Passengers Share Hazmat Responsibility

Jan. 16, 2008
Q: I was flying out for a camping trip and found that some of the cleaning products and stove fuel were removed from my luggage by TSA. They left a card.

Q: I was flying out for a camping trip and found that some of the cleaning products and stove fuel were removed from my luggage by TSA. They left a card. Can they do this?

A: Absolutely. The regulations for transportation of hazmat apply to passengers as well as to commercial shippers. If the Transportation Security Administration of the Department of Homeland Security (TSA) finds hazmat in your carry-on bags, they will confiscate it. Checking your bags with the airline does not change the situation. TSA searches checked baggage and, if they find something suspicious, they will alert the airline. Typically it is the airline which then removes that material from checked bags, so they will not be put in the position of accepting unlawful hazmat.

TSA and the airlines often alert the FAA to these situations, particularly for undeclared hazmat found in checked luggage. Under 49 CFR 175.10, limited amounts of certain medicinal and toilet articles, including aerosol products for personal use, can be carried and checked. Caps should be on aerosols to prevent unintended actuation.

Hazardous products for household cleaning, fuel, and other non-personal use, however, must be shipped in full accordance with the regulations. The same is true for sales samples, tools, batteries, fireworks, and equipment that meet hazard definitions. You may recall seeing the posters at airports identifying the kinds of materials you should not be carrying.

Compliance with the regulations means declaring the material to the air carrier, using the proper shipping description, as well as proper packaging showing required marks and perhaps labels. Most airlines are not equipped to accept this material at a passenger counter, so it means planning ahead to stop first at their cargo acceptance facility. Better yet, buy the material at destination and don’t carry or put it on an airplane at all. If at the end of your trip you have hazardous material left over, give it to someone there and don’t fly back with it.

In many instances after one of these experiences, the airline and/or the Federal Aviation Administration (FAA) will contact you, asking for an explanation of what you were carrying. If it appears the materials were regulated and were not declared or prepared properly, you either will get a stern warning letter from the FAA or a demand for payment of a civil penalty.

The fact that you are an ordinary citizen and not a commercial enterprise, and that you are not someone who intended to do the wrong thing, really does not matter. The civil penalty for putting hazmat on airplanes can be up to $50,000 per violation, and even higher if someone is injured. Criminal penalties also can apply, but are unlikely to be utilized in an inadvertent violation. An undeclared hazmat involves numerous violations, i.e., each failure to document, package, mark, etc., is considered a separate offense. It does not take long to reach a frightening penalty level.

Any person receiving a penalty notice from the FAA is given several options, from simply paying the penalty to having a full hearing before an Administrative Law Judge. Usually the facts warrant something in between these extremes, such as an informal conference with an FAA lawyer to discuss the case and to negotiate the amount you will pay. You have certain defenses, but ignorance of the hazmat regulations is not one of them. The fact that you are apologetic will help but, if there was a violation, it would be unrealistic to expect the FAA to drop the case.

Before putting something out of the ordinary in your luggage, therefore, think about whether it is under pressure, or flammable, or has corrosive properties. If you have doubts, ask the airline or go on-line to see what materials are acceptable and unacceptable. The penalty consequences can be very high, not to mention the safety threat to the aircraft, the crew, your fellow passengers, and yourself.

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