Hazardous Materials: Knowledge Required for Civil Penalty Enforcement Proceeding

Filed on regulations.gov — full text not in the inline record.

The safety association of the commercial explosives industry. Founded 1913 February 28, 2002 Dockets Management System U.S. Department of Transportation Room PL-401 400 Seventh Street, S.W. Washington, D.C. 20590-0001 Re:Docket Number OST-01-10380; Hazardous Materials: Knowledge Requirement of Civil Penalty Enforcement Proceedings (66 Fed. Reg. 42909) Dear Sir or Madam: On behalf of the Institute of Makers of Explosives (IME), I am submitting comments on the issues covered by the above-captioned notice. The IME is the safety association of the commercial explosives industry. Our mission is to promote safety and the protection of employees, users, the public and the environment; and to encourage the adoption of uniform rules and regulations in the manufacture, transportation, storage, handling, use and disposal of explosive materials used in blasting and other essential operations. IME member companies produce over 95 percent of the commercial explosives consumed in the United States. IME member companies regularly engage in transporting hazardous materials and/or arranging for the transportation of such materials. Accordingly, the issues covered by this proceeding have significant interest to IME. IME supports the request submitted by Federal Express Corporation (“Federal Express”) that the Department of Transportation (“DOT”) develop further guidance regarding what constitutes “constructive knowledge” under the Hazardous Materials Transportation Act (Pub. L. 93-633, §110, 88 Stat. 2160 (Jan. 3, 1975). Specifically, Federal Express has requested DOT to provide additional guidance providing “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 ….” 66 Fed. Reg. 42910. 1120 Nineteenth Street, N.W., Suite 310, Washington, D.C. 20036-3605 Tel: (202) 429-9280 The Federal Register notice describing the Federal Express proposal notes that the Research and Special Programs Administration (“RSPA”) considers a carrier to have “knowingly” violated the Hazardous Materials Regulations (“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.” Id. at 42910. The legal standard “remains that knowledge that a reasonable person acting in the circumstances and exercising reasonable care would have.” Id. IME agrees with Federal Express that guidance providing greater specificity regarding what constitutes “reasonable care” and “constructive knowledge” will assist carriers in understanding their obligations under the law and in complying with the HMR. As DOT is undoubtedly well aware, the question of whether the circumstances of a particular case are sufficient to give rise to an obligation of further inquiry often is fraught with appreciable difficulty – both for the carrier and DOT. To the extent that DOT is able to outline a set of facts that will, in ordinary circumstances, be expected to trigger further inquiry on the part of a carrier, both the carrier and the DOT inspector will be better able to determine whether the actions of the carrier are/were appropriate to a given situation. Likewise, IME agrees with Federal Express that providing guidance as to what types of documentation will not be reviewed, and, therefore, will not give rise to a claim of constructive knowledge, also will benefit carriers and DOT inspectors. Because constructive knowledge is imputed only to those facts that are reasonably and naturally connected to a known fact and to which the known fact furnishes a clue, it is critical to understand that certain types of documentation will not be considered in determining what facts are “known” to a carrier and whether those facts should h…