Hazmat Alert: Is the Government at Your Door?

The Department of Transportation conducts audits of hazmat compliance at facilities that ship hazardous materials (hazmat).  Because many aircraft parts are hazmats, aircraft parts distributors may find themselves the targets of such investigations.

Over the past 20 years, we have been contacted about hazmat audits being conducted by RSPA personnel (the predecessor to PHMSA), FAA personnel, and even TSA personnel.  It appears that many of these audits are generated by identifying hazmat shipments carried by a carrier (like an air carrier) and then following up on the shipments at their shipping-source.  So if you ship a hazmat, then there is a chance you could be targeted in a random audit.

Many aircraft parts distributors have found these audits to be quite innocuous.  The agent usually wants to see shipping records and may have questions about subjects like training records.  We’ve gotten calls from companies who lost their training records and needed them faxed over immediately in order to satisfy an auditor (when we perform hazmat training, we keep our records for three years so we can justify replacement certificates if they are needed).  Despite the generally innocuous nature of these audits, every fact pattern and every government audit is different, so you should use your own judgment when considering how to respond to the agent who arrives to perform the audit.

You Have a Right to Know

Sometimes the audits are not random – sometimes they are a follow-up of an allegation and they have a specific purpose.  If there is a specific purpose to the investigation, such as a follow-up to a reported hazmat incident, then any person subject to the investigation has the right to know the purpose of the investigation (“the general purpose for which the information or evidence is sought”).  49 C.F.R. sec. 107.305(c).  In our experience, many of these ‘surprise’ visits are really just random inspections.  If that is the case, then he investigator will usually be happy to tell you that in response to your inquiry.

What if they are Investigating a Specific Occurrence?

If the inspection is associated with a specific investigation, then you should seek the advice of an attorney.  Penalties for hazmat infringement can be very high, so anything you can do to defend against, or mitigate, the penalty is good.  And you do not want to suffer a recurrence so you should be examining how to restructure your system to prevent regulatory infringements and other risks.

If an investigation reveals that there was no violation, or that no further action is necessary or warranted, then the person being investigated will be notified when the investigative file is closed.  49 C.F.R. sec. 107.305(d).  This affirmative regulation is actually a great thing for the public, and I wish more agencies would include requirements like this one.

Do I Have to Participate in an Investigation?

Questions about issues like participation help illustrate why it is so important to coordinate with a lawyer.  The regulations require shippers, carriers, package owners (which could include a recipient), package manufacturers/certifiers, repair facilities, and persons reporting hazmat incidents to cooperate in investigations.  Under the regulations, these persons are required to provide certain access to records and information pertaining to the subject of the investigation, and also provide reasonable assistance to the investigator.  49 C.F.R. sec. 171.21(a).  However, these requirements could conflict with a person’s fourth and fifth amendment rights in some circumstances, so careful analysis of the facts is required.

There are additional regulatory requirements imposed on persons who are required to file hazmat incident reports.  They are generally required to respond to such inquiries within 30 days after receipt. This requirement can also conflict with other rights so consulting with a lawyer can be helpful.


About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Air Carrier Purchasing Conference, and the Modification and Replacement Parts Association. He also represents private clients drawn from the spectrum of the aviation industry.

One Response to Hazmat Alert: Is the Government at Your Door?

  1. I’ve never been involved in a audit like this before, so it’s pretty interesting to see what you should expect. It’s interesting that you should get in touch with an attorney if the audit isn’t random and there is a specific reason for it. Even if the attorney isn’t needed, I can see why it’d be a good idea to get in touch with one anyway.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: