DANGEROUS GOODS
SYMPOSIUM FOR INSTRUCTORS
MITIGATING CIVIL
PENALTIES ISSUED BY THE FAA FOR HAZARDOUS MATERIALS (HAZMAT) OR DANGEROUS GOODS
(DG) VIOLATIONS
BY
Peter Quinter
Customs and
International Trade Attorney
GrayRobinson, P.A.
333 SE 2nd Avenue,
Suite 3200
Miami, FL 33131
Office (305) 416-6960
Mobile (954) 270-1864
Peter.Quinter@gray-robinson.com
Mr. Quinter has successfully
resolved dozens of proposed penalty cases for violations of shipments by air
which were issued by the Federal Aviation Administration (FAA) through its many
Offices of Regional Counsel at locations throughout the United States.
OUTLINE
Introduction
The Federal Aviation
Administration (FAA) has the authority to enforce the Hazardous Materials
Regulations (HMR) at 49 CFR Parts 171 to 185, including issuing civil monetary
penalties against violators. An understanding of the HMR, the procedures used
by the FAA to issue the violation notices, the alternative procedures to
respond to a proposed penalty notice, and the factors used by the FAA in
determining the amount of the penalties will assist shippers, carriers, and
other companies which are involved in the logistics of transporting hazardous
materials to mitigate such penalties.
I. Legal Sources
A. Federal Hazardous Materials Transportation
Law, 49 U.S.C. §§ 5101-5127
1. 49 U.S.C. § 5123 — civil penalty
a. "knowing" violation. A person acts
knowingly —
i. when the
person has actual knowledge of the facts giving rise to the violation; or
ii. a
reasonable person acting in the circumstances and exercising reasonable care
would have that knowledge.
NOTE: A carrier knowingly
violates the HR. when the carrier accepts or transports a hazardous material
with actual or constructive knowledge that a package contains a hazardous
material not properly packaged, marked, labeled, or described on a shipping
paper as required by the HMR.
b. Amount of penalty —
i. Up to $50,000 per violation for violations
occurring on or after August 10th, 2005 (typical amount is $47,250)
ii. Up to $100,000 per violation if the violation
results in death, serious illness, or severe injury to any person or
substantial destruction of property.
2. 49 U.S.C. 5124 - criminal penalty up
to $500,000 and 5 years in prison
Requires evidence of both
knowledge of the hazardous materials laws and regulations and an intent to violate
them.
B. Hazardous Materials Regulations (HMR),
49 CFR Parts 171-178
1. Common Shipper Violations
a. Undeclared HAZMAT aboard an aircraft
b. Misdeclared HAZMAT aboard an aircraft
NOTE: Shipper’s Declaration for Dangerous Goods
states:
“I hereby declare that the
contents of this consignment are Ally and accurately described above by the
proper shipping name, and are classified, packaged, marked labeled/placarded,
and are in all respects in proper condition for transport according to
applicable international and national governmental regulations."
2. Common Air Carrier Violations
a. Improper acceptance of HAZMAT for air
transportation
b. Failure to notify FAA properly of
incident/discrepancies in HAZMAT shipment.
See 49 CFR 175.31. Must notify
nearest FAA Civil Aviation Security Field Office by telephone as soon as
practicable.
NOTE: 49 CFR Part 175 violations
certainly apply to "aircraft operators", but also to air freight
forwarders, even ground handling crews.
C. FAA Investigative and Enforcement Procedures,
14 CFR Part 13
III. Criteria Used by FAA to Assess Amount of
Penalty
A. Nature, circumstances, extent, and gravity of
the violation, the degree of culpability of the violator, any history of past
violations, the ability to pay, any effect of the ability to continue to do
business, and other matters as justice requires.
B. Hazardous Materials Sanction Guidance Matrix
Similar penalties should be imposed in similar cases, yet each case must be
evaluate on its own facts.
C. Guidelines for Civil Penalties, 49 CFR
Part 107, Subpart D, Appendix A
D. Good Arguments
1. Prompt, corrective action is critical
2. Violation occurred because of
reasonable reliance on incorrect information from another source.
3. Small Business Regulatory Enforcement
Fairness Act.
IV. FAA Penalty Procedures
A. Notice of proposed civil penalty
B. Not later than 30 days after receipt of
the notice of proposed civil penalty, the person charge with a violation shall
respond.
1. Pay in full, or.
2. Submit written information, including
documents and witness statements, demonstrating that a violation of the
regulations did not occur or that a penalty or the amount of the penalty is not
warranted by the circumstances, or.
3. Request informal, telephonic conference
with an attorney from the Office of Chief Counsel, FAA, or.
4. Make a written monetary counter-offer,
or.
5. Request a formal hearing with an
Administrative Law Judge.
NOTE: All contact regarding the proposed penalty
and penalty with be with an attorney from Regional Counsel’s Office of the FAA,
who acts on behalf of the Federal Agency.
V. Conclusion
With 1.2 million daily movements
of HAZMAT in the United States and 100,000 daily shipments by air in the United
States, even with the best of intentions by most companies, there are bound to
be companies that intentionally, recklessly, or negligently violate the HMR.
Even the most diligent companies will inevitably violate the HMR, even only
accidentally and in a minor way.
The May 1996 crash of ValuJet in
Miami in May 1996 is a reminder of the seriousness with which the international
HAZMAT organizations, the United States Government, and the HAZMAT private
industry must continue to make the transportation of hazardous materials safe
and secure for all of us. Not committing a violation is the best thing to do,
but once a violation occurs, properly explaining all the facts and
circumstances to the FAA investigator and to the attorney from the Regional
Counsel's Office of the FAA may get the penalty cancelled or significantly
reduced.
