On September 18, 2018, the Federal Aviation Administration (FAA) released an updated National Policy to “set forth policies and procedures relevant to FAA’s compliance and enforcement program,” including enforcement of hazardous materials violations.
The updated policy, called Order 2150.3C
, lays out in great detail FAA’s policies and procedures for investigating violations of regulations under the agency’s purview. Reading the full document may be arduous, even for hazardous materials professionals. We pulled out some of the highlights for you below.
While most of what’s in the Order isn’t new
information—the details provide insight for hazmat air shippers who may face inspections or enforcement in 2019.
Evidence Used in Hazmat Investigations
This FAA order includes a list of “office-specific” evidence used by FAA when assessing potential violations and selecting enforcement remedies, e.g. civil or criminal penalties. The list of evidence most commonly used in hazardous materials investigations is found on pages 4-32 and 4-33 of the Order.
The pieces of evidence that impact shipping facilities include:
- Written Hazardous Materials Incidents Reports (DOT Form 5800.1)
- Photos of hazmat shipments
- Safety Data Sheets (SDS), formerly called Material Safety Data Sheets (MSDS)
- Special Permits, Approvals, or FAA Exemptions
- Shipping Papers or Air Waybills
- Financial information about the business size and/or ability to pay fines
Time Limits and Types of Hazmat Enforcement
Order 2150.3C also lays out time limits for FAA to assess enforcement actions—like civil penalties. For most hazmat violations, FAA has two years
from the date of t
he violation to issue a notice of proposed civil penalty.
Under the Hazardous Materials Safety Program (HMSP), FAA can issue “informal” or “administrative” enforcement actions in lieu of assessing civil penalties under the law. Informal action occurs when FAA inspectors provide oral or written counseling to help regulated persons come into compliance immediately, on-the-spot.
An administrative action, on the other hand, consists of a formal warning notice or letter of correction. FAA inspectors rely on very specific criteria to determine when these “softer” enforcement actions are appropriate, listed on page 5—9 of the Order.
US DOT now increases civil penalties for hazmat violations regularly to match inflation. In 2017, the maximum hazmat civil penalty rose to $78,376 per day, per violation.
FAA SHOES Policy
Shippers are not the only people subject to US DOT regulations for hazardous materials. Under the Suspected Hazardous Material Objects Encountered in Screening (SHOES) Policy, FAA has procedures for notifying passengers when hazmat is “offered” in carry-on baggage, checked baggage, or on one’s person. In most SHOES cases, FAA issues a letter of warning to the passenger and closes the case. There are exceptions, however.
This relatively relaxed treatment of passengers’ HMR violations does not apply if the passenger’s travel is associated with a business purpose or commercial enterprise and:
- The hazmat involved is not a consumer item in a typical quantity and the passenger reasonably could have understood the danger associated with the material;
- The passenger is a hazmat employee or employer and the business is involved in hazmat sales of distribution;
- The quantity of the hazmat or other evidence suggests an intent to sell or distribute (as opposed to demonstration purposes.); or
- The noncompliance is associated with a courier service.
Likewise, the SHOES policy does not apply in cases where the hazmat is involved in a fire, explosion, rupture, “dangerous evolution of heat,” or other emergency situations.
In other words, if your employees carry hazmat for business purposes—like the university researcher who carried corrosive epoxy resin in his suitcase in 2016
understand the regulations well enough to identify any restrictions that might apply.
Effective hazmat training is critical to ensure your employees make smart, informed decisions about the hazardous chemicals and materials they work with every day.
Read FAA Order 2150.3C in full here. (PDF)
Ship Hazmat/DG by Air?
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