The Pipeline and Hazardous Materials Safety Administration (PHMSA) has increased the potential penalties for failing to comply with the Hazardous Materials Regulations (HMR).
Under Title 49, Code of Federal Regulations (49 CFR), hazardous materials must be transported in accordance the rules set out in Parts 100-185 of the HMR. Failing to follow these minimum standards can result in serious risk to the public, as well as environmental and property damage. Therefore, the potential penalties for lack of compliance must be appropriate. These penalties are set by Congress, but must be reflected in the HMR itself. Civil penalties are fines; there are criminal penalties involving prison sentences for violations that are “willful or reckless”.
Penalties must be kept current, and reflect not only inflationary changes, but also the government’s concern ab that the regulations are taken seriously by stakeholders. Therefore, on July 6, 2012, the U.S. Congress revised the maximum and minimum civil penalties for a “knowing violation” of the Federal hazardous material transportation law, or legal requirements under that law, such as regulations, special permits, inspectors’ orders or special approvals issued under that law. Details on these new penalties may be found in 49 U.S.C. 5123(a). The new penalties take effect on violations that occurred on or after October 1, 2012.
To follow Congress’ lead, PHMSA issued a Final Rule ([Docket No. PHMSA–2012–0257 (HM–258)], RIN 2137–AE96) on April 17, 2013, that incorporated the new civil penalties. These involve:
Increasing the maximum fine possible from $55,000 up to $75,000, for knowingly violating the law;
Revising the maximum penalty from $110,000 to $175,000 , for knowingly violation the law in a way that results in “death, serious illness or severe injury” to a person, or which causes substantial destruction of property; and
Eliminating the minimum civil penalty amount, since most fines are well over the previous set minimum of $250. However, a minimum penalty will be retained for training violations, now to be set at $450.
The updated sections of the HMR include:
§ 107.329, Maximum penalties,
Appendix A to Subpart D of Part 107 – Guidelines for Civil Penalties, and
§ 171.1, Applicability of Hazardous Materials Regulations (HMR) to persons and functions.
In a recent Final Rule, The Federal Railway Administration (FRA) has increased or modified its penalties for hazardous materials violations involving rail shipments.
The Final Rule, RIN 2130–ZA11, reflects Title III of Division C of MAP–21(Pub. L. 112–141), the Hazardous Materials Transportation Safety Improvement Act of 2012. This Act revised the maximum and minimum civil penalties for violations of Federal laws regarding hazardous materials transportation. FRA has therefore updated its references to the maximum and minimum civil penalties for hazardous materials violations in its own guidelines.
In Part 209 of Title 49 of the Code of Federal Regulations (49 CFR), the FRA has made the following changes:
The maximum civil penalty has been increased to $75,000 from $50,000 for “knowing violations” of any requirement of a Federal hazardous materials transportation law. This also applies to violations regarding orders, special permits or approvals issued by the DOT.
The maximum fine has been increased from $100,000 to $175,000 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property.
The minimum civil penalty of $250 was eliminated. However, a minimum civil penalty of $450 was retained for violations regarding training.
The amendments under the Hazardous Materials Transportation Safety Improvement Act of 2012 became effective on October 1, 2012. FRA will use the new set of fines for violations that have occurred from that date onwards.
We’ve turned our clocks backwards, started our holiday preparations, and maybe even bought new calendars for 2013. But there’s one other thing that should be on our minds for the New Year, at least for shippers in the United States. We must make sure that our shipping descriptions are in order.
In 2006, a Final Rule, Docket No. PHMSA–06–25476, known as HM-215I, was issued by the Pipelines and Hazardous Materials Safety Administration (PHMSA). The goal of this rule was to bring the US Hazardous Materials Regulations (HMR) of Title 49 of the Code of Federal Regulations (49 CFR) into line with the current UN Recommendations for Transport of Dangerous Goods. One major change was that the shipping description order, as described in 49 CFR section 172.202(a), would be rearranged to reflect the international standard.
Originally, the shipping description order was prescribed as:
Shipping name, hazard class, identification number and packing group (if applicable)
However, HM-215I changed this order to:
Identification number, shipping name, hazard class, and packing group (if applicable)
PHMSA recognized that making this change would take some time, and granted a six-year transition period. After all, making this change would include retraining workers who prepare or read shipping papers, reprogramming computerized document systems, and rewriting standard operating procedures regarding shipping papers. However, the transition period is reaching its end. Starting on January 1, 2013, shipping papers must be in the “identification number first” order.
Note that this change should not affect Canadian shipments to the United States. Under Canada’s Transportation of Dangerous Goods Regulations (TDG), the shipping description may be given in either order – the shipping name first, or identification number first. Under the reciprocity provisions of 49 CFR sections 171.12 and 171.22, either order should be acceptable for a Canadian shipment into the United States.
If you have questions about how this change will affect your operations, please contact ICC The Compliance Center Inc. at 1-888-977-4834 (Canada) or 1-888-442-9628 (USA).
A question we are often asked at ICC Compliance Center is “how small does a dangerous goods shipment have to be to not be regulated?” Not just limited quantity, not just excepted quantity – totally not regulated. Common sense tells us that, at a certain level, tiny amounts of dangerous goods do not pose a hazard during transport. Unfortunately, until recently, this question was not really addressed directly, other than by using other small quantity provisions, such as limited quantities.
However, the UN Subcommittee on the Transportation of Dangerous Goods has been working on this issue, and the question has started to be answered by various regulations based on the UN Recommendations. For example, starting in 2013, shippers by air who use the ICAO Technical Instructions for the Safe Transport of Dangerous Goods (TIs), and the IATA Dangerous Goods Regulations (DGR), will be able to ship very small amounts of dangerous goods as non-regulated under the so-called “de minimis” provisions.
The 54th Edition (2013) of the DGR has a new section, 2.6.10, which establishes the procedures for shipping as a de minimis quantity. The procedure is as follows:
Look up the goods being shipped on the List of Dangerous Goods (Table 4.2), and check the Excepted Quantity code given in column F. If the code is E1, E2, E4 or E5, the goods can be shipped as de minimis, if they meet the following requirements. (If the code is E0 or E3, unfortunately, de minimis is not an option.)
Package the goods as you would excepted quantities, using the instructions in DGR section 2.6.5. Note that, despite this section, intermediate packaging (such as a leakproof bag) is not required if the inner packagings are securely packed in an outer packaging with cushioning material, in such a way that they could not:
be punctured, or
leak their contents
under normal conditions of transport. Also, if they are liquids, there must be enough absorbent material to absorb the entire contents of the inner packagings.
The quantity limits for a de minimis package are:
For inner packagings, not more than 1 mL for liquids and gases, or 1 grams for solids, and
For outer packaging, not more than 100 mL for liquids and gases, and 100 grams for solids.
Finally, review the package testing requirements given in section 2.6.6. Although the package does not have to be UN-specification tested, this section says that the package must be capable of withstanding, “as demonstrated by testing which is appropriated documented,” a drop test and a 24-hour stacking test. These are simple tests that can be done in-house; however, as the section says, they should be documented. Notes of the test, and digital photographs, if possible, should be kept on file regarding the packaging.
Once you have met these requirements, the DGR says that the de minimis package will be “not subject to these Regulations”. So, other requirements, such as dangerous goods shipping papers, or package markings, will not apply.
Do remember that this section is new to the 54th edition of the IATA DGR. Until January 1, 2013, these provisions may not be used.
If you have questions about using de minimis quantities, please contact ICC The Compliance Center Inc. at 1-888-977-4834 (Canada) or 1-888-442-9628 (USA).
Identifying environmental hazards is an important part of the current transportation of hazardous materials system. However, changes that have originated in the UN Recommendations for the Transport of Dangerous Goods (the so-called “Orange Book”) are making classification of such hazards more complex than it used to be. Fortunately, the US Department of Transport (DOT) has issued a short guide that will help those who deal with such chemicals, called Marine Pollutants, in the United States work their way through the system a little easier.
Originally, the concept of Marine Pollutants was developed to deal with chemicals that could cause significant damage if released into the ocean. A list of such chemicals was developed, based on Annex III of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL 73/78). Classification depended on whether or not the chemical was identified on this list, or if a substance contained ingredients on the list, above a certain concentration cut-off. While this was a relatively straightforward way of classifying well-known chemicals, it did not fully address how chemicals should be classified if information was discovered about hazards after the list had been established – added or deleting chemicals from the list required extensive work at the international level. With more environmental data being developed all the time, a new method was called for.
This new method, developed in the International Maritime Dangerous Goods (IMDG) Code, and adopted in the Globally Harmonized System (GHS) for Classification and Labelling of Chemicals, abandoned the list-based system in favour of a more dynamic one, based on evaluation of specific data regarding each chemical. While this made the system much more flexible, it introduced additional complications. First, not all chemicals have been fully tested for their environmental hazards. Additionally, the evaluation of such data is much more complicated than simply checking a list, and using concentration cut-offs.
Various regulations have moved at different paces to adopt the new system. The IMDG Code now uses the testing and evaluation method as its primary method of classification (although retaining a note on chemicals that were originally on the list, since these may reasonably be expected to still meet the definition). The DOT, however, has maintained the list as a simple and effective way of classification, but allows the new system to be used as an alternative.
Since the concept of two competing methods is rather confusing, the US Coast Guard, and the Pipelines and Hazardous Materials Safety Administration (PHMSA) have issued a short guide to help shippers and carriers manoeuver the specific US requirements for Marine Pollutants. This document, Guidance on the Transportation of Marine Pollutants, can be downloaded at no charge at http://phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Marine_Pollutant_Guidance.pdf.
The guide explains how the US Hazardous Materials Regulations permits the use of either a list (given as Appendix B to the Hazardous Materials Table, Section 172.101), or the testing and evaluation method from the IMDG Code. If you choose to use the evaluation method, the guide indicates what data you must gather, and provides the various tables to help you interpret it. The guide also covers the basic responsibilities of shippers and carriers of Marine Pollutants, such as shipping papers, marking and placarding. For example, it clarifies that the original triangular Marine Pollutant mark is no longer authorized, and has been replaced by the square-on-point mark found in the IMDG Code.
While the guide does not replace the actual regulations, it can serve as a handy reference for those involved in the transportation of Marine Pollutants. If you have questions about Marine Pollutants, or classification in general, contact us here at ICC The Compliance Center for more information, at 1-888-442-9628 (USA) or 1-888-977-44834 (Canada).