Responding to a request for clarification from FedEx, Transportation Secretary Norm Mineta has recommended that the Department of Transportation's director of intermodal hazardous materials program develop further guidelines on what constitutes "constructive knowledge" that a carrier knows it has accepted unlawful hazardous shipments.
Currently, DOT's Research and Special Programs Administration (RSPA)uses the "knowingly" standard to assess civil penalties under the Hazardous Material Transportation Act.
This standard applies if DOT determines "a carrier knowingly violates the hazardous materials regulations (HMR) when the carrier accepts or transports a hazardous material with actual or constructive knowledge that a package contains a hazardous material which has been packaged, marked, labeled, and described on a shipping paper as required by the HMR."
The agency emphasized that carriers must exercise "reasonable care" to "determine whether hazardous materials have been improperly offered."
However, FedEx maintains in enforcement proceedings this interpretation fails to provide fair warning to carriers as to when they will be charged with constructive knowledge of having accepted undeclared hazardous materials shipments.
The DOT is seeking industry suggestions regarding knowledge-based hazardous materials violations with particular focus on: responsibilities of a hazardous materials shipper to properly classify, package, mark and label, describe materials on shipping paper, and provide placards to a carrier; responsibilities of a carrier when it accepts any shipment to review documentation that accompanies the shipment and inspect the cargo for hazardous materials; when a reasonable person should have constructive knowledge of the potential presence of a hazardous material based on available information; and, methods used to train personnel who prepare, accept and handle hazardous materials.
Written comments may be sent by December 14 to Dockets Management System, Department of Transportation, Room PL-401, 400 Seventh St SW, Washington, DC 20590-0001, or by e-mail at www.safersys.org.