Q: Is passenger baggage subject to the hazmat regulations?
A: Without question. Although bags in your own car may not be “in commerce,” when you offer that baggage to a commercial carrier in any mode of transportation, the Department of Transportation (DOT) regulations apply. Obviously, this is of greatest concern for airline passengers.
Today, the Transportation Security Administration (TSA) conducts screening of both carry-on and checked baggage. The Air Transport Association recently reported that TSA seizes 50-60 hazmat items from baggage each day from one representative passenger carrier alone.
Most medicinal and toilet articles in checked baggage are excluded from the hazmat regulations under 49 CFR 175.10(a)(4), so it is clear that the TSA findings represent many hazardous materials other than these personal care items. These include cleaning products, auto batteries, paint, propane stove fuel, small blow torches, product samples, waste stream samples and any number of odd things that people feel compelled to carry with them.
The most alarming was the Texas physician who imported plague germs from Africa using the VIP (vial-in-pocket) technique. The cork in the vial was literally the only protective barrier between the germs and the air. Even more disturbing was the physician’s claim that this means of getting extremely infectious agents from one country to another is common in the academic and research community. Presumably, this is why the hazmat law offers criminal sanctions.
For the more ordinary traveler, it is important to stress that the full scope of the hazmat regulations apply to baggage. This means that all the packing, marking, labeling and documentation requirements must be met. When prosecuted by the Federal Aviation Administration, each regulatory requirement is counted as a separate offense — each mark that is missing from the package, each required item on a shipping paper that is not offered, as well as having no proof of effective hazmat employee training.
The additional packaging requirements for air shipments in 49 CFR 173.27 also will be cited, as well as the general packaging provisions of Section 173.24 if the item leaks. For a single undeclared shipment, this means of calculating can result in 20-30 violations, each subject to a maximum civil penalty of $30,000. You do the math.
Congress is now debating changes to the hazmat law, including proposals to increase the per-violation ceiling on civil penalties to $100,000, and to add criminal penalties of up to 20 years imprisonment per violation.
These penalties are applicable to individuals as well as companies. If you are on business travel and, on your own, you decide to take hazmat in your luggage contrary to company policy, you will be the sole target of the FAA’s prosecution team. They will not pursue the company if it was your personal decision. While the lawyer you hire to defend you may be deductible, and perhaps even covered by insurance, the penalty you pay is not. Such an experience also will not be a great addition to your resume.
Therefore, when you need to have hazardous materials at your destination, plan (a) to obtain them there so you need not transport them, or (b) to have them shipped as freight by someone who has been certified by his employer as having been trained and tested on the regulatory requirements applicable to the air shipment of hazardous materials. For air, the paperwork is different, and the packaging can be very different in order to withstand rapid changes in pressure and temperature in combination with vibration. Training for ground transportation alone is insufficient.
In addition to preparing the goods properly, the packages have to be declared to the carrier. No passenger carriers I know train their ticket counter personnel to accept hazmat. The packages, therefore, must be tendered to cargo services. Most hazmat may be shipped legally by air, with safety for the aircraft, the crew and fellow passengers. Failure to properly pack and declare hazmat, however, can be a severely punishing experience. LT
Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at 202.775.5560, [email protected].