FAA Steps Up Oversight of HAMAT Shipments by Air

If you ship packages, any packages, then this affects you. The FAA wants to fine FedEx nearly $700,000 for alleged violations of hazardous materials (HAZMAT) regulations for shipments by air. The FAA is proposing to fine the Massachusetts Institute of Technology $175,000 for allegedly shipping HAZMAT by air that included devices powered by undeclared lithium batteries which caught fire in transit. These are two of numerous recent cases where the FAA, in cooperation with the TSA, has gotten more aggressive with the enforcement of HAZMAT shipping regulations following the addition of substantial resources dedicated to the cause.

While you might not expect the FAA to be involved in HAZMAT shipping oversight, the agency has primary responsibility for the safety of air travel. Recent accidents potentially attributable to HAZMAT and continued scrutiny of shipments for security have led to stepped up enforcement. A carrier must know what it is shipping so that it can be properly handled. It is therefore critical that shippers re-visit established guidelines and procedures to ensure that shipments of all types are properly monitored and controlled.

Although carriers have the last clear chance to prevent improper shipments of HAZMAT by air, regulations also impose liability on the shipper for failure to properly package, declare or label shipments. The penalties are severe — up to $50,000 per violation and potentially up to $500,000 and/or 5 years imprisonment if the violation is determined to be willful or if the person acted knowingly or recklessly in violation of the law. A knowing violation occurs when, “…a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge…” The government does not have to prove the violator’s knowledge of the law in order to prevail.¹ This is not a challenging burden of proof.

Both FedEx and UPS have comprehensive guides online to help with identifying and shipping HAZMAT by ground and by air, keeping in mind that certain HAZMAT may not be transported by commercial air or either ground or air.² If a violation is alleged to have occurred, it will be the shipper’s responsibility to show, among other things, that the employees in charge of shipping of HAZMAT have received proper training. Where companies may typically run afoul of the regulations is failing to have well established guidelines in place for the shipping of HAZMAT and for properly training employees responsible for its shipment. A shipper must not only recognize what HAZMAT is, but how to properly identify, pack, label and ship it. Relying on the carrier to “catch” any errors will not shield the shipper from liability.

Being able to properly identify what is and is not HAZMAT is the first step toward compliance. Shippers should establish guidelines for shipments and ensure that those responsible for shipments act as trained gatekeepers so that all shipments, whether of HAZMAT or not, are handled properly. As the MIT case illustrates, you do not need to be in the business of handling HAZMAT to be held accountable for improperly shipping it.

Eurocontrol Changes Account Oversight Procedure

It is common practice for aircraft lessors to seek access to their lessees’ Eurocontrol account statements to ensure that all charges are being timely paid. Fees left unpaid by the operator can be claimed from the aircraft owner notwithstanding the fact that the owner is an innocent bystander. Access was typically granted by the lessee providing a written letter of authority for Eurocontrol to disclose account information directly to the lessor.

Citing a need for improved efficiency and security, Eurocontrol recently announced that the process would be updated and automated. Account information may now only be accessed through Eurocontrol’s secure extranet, CEFA (CRCO Extranet for Airspace Users). Effective 1 September 2011, Eurocontrol requires a letter be issued by account holders seeking to grant account oversight authority to lessors. Among other things, the letter must identify the lessor and be printed on the operator’s letterhead. Prior to this date, the letter could follow any form. Eurocontrol has imposed and now requires that the letter be issued in a specific form and sent by e-mail to a dedicated address. Eurocontrol will acknowledge the grant of authorization by return e-mail. Please feel free to e-mail me for a copy of the new policy which contains the template letter.

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