Aviation Business Journal 1st Quarter 2013 - 43

Fish in the Barrel
Continued from page 41

shipping papers, accurately identified
the shipment’s contents, the UN
(identification) number, hazard class
and packing group and ensured that
it would only be transported by cargo
aircraft. (COGs are prohibited aboard
passenger aircraft except as installed
equipment.) Up to this point, we
did everything correctly (or so our
employees believed).
Unfortunately, the COG had passed
its expiration date and, therefore, was
not authorized to be shipped by air
(see § 173.168(f)(2)(i)). The discovery
was made by FedEx personnel who
were simply doing their job. As the
FAA’s investigation unfolded, it turned
out that the PBE was not shipped in
the appropriate rigid outer packaging
that was capable of meeting the Flame
Penetration Resistance Test and the
Thermal Resistance Test as required
by § 173.168(d)(2). (This is required
for air transportation only.) The
individual who prepared the shipment
packed the PBE in the case provided
by the manufacturer for carrying the
article on and off the aircraft.
As a result of this occurrence,
the FAA’s regional hazmat office
conducted an inspection of the
facility’s compliance with Title 49.
Sure enough, the agency found other
issues relating to record retention and
the requirement that a knowledgeable
person be available at all pertinent
times to provide emergency response
information if needed.
As you might expect, Landmark
analyzed the occurrence very
thoroughly and developed several
responsive actions. Some of them

Aviation Business Journal | 1st Quarter 2013	

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NATA’s Will-Not-Carry Operator Hazardous Materials Training Manual is a
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were implemented shortly after the
FAA inspection while others took a
little more time. They included the
following:
■■
Establishing a new Hazmat
Standard Operating Procedure
■■
Establishing a Dangerous Goods
Help Desk and Hotline
■■
Ensuring Title 49 and the IATA
DG materials were available at
all Landmark sites
■■
Re-evaluating and, ultimately,
changing the company’s
preferred hazmat training
contractor
■■
Requiring initial hazmat
training to occur in an offsite classroom setting (while
Landmark uses computer-based
training, we chose to require inperson initial training because
we believe this will enhance
compliance)
■■
Requiring a second person to
review the accuracy of all hazmat
shipping papers and other
requirements of the HMR, and
■■
Establishing a hazmat audit
function as part of Landmark’s
Safety Management System.
As is usually the case when a
company re-examines its procedures
following such events, we realized
that we could and should have done
better. Like all of you, we have far
better ways to spend our money
than paying a civil penalty to the
FAA or any other government

agency. My advice is to learn from
our experience and re-evaluate your
hazmat compliance procedures before
you find yourselves dealing with a
proposed civil penalty.
Our counsel advises that sometimes
a company is fortunate enough to have
an affirmative defense in a hazmat
case, but this is not typical. Therefore,
the primary focus is on mitigation.
The government has the burden of
proving that the company committed
a “knowing” violation of the HMR.
This doesn’t require proof that you
intended to violate the rules (although
intent could be grounds for criminal
prosecution.) The government need
only establish that you knew what
you were shipping. In school we all
learned that “ignorance of the law
is no excuse” and that is certainly
true when it comes to the HMR.
Landmark offered evidence during the
informal resolution process focusing
on the company’s response to the
investigation and the FAA was flexible
but only to a point. So, in the end the
proposed civil penalty was reduced but
it certainly did not go away.
Marshall S. Filler, a managing member
at the law firm of Obadal, Filler,
MacLeod & Klein, PLC in Alexandria,
Virginia, and expert in federal hazmat
compliance, assisted in the preparation
of this article. If you have questions
about hazmat issues, he can be reached
at marshall.filler@potomac-law.com.

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Aviation Business Journal 1st Quarter 2013

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