Interpretation Response #23-0022
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: KC Partners Group
Individual Name: Mr. Joseph E. Connelly
Location State: VA Country: US
View the Interpretation Document
Response text:
May 9, 2024
Mr. Joseph E. Connelly
Partner
KC Partners Group
P.O. Box 1551
Annandale, VA 22003-1551
Reference No. 23-0022
Dear Mr. Connelly:
This letter is in response to your March 9, 2023, email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) pertaining to the applicability of the security plan requirements to bulk packagings containing a residue of a hazardous material. In your email, you request clarification on the definition of a "residue" and present scenarios specifically relating to the practicability of the unloading process.
We have paraphrased and answered your questions as follows:
Q1. You ask about the meaning of the phrase "maximum extent practicable" in the definition of "residue" in § 171.8. Specifically, you ask whether certain scenarios—such as equipment failure, running out of storage space at a facility, or needing to equalize the tank car pressure—would result in a tank car being designated as containing a residue.
A1. As defined in § 171.8, a residue means "the hazardous material remaining in a packaging, including a tank car, after its contents had been unloaded to the maximum extent practicable and before the packaging is either refilled or cleaned of hazardous material and purged to remove any hazardous vapors." The "maximum extent practicable" means that the proper procedure for unloading has been executed to full effect, and the remaining material that cannot be removed by the successful unloading process qualifies as residue. The scenarios you describe in your email are not the full execution of the unloading process, as various obstacles prevented the completion of that process. If the packagings described in your email had been emptied to the maximum extent practicable, the hazardous material would be considered a residue by definition.
Q2. You ask whether a company is required to create and maintain a security plan if it unloads a placarded tank car, uses the contents solely in their unloading process, then returns the placarded tank car containing a residue as defined in § 171.8.
A2. The answer is that it depends. The security plan requirements apply to persons who offer for transportation in commerce or transport hazardous materials in the quantities and thresholds established by § 172.800(b). If the placarded tank cars containing residue meet any of the quantity thresholds as described in § 172.800(b), a security plan is required. A security plan must cover personnel, unauthorized access, and en route security—that is, the security of a covered hazardous materials shipment from its origin to its destination, including shipments stored incidental to movement.
Q3. You ask whether a railroad must create and maintain a security plan if it only stores rail cars containing a residue of a hazardous material.
A3. See answer A2. The security plan requirements apply to persons who offer for transportation in commerce or transport hazardous materials in the quantities and thresholds established by § 172.800(b). If the railroad performs any functions in transportation or incidental to transportation and meets the quantity thresholds established in § 172.800(b), a security plan is required.
Q4. You ask what the consequences are for not having a security plan when shipping a residue—see § 171.8—exceeding the weight and volume requirements in § 172.800(b).
A4. Each person who offers a hazardous material for transportation or transports a hazardous material in commerce is responsible for compliance with the requirements of the HMR, or a special permit, approval, or registration issued under the HMR, with respect to any regulated function that the person performs or is required to perform. Penalties for violations of the HMR are assessed on a case-by-case basis and depend on a number of factors, including the nature, circumstances, extent, and gravity of the violation. As of December 28, 2023, under 49 CFR Part 107, Appendix A to Subpart D, the civil penalty for knowingly violating the Federal hazardous materials transportation law (49 U.S.C. 5101, et. seq.) or the HMR is not more than $99,756 for each violation, and $232,762 if the violation results in death, serious illness, severe injury to any person, or substantial destruction of property. There is no minimum civil penalty, except for a minimum civil penalty of $601 for violations relating to training. See § 107.329 and § 107.333. The monetary values of these penalties are adjusted annually, with the latest revisions occurring (and effective) on December 28, 2023.
Criminal penalties may include fines and/or imprisonment for not more than 5 years, except in any case in which the violation involves the release of a hazardous material which results in death or bodily injury to any person, in which case the maximum amount of imprisonment shall be not more than 10 years.
I hope this information is helpful. Please contact us if we can be of further assistance.
Sincerely,
Steven Andrews
Acting Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
107.329, 107.333, 171.8, 172.800(b)