[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Rules and Regulations]
[Pages 30411-30412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14561]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 107, 171, 172, 173, 174, 175, 176, 177

[Notice No. 98-6]


Hazardous Materials: Formal Interpretation of Regulations

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Formal interpretation of regulations.

-----------------------------------------------------------------------

SUMMARY: This document publishes a formal interpretation of the 
Hazardous Materials Regulations (HMR) concerning the responsibilities 
of a carrier when accepting hazardous materials for transportation in 
commerce. This interpretation is being published in order to facilitate 
better public understanding and awareness of the HMR.

EFFECTIVE DATE: June 4, 1998.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, 400 Seventh Street, SW, Washington, DC 20590-00001; 
telephone 202-366-4400.

SUPPLEMENTARY INFORMATION: As part of its implementation of the Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., RSPA 
issues the Hazardous Materials Regulations (HMR), 49 CFR parts 171-180. 
From time to time, RSPA's Chief Counsel issues formal interpretations 
of the HMR. These interpretations generally involve multimodal issues 
and are coordinated with the other DOT agencies which, together with 
RSPA, enforce the HMR: Federal Aviation Administration, Federal Highway 
Administration, Federal Railroad Administration, and United States 
Coast Guard. This document publishes a Chief Counsel's interpretation 
concerning the responsibilities of a carrier when accepting hazardous 
materials for transportation in commerce. This interpretation addresses 
issues raised in a letter by Mr. E.A. Altemos, of HMT Associates, and 
is consistent with an August 19, 1997 written response to Mr. Altemos 
by RSPA's Associate Administrator for Hazardous Materials Safety.
    In addition to these infrequent formal interpretations by RSPA's 
Chief Counsel, RSPA's Office of Hazardous Materials Standards provides 
information and informal clarifications of the HMR on an ongoing basis, 
through (1) a telephonic information center (1-800-467-4922) to answer 
oral questions and (2) informal written interpretations or 
clarifications in response to written inquiries. RSPA's formal 
interpretations and informal letter clarifications (and additional 
information concerning the HMR) are also available through the Hazmat 
Safety Homepage at ``http://hazmat.dot.gov.'' In addition, some of 
RSPA's interpretations and clarifications may be reproduced or 
summarized in selected trade publications.
    Further information concerning the availability of informal 
guidance and interpretations of the HMR is set forth in 49 CFR 107.14. 
RSPA believes that publication of its interpretations should promote a 
better understanding of the HMR and improve compliance with the HMR.

    Issued in Washington, DC, on May 28, 1998.
Judith S. Kaleta,
Chief Counsel.

[Int. No. 98-1]

Background

    Mr. E.A. Altemos, HMT Associates, requested clarification of 
requirements in the HMR concerning an air carrier's acceptance of 
packages containing hazardous materials. This inquiry concerned only 
the carrier's responsibilities relating to hazardous materials 
offered by another person, and not a carrier's transportation of its 
own materials or products. (For information on an air carrier's 
transportation of its own company materials, or ``COMAT,'' see 
``COMAT FACTS'' in RSPA's January 1998 Safety Alert, available on 
the Hazmat Safety Homepage.)
    Although Mr. Altemos's question was posed in the context of air 
transportation, the HMR requirements discussed in RSPA's 
interpretation apply to carriers by all modes of transportation.

Interpretation

    Basic requirements in the HMR set forth in 49 CFR 171.2(a) and 
(b), and applicable to carriers in all modes of transportation, are 
that no person may

accept a hazardous material for transportation in commerce unless * 
* * the hazardous material is properly classed, described, packaged, 
marked, labeled, and in condition for shipment as required or

[[Page 30412]]

authorized by applicable requirements of [the HMR], or an exemption, 
approval, or registration issued under [the HMR] * * * [or]

transport a hazardous material in commerce unless * * * the 
hazardous material is handled and transported in accordance with 
applicable requirements of [the HMR], or an exemption, approval, or 
registration issued under [the HMR] * * *

    A carrier's acceptance and transportation of hazardous materials 
can involve several different situations, including the following 
two ends of the spectrum:
    1. the shipment is declared by the offeror, in one manner or 
another, to contain hazardous materials and complies (in whole or in 
part) with requirements in the HMR; or
    2. whether intentionally or unintentionally, the shipment is not 
declared by the offeror to contain hazardous materials, and no 
attempt has been made to comply with the HMR (the ``undeclared'' or 
``hidden'' shipment).
    The Secretary of Transportation has delegated to agencies within 
the Department (Federal Aviation Administration, Federal Highway 
Administration, Federal Railroad Administration, United States Coast 
Guard, and Research and Special Programs Administration), the 
authority in 49 U.S.C. 5123 to assess a civil penalty against any 
person who ``knowingly violates'' any requirement in the HMR, 
including the provisions in Sec. 171.2 (a) and (b) quoted above. 
Section 5123(a) provides that a person ``acts knowingly'' when
    (A) the person has actual knowledge of the facts giving rise to 
the violation; or
    (B) a reasonable person acting in the circumstances and 
exercising reasonable care would have that knowledge.
    Accordingly, a carrier knowingly violates the HMR when the 
carrier accepts or transports a hazardous material with actual or 
constructive knowledge that a package contains a hazardous material 
which has not been packaged, marked, labeled, and described on a 
shipping paper as required by the HMR. This means that a carrier may 
not ignore readily apparent facts that indicate that either (1) a 
shipment declared to contain a hazardous material is not properly 
packaged, marked, labeled, placarded, or described on a shipping 
paper, or (2) a shipment actually contains a hazardous material 
governed by the HMR despite the fact that it is not marked, labeled, 
placarded, or described on a shipping paper as containing a 
hazardous material.
    The Department's October 4, 1977 interpretation concerning 49 
CFR 175.30 (reproduced below) relates to the first situation in the 
above paragraph, i.e., when an air carrier receives a shipment 
accompanied by a shipping paper containing a shipper's certification 
that hazardous materials within the shipment have been classed, 
packaged, marked, labeled and accurately described as required. See 
49 CFR 172.204. Whenever, in the course of examining the shipping 
paper and performing the required visual inspection of the package, 
an air carrier has reason to know of discrepancies, the carrier may 
not simply rely on the shipper's certification.
    In the case of an undeclared or hidden shipment, all relevant 
facts must be considered to determine whether or not a reasonable 
person acting in the circumstances and exercising reasonable care 
would realize the presence of hazardous materials. In an enforcement 
proceeding, this is always a question of fact, to be determined by 
the fact-finder. Because innumerable fact patterns may exist, it is 
not practicable to set forth a list of specific criteria to govern 
whether or not the carrier has sufficient constructive knowledge of 
the presence of hazardous materials within an undeclared or hidden 
shipment to find a knowing violation of the HMR.
    Information concerning the contents of suspicious packages must 
be pursued to determine whether hazardous materials have been 
improperly offered. A carrier's employees who accept packages for 
transportation must be trained to recognize a ``suspicious 
package,'' as part of their function--specific training as specified 
in 49 CFR 172.704(a)(2), because the legal standard remains the 
knowledge that a reasonable person acting in the circumstances and 
exercising reasonable care would have. Because this standard applies 
to all modes of transportation, a single training program and a 
uniform screening process can be developed for all of a company's 
employees involved in surface or air transportation.
    At the same time, an offeror who fails to properly declare (and 
prepare) a shipment of hazardous materials bears the primary 
responsibility for a hidden shipment. Whenever hazardous materials 
have not been shipped in compliance with the HMR, DOT generally will 
attempt to identify and bring an enforcement proceeding against the 
person who first caused the transportation of a noncomplying 
shipment. The procedures applicable to DOT civil penalty enforcement 
cases procedures are set forth in 14 CFR 13.16 (FAA); 33 CFR part 1, 
subpart 1.07 (USCG); 49 CFR part 109, subpart B (FRA); 49 CFR part 
107, subpart D (RSPA); and 49 CFR part 386 (FHWA).
    To the extent that any carrier, regardless of the mode of 
transportation, is truly ``innocent'' in accepting an undeclared or 
hidden shipment of hazardous materials, it lacks the knowledge 
required for assessment of a civil penalty. However, when a carrier 
acts ``knowingly,'' as defined in 49 U.S.C. 5123(a), it must be 
considered subject to civil penalties. RSPA rejects any suggestion 
that a carrier would be deemed to have ``knowingly'' accepted a 
hazardous material for transportation, and be subject to civil 
penalties under 49 U.S.C. 5123, only when the material is described 
as a hazardous material on a shipping paper or other commercial 
documentation, or the package is marked or labeled in a manner as 
prescribed by the HMR. That approach would improperly limit a 
carrier's responsibility to situations involving a ``declared'' 
shipment.

DEPARTMENT OF TRANSPORTATION
Office of the Secretary
October 4, 1977.

Subj: Air Carrier's Responsibility for Inspection of Hazardous 
Materials Packages.
From: Assistant General Counsel for Materials Transportation Law.
To: Director, Transportation Safety Institute, TES-15

    This is in response to your request of August 25, 1977, for our 
opinion as to whether an air carrier has a specific regulatory 
obligation to inspect hazardous materials packages prior to 
acceptance for air transportation to insure the shipper's compliance 
with specific regulatory requirements of parts 173 and 178. With the 
question, you have supplied your analysis and conclusion that except 
for the physical integrity inspection provided for in Sec. 175.30(b) 
there is no duty on the air carrier to inspect hazardous materials 
packages prior to acceptance for transportation in order to 
determine compliance with the requirements of parts 173 and 178. 
Thus, it is your opinion that the air carrier may rely on the 
shipper's certification accompanying the shipment.
    Section 175.30 prescribes the requirements that must be met 
before an air carrier accepts a shipment of hazardous materials for 
transportation. In achieving compliance with these requirements, the 
air carrier must, under paragraph (a), examine the shipment against 
the information supplied on the shipping paper, and must, under 
paragraph (b), make a visual inspection for leaks and damaged 
packaging. Consequently, I agree with your analysis and conclusion 
that the regulations permit the air carrier to rely on the 
information supplied on the shipping paper, unless, in complying 
with paragraphs (a) and (b), he has reason to know that there are 
discrepancies.

[FR Doc. 98-14561 Filed 6-3-98; 8:45 am]
BILLING CODE 4910-60-P