FAA AC on VDRP
Hazardous Material Violations
The FAA has issued an Advisory Circular extending its voluntary disclosure to Parts 119, 125 and 129, every form of carrier, for compliance with the Hazardous Material Regulations, 49 CFR Parts 105-110, 171-172. 175. Basically those rules prescribe how certain dangerous goods may or may not be carried in air transportation as well as very specific requirements as to packaging, labeling and paperwork/certifications. The regulations are over 20 years old and have been amended since in numerous ways.
Currently, the Office of Hazardous Materials Safety (AXH) has the most active enforcement case docket and AC 121-37A was issued to reduce the issuance of the civil penalties as applied to Certificate Holders.
So, what is the goal of this new statement of policy?
The FAA has made tremendous progress in changing its culture to an enforcement, punitive relationship with the industry to a cooperative, collaboration, preventative approach. This new FAA relies heavily on Safety Management Systems as a data-driven, problem-solving. Pertinent to the issuance of this circular, it was stated:
“The FAA believes that aviation safety is well served by incentives for operators to identify and correct their own instances of noncompliance, and to invest more resources in efforts to preclude their recurrence.”
So, a program, that has been most successful in increasing the certificate holders’ vigilance to catch and self-report a problem, is being extended to the carriage of these dangerous goods.
One of the earliest manifestations of this transition was its announcement of the voluntary disclosure reporting program (VDRP). As its name suggests, this initiative encourages the person/company involved to
- tell the FAA (i.e. INDEPENDENTLY DETECTS)
- about an INADVERTENT VIOLATION,
- takes IMMEDIATE CORRECTIVE ACTION to ensure that the same or similar violations do not recur
[The AC contains a number of significant terms which must be met.]
Industry’s initial reaction to VDRP was somewhat askance. Private lawyers expressed concerns that the conditions precedent to getting, derisively, the GET OUT OF JAIL FREE ticket.
In order to qualify for the CARD, the FAA must have found that all of them were met (particularly the “inadvertent” act. Some agency personnel were of the opinion that certificate holders were held to such a high standard, that no error could be considered as unintentional). Subsequently, the Associate Administrator for Aviation Safety and the Administrator have reinforced the protection afforded by VDRP and its value to safety.
The extension of the Get Out of Jail, FREE ticket to the Haz Mat arena to carriers is a great idea, but is it enough?
The FAA has posted a list of Haz Mat cases. The Xcel sheet curates enforcement cases filed since 2010. So far, the FAA has issued and recorded (there are likely more which have not been entered into the data base) the following number of matters by class of respondent:
Part 121 Carriers 184 (mostly cargo operators)
Indirect Carriers 27 (air freight forwarders)
Foreign Carriers 20
Part 145 13 (repair stations)
Part 135 12
The AC will reach only 12% of the Dangerous Goods violators; yes, they hold the regulatory nexus of FAA certificates, use the underlying SMS and Internal Evaluation Program.
The major source of violating 49 CFR Subtitle B, Chapter I, Subchapter C are not covered by AC 121-37A. They are required, expected, to comply with the complicated regulations. Some are big shippers which should be familiar with the requirements. Most, one might suppose, are making unintentional errors. Many, if not all, would welcome the opportunity to “identify and correct their own instances of noncompliance, and to invest more resources in efforts to preclude their recurrence”, the goals of this program.
AXH offers a useful website for these persons. There are shipper organizations– National Shippers Strategic Transportation Council, Food Shippers of America, but their membership tends to involve the frequent, informed?, sources of HazMat packages. Outreach to a geographically, widely dispersed audience is difficult, especially since the contents proffered for flight come from diverse industries.
AXH might consider creating a VDRP outreach initiative which would offer these small business entities the proverbial GET OUT OF JAIL FREE card. When an improperly packaged/labeled/documented/certified is found to be a HAZ MAT violation, AXH might offer a modified VDRP—emphasizing education, creation of a corrective action and a high level of local publicity. Further, this VDRP would also make it clear that if the “corrective action” failed, the maximum penalty would be applied.
Based on the SMS, IEP, VDRP experience, one might forecast better compliance with the Haz Mat regulations!!!
Share this article: