Can US FAA Penalize Non-US Shippers for Hazmat Mistakes?

Posted on 2/25/2016 by Roger Marks

Some US hazmat shippers may be surprised to learn that the enforcement reach of the Federal Aviation Administration (FAA) extends beyond the United States’ shores. 

A German lighting company now faces $117,480 in civil penalties from US FAA for alleged violations of hazmat air shipping regulations. The company offered 9.6 liters of a flammable liquid (glue) for air transport from Düsseldorf to Chicago. In a February 24 press release, FAA alleges that the shipment exceeded the quantity limits for flammable liquids shipped by passenger aircraft.

The package was not labeled with the “Cargo Aircraft Only” label, neither hazmat shipping papers nor emergency response information were included with the shipment, and the flammable material was not marked and packaged in line with hazmat regulations.

Lastly, the German shipper failed to provide hazmat training to employees, as required by US and international hazmat/dangerous goods regulations at 49 CFR 172.704 and IATA DGR 1.5, respectively.

IATA hazmat air shipping

How Can US FAA Fine Non-US Shippers?

To understand FAA’s authority to regulate hazmat shippers around the world, we have to look beyond the regulations and into US law, namely the Hazardous Materials Transportation Act (HMTA).

Found in Title 49 of the United States Code (49 U.S.C.)—not to be confused with Title 49 of the Code of Federal Regulations (49 CFR)—the HMTA authorizes the Department of Transportation to regulate the transportation of hazardous materials “in commerce.”

The law defines commerce as “trade or transportation in the jurisdiction of the United States—

(A)   Between a place in a State and a place outside the State;

(B)   That affects trade or transportation between a place in a State and a place outside the State; or

(C)   On a United States-registered aircraft”
[49 U.S.C. §5102]

With respect to the German glue shipper, we might interpret FAA’s hazmat enforcement authority in two ways:

1. The FAA has authority because shipping from Düsseldorf to Chicago meets the definition of “interstate trade or transportation.”

2. Because the shipment was offered to a US-based carrier (UPS), the FAA has jurisdiction once the flammable liquid was loaded onto a UPS airplane.

Consider option 2 for a moment. The UPS plane is technically “US territory,” so even if the shipment went from Düsseldorf to Timbuktu (instead of Chicago), FAA would have the authority to fine the shipper for hazmat violations because the US-registered plane is within FAA’s jurisdiction.
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Tags: 49, CFR, DOT, hazmat shipping

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