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.

Text of the Final Rule can be found here.

If you have questions about hazmat violations, and how to avoid them, contact ICC The Compliance Center, your hazardous materials specialists.

Earlier this year PHMSA amended Section 175.25 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171–180) which prescribes the requirements for air-passenger notification of hazardous materials restrictions. The primary purpose for this regulation is to enhance public safety awareness regarding the carriage of hazardous materials onboard aircraft, either as carry-on items or in checked baggage.

The amendments included requirements for passenger notification during ticket purchase and flight check-in, and are effective January 1, 2013. While PHMSA has the primary responsibility for issuing 49 CFR regulations, the FAA has primary responsibility for overseeing compliance with these regulations as they pertain to air transport.

Since publication of the January 19, 2011 final rule, PHMSA and the FAA have received numerous questions regarding specific interpretations of the amended requirements and the appropriateness of certain means of compliance with the revised regulations. This advisory notice responds to these appeals that request up to a two-year extension of the compliance date.

PHMSA and FAA agree that delaying the full compliance date of revised § 175.25 is warranted, because it supports the implementation of more effective methods for increasing passenger awareness. This is PHMSA’s notice to extend (in a future rulemaking action), the compliance date by no less than one year, beyond the current January 1, 2013 compliance date.

August 15, 2012

This Notice of Proposed Rulemaking (NPRM) by the Pipeline and Hazardous Materials Safety Administration (PHMSA) is part of a continuing effort to maintain alignment with international regulations and standards through a biennial process to harmonize the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) with international regulations and standards.

The following are some of the more noteworthy proposals in this NPRM:

• Incorporate Revised Standards: PHMSA proposes to incorporate by reference the newest versions of various international hazardous materials standards including the 2013–2014 International Civil Aviation

Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), Amendment 36–12 to the International Maritime Dangerous Goods Code (IMDG Code), and the 17th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations).

Additionally, PHMSA is proposing to update the incorporation by reference of the Canadian Transportation of Dangerous Goods Regulations to include Amendment 8 (SOR/2011–239) issued November 9, 2011, Amendment 9 (SOR/2011–60) issued March 16, 2011, and Amendment 10  (SOR/2011–210) issued October 12, 2011. Finally, in this NPRM PHMSA is proposing the adoption of updated International Standards Organization (ISO) standards.

This proposed rule is necessary to incorporate revisions to the international standards and, if adopted in the HMR, most of which become effective January 1, 2013.

• Expand Packaging Authorizations: Consistent with the amendments adopted by the UN Model Regulations, PHMSA proposes to adopt changes throughout the Part 173 packaging requirements to authorize more flexibility when choosing packages for hazardous materials.

• Revise Vessel Stowage Codes: PHMSA proposes to revise, consolidate, and delete various vessel stowage categories and codes referenced in column 10A and 10B of the Hazardous Materials Table (HMT) found in § 172.101. The purpose is to eliminate redundant codes, align with modifications to the IMDG Code and to simplify the vessel stowage requirements by limiting the number of stowage options.

• Adopt Chemical Under Pressure Provisions: This modification would revise the HMT to include entries for chemical under pressure as well as incorporate other safety requirements including but not limited to packaging requirements, segregation requirements, quantity limitations, and filling limits into the HMR. These types of products are often incorrectly classified and transported as liquefied gases or shipped under special permits.

• Specify Minimum Size Requirements for Identification Number Markings on Non-Bulk Packages: This change proposes to add specific size requirements for identification number (i.e., ‘‘UN,’’ ‘‘NA,’’ ‘‘ID’’) markings as prescribed in § 172.301 for non-bulk packages. As aligned with the new UN model regulations, this minimum size marking will benefit first responders to identify the commodity associated with a particular package.

• Revise HMT Entries: PHMSA proposes amendments to the § 172.101 Hazardous Materials Table (HMT) to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limits to the HMT to mirror recent changes in the Dangerous Goods list of The 17th Revised Edition of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions.

The benefits resulting from the adoption of the amendments include enhanced transportation safety resulting from the consistency of domestic and international hazard communication and continued access to foreign markets by U.S. manufacturers of hazardous materials. Most of the amendments in this NPRM should result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America.

The full notice can be read at:

Hazardous Materials: Harmonization with International Standards   [TEXT]  [PDF]

Comments must be received by October 15, 2012.

On July 6, 2012 President Obama signed into law the ‘‘Moving Ahead for Progress in the 21st Century Act’’. The current highway bill was on its ninth temporary extension and set to expire on June 30.  The law reauthorizes the federal-aid highway and transit programs through September 30, 2014.

In addition to ensuring urgently needed road, bridge, transit, and rail improvements will get underway; the Act has provisions applicable to a broad range of programs and issues.

Some of the issues and concerns addressed:

• The law initiates improvements to port infrastructure by permitting the full spending of the more than $6 billion surplus in the Harbor Maintenance Fund. The Army Corps of Engineers estimates that needed port channel repairs run in the billions, and that our busiest ports can only use 50 percent of their capacity 95 percent of the time.
• The law calls for a National Freight Strategy that can develop an integrated improvement strategy to reduce congestion and fuel costs by ensuring more port containers travel to markets on freight rail.
• For highway safety (among others) includes a requirement that commercial trucks use electronic logging devices to record drivers’ compliance with federal hours of service limits, a new clearinghouse to track drug and alcohol test results, and a study of crashworthiness standards for large trucks.
• For hazmat, the bill reauthorizes the DOT hazardous materials safety program, and bans a DOT-proposed wetlines regulation until the Government Accountability Office can analyze its costs and benefits. In addition:
  • Authorizes PHMSA to conduct pilot projects on using paperless hazard communications systems and report later on whether the agency recommends incorporating such paperless hazcom systems into the Hazardous Materials Regulations;
• Requires PHMSA to assess methods to collect, analyze and report data on hazmat transportation accidents and incidents.
• Directs PHMSA to establish uniform standards for training of inspectors and to train inspectors in all modes on how to collect, analyze, and publish findings from inspections and investigations of accidents or incidents involving the transportation of hazardous material, how to identify noncompliance with the HMRs, and how to take appropriate enforcement action.
• The law includes language that amends the authority of DOT to open and inspect hazmat packages en route when the inspector reasonably believes the package presents an imminent hazard.
• Increases the maximum civil penalties for violations of the HMRs from $50,000 to $75,000, and from $100,000 to $175,000 where the violation results in death, serious illness, or severe injury to any person or substantial destruction of property, and adds a minimum civil penalty for training violations of $450.
• Requires a rulemaking within two years to set out procedures and criteria for evaluating applications for special permits and approvals. Requires a review and another rulemaking within three years to establish a means to incorporate special permits that have been in continuous effect for a ten-year period into the HMRs.
• Requires States to submit to DOT a list of the State’s currently effective hazardous material highway route designations and to update that list every two years.

On May 30, 2012, the DOT rescinded an April 2010 ANPRM regarding Combustible Liquids. The DOT was soliciting comments whether to consider harmonization of the Hazardous Material Regulations (HMR) applicable to the transport of combustible liquids with the international transportation standards as seen in the UN Recommendations.

The ANPRM was to invite public comments on the amendment to the HMR, and make recommendations on how to revise, clarify or relax requirements to facilitate transport and still ensure safety.

Under the HMR, when packaged in non-bulk packagings, a material with a flash point of 100 -140 ^oF may be reclassed as combustible liquids and are not subject to the HMR when transported by highway or rail. These materials ARE regulated as flammable liquids when transported by vessel under the International Maritime Dangerous Goods (IMDG) Code and by aircraft under the International Civil Aviation Organization’s Technical Instructions (ICAO Technical Instructions). In addition, there are some exemptions for combustible liquids when transported domestically in bulk quantities.

The classification system in the UN Recommendations has no combustible liquid category or hazard class. The domestic regulation of these materials is in conflict and may be confusing to both domestic and international shippers and carriers of flammable and combustible liquid shipments.

The Results are In

The majority of the commenters opposed harmonization and elimination of the combustible liquid classification and expressed support for the non-bulk and bulk combustible liquid exemptions for domestic transport.

In addition, the DOT after analyzing the economic cost of implementing such a change found it to be “significant” and is thereby denying three petitions from the International Vessel Operators Dangerous Goods Association (IVODGA), the Dangerous Goods Council (DGAC) and the US Customer Harvesters, Inc. which all relate to the current combustible liquid regulations.

Today’s notice withdraws the April 5, 2010 ANPRM.