[Federal Register Volume 67, Number 68 (Tuesday, April 9, 2002)]
[Notices]
[Pages 17101-17102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8521]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No. OST-01-10380]


Hazardous Materials: Knowledge Required for Civil Penalty 
Enforcement Proceedings

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of public meeting and invitation to comment.

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SUMMARY: Interested parties are invited to submit comments for 
consideration by DOT in developing additional guidance as to when a 
reasonable person offering, accepting or transporting a hazardous 
material in commerce would be deemed to have knowledge of facts giving 
rise to a violation of Federal hazardous material transportation law or 
the Hazardous Materials Regulations.

DATES: Public meeting. The public meeting will be held on June 19, 
2002, from 9 a.m. to 4 p.m. The meeting will end before 4:00 p.m. if 
all topics have been addressed and all participants heard.
    Comments. Written comments must be received by July 19, 2002.

ADDRESSES: Public meeting. The public meeting will be held in Room 2201 
of the U.S. Department of Transportation headquarters building (Nassif 
Building), 400 Seventh Street, SW, Washington, DC 20590-0001. Any 
person desiring to attend the public meeting must notify LCDR Thomas 
Sherman by telephone or e-mail (see FOR FURTHER INFORMATION CONTACT 
below) no later than June 5, 2002, in order to facilitate entry to the 
Nassif Building. It is recommended attendees arrive early to facilitate 
new enhanced building security procedures. Each person should indicate 
which of the four topics described at the end of this notice that he or 
she wishes to discuss.
    For information on facilities or services for individuals with 
disabilities or to request special assistance at the meeting, contact 
LCDR Sherman as soon as possible.
    Comments. You must address comments to the Dockets Management 
System, U.S. Department of Transportation, Room PL-401, 400 Seventh 
Street, SW, Washington, DC 20590-0001. You must identify the docket 
number (OST-01-10380) and submit two copies of your comments. If you 
want to confirm that we received your comments, include a self-
addressed, stamped postcard.
    You may also submit comments by e-mail by accessing the DOT Dockets 
Management System website at: http://dms.dot.gov. Click on ``Help,'' 
``DMS Web Help,'' or ``DMS Frequently Asked Questions'' to obtain 
instructions for filing a document electronically.
    The Dockets Management System is located on the Plaza Level of the 
Nassif Building at the above address. You may review public dockets 
there between the hours of 9:00 a.m. and 5:00 p.m., Monday through 
Friday, except public holidays. You may also review comments on-line at 
the DOT Dockets Management System website at: http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: LCDR Thomas Sherman, Intermodal 
Hazardous Materials Programs, Office of the Associate Deputy Secretary, 
U.S. Department of Transportation, 400 Seventh Street, SW, Washington, 
DC 20009. Telephone: 202-366-5846; Fax: 202-366-0263; or E-mail 
(preferred): [email protected].

SUPPLEMENTARY INFORMATION:
    Federal hazardous material transportation law provides that DOT may 
assess a civil penalty against a person that ``knowingly violates'' 
that law or the HMR. 49 U.S.C. 5123(a)(1). The same section of the law 
also states 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.

    This statutory definition of ``knowingly'' was added in the 
Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA), 
Public Law 101-615, section 12, 104 Stat. 3259 (Nov. 16, 1990), to 
``cover violations that are committed negligently'' and to ``negate any 
inference that the term only encompasses actions based on actual 
knowledge or reckless actions.'' H. Report No. 101-444, Part 1, 
Committee on Energy and Commerce, p. 47 (Apr. 3, 1990) (emphasis in 
original).\1\
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    \1\ In its regulations, the Research and Special Programs 
Administration (RSPA) had implemented the ``knowingly'' standard for 
assessment of a civil penalty in the original Hazardous Material 
Transportation Act, Pub. L. 93-633, section 110, 88 Stat. 2160 (Jan. 
3, 1975), and defined ``knowingly'' to mean that a person (1) has 
actual knowledge of the facts that give rise to the violation, or 
(2) should have known of the facts that give rise to the violation. 
A person knowingly commits an act if the act is done voluntarily and 
intentionally.
    Former 49 CFR 107.299, added 48 FR 2653 (Jan. 20, 1983), revised 
56 FR 8624 (Feb. 28, 1991), moved to 49 CFR 107.3 (Definitions), 61 
FR 21094 (May 9, 1996). When RSPA revised Sec. 107.299 in 1991 to 
define ``knowingly'' consistent with the language adopted in HMTUSA, 
it noted that ``Congress effectively adopted the Department's 
historic interpretation of the term `knowingly.' '' 56 FR 8620.

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[[Page 17102]]

    In a letter to the Secretary of Transportation, Federal Express 
Corporation asked DOT to develop further guidance on what constitutes 
``constructive knowledge'' that a carrier is deemed to have of the 
presence of hazardous materials when the carrier accepts a shipment for 
transportation. Federal Express stated that carriers lack ``essential 
criteria defining constructive knowledge of undeclared hazardous 
materials, that would allow the carriers to design and implement a 
viable system for training their employees, and for identifying and 
reporting discrepancies, without being subjected to second-guessing 
after a shipment has been transported.''
    In its letter, Federal Express referred to a formal interpretation 
published in the Federal Register on June 4, 1998. 63 FR 30411. In that 
interpretation, which was coordinated among all the DOT agencies to 
which enforcement authority has been delegated,\2\ RSPA's Chief Counsel 
stated that:

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.
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    \2\ The Secretary of Transportation has delegated to five 
agencies within DOT the authority to bring civil penalty enforcement 
cases and assess civil penalties for violations of Federal hazardous 
material transportation law or the HMR: United States Coast Guard 
(USCG), Transportation Security Administration (TSA), Federal 
Railroad Administration (FRA), RSPA, Federal Motor Carrier Safety 
Administration (FMCSA). 1.46(u), 1.47(j)(1), 1.49(s)(1), 1.53(b)(1), 
1.73(d)(1).
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    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.\3\
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    \3\ In its June 14, 1996 Advisory Guidance; Offering, Accepting, 
and Transporting Hazardous Materials, 61 FR 30444, 30446, RSPA urged 
persons ``who engage in day-to-day transportation activities [to] 
make a concerted effort to ensure their own compliance, as well as 
that of others from whom they receive shipments'' and reminded them 
to: (1) ``Know Your Customer,'' (2) ``Know the Packaging,'' (3) 
``Know/Verify the Proper Hazardous Material Description,'' (4) 
``Visually Inspect Shipments,'' (5) ``Advise Your Customer of 
Possible Discrepancies,'' and (6) ``Report Violations.''

63 FR at 30412.
    In an interim response to Federal Express's attorney, the Secretary 
of Transportation advised that DOT's Director, Intermodal Hazardous 
Materials Programs (IHMP), located within the Office of the Associate 
Deputy Secretary and Director, Office of Intermodalism,\4\ would be the 
focal point in developing possible guidance on ``constructive 
knowledge.'' In conjunction with FAA (TSA), FMCSA, FRA, RSPA, and USCG, 
the Director of IHMP invites interested parties to attend a public 
meeting and to comment at that meeting or separately in writing on the 
indicia or readily apparent facts that would indicate the potential 
presence of hazardous materials to a reasonable person and the actions 
that a reasonable person should take in response to those indicia or 
readily apparent facts.
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    \4\ The Secretary of Transportation has delegated to the 
Associate Deputy Secretary and Director, Office of Intermodalism, 
the authority under Federal hazardous material transportation law to 
act as the focal point for review of hazardous materials policies, 
monitor departmental hazardous materials activities, and address 
regulatory and programmatic cross-modal issues related to hazardous 
materials as warranted. 49 CFR 1.74.
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    Logical topics for discussion at the public meeting and in written 
comments include:
    1. The responsibilities of an offeror of a hazardous material to 
properly classify the material, package the material, mark and label 
packagings, outside containers, and overpacks, describe the material on 
a shipping paper, and provide placards to a carrier.
    2. The responsibilities of a carrier when it accepts any shipment 
to review documentation that accompanies the shipment and inspect the 
packagings, outside containers, or overpacks to determine (a) whether a 
hazardous material is present, and (b) when a hazardous material is 
present, whether it is properly packaged, marked, labeled, placarded, 
and described on a shipping paper.
    3. When a reasonable person should have constructive knowledge of 
the potential presence of a hazardous material based on information 
that is readily apparent from: (a) Documentation that accompanies a 
shipment, (b) markings, labels, or placards on packagings, outside 
containers, or overpacks, and (c) the condition of the packagings, 
outside containers, or overpacks themselves.
    4. Methods used to train personnel who prepare materials for 
shipment or accept shipments for transportation to recognize the 
potential presence of a hazardous material based on information that is 
readily apparent, including the use of checklists such as those 
required by Section 7;1.3 of the Technical Instructions for the 
Transport of Dangerous Goods of the International Civil Aviation 
Organization (ICAO).
    Oral comments at the public meeting and separate written comments 
are not limited to the above topics and may include any suggestions for 
developing additional guidance as to when a reasonable person would be 
deemed to have constructive knowledge of the potential presence of 
hazardous material and the manner in which that material is classified, 
packaged, marked, labeled, placarded, and described on a shipping 
paper. A facilitator will chair the meeting to ensure that all topics 
are covered and persons heard. No formal transcript of this meeting is 
planned, but the meeting will be tape recorded for later use by DOT in 
its decision-making process.

    Issued in Washington, DC on April 3, 2002.
Jackie A. Goff,
Director, Intermodal Hazardous Materials Programs, Office of the 
Associate Deputy Secretary.
[FR Doc. 02-8521 Filed 4-8-02; 8:45 am]
BILLING CODE 4910-62-P