There are not a few cases in which individuals carrying liquefied petroleum gas, diesel and other hazardous chemicals in light trucks are found by emergency management, market supervision, housing and urban-rural construction, public security, commerce and other departments, and transferred to the transportation department for punishment on suspicion of engaging in road transport of dangerous goods without permission. In other departments, this type of cause of action is well known and is very easy to transfer; In the transportation sector, there is no shirk of responsibility. In practice, there are also cases where the trunk of a private car contains three barrels of suspected hazardous chemicals with a capacity of 5 liters, and the public security department transfers them to the transportation department on this ground. However, is it appropriate for all such violations to be punished by the transport authorities?
This article does not mean to pass the buck for the transportation department, but only to find a way to deal with it with more legitimacy and undoubtedness.
Item 2 of Article 88 of the Regulations on the Safety Management of Hazardous Chemicals stipulates that if a vehicle is used to transport hazardous chemicals whose safety technical conditions do not meet the requirements of national standards, the public security organ shall order it to make corrections and impose a fine of not less than 50,000 yuan but not more than 100,000 yuan; where a violation of the administration of public security is constituted, a public security administrative sanction shall be given in accordance with law; where a crime is constituted, criminal responsibility is pursued in accordance with law.
Article 55 paragraph 1 of the provisions on the management of road transport of dangerous goods, without obtaining a road transport permit for dangerous goods, unauthorized road transport of dangerous goods, the competent department of transport shall order to stop the transport operation, illegal gains exceeding 20,000 yuan, confiscate the illegal gains, and impose a fine of more than 2 times more than 10 times the illegal gains; where there are no unlawful gains or the unlawful gains are less than 20,000 RMB, a fine of between 30,000 and 100,000 RMB is to be given; where a crime is constituted, criminal responsibility is pursued in accordance with law.
Comparing the two penalties, if a vehicle transporting hazardous chemicals does not meet the safety technical conditions required by the national standard, and the transport actor has not obtained a road permit for the transport of dangerous goods, in accordance with the high penalty rule stipulated in Article 29 of the Administrative Punishment Law, if the illegal income is less than 20,000 yuan, it shall be punished by the public security department.
What safety technical conditions are required for hazardous chemical transport vehicles? There are many relevant standards, and this article is based on the widely applicable "Technical Conditions for Motor Vehicle Operation Safety" (GB7258). For the sake of the coherence of the article, the specific provisions are listed at the end of the article.
GB7258 on the operation safety of dangerous goods transport vehicles technical conditions, about 11 aspects of requirements, namely: signs, occupant limits, braking system, driving records and satellite positioning devices, circuit systems, tires, suspension, speed limit function, tanks, fuel tanks, special requirements. Special requirements include: fire-fighting equipment, exhaust spark extinguishers, electrostatic towing strips, overturning protection devices for tank dangerous goods transport vehicles, pipe fitting protection requirements, and emergency shut-off devices.
For most light trucks that illegally carry liquefied petroleum gas, diesel and other hazardous chemicals, there are always a few such requirements that it does not have. Before the relevant departments transfer to the transportation department, they shall first hand it over to the public security department to verify whether the technical conditions for vehicle safety meet the national standards, and dispose of it in accordance with law.
The above views are bound to be controversial, and there are four issues that need to be discussed:
The first is the issue of the effectiveness of annual inspection. If the inspected vehicle has undergone annual safety technical inspection in accordance with the prescribed period, can the public security department re-determine that the safety technical conditions do not meet the requirements of the national standard? The vehicle has passed the safety technical inspection, and it cannot be said that the safety technical conditions when it is driving meet the requirements of the national standards, and the safety technical conditions of the vehicle shall be subject to the conditions at the time of the discovery of the illegal acts; In addition, the light trucks that illegally carry hazardous chemicals discussed in this article should be carried out during the annual inspection.
The second is the issue of competition and cooperation of legal provisions. Should all "vehicles that use vehicles whose safety technical conditions do not meet the requirements of national standards to transport hazardous chemicals" be punished in accordance with Article 88, Item 2 of the Regulations on the Safety Management of Hazardous Chemicals? Not necessarily. For example, according to GB7258, the mark of dangerous goods transport vehicle is one of the technical conditions for the safety of vehicle operation. However, the first paragraph of Article 89 of the Regulations stipulates that if the hazardous chemical transport vehicle fails to hang or spray warning signs, or the warning signs that are hung or sprayed do not meet the requirements of national standards, the public security organ shall order corrections and impose a fine of not less than 10,000 yuan but not more than 50,000 yuan; where a violation of the administration of public security is constituted, a public security administrative sanction is to be given in accordance with law. This is inconsistent with the second provision of article 88. The two are inclusive, constitute a competition of legal provisions, and special provisions apply. That is, if the hazardous chemicals transport vehicle is not hung or sprayed with warning signs in accordance with the regulations, although it does not meet the safety technical conditions required by the national standards, it shall be disposed of in the first paragraph of Article 89 of the Regulations.
The third is the issue of overlapping responsibilities. Paragraph 2 of Article 86 of the Regulations on the Safety Management of Hazardous Chemicals stipulates that if a person transports hazardous chemicals and fails to take corresponding safety protection measures according to the dangerous characteristics of hazardous chemicals, or fails to equip them with necessary protective equipment and emergency rescue equipment, the competent department of transportation shall order corrections and impose a fine of not less than 50,000 yuan but not more than 100,000 yuan; where corrections are refused, it is to be ordered to suspend production and business for rectification; where a crime is constituted, criminal responsibility is pursued in accordance with law. GB7258 listed dangerous goods transport vehicle safety technical conditions, some according to their function can be regarded as "protective equipment and emergency rescue equipment". The most obvious is the fire extinguisher. If the hazardous chemicals transport vehicle is not equipped with a fire extinguisher in accordance with the regulations, shall the public security department punish it in accordance with Article 88, Paragraph 2 of the Regulations, or the transportation department shall be punished in accordance with Article 86, Paragraph 2 of the Regulations? In principle, it may be handled in accordance with the rules of jurisdiction for filing a case first. If it is necessary to discuss who is in charge, it is more uncontroversial, and the author believes that it is the public security department. The reason is that in addition to the provisions of GB7258, the GB38900 ("Motor Vehicle Safety Technical Inspection Items and Methods") will also fire extinguishers and driving record devices, dangerous goods transport vehicle signs, speed limiting devices, emergency shut-off devices, auxiliary braking devices, etc. are listed as inspection items for motor vehicle safety devices in use, which can be seen as an indispensable condition for the safe operation of dangerous goods transport vehicles.
With regard to the protective equipment of the transport unit, the clearest provisions can be found in the personal protective equipment listed in the "Road Transport of Dangerous Goods Part 7: Transport Conditions and Operating Requirements" (JT/T617.7), including: wheel blocks, warning triangles, eye rinses, reflective vests, explosion-proof portable lighting equipment, protective gloves, eye protection equipment, emergency escape masks, shovels with explosion-proof functions, sewer mouth plugging equipment, etc. Details are listed at the end of the text. JT/T617 is a recommended standard, and the relevant laws and regulations do not clearly quote this part of the standard (the safety production law stipulates that "production and business operation entities must implement the national standards or industry standards formulated in accordance with the law to ensure safe production", how to understand and apply is still open for discussion), for those who are not equipped with the aforementioned personal protective equipment, whether they can be punished according to "not equipped with necessary protective equipment and emergency rescue equipment", and the word "necessary" needs to be detained in the case for the purpose of correcting violations. Combined with the principle of proportionality of punishment, it is measured separately.
Fourth, there is the problem of excessive punishment. Assuming that only one or two technical conditions of the light truck illegally carrying hazardous chemicals do not meet the requirements of the national standards, such as: not equipped with or using an exhaust spark extinguisher, no electrostatic towing strip or not grounded throughout the whole process, the public security department will impose a fine of more than 50,000 yuan, which seems to be too heavy according to the general social concept. The fine of more than 30,000 yuan imposed by the transportation department for failing to obtain a permit for the transport of dangerous goods seems to be more acceptable to the society. However, on the one hand, as far as the high penalty rule is concerned, it is based on the statutory penalty amount rather than the discretionary penalty amount, which is not social acceptance. That is, if the applicable legal norms of multiple departments set fines for the same illegal act for different management purposes, and the amount of fines set by a certain legal norm is relatively higher, it should be under the jurisdiction of the law enforcement department under the law, regardless of other considerations. On the one hand, after the jurisdiction is determined according to the rules for higher punishment, the punishment may be determined according to the circumstances of the case, the harmful consequences, etc., and the punishment may be mitigated when it is light, mitigated when it is mitigated, and exempted if it is exempted from punishment. On the other hand, for the non-commercial road transport of dangerous goods, the management purpose of the transportation department is mainly to ensure the safety of transportation, and the purpose of the public security department is consistent with the management scope is different (not only involving vehicles), the public security department seems to be a slight violation, in the transportation sector is mostly the same. For the transport of dangerous goods on commercial roads, the management purpose of the transportation department is to maintain market order, etc., but if the business time is still short, the impact of the illegal act on the order of the transport market is obviously minor (considering the volume of light trucks, the distance, the capacity supply of the local similar market, etc.); If it is done for a long time, the transportation department can certainly enforce the statutory fine, and because the illegal vehicle has been "sick on the road" for a long time, the public security department can also punish it in accordance with the law without feeling excessive.
According to the above analysis, it is more legal and appropriate for light trucks illegally carrying hazardous chemicals to have the public security department first inspect the safety technical conditions of the vehicles. When public security law enforcement officers find such vehicles, they do not need to transfer them to the transportation department as soon as possible.
Attached: GB7258 specific provisions on the technical conditions for the operation safety of dangerous goods transport vehicles.
1. Logo. The marking of dangerous goods transport vehicles shall comply with the provisions of GB 13392 ("Road Transport of Dangerous Goods Vehicle Signs"). Among them, vehicles transporting explosives and chemicals of severe toxicity by road should also comply with the provisions of GB 20300 (Technical Conditions for the Safety of Vehicles Transporting Explosives and Chemicals of Severe Toxicity by Road). Tank dangerous goods transport vehicle tank or with the right side of the tank welded bearing should have a metal tank nameplate, tank nameplate should be marked with unique code, tank design code, tank volume and other information.
2. Crew Limit. The authorized number of passengers in dangerous goods transport trucks shall be less than or equal to 3 people. (Twin rows and pick-up trucks are not suitable)
3. Braking system. The front wheels of all dangerous goods transport trucks, as well as all wheels of dangerous goods transport semi-trailers, shall be equipped with disc brakes.
All service brakes of all vehicles transporting dangerous goods shall be equipped with automatic brake clearance adjustment devices. Dangerous goods trucks with a total mass greater than or equal to 12 000 kg shall also be equipped with an electronically controlled braking system (EBS).
Dangerous goods transport trucks with a total mass of more than 3500 kg shall be equipped with retarders or other auxiliary braking devices, and the performance requirements of auxiliary braking devices equipped with dangerous goods transport trucks and semi-trailer tractors with a total mass of more than 3500 kg shall enable the vehicle to pass the type II.A test specified in GB 12676 ("Technical Requirements and Test Methods for Brake Systems for Commercial Vehicles and Trailers").
Fourth, driving record and satellite positioning device. All dangerous goods transport trucks, semi-trailer tractors should be equipped with a record, storage, display, print or output vehicle speed, time, mileage and other vehicle driving status information tachograph. The tachograph should receive signals such as vehicle speed and braking, standardize the setting of vehicle parameters and configure the driver identification card, the display part should be easy to observe, the data interface should be convenient for the plugging and unplugging of mobile storage media, and the technical requirements should comply with the provisions of GB/T 19056 ("Car Tachograph"). Dangerous goods transport trucks are equipped with a satellite positioning device with a driving record function, and the technical requirements of the driving record function comply with this standard and the relevant provisions of GB/T 19056.
5. Circuit system. The circuit system of the dangerous goods transport vehicle shall comply with the provisions of GB 21668 ("Structural Requirements for Dangerous Goods Transport Vehicles").
6. Tires. Dangerous goods transport vehicles should be equipped with radial tires (commonly known as steel wire tires). The steering wheels of dangerous goods trucks with a total mass of more than 3 500 kg shall be equipped with emergency protection devices for tire punctures.
7. Suspension. THE REAR AXLE OF DANGEROUS GOODS TRANSPORT TRUCKS WITH A TOTAL MASS GREATER THAN OR EQUAL TO 12 000 KG, ALL DANGEROUS GOODS TRANSPORT SEMI-TRAILERS SHALL BE EQUIPPED WITH AIR SUSPENSION.
8. Speed limit function. Dangerous goods transport trucks should have a speed limiting function, otherwise they should be equipped with speed limiting devices. The speed limiting function or speed limiting device shall comply with the requirements of GB/T 24545 (Technical Requirements and Test Methods for Vehicle Speed Limiting Systems), and the maximum speed set by the speed limiting function or speed limiting device shall not be greater than 80 km/h.
Nine, tank. The atmospheric tank body of liquid dangerous goods transport tank vehicles shall comply with the provisions of GB 18564.1 ("Road Transport Liquid Dangerous Goods Tank Vehicles Part 1: Technical Requirements for Metal Atmospheric Tanks") GB 18564.2 ("Road Transport Liquid Dangerous Goods Tank Vehicles Part 2: Technical Requirements for Non-metallic Atmospheric Tanks"), and the type and position of the feed and discharge ports in the design and manufacture should consider the safety protection requirements in the event of accidental impact.
10. Fuel tank. Dangerous goods trucks shall be equipped with a single fuel tank with a volume of less than or equal to 400 L.
11. Special requirements.
(1) Fire-fighting equipment, exhaust spark extinguishers, and electrostatic towing belts. Dangerous goods transport vehicles specially used for the transportation of flammable and explosive materials, which should be equipped with fire-fighting equipment and have corresponding safety measures; The exhaust pipe should be arranged to avoid heating and igniting the goods, the net distance from the fuel tank and fuel pipe should be greater than or equal to 200mm, the exhaust pipe outlet should be installed in the area before the front end of the tank/box and not higher than the upper plane of the vehicle longitudinal beam, and the motor vehicle exhaust spark extinguisher should be installed in accordance with GB 13365 ("Motor Vehicle Exhaust Spark Extinguisher"), and the tail of the motor vehicle should be installed with a conductive rubber towing strip with a conductor cross-sectional area greater than or equal to 100mm2 at the grounding end, and the grounding end of the towing strip is empty. Full load should always be grounded.
(2) Overturning protection device. If there is a safety valve, breather valve assembly and inspection holes, loading and unloading valves, pipelines and other accessory equipment and facilities at the top of the tank body of the tank dangerous goods transport vehicle, the overturning protection device that can withstand the inertia force of multiplying the total mass of the vehicle multiplied by the acceleration of gravity should be provided, and the device should have the structure or function that can discharge the liquid that accumulates inside it. If there is no ancillary equipment and facilities on the top of the tank or the ancillary equipment and facilities are not exposed to the tank, the overturning protection device should not be set. The highest point of the fittings, valves and other accessories at the top of the tank should be at least 20 mm below the highest point of the tipping protection device.
(3) Pipe fitting protection. Tank dangerous goods transport vehicle tank on the pipeline and pipeline accessories should not exceed the side and rear underrun protection of the vehicle, and the tank rear head and tank rear head on the pipe and pipe accessories on the outer end face and the rear underrun protection device inside the vehicle length vertical projection distance should be greater than or equal to 150 mm.
(4) Emergency shut-off device. Tank type dangerous goods transport vehicles equipped with emergency shut-off devices should be designed and manufactured to ensure that the emergency shut-off valve can be automatically closed when the vehicle transporting liquid dangerous goods is traveling at a speed greater than 5km/h, or can prompt the driver to close the emergency shut-off valve through an obvious signal device (such as sound or light signal) when the engine starts.
JT/T617 Part 7 specific requirements for transport units to be equipped with fire extinguishing appliances and personal protective equipment:
1. Fire extinguishing equipment
When the transport unit carries dangerous goods, it should carry a portable fire extinguisher with the vehicle. The fire extinguisher shall be suitable for extinguishing three types of fires: A, B and C (solid matter fire, liquid or meltable solid matter fire, gas fire) specified in GB/T4968 ("Fire Classification").
The number and capacity of portable fire extinguishers should be in accordance with Table 1. The number of fire extinguishers for vehicles transporting highly toxic and explosives shall comply with the provisions of GB20300 (Technical Conditions for the Safety of Vehicles Transporting Explosives and Chemicals by Road).
The transport unit that meets the provisions of 5.1 in JT/T617.1-2018 shall be equipped with at least one dry powder fire extinguisher with a minimum capacity of 2kg (or other applicable fire extinguishers of equivalent effectiveness).
Portable fire extinguishers should meet the regulations regarding portable fire extinguishers for vehicles. If the vehicle is equipped with a stationary fire extinguisher that can be used to extinguish engine fires, it is not necessary to carry a portable fire extinguisher suitable for extinguishing engine fires.
Portable fire extinguishers should be within the validity period of the inspection.
The fire extinguisher should be placed in a place in the transport unit that can be easily reached by the crew.
2. Equipment for personal protection
The choice of PPE should be based on the type of dangerous goods marking (including package markings, vehicle or container markers) to be carried. The style of dangerous goods marking shall comply with the provisions of JT/T617.5-2018.
The transport unit should be equipped with the following equipment:
a) Each vehicle must carry wheel blocks that match the maximum permissible gross mass and wheel dimensions;
b) a warning triangle;
c) Ocular irrigation solution (except Category 1 and Category 2).
The transport unit shall be equipped with the following equipment for each crew:
a) Reflective vests;
b) Explosion-proof (non-metallic exterior surface, non-sparking) portable lighting equipment;
c) Appropriate protective gloves;
d) Eye protection (e.g. goggles).
Specific categories of dangerous goods should also include the following additional equipment:
a) For dangerous goods hazard signs of Division 2.3 or 6.1, each crew member shall carry an emergency escape mask with the function of the escape mask matching the chemical loaded (if it has a gas or dust filtering function);
b) For dangerous goods with a Dangerous Goods hazard sign in Class 3, Division 4.1, Division 4.3, Class 8 or Class 9 solid or liquid, equipped:
1) A shovel (for goods with dangerous items of category 3, 4.1 and 4.3, the shovel should have explosion-proof function);
2) A sewer opening plugging device, such as a plugging pad, a plugging bag, etc.
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