[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Notices]
[Pages 9735-9737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4800]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-2003-14424, Notice No. 03-2]


Hazardous Materials: Formal Interpretation of Regulations

AGENCY: Research and Special Programs Administration, DOT.

ACTION: Formal interpretation of regulations.

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SUMMARY: The Research and Special Programs Administration (RSPA) is

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issuing a formal interpretation of the Hazardous Materials Regulations 
(HMR) identifying when: (1) An airline passenger ``offers'' hazardous 
materials in carry-on baggage (including items on his/her person) or 
checked baggage for transportation under Federal hazardous materials 
transportation law and the HMR, and (2) when an air carrier accepts 
carry-on baggage (including items on a passenger's person) or checked 
baggage for transportation under the Federal hazardous materials 
transportation law and the HMR.

FOR FURTHER INFORMATION CONTACT: Nancy E. Machado, Assistant Chief 
Counsel for Hazardous Materials Safety, Research and Technology, Office 
of the Chief Counsel, Research and Special Programs Administration, 
U.S. Department of Transportation, Washington, DC 20590-0001 (Tel. No. 
202-366-4400).

SUPPLEMENTARY INFORMATION: RSPA issues the HMR (49 CFR parts 171 
through 180) as part of its implementation of the Federal hazardous 
materials transportation law, 49 U.S.C. 5101 et seq. From time to time, 
RSPA's Chief Counsel issues formal interpretations of the HMR which are 
published in the Federal Register. Publication of these interpretations 
promotes a better understanding of the HMR and improves compliance.
    In addition to formal and informal interpretations issued by the 
Chief Counsel, RSPA's Office of Hazardous Materials Standards provides 
information and informal clarifications of the HMR on an ongoing basis 
through a telephonic information center (800-467-4922 or 202-366-4488) 
and informal written interpretations or clarifications in response to 
written inquiries. RSPA's informal letters of clarification (and 
additional information concerning the HMR) are also available through 
the Hazmat Safety Homepage at http://hazmat.dot.gov. The Chief 
Counsel's formal and informal interpretations are available through the 
Chief Counsel's homepage at http://rspa-atty.dot.gov. In addition, some 
of RSPA's interpretations and clarifications may be reproduced or 
summarized in various trade publications. Further information 
concerning the availability of informal guidance and interpretations of 
the HMR is set forth in 49 CFR 105.20.
    Anyone is able to search the electronic form of all documents 
received into any of our dockets by the name of the individual 
submitting the document (or signing the document, if submitted on 
behalf of an association, business, labor union, etc.). You may review 
DOT's complete Privacy Act Statement in the Federal Register published 
on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may 
visit http://dms.dot.gov.

Background

    In general, a hazardous material subject to the HMR is prohibited 
in the cabin of a passenger-carrying aircraft (49 CFR 175.85) and may 
only be carried in the cargo compartment of a passenger-carrying 
aircraft when it fully conforms to the hazard communication, packaging 
and stowage requirements of the HMR. In order to accommodate the needs 
of the traveling public, exceptions are provided in 49 CFR 175.10 to 
allow passengers to carry certain quantities and types of articles, 
such as medicines and toiletries, in their checked and carry-on baggage 
(including on one's person). See 49 CFR 175.10 for a detailed listing 
of the materials which passengers are permitted to carry.
    Hazardous materials in carry-on baggage and checked baggage are 
subject to the HMR when offered for transportation in commerce. Section 
171.2(a) of 49 CFR provides that ``no person may offer or 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 authorized by 
applicable requirements of [the HMR], or an exemption, approval or 
registration issued under [the HMR] * * *.'' The Secretary of 
Transportation has delegated to certain agencies within the Department 
the authority in 49 U.S.C. 5123 to assess a civil penalty against any 
person who ``knowingly violates'' a requirement in the HMR, including 
the provision in Sec.  171.2(a) which is discussed 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.
    Security concerns have led to enhanced screening of air passengers 
and their baggage for weapons, explosives, and incendiaries. As a 
result of this increased focus on passenger carry-on baggage (including 
items on one's person) and checked baggage, screening personnel are 
discovering hazardous materials during the screening process. 
Consequently, there is a need to identify, for purposes of compliance 
with the HMR, when a passenger ``offers'' a hazardous material for 
transportation by aircraft in carry-on or checked baggage and when an 
air carrier ``accepts'' a hazardous material for transportation by 
aircraft in carry-on or checked baggage.

Interpretation

    This formal interpretation identifies, for purposes of the HMR, the 
point at which: (1) An airline passenger ``offers'' hazardous material 
in carry-on baggage (including items on his/her person) or checked 
baggage for transportation in commerce, and (2) an air carrier 
``accepts'' hazardous material in carry-on baggage (including items on 
a passenger's person) or checked baggage for transportation in 
commerce. This interpretation addresses only passenger carry-on and 
checked baggage and does not address or apply to cargo shipments. The 
Federal Aviation Administration (FAA), which has the primary 
responsibility for enforcing the HMR with regard to air transportation, 
concurs with this interpretation. Prior advice given by FAA that may be 
inconsistent with this interpretation is superseded by this formal 
interpretation. RSPA has coordinated this interpretation with the 
Transportation Security Administration, which has responsibility for 
aviation security.
    Carry-on items: A passenger in control of carry-on baggage 
(including items on his/her person) containing a hazardous material 
offers and represents that the baggage is fit for transportation by 
aircraft when the passenger tenders the baggage to screening personnel 
at an airport security screening checkpoint or otherwise attempts to 
proceed through the checkpoint with the hazardous material on his/her 
person. A passenger offers carry-on baggage for transportation by 
placing the baggage on the X-ray machine conveyer belt, handing the 
baggage to screening personnel, placing the baggage in a bin or tray 
for examination by screening personnel, or when the passenger 
physically passes through the security checkpoint with the baggage 
(including items on his/her person). Screening personnel at the 
security screening checkpoint do not need to have physical control of 
the carry-on baggage for an offer to have occurred; simply presenting 
the baggage for screening at a security screening checkpoint or passing 
through the checkpoint with the baggage (including items on a 
passenger's person) is sufficient to constitute an offer.
    Carry-on baggage is accepted by an air carrier when the airline 
accepts the boarding pass of the passenger while boarding the flight. 
The passenger is responsible for ensuring compliance

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with the HMR from the point of offer and at all times until 
transportation is complete.
    Checked baggage: Checked baggage containing a hazardous material is 
offered to the carrier at the point the passenger presents the baggage 
for acceptance by the carrier. This can occur at curbside check-in, at 
the ticket counter at the airport, or when the passenger presents the 
bag to screening personnel for explosive detection screening as a 
prerequisite to presentation to the carrier. When the baggage is 
tendered at curbside check-in or the ticket counter to the air carrier, 
the baggage is considered to have been accepted when the air carrier 
issues a baggage claim ticket for the checked baggage.
    Accordingly, if a passenger's carry-on baggage or checked baggage 
contains a hazardous material that does not comply with Federal 
hazardous materials transportation law or the HMR, and the passenger 
has tendered the baggage to screening personnel at an airport security 
screening checkpoint, passed through the checkpoint with the baggage 
(including items on his/her person), or offered it to the carrier, the 
passenger may be subject to civil or criminal penalties under Federal 
hazardous materials transportation law, the HMR, or any other 
applicable laws or regulations. Likewise, an air carrier that knowingly 
accepts a passenger's carry-on baggage or checked baggage containing a 
hazardous material that does not comply with Federal hazardous 
materials transportation law or the HMR may be subject to civil or 
criminal penalties under Federal hazardous materials transportation 
law, the HMR, or any other applicable laws or regulations.

Information Concerning Passengers Who Need Supplemental Oxygen

    The above interpretation does not affect the use of oxygen by 
passengers at airports. Ticketed passengers using their own oxygen on 
the ground, who do not intend to transport the oxygen because they are 
receiving oxygen for the flight from the air carrier, are not 
considered to be offering their oxygen for transportation on an 
aircraft when they enter or pass through the security screening 
checkpoint. Passengers may not carry oxygen aboard an aircraft; it must 
be provided by the aircraft operator (see 49 CFR 175.10 and 14 CFR 
121.574).

    Issued in Washington, DC, on February 25, 2003.
Barbara Betsock,
Acting Chief Counsel.
[FR Doc. 03-4800 Filed 2-27-03; 8:45 am]
BILLING CODE 4910-60-P