective of DOTs reauthorization proposal has been to
improve the ability of its inspectors to monitor and enforce the
dangerous goods regulations. The proposal has not been designed to
obtain better information about the nature and frequency of undeclared
air shipments. Because it would require a particularized and objective
basis for opening packages, it would not allow DOT to identify a
random sample of packages and conduct inspections whose results could
be generalized to all packages in air transport. Thus, its usefulness
as a tool for gathering data to estimate the nature and frequency of
undeclared air shipments and to profile and target violators would be
limited. DOT officials agree that their proposal would not generate
statistically valid data, and they have indicated their willingness to
modify the proposal so that it would yield more useful information.
An alternative to DOTs proposal, based on the premise that additional
and perhaps unique measures are needed to protect air commerce, would
require that shippers consent to DOTs opening packages shipped by air
for inspection. This would allow the department to select and open a
random sample of packages in order to gather statistically valid data
on undeclared air shipments.
Government and Industry Rely on Several Mechanisms to Prevent Dangerous
Goods Shipments from Compromising Safety:
To prevent dangerous goods shipments from compromising aviation safety,
the federal government relies on regulation, research, and outreach,
while private industry depends on policies for dealing with known
shippers, other restrictions, training, and sanctions.
The Federal Government Depends on Regulations, Research, and Outreach
to Prevent Problems:
Federal regulations provide a framework for transporting dangerous
goods safely by air. As discussed in the background section of this
report, these regulations define dangerous goods, identify those that
may and may not travel by air, and specify how the materials are to be
packaged, handled, and carried. In addition, the regulations prescribe
initial and recurrent training for shippers and carriers employees,
and require shippers and carriers to test their employees
understanding of the material covered in the training. The training,
which is designed to increase dangerous goods employees safety
awareness and to reduce the frequency of dangerous goods incidents, is
important because insufficient understanding of the rules is often a
factor contributing to such incidents. For example, in 17 of 25
dangerous goods enforcement cases we reviewed involving businesses, FAA
identified employees lack of training as a contributing
factor.[Footnote 18]
To monitor the effectiveness of its regulations in promoting safety,
RSPA collects information on dangerous goods incidents occurring in the
air, water, rail, and truck modes through its Form 5800.1. Nonetheless,
the form is not designed to collect all the information that would be
useful in monitoring the effectiveness of DOTs dangerous goods
regulations. As previously noted, the form does not ask whether a
problem shipment was declared or undeclared--a key question in
assessing effectiveness. [Footnote 19] In addition, the form does not
include data fields that precisely identify the different types of
packaging deficiencies. While the form has space for written comments,
there is no mechanism for standardizing and entering the information
from the comments into DOTs databases. RSPA is revising the form to
overcome these limitations. Once carriers begin collecting information
on dangerous goods incidents using this revised form, better
information on the incidence of undeclared shipments and reasons for
packaging deficiencies should be available to FAA and the other
operating administrations.
In the course of such monitoring, DOT sometimes identifies safety
issues that require further research. For example, DOT is currently
evaluating ways in which it will strengthen the regulations for
shipping batteries, because its analysis indicated that the existing
dangerous goods regulations for these shipments may not be sufficient.
Beginning in the early 1990s, FAA identified a number of incidents
associated with batteries, particularly lithium batteries, aboard
aircraft in which the batteries caused fires, smoke, or extreme heat--
precisely the kind of effects that make dangerous goods dangerous. In
response to these and other concerns, RSPA has taken a number of
actions designed to improve the regulations for the transportation of
lithium batteries.[Footnote 20]
FAAs monitoring of reports on incidents involving dangerous goods also
led to further work on packaging standards. In examining nearly 3,000
reports from 1998 and 1999, FAA found that 60 percent of the incidents
involved properly declared shipments, indicating that the shipments
complied with the existing packaging standards. Yet just over half
(873) of these properly declared shipments had problems because their
packaging failed--that is, their closures or seals leaked. These data
prompted FAA to attempt to determine the adequacy of packaging
standards for air transportation and the likely causes of leaking
closures and seals. Observing an increase in the number of package
failures in the past 3 years, FAA questioned whether the existing test
methods simulate the realistic combined effects of pressure,
temperature, and vibration. As a result, FAA contracted with Michigan
State University to study packaging in air transportation. The results
of that study, which FAA recently received, indicate that closures are
continuing to leak in packages marked as complying with existing
packaging standards. Subjecting packages to both high altitude and
vibration resulted in a package failure rate of 50 percent. RSPA is
reviewing these results.
To help prevent dangerous goods incidents aboard passenger aircraft,
FAA and RSPA conduct outreach to the public. For example, FAA worked
with RSPA to develop for air travelers a brochure that lists items
prohibited in passenger baggage (see app. I). The brochure also
explains that in-flight variations in temperature and pressure can
cause seemingly harmless items to leak or generate toxic fumes during
air travel. RSPA requires that signs be posted in airport terminals and
at check-in counters listing items prohibited in air travel, some of
which passengers may not recognize as hazardous in air transportation.
In addition, FAA has placed kiosks with information on dangerous goods
at 24 major airports to better inform the general public about items
that are considered hazardous onboard aircraft.
The Postal Service also does consumer outreach to better inform the
public about the materials that may and may not be sent through the
mail. According to Postal Service officials, there are posters in all
of its facilities that warn customers about shipping restricted
dangerous goods. In addition, for any customer who ships or requests
information about shipping dangerous goods, Postal Service retail
employees provide an informational brochure summarizing the applicable
rules as well as the shippers responsibilities.
Major Carriers Rely on Known Shipper Policies, Other Restrictions,
Training, and Sanctions to Prevent Undeclared Shipments:
To prevent undeclared dangerous goods shipments, major carriers limit
their business to known shippers and may impose other restrictions.
They also train their employees to be a first line of defense against
undeclared shipments, and may apply sanctions to shippers who have
violated dangerous goods regulations.
Carriers Deal with Known Shippers and Impose Other Restrictions:
To ensure that they are dealing with legitimate businesses that are
more likely to properly train their employees to comply with dangerous
goods rules, the major carriers we interviewed rely on TSAs known
shipper requirements or establish formal, contractual relationships
with their shippers that mirror the known shipper
requirements.[Footnote 21] According to officials of one of the
carriers, the steps involved in becoming a known shipper reduce to an
acceptable level the risk that the shipper presents to the
carrier.[Footnote 22] By contrast, the carriers have found, casual or
one-time shippers are more likely to offer undeclared dangerous goods
for shipment. Three of the four carriers said they try to limit their
business with casual or one-time shippers and do not advertise to them.
Rather, two of the carriers said, they target business-to-business
shippers that typically have experience with shipping high volumes of
dangerous goods and may have long-standing relationships with the
carriers. The fourth carrier said that it does not accept dangerous
goods from casual shippers at all and, for other shippers, requires the
establishment of a dangerous goods-shipping agreement, or contract,
that spells out obligations for shippers, such as recurring employee-
training requirements. Officials of this carrier believe that these
contractual obligations reduce the incidence of undeclared shipments.
Besides limiting their business primarily to known shippers, the major
carriers we interviewed may try to prevent undeclared shipments by
limiting the types of materials they will carry and the places where
they will accept dangerous goods shipments. Three of the four carriers
said they accept fewer types of dangerous goods for shipment than DOT
authorizes to travel by air. For example, the carriers said they refuse
to carry materials such as toxic or infectious substances, certain
explosives, and organic peroxides. In addition, one of the carriers
said it would not accept dangerous goods shipments at its retail
establishments. This carrier said it would accept such shipments only
when its own drivers picked them up from established customers. This
carriers policy is designed to screen out the casual shippers that
might use its retail establishments. According to the carrier, this
policy also allows it to rely on its drivers experience with dangerous
goods shipments, their training, and their long-standing relationships
with established customers as a first line of screening against
undeclared shipments of dangerous goods.
While the Postal Service cannot limit its business to known shippers,
it accepts fewer dangerous goods for shipment than DOT authorizes to
travel by air. In general, the Postal Service limits the dangerous
goods it will accept for shipment to certain quantities of consumer
commodities that typically present a limited hazard in transportation
because of their form, quantity, or packaging.
In addition to limiting what dangerous goods it will carry, the Postal
Service, as part of its aviation mail security program, requires
customers to bring any package weighing 16 ounces or more to a post
office for shipment. The intent of this program is to prevent
explosives in the mail, but Postal Service officials indicated it has a
residual benefit in helping to prevent undeclared shipments of
dangerous goods. Specifically, by requiring customers to bring packages
that weigh 16 ounces or more to a post office for shipment, Postal
Service employees can inspect packages, ask questions about their
contents to determine whether they contain anything prohibited, and
ensure proper handling for packages containing dangerous goods that may
be mailed.
Carriers Train Their Employees to Monitor Compliance with Dangerous
Goods Requirements:
The major carriers we interviewed emphasized that the training they
provide for their employees is a key component in their efforts to
prevent shippers from offering undeclared dangerous goods,
supplementing their use of restrictions or the known shipper
requirements to guard against such shipments. This training provides
information on dangerous goods requirements and procedures for drivers
and employees who handle, sort, and load shipments. Through this
training, the carriers expect that employees throughout their
distribution chain will be able to identify problems such as
declaration paperwork that is missing information about the contents of
a package labeled as dangerous.
Carriers rely particularly on their drivers to draw on their training
to, in effect, extend the known shipper concept to their day-to-day
interactions with shippers. Training, plus a working knowledge of a
companys established customers, helps the drivers detect inadvertent
failures to properly declare a shipment. For example, a driver picking
up a shipment from a customer who typically sends some dangerous goods
would be expected to raise questions if the customer did not label or
declare any of the packages as dangerous. In such an instance, the
shipper may have made a mistake or forgotten to declare the dangerous
goods.
The Postal Service trains its retail employees, who accept packages
from the public, to screen packages and prevent those with undeclared
or improperly packaged dangerous goods from entering the mail system.
According to Postal Service officials, as of August 2002, the agency
had trained all 131,000 of its retail employees in procedures for
preventing the acceptance of any package containing prohibited
materials. These procedures include (1) asking shippers a series of
questions about the contents of their packages, including whether the
packages contain anything hazardous; (2) visually inspecting packages
to look for signs of problems, such as leaks, the lack of a return
address, or markings indicating that a package contains something a
shipper may not know is hazardous; and (3) referring to a reference
guide for assistance in answering shippers questions about items that
may or may not be permissible in the U.S. mail. (See app. II for a
summary of DOTs dangerous goods classes and the materials or
quantities from each that are allowed in the U.S. mail.) While the
retail employees may be the first to deal with shipments entering the
mail system, the Postal Service also provides dangerous goods training
to its non-retail employees (such as postal inspectors or employees at
business mail entry units), who also handle or carry dangerous goods or
respond to incidents involving them.
According to the official responsible for the Postal Services
dangerous goods program, the agency has to rely on its retail employees
to screen out unacceptable items because it has limited authority to
open mail that has been accepted for shipment. These officials believe
that face-to-face questioning reduces the anonymity associated with
depositing a letter in a mailbox. And reducing anonymity, this official
says, improves their confidence in shippers statements about the
contents of packages. To test its retail employees performance in
specific aspects of customer service, the Postal Service has an ongoing
mystery shopper program in which its employees pose as customers. In
late 2001, the Postal Service began including in the mystery shopper
tests a determination of whether the retail employees were following
requirements for asking the question about dangerous goods. To date,
the Postal Services tests indicate that the retail employees asked the
required screening question 69 percent of the time. When the retail
employees failed to ask the dangerous goods question, Postal Service
officials said they provided feedback and retrained the employees.
These officials also told us that they provided this feedback to each
postal office manager and have incorporated targets for improved
performance on the mystery shopper tests into the managers performance
goals. Officials say these results are slowly and steadily improving.
Carriers May Impose Sanctions for Shipping Undeclared Dangerous Goods:
A shipper who fails to properly declare a dangerous goods shipment can
face serious consequences from a major carrier, particularly if the
shipper is a business or other operation with an ongoing need for the
carriers services. Two of the major carriers we interviewed may,
depending on the seriousness of the violation, require a shipper to
provide additional remedial training in shipping dangerous goods; apply
more stringent terms for accepting shipments from the shipper; or, in
more serious instances, permanently terminate the business relationship
with the shipper. Officials from one of the carriers stated that their
companys requirements for remedial training in these instances exceed
DOTs requirements for shippers. Similarly, officials from another
carrier told us that an inadvertent violation of the rules governing
the declaration of dangerous goods would, in most cases, result in a
minimum suspension of 60 days, pending the shippers completion of
training or any other steps the carrier chose to require before again
accepting packages from that shipper. This same carriers officials
said that when they suspect that a shipper may have sent undeclared
dangerous goods through their system, they will begin an investigation
to determine whether the shipper knew or should have known that it was
doing so. Until the carrier completes that investigation, the shipper
must agree to let the carriers staff open and inspect every shipment
before accepting it. If this carrier determines that the shipper
knowingly offered undeclared dangerous goods, it terminates its
business with that shipper.
For DOT, Inadequate Documentation, and for the Postal Service, Lack of
Civil Penalty Authority Hamper Enforcement of Dangerous Goods
Regulations:
To evaluate the effectiveness of and to enforce federal regulations for
shipping dangerous goods by air, DOT collects data on dangerous goods
incidents, monitors shippers and carriers performance, and assesses
civil penalties. Within DOT, FAA is primarily responsible for enforcing
the regulations for transporting dangerous goods by air. To ensure that
the penalties it imposes for violations of dangerous goods regulations
are appropriate to shippers and carriers complete compliance
histories, FAA, together with DOTs other affected operating
administrations, is required to consider the compliance history of
violators in all modes of transportation when assessing penalties
against them. This guidance was difficult for FAA and others to follow
because, until very recently, with the exception of RSPA, DOTs
operating administrations were not submitting their enforcement data in
a timely manner to DOTs centralized enforcement database. Finally, to
further ensure that appropriate civil penalties are assessed and that
similar cases are treated consistently and fairly, FAA requires that
the reasons for any reduction to a recommended civil penalty be
documented. Our analysis of FAAs enforcement case files found that FAA
is not always documenting its assessments.
Like DOT, the Postal Service collects data on dangerous goods
incidents, but it lacks DOTs authority to assess civil penalties for
violations and therefore takes few enforcement actions. Legislation
proposed by DOT would allow the Postal Service to assess civil
penalties.
FAA Collects Data to Monitor and Enforce Compliance:
To monitor and enforce compliance with DOTs dangerous goods
regulations, FAA collects data on dangerous goods air incidents and
discrepancies through its Airport and Air Carrier Information Reporting
System (AAIRS). RSPAs regulations define incidents as reportable
releases of hazardous materials, including those that are unintended
and unanticipated. Discrepancies are defined in the Hazardous
Materials Regulations (HMR) as instances in which dangerous goods are
found to be undeclared, misdeclared, or improperly packaged.[Footnote
23] In addition, FAA collects data on closed dangerous goods
enforcement cases through its Enforcement Information System. (See app.
III for more information about FAAs and DOTs incident and enforcement
databases.):
FAA Could Not Readily Consider Complete Compliance Histories When
Assessing Penalties:
To ensure that appropriate civil penalties are assessed, FAAs
enforcement guidance requires the agency to consider the compliance
history of violators across all modes of transportation. Until
recently, FAA had difficulty complying with this guidance because, with
the exception of RSPA, DOTs operating administrations were not
submitting their closed enforcement action data in a timely manner to a
central database--the Unified Shipper Enforcement Data System
(UNISHIP), maintained by RSPA. DOT developed this database in response
to a 1991 GAO report.
RSPA is working with DOTs affected operating administrations to ensure
the timely submission of enforcement data. On July 17, 2002, the Office
of the Secretary of Transportation issued a memorandum calling for the
implementation of required procedures for entering data on dangerous
goods enforcement actions into UNISHIP. If the database is kept up to
date, FAA inspectors can obtain compliance information by querying the
central database.
FAA Is Not Documenting Changes to Recommended Civil Penalties as
Required:
Our analysis of FAAs case files indicates that FAA is not always
documenting the reasons for reductions to recommended civil penalties,
as its guidance requires. We found cases in which the proposed civil
penalty was changed, but either no documentation or incomplete
documentation was provided to explain the reasons for the reduction. An
FAA official stated that it was FAAs policy to include documentation
for civil penalty changes in the case files. To help ensure that
appropriate civil penalties are assessed and that similar cases are
treated consistently and fairly, it is important that FAA document the
reasons for any reduction to a recommended civil penalty.
The enforcement process begins when FAA inspectors obtain indication of
a violation (see fig. 4.). The inspector then determines whether the
violation warrants administrative action (such as a warning notice or
letter of correction), legal enforcement action (such as the imposition
of a civil penalty), or referral for criminal prosecution. When the
inspector finds that a civil penalty is appropriate, he or she must
determine the amount of the civil penalty by consulting FAAs sanction
guidance policy. Legal staff in the regional office or headquarters
then review the strength of the evidence, the type of enforcement
action, and the amount of the civil penalty, if any. Next, a notice of
proposed civil penalty is issued that is consistent with the
inspectors report and the review. The alleged violator then has an
opportunity to reply to the civil penalty assessed. If the alleged
violator provides convincing evidence that it did not commit the
violation, FAA dismisses the case. If FAA and the alleged violator
agree on an appropriate fine, FAA issues an order assessing a civil
penalty that binds the violator to pay the agreed-upon amount. If no
agreement is reached, the case is litigated.
Figure 3: Figure 3. FAAs Dangerous Goods Enforcement Process (for
Civil Penalty Cases):
[See PDF for image]
[End of figure]
In 15 of the cases we reviewed, the assessed civil penalty differed
from the proposed civil penalty, but FAA included either no
documentation or incomplete documentation in the case files to account
for the changes. For example:
* In 2000, the assessed civil penalty on a chemical company for not
properly shipping flammable paint was reduced from $75,000 to $15,000,
but no reason was provided in the file for the change.
* In 2000, the assessed civil penalty on a paint company for not
properly shipping flammable paint was reduced from $59,500 to $37,500,
but no reason was provided in the file for the change.
In addition, in one case involving the shipment of an oxygen generator
by an air carrier in 1997, the recommended civil penalty was reduced by
20 percent, even though oxygen generators were responsible for the
ValuJet aircraft crash in 1996. This penalty was reduced for reasons
that were not documented. The reduction was not consistent with the
known risks of oxygen generators.
Postal Service Lacks Authority to Impose Civil Penalties for
Violations:
The Postal Services standards for mailing dangerous goods are similar
to DOTs detailed specifications for packaging, marking, and labeling
dangerous goods, although the mail is subject to many additional
limitations and prohibitions, which are imposed by provisions of
criminal statutes.[Footnote 24] Yet in contrast with DOT, which can
assess civil or pursue criminal penalties for violations of its
standards, the Postal Service can only pursue criminal penalties. This
leads to little enforcement, because many violations are unintentional
and involve situations that are inappropriate for criminal sanctions.
At the same time, the high cleanup and damage costs associated with
dangerous goods violations are time-consuming, and damages may be
difficult to recover absent authority to assess civil penalties. For
example, in a 1998 incident, the Postal Service incurred costs of
$87,000 and the carrier incurred damages of $1.4 million when a
Priority mail shipment containing four bottles of mercury was found to
be leaking upon removal from the aircraft. Another costly incident
occurred in 2000, when 3 gallons of gasoline were illegally shipped in
a motorcycle gas tank and the tank leaked during the flight, requiring
the plane to be taken out of service and cleaned. As part of its
proposal to reauthorize the hazardous materials transportation program,
DOT has included a provision that would allow the Postal Service to
collect civil penalties and to recover costs and damages for dangerous
goods violations.[Footnote 25] The Postal Service has been actively
working with DOT, and it supports this provision. Yet others have
raised concerns about possible conflicts between the Postal Services
current law enforcement authority and its effect on fair competition
between the Postal Service and other shippers. The question of whether
changes should be made regarding the Postal Services law enforcement
responsibilities continues to be discussed as the Congress and others
revisit the Postal Services mission and roles as part of broader
postal reform efforts.
Conclusions:
Without statistically valid, generalizable data on the nature and
frequency of undeclared dangerous goods in air transport, DOT does not
know to what extent such goods pose a threat to aviation safety, or
what resources should be allocated to address that threat. Eventually,
affordable diagnostic screening technologies may enable carriers and
DOT to monitor dangerous goods shipments efficiently and
nonintrusively. Until then, greater inspection authority would enable
DOT to randomly select and open packages; gather statistically valid,
generalizable data; and profile and target potential violators, thereby
possibly enhancing aviation safety. A change in the law requiring that
shippers consent to the inspection of packages shipped by air might
help to accomplish these objectives. The legislation that DOT has
proposed seeking greater inspection authority has not to date been
limited to the air mode and has not been designed to obtain
statistically valid data. However, the distinctions between air and the
other modes that justify more stringent regulations for transporting
dangerous goods by air, along with the potential benefits to aviation
safety that could accrue from better data on undeclared air shipments,
might warrant the development of a proposal that would enable DOT to
obtain such data.
The Office of the Secretarys recent memorandum to the operating
administrations, calling for the timely submission of closed
enforcement action data to DOTs centralized enforcement database,
should strengthen FAAs ability to take appropriate enforcement action
against violators of DOTs dangerous goods regulations. Provided that
the operating administrations continue to follow the memorandum, FAA
should be able to identify high-risk or problem entities, consider
their compliance histories in all modes of transportation as its
enforcement policy guidance requires, and ensure that the penalties it
assesses against them are appropriate to their histories. Yet FAA still
needs to do more to demonstrate that it has assessed appropriate civil
penalties. Until it fully documents the reasons for its assessments, or
for changes to its initial assessments, as its guidance requires, it
cannot provide assurance that the penalties are appropriate or that it
has handled similar cases consistently.
Recommendations for Executive Action:
In order to strengthen DOTs enforcement of dangerous goods
regulations, we recommend that the Secretary of Transportation
determine whether the unique characteristics of air transport warrant
the development of a legislative proposal that would enhance DOTs
authority to inspect packages shipped by air.
Depending on the results of his determination, we further recommend
that the Secretary direct the FAA Administrator to develop a
legislative proposal that would require shippers to consent to the
opening for inspection of packages shipped by air. Such a proposal
would not only enhance FAAs inspection authority but would also enable
FAA to obtain statistically valid, generalizable data on the nature and
frequency of undeclared air shipments of dangerous goods.
Finally, we recommend that the Secretary direct the Administrator to
ensure that FAA better communicate and enforce its requirement to
document the justification for any substantial changes to an initially
proposed penalty before issuing a final order assessing a penalty.
Agency Comments and Our Evaluation:
We provided DOT and the U.S. Postal Service with a draft of this report
for their review and comment. We met with DOT officials, including the
Director of RSPAs Office of Hazardous Materials Enforcement and the
Manager of FAAs Dangerous Goods and Cargo Security Enforcement
Program, to receive their comments. The U.S. Postal Service provided
comments via E-mail. DOT and the Postal Service generally agreed with
our report and provided clarifying and technical comments, which we
incorporated as appropriate.
In our draft report, we recommended that the Secretary of
Transportation direct the DOT administrations that operate and manage a
dangerous goods program to submit their enforcement data to RSPAs
centralized database. According to our audit work, the administrations
were not submitting the data and, therefore, FAA could not readily
comply with its guidance requiring it to consider the compliance
history of violators in all modes of transportation. However, when we
discussed the draft report with DOT officials in October 2002, they
provided a July 17, 2002, memorandum from the Office of the Secretary
of Transportation directing the operating administrations to submit the
data. In addition, in October 2002, DOT furnished evidence that three
of the five administrations subsequently provided current data. We
therefore deleted this recommendation from the final report. DOT agreed
with our other recommendations, acknowledging that its legislative
proposals seeking greater inspection authority have not been designed
to obtain statistically valid data on undeclared shipments of dangerous
goods. DOT further noted that FAAs upcoming reauthorization
legislation could serve as a vehicle for a proposal to expand FAAs
inspection authority, so that the agency could obtain better data on
undeclared air shipments. While indicating that changes to initially
proposed civil penalties sometimes occur as a result of penalty
negotiations, DOT agreed that documenting the justification for changes
is important for providing assurance that final penalties are
appropriate and consistent.
Scope and Methodology:
To determine what DOT, the Postal Service, and others involved in the
air transport of dangerous goods know about undeclared shipments, we
identified relevant studies and interviewed DOT, Postal Service,
industry, and industry association officials. We reviewed the documents
and reports we obtained, visited DOTs John A. Volpe National
Transportation Systems Center and FAAs William J. Hughes Technical
Center, and conducted additional interviews with the researchers who
had carried out critical studies. We also interviewed officials at four
of the major cargo carriers, and conducted site visits at three of
their facilities.
To determine the key mechanisms that the federal government and private
industry have in place to prevent dangerous goods from compromising
safety, we interviewed agency and industry officials and federal
researchers. We also reviewed relevant reports and documents in order
to identify recent developments in screening technology.
To determine what DOT and the Postal Service do to foster compliance
with federal regulations for shipping dangerous goods by air, we
interviewed agency officials and reviewed reports and documents. We
also examined FAAs practices for assessing civil penalties by testing
30 randomly selected cases from FAAs Enforcement Information System,
which contains a database of over 2,000 cases.[Footnote 26] These cases
were randomly selected to fairly represent the full range of over 2,000
cases in the database. While the number of cases we tested was too
small to enable us to estimate the extent to which FAAs enforcement
strategy was followed in the entire database, these 30 cases permit us
to describe the types of practices that occur at critical points in the
penalty assessment process.
We performed our work from September 2001 through November 2002, in
accordance with generally accepted government auditing standards.
As arranged with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after the date of this letter. At that time, we will send copies to the
Chairman and the Ranking Minority Member of the House Committee on
Transportation and Infrastructure, and the Chairman of its Subcommittee
on Aviation; other appropriate congressional committees; the Secretary
of Transportation; the Postmaster General, United States Postal
Service; the Under Secretary of Transportation for Security,
Transportation Security Administration; the Administrator, Research
and Special Programs Administration; and the Administrator, Federal
Aviation Administration. We will also make copies available to others
upon request. In addition, the report will be available at no charge on
the GAO Web site at http://www.gao.gov.
Please call me at (202) 512-2384 if you or your staff have any
questions about the information in this report. Key contributors to
this report are listed in appendix IV.
Sincerely yours,
Gerald L. Dillingham, Ph.D.
Director, Physical Infrastructure:
Signed by Gerald L. Dillingham, Ph.D.
[End of section]
Appendix I: FAAs Dangerous Goods Informational Brochure for
Passengers:
[See PDF for image]
[End of figure]
[End of section]
Appendix II: Mailability of Dangerous Goods, by DOT Class:
[See PDF for image]
[End of figure]
[End of section]
Appendix III: Data Collected by DOT Agencies on Dangerous Goods
Incidents and Enforcement Actions:
FAA collects data on dangerous goods air incidents, discrepancies, and
enforcement actions through two databases. Its Airport and Air Carrier
Information Reporting System (AAIRS) collects basic incident and
discrepancy information such as the mode, date, and location of the
incident or discrepancy, the carrier and shipper involved, the hazard
class of the spilled material, and the consequences of the incident or
discrepancy. (See table 1.) FAAs Enforcement Information System (EIS)
collects information on closed dangerous goods enforcement cases. It
contains data such as the incident date, the regulations violated, the
sanction initially recommended, and the final sanction. These
enforcement data are used to monitor and enforce compliance with DOTs
dangerous goods regulations.
Table 2: DOT Databases Tracking Information on the Air Transportation
of Dangerous Goods:
Database name: Hazardous Material Incident Reporting System (HMIRS);
Database custodian: RSPA; Description: DOTs HMIRS is the primary
source of national incident data for the federal, state, and local
government agencies responsible for the safety of dangerous goods
transportation. Carriers of dangerous goods supply these data through
their reporting of dangerous goods incidents..
Database name: Unified Shipper Enforcement System (UNISHIP); Database
custodian: RSPA; Description: UNISHIP contains information on closed
enforcement actions taken against shippers and freight forwarders in
all modes of transportation, including air..
Database name: Airport/Air Carrier Information Reporting System
(AAIRS); Database custodian: FAA; Description: AAIRS has been used
since 1996 to track inspections of airports and air carrier stations.
It includes dangerous goods incidents (which are also reported to
HMIRS) and discrepancies (dangerous goods discoveries that occur
through avenues other than faulty packaging, such as luggage
inspection)..
Database name: Enforcement Information System (EIS); Database
custodian: FAA; Description: The EIS contains entries of violations
found during inspections or through other means (such as police
inspections or public complaints) that initiate enforcement cases..
Source: RSPA and FAA.
[End of table]
RSPA collects dangerous goods incident and enforcement data through two
databases. Its Hazardous Materials Incident Reporting System (HMIRS)
collects dangerous goods incident information across all transportation
modes, not just the air mode. This information is similar to that
collected in FAAs AAIRS database, but it does not include
discrepancies. RSPA tracks closed hazardous materials enforcement cases
through its Unified Shipper Enforcement System (UNISHIP). This database
tracks closed enforcement actions across all transportation operating
administrations, not simply air.
RSPA collects data on dangerous goods incidents from all transportation
modes through DOT Form F 5800.1, which captures basic information on
incidents such as the mode, date, and location of the incident; the
carrier and shipper involved; the hazard class and shipping name of the
spilled material; and the consequences of the incident (including
deaths, injuries, product loss, and damage). RSPA uses the data and the
information it collects on dangerous goods incidents to (1) evaluate
the effectiveness of existing regulations, (2) assist in determining
the need for regulatory changes to cover changing transportation safety
problems, and (3) determine major problem areas so that attention can
be more suitably directed to them. In addition, both the government and
industry use this dangerous goods incident information to chart trends
and identify training inadequacies and packaging deficiencies.
In addition to RSPA, UNISHIP serves the enforcement programs of the
Federal Aviation Administration, the Federal Railroad Administration,
the Federal Motor Carrier Safety Administration, the U.S. Coast Guard,
and the Inspector General by providing a history of compliance for the
companies contained in the system.
[End of section]
Appendix IV: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Gerald L. Dillingham, Ph.D., (202) 512-2834
Belva M. Martin, (202) 512-2834:
Acknowledgments:
In addition to those named above, Elizabeth R. Eisenstadt, Arthur L.
James, Bert Japikse, David Laverny-Rafter, Bill MacBlane, Kieran
McCarthy, Richard Scott, and Katherine Wulff made key contributions to
this report.
FOOTNOTES
[1] The Hazardous Materials Transportation Act, as amended, principally
governs the transportation of dangerous goods. It is codified at title
49, chapter 51, of the United States Code.
[2] We use the term undeclared to describe two types of improper
shipments of dangerous goods: (1) those that a shipper has explicitly
denied are hazardous or has not identified as hazardous and (2) those
that a shipper has identified as hazardous but has otherwise
misrepresented (for example, the shipper has understated the quantity
so that the materials can be shipped by passenger aircraft rather than
by cargo aircraft).
[3] Each time someone ships dangerous goods, the contents of the
shipment must be identified by using 1 of over 3,400 different shipping
names. A shipping name can refer to a specific material that DOT has
identified as dangerous; it can also be a generic description for a
material that meets the overall criteria for a dangerous goods class,
but for which there is not a division (within that class) to more
precisely identify it. According to DOT, because many materials are
identified using the generic descriptions within each class, the actual
number of dangerous goods is much greater than the 3,400 shipping names
that DOT spells out.
[4] The DOT operating administrations that operate and manage dangerous
goods programs include the Federal Aviation Administration, the Federal
Motor Carrier Safety Administration, the Federal Railroad
Administration, the Research and Special Programs Administration, and
the United States Coast Guard.
[5] U.S. Department of Transportation, Departmentwide Program
Evaluation of the Hazardous Materials Transportation Program, Final
Report (March 2000).
[6] An indirect air carrier accepts and delivers cargo to commercial
airlines for transport. An example of an indirect air carrier would be
a freight forwarder that consolidates shipments from a large number of
shippers and then transports them via the cargo compartments of
commercial aircraft. Because the U.S. Postal Service uses commercial
aircraft to ship the mail, the FAA also considers it an indirect air
carrier.
[7] The John A. Volpe National Transportation Systems Center is part of
RSPA. It provides policy support, strategic planning, and analysis to
customers within as well as outside DOT in areas such as strategic
investment and resource allocation. Its work addresses issues in air
and other modes of transportation.
[8] The term hidden populations refers to those that are difficult to
count by traditional means because, for example, they involve illegal
or undesirable conditions that people are unlikely to self-report. For
example, illegal aliens or intravenous drug users would be considered
hidden populations, as would persons deliberately shipping undeclared
dangerous goods.
[9] A dangerous goods incident is an event that results in a release,
including an unanticipated or unintentional release, of hazardous
material during the course of transportation. RSPA requires carriers to
report incidents as soon as possible when they involve certain serious
consequences, such as deaths or a change in the operational flight
pattern of an aircraft. RSPA requires carriers to report all other
incidents to the agency within 30 days of their occurrence.
[10] Recently, RSPA received comments on the frequency of undeclared
shipments in response to an advanced notice of proposed rulemaking.
RSPA received these comments under Docket HM-228, which considers
changes to the regulations on the transportation of hazardous
materials. According to an RSPA official, the agency is analyzing these
comments and expects to complete its analysis by the end of October
2003.
[11] The Homeland Security Act of 2002, P.L. 107-296, provides that TSA
be transferred to the Department of Homeland Security. The Under
Secretary for Border Transportation and Security has responsibility for
TSA.
[12] P.L. 107-71, November 19, 2001.
[13] We do not describe how this technology works because TSA considers
this to be sensitive security information.
[14] The Postal Reorganization Act, 39 U.S.C.  3623(d), addresses the
issue of letters sealed against inspection. It states, The Postal
Service shall maintain one or more classes of mail for the transmission
of letters sealed against inspection No letter of such a class of
domestic origin shall be opened except under authority of a search
warrant authorized by law, or by an officer or employee of the Postal
Service for the sole purpose of determining an address at which the
letter can be delivered, or pursuant to the authorization of the
addressee.
[15] Final Report of Operation Clear Sky, Joint Inspection Activity,
United States Customs Service/Federal Aviation Administration, June 26-
July 21, 2000.
[16] The Customs-FAA inspections focused on international cargo and
passenger baggage because the Customs Service has the authority to open
and inspect shipments coming into or leaving the United States. Beyond
the border, neither agency has the authority to open and inspect
domestic cargo or passenger baggage without a search warrant.
[17] In this report, we are not expressing an opinion on potential
constitutional issues related to DOTs proposal.
[18] The remaining 5 cases of the 30 we reviewed involved individuals
not engaged as HAZMAT employees, to whom the rules regarding initial
and recurrent training do not apply.
[19] Two DOT initiatives--the Flagship Initiative on Hazardous
Materials Handling/Incidents and the DOT-wide program evaluation--
cited a better understanding of the frequency and impact of undeclared
shipments as essential.
[20] In response to an incident at Los Angeles International Airport in
1999, the National Transportation Safety Board issued five safety
recommendations to RSPA for improving the transportation of lithium
batteries. In response to these concerns, RSPA published safety
advisories in the Federal Register, worked with the lithium battery
industry to adopt voluntary safety standards, undertook a study on the
transportation of lithium batteries, and initiated changes to domestic
and international regulations on the transport of lithium batteries.
[21] We have not included a detailed description of the criteria that
shippers must meet for carriers to consider them known because TSA
considers this to be sensitive-security information.
[22] Recent media reports as well as work by the DOT Inspector General
have raised concerns about the extent to which (1) the known shipper
procedures are a reliable deterrent to criminal attacks and (2)
selected carriers were adequately complying with regulations requiring
them to, among other things, properly screen packages from unknown
shippers. Most recently, virtually all of the cargo carriers the
Inspector General tested were complying with the requirement, put in
place after September 11, 2001, to take no packages from unknown
shippers. However, the Inspector General raised additional serious
concerns about weaknesses in FAAs procedures for individuals or
businesses to become approved indirect air carriers. (A carrier using
the known shipper requirements must verify that shippers have such
approval from FAA.)
[23] An incident is defined in RSPAs regulations as an event that
results in a reportable release of a hazardous material, including
unintended and unanticipated releases that otherwise require reporting
under 49 C.F.R. 171.15 or 171.16. As used in the Hazardous Materials
Regulations, the term discrepancies describes instances of undeclared
dangerous goods (material found in transportation that was not
identified as dangerous goods) and instances of misdeclared or
improperly packaged dangerous goods.
[24] The mail is subject to the restrictions in title 18 that prohibit
the mailing of any matter that is outwardly or of its own force
dangerous to life, health, or property, and to restrictions defined in
the Postal Services rules. However, the Postal Service is not subject
to the Hazardous Materials Transportation Act or to the HMR. We also
note that while commercial carriers are subject to the federal
regulations set forth in title 49, C.F.R., the Postal Service operates
under title 39, C.F.R. The USPS hazardous material regulations are set
forth in the Domestic Mail Manual (39 C.F.R. Part 111) and further
explained in Publication 52, Hazardous, Restricted, and Perishable
Mail.
[25] S. 1669 and H.R. 3276, Hazardous Material Transportation Safety
Reauthorization Act of 2001.
[26] The Enforcement Information System contains entries of violations
found during inspections or through other means (such as police
inspections or public complaints) that initiate enforcement cases. It
contains detailed information on the status and resolution of each
enforcement case and allows field, regional, and headquarters staff to
enter and retrieve data.
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