[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Rules and Regulations]
[Pages 38644-38656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18823]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
RIN 2130-AB00
Federal Railroad Administration Enforcement of the Hazardous
Materials Regulations: Penalty Guidelines
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Policy statement; final rule.
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SUMMARY: FRA is publishing the penalty guideline amounts it uses in
initial determinations of proposed civil penalty assessments for
documented violations of DOT's Hazardous Materials Regulations. This
action will make those against whom FRA enforces the Hazardous
Materials Regulations more aware of the potential consequences for
documented violations. FRA intends the publication of these penalty
guidelines to increase compliance with the Hazardous Materials
Regulations and, thereby, to enhance safety. FRA is also revising its
enforcement procedures to reflect the current statutory minimum and
maximum penalties for violations of the Federal hazardous materials
transportation safety laws.
EFFECTIVE DATE: These guidelines, and the final rule amendments, are
effective July 25, 1996.
FOR FURTHER INFORMATION CONTACT: Raymond V. Kasey, Hazardous Materials
Specialist, Office of Safety Assurance and Compliance, (202) 366-6769;
or Thomas A. Phemister, Trial Attorney, Office of the Chief Counsel,
(202) 366-0628, Federal Railroad Administration, U.S. Department of
Transportation, 400 Seventh Street, S.W., Washington, D.C. 20590.
SUPPLEMENTARY INFORMATION: FRA promulgates and enforces regulations
implementing the Federal railroad safety laws, 49 U.S.C. 20101 et seq.;
49 CFR 1.49, Parts 209, 213-240. For railroads and those who ship
hazardous materials by railroad, FRA enforces regulations implementing
the Federal hazardous materials transportation safety laws, 49 U.S.C.
5101 et seq.; 49 CFR 1.49(s), 107, 171-180. FRA works with its partner
DOT agency, the Research and Special Programs Administration (RSPA), in
the promulgation of railroad-oriented regulations implementing the
Federal hazardous materials transportation law.
In all areas of its railroad safety enforcement authority except
hazardous materials, FRA's traditional practice has been to issue a
penalty schedule
[[Page 38645]]
assigning to each particular regulation specific dollar amounts for
initial penalty assessments. The schedules generally constitute a
statement of agency policy and are ordinarily issued as an appendix to
the relevant part of the Code of Federal Regulations. The same has not
been true for FRA's enforcement of the Hazardous Materials Regulations
against railroads and those who ship by rail. Two main reasons
supported this policy. First, the Research and Special Programs
Administration (RSPA), in partnership with FRA, issues the Hazardous
Materials Regulations promulgated by the Department. On March 6, 1995,
RSPA published its own penalty guidelines (60 FR 12139), taking an
appropriate lead in this area. The guidelines issued by FRA today
complement RSPA's penalty guidelines, which together provide clear
direction to carriers and shippers in this unique intermodal area.
Second, the nature of hazardous materials transportation is such that a
simple penalty schedule (a violation of Sec. X equates to a penalty of
$Y), as used by FRA in most other areas of its enforcement activities,
can only cover the broad categories of violation and does not account
for the vast differences in the hazards between, for instance,
liquefied carbon dioxide and hydrocyanic acid. With the publication of
the guidelines in this document, FRA believes it has given its
customers counsel and direction that a mere schedule of monetary
penalties cannot convey.
Following discussions among the administrations and in response to
a request contained in Senate Report 103-150 that accompanied the
Department of Transportation and Related Agencies Appropriations Act,
1994, FRA has decided to publish an additional appendix to its
enforcement procedures at 49 CFR Part 209. Appendix A--Statement of
Agency Policy Concerning Enforcement of the Federal Railroad Safety
Laws--will continue as the fundamental repository of agency enforcement
policy; Appendix B, published with this notice, will augment it with
penalty guideline information specific to violations of the Hazardous
Materials Regulations. FRA's customers in the regulated community will
now be more aware of the specific potential civil penalty consequences
of not following the regulations, and teams from FRA's Office of Safety
Assurance and Compliance will have a flexible tool to foster
consistency in their recommendations for civil penalties.
FRA does not necessarily take a formal enforcement action every
time it discovers a deviation from the Federal railroad safety laws.
Under the Safety Assurance and Compliance Program announced by FRA in
1995, FRA's efforts are focused on producing safety results, not
imposing punishment. Many deficiencies can be corrected through a
simple conversation between the inspector and the shipper or carrier
personnel on scene. Correction of others may become the focus of FRA
outreach meetings or may be worked into corporate safety action plans.
However, when these efforts do not produce regulatory compliance and
safe practices or when FRA decides that enforcement action is called
for, it has a range of enforcement tools and has the authority to
choose those best suited to the circumstances. One of these tools (the
emergency order, under 49 U.S.C. 20104(a)) can be used to address an
immediate hazard even if no existing law has been violated.
Wide discretion in choosing the means of enforcement calls for
general guidelines to ensure effectiveness, fairness, and an acceptable
level of consistency. The purpose of guidelines is not to dictate
absolutely identical treatment of identical situations; that would be
an unrealistic ideal based on the false assumption that each of the
many variables going into an enforcement decision could objectively and
accurately be quantified. Instead, the purpose of the agency's
hazardous materials civil penalty guidelines is to control the
necessarily subjective elements of this process as much as is feasible
by requiring that those making enforcement decisions weigh the same
factors and make full use of objective information bearing on those
factors. In this way, the appropriate enforcement tool is applied,
responsible discretionary judgments are made, and an acceptable level
of consistency in similar situations is achieved.
FRA's Statement of Agency Policy Concerning Enforcement of the
Federal Railroad Safety Laws (49 CFR Part 209, Appendix A) stresses
that discretion begins at the field and regional levels: Inspectors
make initial determinations on the need for enforcement action, and
regional specialists play an active role in reviewing those
determinations with an eye toward effectiveness and consistency. Office
of Safety Assurance and Compliance headquarters personnel are
responsible for spotting national trends in the data that require
enforcement action and for providing guidance to the regional and field
staffs on difficult enforcement policy issues.
FRA's policy statement sets forth seven factors to be considered in
making enforcement decisions:
The inherent seriousness of the condition or action.
The kind and degree of potential safety hazard the
condition or action poses in light of the immediate factual situation.
Any actual harm to persons or property already caused by
the condition or action.
The offending person's general level of current compliance
as revealed by the inspection as a whole.
The person's recent history of compliance with the
relevant set of regulations, especially at the specific location (or
division of the railroad involved).
Which enforcement remedy is most appropriate under the
circumstances.
Such other factors as the immediate circumstances make
relevant.
Just as there are a series of considerations that inform the
decision to take enforcement action, so there are considerations to be
applied to determining the amount of a civil penalty. By statute, the
following are considered: (a) The nature, circumstances, extent, and
gravity of the violation; (b) with respect to the violator, the degree
of culpability, any history of violations, the ability to pay, and any
effect on the ability to continue to do business; and (c) other matters
as justice requires. (49 U.S.C. Secs. 5123(c) and 21301(a)(3).) FRA has
developed penalty guidelines for hazardous materials cases to aid in
applying these assessment criteria at the initial penalty assessment
stage, based on the information known about a particular case. Because
the guidelines in this notice are merely a general statement of agency
policy and practice, are non-binding, and are periodically updated,
they are being published as an informational appendix to FRA's
enforcement regulations, as Appendix B to 49 CFR Part 209. They are
published without public notice or comment because they are merely
informational, are not finally determinative of any issues or rights,
and do not have the force of law. For a discussion of relevant case
law, see the preamble to RSPA's publication of its penalty guidelines,
60 FR 12139.
The guidelines published in this notice are a preliminary
assessment tool used by FRA personnel, and they create no rights in any
party. They contain baseline amounts for violations that frequently
have been cited by FRA hazardous materials inspectors. When a violation
not described in the guidelines is encountered, a new guideline is
developed, typically by analogy to a similar violation in the
guidelines. Their application is a starting point to
[[Page 38646]]
promote consistency. No two cases are identical. The baseline amount or
range is an initial reflection of the nature, extent, circumstances,
and gravity of the violation as compared with other types of
violations. The FRA attorney can vary from the guidelines as necessary
to reflect a case's particular facts. This notice publishes the
guidelines as they existed on March 31, 1996; FRA plans to publish
updated and revised guidelines from time to time.
A respondent receives the first notice that FRA may be seeking
civil penalties when the FRA inspector informs him/her that a violation
will be recommended. If the inspector's report is approved by the
regional office and passes legal review in the Office of Chief Counsel,
the respondent will receive a Notice of Probable Violation (NOPV) in
which a charge of violation is made, accompanied by a summary of the
alleged violations and the penalty amounts FRA proposes. A separate
document sent with the NOPV lists the respondent's three options: Pay
the penalty proposed, seek an informal conference, or request a formal
hearing before a hearing officer. The election to pursue informal
resolution does not preclude respondent from later seeking a formal
hearing.
During the informal resolution process, the respondent and the FRA
attorney assigned to the case review any defenses or mitigating
information presented. The new information presented and arguments made
since the initial penalty assessment often leads to a re-evaluation of
the penalty in light of statutory considerations. One very important
factor is any remedial action taken by the respondent to prevent a
recurrence of similar violations. Following discussions between the FRA
attorney and the respondent, they typically reach an agreement on the
amount of penalty, if any, to be paid. FRA's findings of fact and the
agreement on the penalty amount are then memorialized in an Order
Assessing Civil Penalty. The respondent pays the penalty, and the case
is closed. Under FRA's procedures, the respondent who will not agree to
a compromise settlement can request a formal hearing.
If the respondent makes such a request, the matter is assigned to a
hearing officer who hears both sides and renders a decision. FRA
retains the right to amend its NOPV prior to hearing and to seek the
maximum statutory amount for each violation. If the decision is against
the respondent, the hearing officer is bound only by the statutory
maximum and minimum civil penalty amounts and the statutory penalty
considerations.
To summarize, the FRA guidelines consist of a listing of violations
and the baseline penalty, or range of penalties, proposed for each as
of March 31, 1996. The guidelines presuppose flexibility in their
application, and FRA proposes to re-publish the then-current guidelines
as appropriate.
The Hazardous Materials Transportation Uniform Safety Act of 1990
(P.L. 101-615), March 16, 1990) amended the penalty provisions for
violations of the Federal hazardous materials transportation safety
laws. The maximum penalty had been $10,000; the 1990 Act increased it
to $25,000 and established a minimum of $250. Accordingly, FRA is
amending the statutory references and minimum and maximum penalty
amounts in its enforcement procedures to reflect current law. FRA also
clarifies that its authority to amend an NOPV at any time prior to
issuance of an order includes authority to amend the proposed penalty
to the statutory maximum. Finally, FRA makes technical amendments to
reflect recodification of the Federal railroad safety laws by Pub. L.
103-272. These amendments affect 49 CFR 209.101, 209.103, 209.105,
209.131, 209.133, and 209.201.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866. This rule is not
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). The economic impact of this
final rule is minimal to the extent that preparation of a regulatory
evaluation is not warranted.
Executive Order 12612
This final rule merely updates recodified statutory references in a
portion of the CFR; no requirements are changed as a result. The policy
statement is an informational appendix and imposes no requirements.
Thus, preparation of a federalism assessment is not warranted.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This rule applies to
shippers of hazardous materials by railroad, to manufacturers of
packagings used for the transportation of hazardous materials by
railroad, and to railroads. Some of these are small entities; however,
there will be no significant economic impact.
Paperwork Reduction Act
There are no new information requirements in this final rule.
List of Subjects in 49 CFR Part 209
Administrative practices and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Part 209 is amended as
follows:
PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES
1. The authority citation for part 209 continues to read as
follows:
Authority: 49 U.S.C. Chs. 51, 57, 201, and 213; 49 CFR 1.49.
2. Section 209.101(a) is revised to read as follows:
Sec. 209.101 Civil penalties generally.
(a) Sections 209.101 through 209.121 prescribe rules of procedure
for the assessment of civil penalties pursuant to the Federal hazardous
materials transportation safety law, 49 U.S.C. Chapter 51.
* * * * *
3. Section 209.103 is revised to read as follows:
Sec. 209.103 Minimum and maximum penalties.
A person who knowingly violates a requirement of subchapter A or C
of chapter I, Subtitle B of this title is liable for a civil penalty of
at least $250 but not more than $25,000 for each violation. When the
violation is a continuing one, each day of the violation constitutes a
separate offense. 49 U.S.C. 5123.
4. Section 209.105 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 209.105 Notice of probable violation.
(a) FRA, through the Chief Counsel, begins a civil penalty
proceeding by serving a notice of probable violation on a person
charging him or her with having violated one or more provisions of
subchapter A or C of chapter I, subtitle B of this title. Appendix B to
this part contains guidelines used by the chief counsel in making
initial penalty assessments.
* * * * *
(c) The FRA may amend the notice of probable violation at any time
prior to the entry of an order assessing a civil penalty. If the
amendment contains any
[[Page 38647]]
new material allegation of fact, the respondent is given an opportunity
to respond. In an amended notice, FRA may change the penalty amount
proposed to be assessed up to and including the maximum penalty amount
of $25,000 for each violation.
5. Section 209.131 is revised to read as follows:
Sec. 209.131 Criminal penalties generally.
The Federal hazardous materials transportation safety laws (49
U.S.C. 5124) provide a criminal penalty of a fine under title 18,
United States Code, and imprisonment for not more than 5 years, or
both, for any person who knowingly violates 49 U.S.C. 5104(b) or who
willfully violates chapter 51 of title 49, United States Code, or a
regulation prescribed or order issued under that chapter.
6. Section 209.133 is revised to read as follows:
Sec. 209.133 Referral for prosecution.
If an inspector, including a certified state inspector under Part
212 of this chapter, or other employee of FRA becomes aware of a
possible willful violation of the Federal hazardous materials
transportation safety laws (49 U.S.C. Chapter 51) or a regulation
issued under those laws for which FRA exercises enforcement
responsibility, he or she reports it to the Chief Counsel. If evidence
exists tending to establish a prima facie case, and if it appears that
assessment of a civil penalty would not be an adequate deterrent to
future violations, the Chief Counsel refers the report to the
Department of Justice for criminal prosecution of the offender.
7. Section 209.201 is revised to read as follows:
Sec. 209.201 Compliance orders generally.
(a) This subpart prescribes rules of procedure leading to the
issuance of compliance orders pursuant to the Federal railroad safety
laws at 49 U.S.C. 5121(a) and/or 20111(b).
(b) The FRA may commence a proceeding under this subpart when FRA
has reason to believe that a person is engaging in conduct or a pattern
of conduct that involves one or more violations of the Federal railroad
safety laws or any regulation or order issued under those laws for
which FRA exercises enforcement authority.
8. Appendix B is added to Part 209 to read as follows:
Appendix B to Part 209--Federal Railroad Administration Guidelines
for Initial Hazardous Materials Assessments
These guidelines establish benchmarks to be used in determining
initial civil penalty assessments for violations of the Hazardous
Materials Regulations (HMR). The guideline penalty amounts reflect
the best judgment of the FRA Office of Safety Assurance and
Compliance (RRS) and of the Safety Law Division of the Office of
Chief Counsel (RCC) on the relative severity, on a scale of $250 to
$25,000, of the various violations routinely encountered by FRA
inspectors. (49 U.S.C. 5123) Unless otherwise specified, the
guideline amounts refer to average violations, that is, violations
involving a hazardous material with a medium level of hazard, and a
violator with an average compliance history. In an ``average
violation,'' the respondent has committed the acts due to a failure
to exercise reasonable care under the circumstances (``knowingly'').
For some sections, the guidelines contain a breakdown according to
relative severity of the violation, for example, the guidelines for
shipping paper violations at 49 CFR Secs. 172.200-.203. All
penalties in these guidelines are subject to change depending upon
the circumstances of the particular case. The general duty sections,
for example Secs. 173.1 and 174.7, are not ordinarily cited as
separate violations; they are primarily used as explanatory
citations to demonstrate applicability of a more specific section
where applicability is otherwise unclear.
FRA believes that infractions of the regulations that lead to
personal injury are especially serious; this is directly in line
with Department of Transportation policy that hazardous materials
are only safe for transportation when they are securely sealed in a
proper package. (Some few containers, such as tank cars of carbon
dioxide, are designed to vent off excess internal pressure. They are
exceptions to the ``securely sealed'' rule.) ``Personal injury'' has
become somewhat of a term of art, especially in the fields of
occupational safety and of accident reporting. To avoid confusion,
these penalty guidelines use the notion of ``human contact'' to
trigger penalty aggravation. In essence, any contact by a hazardous
material on a person during transportation is a per se injury and
proof will not be required regarding the extent of the physical
contact or its consequences. When a violation of the Hazardous
Materials Regulations causes a death or serious injury, the maximum
penalty of $25,000 shall always be assessed initially.
These guidelines are a preliminary assessment tool for FRA's
use. They create no rights in any party. FRA is free to vary from
them when it deems appropriate and may amend them from time to time
without prior notice. Moreover, FRA is not bound by any amount it
initially proposes should litigation become necessary. In fact, FRA
reserves the express authority to amend the NOPV to seek a penalty
of up to $25,000 for each violation at any time prior to issuance of
an order.
Penalty Assessment Guidelines
------------------------------------------------------------------------
Emergency orders Guideline
------------------------------------------------------------------------
EO16............................... Penalties for 5,000
violations of EO16
vary depending on the
circumstances.
EO17............................... Penalties for (\1\)
violations of EO17
vary depending on the
circumstances.
Failure to file annual 5,000
report.
------------------------------------------------------------------------
\1\ Varies.
------------------------------------------------------------------------
49 CFR section Description Guideline
------------------------------------------------------------------------
PART 107
------------------------------------------------------------------------
107.608............................ Failure to register or 1,000
to renew
registration. (Note:
registration--or
renewal--is
mitigation.).
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PART 171
------------------------------------------------------------------------
171.2(c)........................... Representing (marking, 8,000
certifying, selling,
or offering) a
packaging as meeting
regulatory
specification when it
does not.
171.2(f)(2)........................ Billing, marking, etc. 2,000
for the presence of
HM when no HM is
present. (Mitigation
required for
shipments smaller
than a carload, i.e.,
single drum penalty
is 1,000).
171.12............................. Import shipments-- 4,000
Importer not
providing shipper and
forwarding agent with
US requirements.
Cannot be based on
inference.
Import shipments-- 2,000
Failure to certify by
shipper or forwarding
agent.
171.15............................. Failure to provide 6,000
immediate notice of
certain hazardous
materials incidents.
[[Page 38648]]
171.16............................. Failure to file 4,000
incident report (form
DOT 5800.1). (Note:
Multiple failures
will aggravate the
penalty; see the
expert attorney.).
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PART 172
------------------------------------------------------------------------
Shipping Papers:
172.200--.203.................. Offering hazardous
materials for
transportation when
the material is not
properly described on
the shipping paper as
required by Secs.
172.200--.203. (The
``shipping paper'' is
the document tendered
by the shipper/
offeror to the
carrier. The original
shipping paper
contains the
shipper's
certification at Sec.
172.204.).
--Information on the 15,000
shipping paper is
wrong to the extent
that it caused or
materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
shipping paper. (Some
shipping names alone
contain sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present but the
missing or improper
description could
cause mishandling by
the carrier or a
delay or error in
emergency response.
--When the improper 2,000
description is not
likely to cause
serious problem
(technical defect).
--Shipping paper 7,500
includes a hazardous
materials description
and no hazardous
materials are present.
Note: Failure to
include emergency
response information
is covered at Secs.
172.600-604; while
the normal unit of
violation for
shipping papers is
the whole document,
failure to provide
emergency response
information is a
separate violation.
172.204........................ Shipper's failure to 2,000
certify.
172.205........................ Hazardous waste 4,000
manifest. (Applies
only to defects in
the Hazardous Waste
Manifest form [EPA
Form 8700-22 and 8700-
22A]; shipping paper
defects are cited and
penalized under Sec.
172.200-.203.).
Marking............................ The guidelines for
``marking''
violations
contemplate a total
lack of the
prescribed mark.
Obviously, where the
package (including a
whole car) is
partially marked,
mitigation should be
applied.
172.301........................ Failure to mark a non- 1,000
bulk package as
required (e.g., no
commodity name on a
55-gallon drum).
(Shipment is the unit
of violation.).
172.302........................ Failure to follow 2,000
standards for marking
bulk packaging.
(Note: If a more
specific section
applies, cite it and
its penalty
guideline.).
172.302(a)..................... ID number missing or 2,500
in improper location.
(The guideline is for
a portable tank; for
smaller bulk
packages, the
guideline should be
mitigated downward.).
172.302(b)..................... Failure to use the 2,000
correct size of
markings. (Note: If
Sec. 172.326(a) is
also cited, it takes
precedence and
.302(b) is not cited.
Note also: the
guideline is for a
gross violation of
marking size--\1/2\''
where 2'' is
required--and
mitigation should be
considered for
markings approaching
the required size.).
172.302(c)..................... Failure to place 2,000
exemption number
markings on bulk
package.
172.303........................ Prohibited marking.
(Package is marked
for a hazardous
material and contains
either another
hazardous material or
no hazardous
material.)
--The marking is wrong 10,000
and caused or
contributed to a
wrong emergency
response.
--Inconsistent 5,000
marking; e.g.,
Shipping name and ID
number do not agree.
--Marked as a 2,000
hazardous material
when package does not
contain a hazardous
material.
172.313........................ ''Inhalation Hazard'' 2,500
not marked.
172.322........................ Failure to mark for 1,500
MARINE POLLUTANT
where required.
172.325(a)..................... Improper, or missing, 1,500
HOT mark for elevated
temperature material.
172.326(a)..................... Failure to mark a 2,500
portable tank with
the commodity name.
172.326(b)..................... Owner's/lessee's name 500
not displayed.
172.326(c)..................... Failure to mark 2,500
portable tank with ID
number.
172.330(a)(1)(i)............... Offering/transporting 2,500
hazardous materials
in a tank car that
does not have the
required shipping
name or common name
stenciled on the car;
include reference to
section requiring
stenciling, such as
Sec. 173.314(b) (5)
or (6).
172.330(a)(1)(ii).............. Offering/transporting 2,500
hazardous materials
in a tank car that
does not have the
required ID number
displayed on the car.
172.331(b)..................... Offering bulk 2,500
packaging other than
a portable tank,
cargo tank, or tank
car (e.g., a hopper
car) not marked with
UN/NA number. (I.e.,
a hopper car carrying
a hazardous
substance, where a
placard is not
required).
172.332........................ Improper display of 2,000
identification number
markings. Note:
Citation of this
section and Secs.
172.326 (portable
tanks), 172.328
(cargo tanks), or
172.330 (tank cars)
does not create two
separate violations.
172.334(a)..................... Displaying ID numbers 4,000
on a RADIOACTIVE,
EXPLOSIVES
1.1,1.2,1.3,1.4,1.5,
or 1.6, or DANGEROUS,
or subsidiary hazard
placard.
172.334(b)..................... --Improper display of 15,000
ID number that caused
or contributed to a
wrong emergency
response.
--Improper display of 5,000
ID number that could
cause carrier
mishandling or minor
error in emergency
response.
--Technical error..... 2,000
172.334(f)..................... Displaying ID number 1,500
on orange panel not
in proximity to the
placard.
Labeling:
172.400-.450................... Failure to label 2,500
properly. (See also
Sec. 172.301
regarding the marking
of packages.).
[[Page 38649]]
Placarding......................... The guidelines for
``placarding''
violations
contemplate a total
lack of the
prescribed placard.
Obviously, where the
package (including a
whole car) is
partially placarded,
mitigation should be
applied.
172.502........................ --Placarded as 2,000
hazardous material
when car does not
contain a hazardous
material.
--Placard does not 2,000
represent hazard of
the contents.
--Display of sign or 2,000
device that could be
confused with
regulatory placard.
Photograph or good,
clear description
necessary.
172.503........................ Improper display of ID (\1\)
number on placards.
(Note: Do not cite
this section; cite
Sec. 172.334.).
172.504(a)..................... Failure to placard;
affixing or
displaying wrong
placard. (See also
Secs. 172.502(a),
172.504(a), 172.505,
172.510(c), 172.516,
174.33, 174.59,
174.69; all
applicable sections
should be cited, but
the penalty should be
set at the amount for
the violation most
directly in point.)
(Generally, the car
is the unit of
violation, and
penalties vary with
the number of errors,
typically at the rate
of $1,000 per
placard.)
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three;
then use the
guideline above).
-- Complete failure to 2,500
placard, but only 2
placards are required
(e.g., intermediate
bulk containers
[IBCs]).
172.504(b)..................... Improper use of 5,000
DANGEROUS placard for
mixed loads.
172.504(c)..................... Placarded for wrong 2,000
hazard class when no
placard was required
due to 1,001 pound
exemption.
172.504(e)..................... Use of placard other
than as specified in
the table:
--Improper placard 15,000
caused or contributed
to improper reaction
by emergency response
forces or caused or
contributed to
improper handling by
carrier that led to a
product release.
--Improper placard 5,000
that could cause
improper emergency
response or handling
by carrier.
--Technical violation. 2,500
172.505........................ Improper application 5,000
of placards for
subsidiary hazards.
(Note: This is in
addition to any
violation on the
primary hazard
placards.).
172.508(a)..................... Offering hazardous 7,500
material for rail
transportation
without affixing
placards. (Note: The
preferred section for
a total failure to
placard is
172.504(a); only one
section should be
cited to avoid a dual
penalty.) (Note also:
Persons offering
hazardous materials
for rail movement
must affix placards;
if offering for
highway movement, the
placards must be
tendered to the
carrier. Sec.
172.506.).
Placards OK, except 500
they were IMDG labels
instead of 10''
placards. (Unit of
violation is the
packaging, usually a
portable tank.).
Placards on TOFC/COFC (\2\)
units not readily
visible. (Note: Do
not cite this
section, cite Sec.
172.516 instead.).
172.508(b)..................... Accepting hazardous 5,000
material for rail
transportation
without placards
affixed.
172.510(a)..................... EXPLOSIVES 1.1, 5,000
EXPLOSIVES 1.2,
POISON GAS, POISON
GAS-RESIDUE,
(Division 2.3, Hazard
Zone A), POISON, or
POISON-RESIDUE
(Division 6.1,
Packing Group I,
Hazard Zone A)
placards displayed
without square
background.
172.510(c)..................... Improper use of
RESIDUE placard.
--Placarded RESIDUE 4,000
when loaded.
--Placarded loaded 1,000
when car contains
only a residue.
--Placarded EMPTY when 500
RESIDUE is required.
172.514........................ Improper placarding of 2,000
bulk packaging other
than a tank car: For
the ``exception''
packages in
174.514(c). Note: Use
the regular
placarding sections
for the guideline
amounts for larger
bulk packages.
172.516........................ Placard not readily 1,000
visible, improperly
located or displayed,
or deteriorated. Good
color photos
``essential'' to
prove deterioration,
and considerable
weathering is
permissible. Placard
is the unit of
violation.
--When placards on an 2,000
intermodal container
are not visible, for
instance, because the
container is in a
well car. Container
is the unit of
violation, and, as a
matter of enforcement
policy, FRA accepts
the lack of
visibility of the end
placards.
Emergency Response Information..... Violations of Secs.
172.600-.604 are in
addition to shipping
paper violations. In
citing a carrier, if
the railroad's
practice is to carry
an emergency response
book or to put the E/
R information as an
attachment to the
consist, the unit of
violation is
generally the train
(or the consist).
``Telephone number''
violations are
generally best cited
against the shipper;
if against a
railroad, there
should be proof that
the number was given
to the railroad, that
is, it was on the
original shipping
document.
172.600-.602................... Where improper 15,000
emergency response
information has
caused an improper
reaction from
emergency forces and
the improper response
has aggravated the
situation. Note:
Proof of this will be
rigorous. For
instance, if the
emergency response
forces had chemical
information with the
correct response and
they relied, instead,
on shipper/carrier
information to their
detriment; the
$15,000 penalty
guideline applies.
Bad, missing, or 4,000
improper emergency
response information.
(Be careful in
transmitting
violations of this
section against a
railroad; there are
many sources of E/R
information and it
does not necessarily
``travel'' with the
shipping documents.).
172.602(c)..................... Failure to have 15,000
emergency response
information
``immediately
accessible''.
172.604........................ Improper or missing 2,500
emergency response
telephone number.
Training:
172.702(a)..................... General failure to 5,000
train hazmat
employees.
172.702(b)..................... Hazmat employee 1,000
performing covered
function without
training. (Unit of
violation is the
employee; see the
expert attorney if
more than 10
employees are
involved.).
172.704(a)..................... Failure to train in 2,500
the required areas:
--General awareness/
familiarization
[[Page 38650]]
--Function-specific
--Safety
(Unit of violation is
the ``area,'' and,
for a total failure
to train, cite
172.702(a) and use
that penalty instead
of 172.704.)
172.704(c)..................... Initial and recurrent (\3\)
training. (Note: Cite
this and the relevant
substantive section,
e.g., 172.702(a), and
use penalty provided
there.).
172.704(d)..................... Failure to maintain 2,500
record of training.
(Unit of violation is
the record.).
------------------------------------------------------------------------
PART 173
------------------------------------------------------------------------
173.1.............................. General duty section 2,000
applicable to
shippers; also
includes subparagraph
(b), the requirement
to train employees
about applicable
regulations. (Cite
the appropriate
section in the
172.700-.704 series
for training
violations.).
173.9(a)........................... Early delivery of 5,000
transport vehicle
that has been
fumigated. (48 hours
must have elapsed
since fumigation.).
173.9(b)........................... Failure to display 1,000
fumigation placard.
(Ordinarily cited
against shipper only,
not against
railroad.).
173.10............................. Delivery requirements 3,000
for gases and for
flammable liquids.
See also 174.204 and
174.304.
173.22............................. Shipper (\4\)
responsibility: This
general duty section
should ordinarily be
cited only to support
a more specific
charge.
173.22a............................ Improper use of 2,500
packagings authorized
under exemption.
Failure to maintain 1,000
copy of exemption as
required..
173.24(b)(1) & 173.24(b)(2) and Securing closures:
173.24(f)(1) & 173.24(f)(1)(ii). These subsections are
the general ``no
leak'' standard for
all packagings. Sec.
173.24(b) deals
primarily with
packaging as a whole,
while Sec. 173.24(f)
focuses on closures.
Cite the sections
accordingly, using
both the leak/non-
leak criteria and the
package size
considerations to
reach the appropriate
penalty. Any actual
leak will aggravate
the guideline by,
typically, 50%; a
leak with contact
with a human being
will aggravate by at
least 100%, up to the
maximum of $25,000 if
the HMR violation
causes the injury.
With tank cars, Sec.
173.31(b) applies,
and IM portable tanks
[Sec. 173.32c], and
other tanks of that
size range, should
use the tank car
penalty amounts,
stated in reference
to that section.
--Small bottle or box. 1,000
--55-gallon drum...... 2,500
--Larger container, 5,000
e.g., IBC; not
portable tank or tank
car.
173.24(c).......................... Use of package not
meeting
specifications,
including required
stencils and
markings. The most
specific section for
the package involved
should be cited (see
below). The penalty
guideline should be
adjusted for the size
of the container. Any
actual leak will
aggravate the
guideline by,
typically, 50%; a
leak with contact
with a human being
will aggravate by at
least 100%, up to the
maximum of $25,000 if
the HMR violation
causes the injury.
--Small bottle or box. 1,000
--55-gallon drum...... 2,500
--Larger container, 5,000
e.g., IBC; not
portable tank or tank
car.
For more specific
sections: Tank cars--
Sec. 173.31(a),
portable tanks--Sec.
173.32, and IM
portable tanks--Secs.
173.32a, .32b, and
.32c, q.v
173.24a(a)(3)...................... Non-bulk packagings: 1,000
Failure to secure and
cushion inner
packagings.
--Causes leak......... 3,000
--Leak with any 10,000
contact between
product and any human
being.
173.24a(b)&(d)..................... Non-bulk packagings: 1,000
Exceeding filling
limits.
--Causes leak......... 3,000
--Leak with any 10,000
contact between
product and any human
being.
173.24b(a) Insufficient outage:.. 3,000
--<1%
--Causes leak......... 5,000
--Leak with any 10,000
contact between
product and any human
being.
173.24b(a)(3)...................... Outage <5% on PIH 5,000
material.
--Causes leak......... 7,500
--Leak with any 10,000
contact between
product and any human
being.
173.26............................. Loaded beyond gross 5,000
weight or capacity as
stated in
specification.
(Applies only if
quantity limitations
do not appear in
packaging
requirements of Part
173.).
173.28............................. Improper reuse, 1,000
reconditioning, or
remanufacture of
packagings..
173.29(a).......................... Offering residue tank
car for
transportation when
openings are not
tightly closed (Sec.
174.67(k) is also
usually applicable).
The regulation
requires offering
``in the same manner
as when'' loaded and
may be cited when a
car not meeting
specifications (see
Sec. 173.31(a)(1))
is released back into
transportation after
unloading; same
guideline amount.
Guidelines vary with
the type of commodity
involved:
--Hazardous material 2,000
with insignificant
vapor pressure and
without
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 5,000
--With leak allowing 15,000
the product to
contact any human
being.
--Hazardous material 5,000
with vapor pressure
(essentially any gas
or compressed gas)
and/or with
classification as
``poison'' or
``inhalation
hazard.''.
--With actual leak.... 7,500
--With leak allowing 15,000
the product (or fumes
or vapors) to contact
any human being. (In
the case of fumes,
the ``contact'' must
be substantial.).
--Where only violation 1,000
is failure to secure
a protective housing,
e.g., the covering
for the gaging device.
[[Page 38651]]
173.30............................. A general duty section
that should be cited
with the explicit
statement of the
duty.
173.31(a)(1)....................... Use of a tank car not
meeting
specifications and
the ``Bulk
packaging''
authorization in
Column 8 of the Sec.
172.101 Hazardous
Materials Table
reference is:
Sec. 173.240......... 1,000
Sec. 173.241......... 2,500
Sec. 173.242......... 5,000
Sec. 173.243......... 5,000
Sec. 173.244......... 7,500
Sec. 173.245......... 7,500
Sec. 173.247......... 1,000
Sec. 173.314, .315... 5,000
--Minor defect not 500
affecting the ability
of the package to
contain a hazardous
material, e.g., no
chain on a bottom
outlet closure plug.
Tank meets 1,000
specification, but
specification is not
stenciled on car.
Note: Sec. 179.1(e)
implies that only the
builder has the duty
here, but it is the
presence of the
stencil that gives
the shipper the right
to rely on the
builder. (See Sec.
173.22(a)(3).).
Tank car not stenciled
``Not for flammable
liquids,'' and it
should be. (AAR Tank
Car Manual, Appendix
C, C3.03(a)5.)
--Most cars........... 2,500
--Molten sulfur car... 500
--If flammable liquid 5,000
is actually in the
car.
173.31(a)(4)....................... Use of a tank car 5,000
stenciled for one
commodity to
transport another.
173.31(a)(5)....................... Use of DOT- 10,000
specification tank
car without shelf
couplers. (Note:
prior to November 15,
1992, this did not
apply to a car not
carrying hazardous
materials.).
--Against a carrier, 6,000
cite Sec. 174.3 and
this section.
173.31(a)(6)....................... Use of non-DOT 10,000
specification car
without shelf
couplers to carry
hazardous materials.
(Applies only since
November 15, 1990.).
--Against a carrier, 6,000
cite Sec. 174.3 and
this section.
173.31(a)(7)....................... Use of tank car 5,000
without air brake
support attachments
welded to pads.
(Effective July 1,
1991).
173.31(a)(15)...................... Tank car with 7,500
nonreclosing pressure
relief device used to
transport Class 2
gases, Class 3 or 4
liquids, or Division
6.1 liquids, PG I or
II.
173.31(a)(17)...................... Tank car with interior 7,500
heating coils used to
transport Division
2.3 or Division 6.1,
PG I, based on
inhalation toxicity.
173.31(b)(1), 173.31(b)(3)......... Shipper failure to 5,000
determine (to the
extent practicable)
that tank, safety
appurtenances, and
fittings are in
proper condition for
transportation;
failure to properly
secure closures.
(Sections
173.31(b)(1) &
.31(b)(3), often
cited as together for
loose closure
violations, are taken
as one violation.)
The unit of violation
is the car,
aggravated if
necessary for truly
egregious condition.
Sections 173.24(b) &
(f) establish a ``no-
leak'' design
standard, and 173.31
imposes that standard
on operations.
--With actual leak of 10,000
product.
--With actual leak 15,000
allowing the product
(or fumes or vapors)
to contact any human
being. (With safety
vent, be careful
because carrier might
be at fault.).
--Minor violation, 1,000
e.g., bottom outlet
cap loose on tank car
of molten sulfur
(because product is a
solid when shipped).
--Failure (.31(b)(1)) 1,000
to have bottom outlet
cap off during
loading.
173.31(b)(4)....................... Filling and offering 6,000
for transportation a
tank car overdue for
retest of tank,
interior heater
system, and/or safety
relief valve. Note
that the car may be
filled while in-date,
held, and then
shipped out-of-date.
(Adjust penalty if
less than one month
or more than one year
overdue.).
173.31(c)(1)....................... Tank, interior heater
system, and/or safety
valve overdue for
retest. If these
conditions exist, the
violation is of Sec.
173.31(b)(4). If the
violation is for
improperly conducting
the test(s), see the
expert attorney.
173.31(c)(10)...................... Failure to properly 1,000
stencil a retest that
was performed.
173.32c............................ Loose closures on an 5,000
IM portable tank
(Sec. 173.24
establishes the
``tight closure''
standard; Sec.
172.32c applies it to
IM portable tanks.)
(The scale of
penalties is the same
as for tank cars.).
--With actual leak of 10,000
product.
--With actual leak and 15,000
human being contact.
--Minor violation..... 1,000
173.314(b)(5)...................... No commodity stencil, 2,500
compressed gas tank
car. (See also Sec.
172.330).
173.314(c)......................... Compressed gas loaded 6,000
in excess of filling
density (same basic
concept as
insufficient outage).
--``T'' car with 5,000
excessive voids in
the thermal coating,
such that the car no
longer complies with
the DOT
specification.
Section 173.31(a)(1)
requires tank cars
used to transport
hazardous materials
to meet the
requirements of the
applicable
specification and
this section (Sec.
173..314(c)) lists
112T/114T cars as
allowed for
compressed gases.
------------------------------------------------------------------------
PART 174
------------------------------------------------------------------------
General Requirements:
174.3.......................... Acceptance of
improperly prepared
shipment. This
general duty section
must be accompanied
by a citation to the
specific section
violated.
174.7.......................... Carrier's failure to (\5\)
instruct employees;
cannot be based on
inference; Secs.
172.700-.704 are
preferred citations.
174.8(b)....................... --Failure to inspect 4,000
hazardous materials
(and adjacent) cars
at point where train
is required to be
inspected. (Unit of
violation is the
train.) (Note: For
all ``failure to
inspect'' citations,
the mere presence of
a nonconforming
condition does not
prove a failure to
inspect.).
[[Page 38652]]
--Allowing unsafe 8,000
loaded placarded car
to continue in
transportation beyond
point where
inspection was
required). (Unit of
violation is the
car.).
--Failure to determine 5,000
whether placards are
in place and conform
to shipping papers
(at a required
inspection point).
(Unit of violation is
the car.).
174.9(a)....................... Failure to properly 4,000
inspect loaded,
placarded tank car at
origin or interchange.
174.9(b)....................... Loose or insecure 1,000
closures on tank car
containing a residue
of a hazardous
material. (FRA policy
is that, against a
railroad, this
violation must be
observable from the
ground because, for
reasons of safety,
railroad inspectors
do not climb on cars
absent an indication
of a leak.).
174.9(c)....................... Failure to ``card'' a 3,000
tank car overdue for
tank retest.
174.10(c)...................... Offering a 3,000
noncomplying shipment
in interchange.
174.10(d)...................... Offering leaking car 10,000
of hazardous
materials in
interchange.
174.12......................... Improper performance 3,000
of intermediate
shipper/carrier
duties; applies to
forwarders and
highway carriers
delivering TOFC/COFC
shipments to
railroads.
174.14......................... Failure to expedite: 1,000
violation of ``48-
hour rule.'' Note:
does not apply to
cars ``held short''
of destination or
constructively placed.
General Operating Requirements..... Note: This subpart
(Subpart B) of Part
174 has three
sections referring to
shipment
documentation: Sec.
174.24 relating to
accepting documents,
Sec. 174.25 relating
to the preparation of
movement documents,
and Sec. 174.26
relating to movement
documents in the
possession of the
train crew. Only the
most relevant section
should be cited. In
most cases, the unit
of violation is the
shipment, although
where a unified
consist is used to
give notice to the
crew, there is some
justification for
making it the train,
especially where the
discrepancy was
generated using
automated data
processing and the
error is repetitious.
174.24......................... Accepting hazardous
materials shipment
without properly
prepared shipping
paper. (Note: The
carrier's duty
extends only to the
document received,
that is, a shipment
of hazardous
materials in an
unplacarded transport
vehicle with a
shipping paper
showing other than a
hazardous material is
not a violation
against the carrier
unless knowledge of
the contents of the
vehicle is proved.
Likewise, receipt of
a tank car placarded
for Class 3 with a
shipping paper
indicating a
flammable liquid does
not create a carrier
violation if the car,
in fact, contains a
corrosive. On the
other hand, receipt
of a placarded
trailer with a
shipping paper
listing only FAK
(``freight-all-
kinds''), imposes a
duty on the carrier
to inquire further
and to reject the
shipment if it is
improperly billed.)
--Improper hazardous 7,500
materials information
that could cause
delay or error in
emergency response.
--Total absence of 5,000
hazardous materials
information.
--Technical errors, 1,000
not likely to cause
problems, especially
with emergency
response.
--Minor errors not 500
relating to hazardous
materials emergency
response, e.g., not
listing an exemption
number and the
exemption is not one
affecting emergency
response.
174.25......................... Preparing improper
movement documents.
(Similar to the
requirements in Sec.
174.24, here the
carrier is held
responsible for
preparing a movement
document that
accurately reflects
the shipping paper
tendered to it. With
no hazardous
materials information
on the shipper's bill
of lading, the
carrier is not in
violation--absent
knowledge of
hazardous contents--
for preparing a
nonhazardous movement
document. While
``movement
documents'' in the
rail industry used to
be waybills or switch
tickets (almost
exclusively),
carriers are now
incorporating the
essential information
into a consist,
expanded from its
former role as merely
a listing of the cars
in the train.)
--Information on the 15,000
movement document is
wrong to the extent
that it actually
caused or materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
movement document.
(Some shipping names
alone contain
sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present, but the
missing or improper
description could
cause mishandling by
the carrier or a
delay or error in
emergency response,
including missing
RESIDUE description
required by Sec.
174.25(c).
--Missing/improper 3,500
endorsement, unless
on a switch ticket as
allowed under Sec.
174.25(b).
--Movement document 2,500
does not indicate,
for a flatcar
carrying trailers or
containers, which
trailers or
containers contain
hazardous materials.
(If all trailers or
containers on the
flatcar contain
hazardous materials,
there is no
violation.).
--When the improper 1,000
description is not
likely to cause
serious problem
(technical defect).
--Minor errors not 500
related to hazardous
materials emergency
response, e.g., not
listing an exemption
number and the
exemption is not one
affecting emergency
response.
Note: Failure to
include emergency
response information
is covered at Sec.
172.600-604; while
the normal unit of
violation for
movement documents is
the whole document,
failure to provide
emergency response
information is a
separate violation.
174.26(a)...................... Failure to execute the 5,000
required POISON GAS
and EXPLOSIVES 1.1/
1.2 notices. (The
notice is the unit of
violation, because
one notice can cover
several shipments.).
Failure to deliver the 5,000
required POISON GAS
and EXPLOSIVES 1.1/
1.2 notices to train
and engine crew.
(Cite this, or the
above, as
appropriate.).
Failure to transfer 3,000
notice from crew to
crew. (Note that this
is very likely an
individual liability
situation; the
penalty guideline
listed here, however,
presumes action
against a railroad.).
Failure to keep copy 1,000
of notice on file.
174.26(b)...................... Train crew does not 6,000
have a document
indicating position
in train of each
loaded, placarded
car. Aggravate by 50%
for Poison Gas, 2.3,
and Explosives, 1.1
and 1.2. (Train is
the unit of
violation.).
--Technical violation, 1,000
e.g., car is listed
in correct relative
order, but not in
exact numerical
order, usually
because of addition
of car or cars to
head or tail of
train. (Note: Applies
only if the actual
location is off by 10
or fewer cars.).
[[Page 38653]]
174.26(c)...................... Improper paperwork in
possession of train
crew. (If the
investigation of an
accident reveals a
violation of this
section and Sec.
174.25, cite this
section.) (Shipment
is unit of violation,
although there is
justification for
making it the train
if a unified consist
is used to carry this
information and the
violation is a
pattern one
throughout all, or
almost all, of the
hazardous materials
shipments. For
intermodal traffic,
``shipment'' can mean
the container or
trailer--e.g., a UPS
trailer with several
non-disclosed
hazardous materials
packages would be one
unit.)
--Information on the 15,000
document possessed by
the train crew is
wrong to the extent
that it caused or
materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
movement document.
(Some shipping names
alone contain
sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present but the
error(s) could cause
mishandling by the
carrier or a delay or
error in emergency
response. Includes
missing RESIDUE
description required
by Sec. 174.25(c).
--Improper 3,500
information, but the
hazardous materials
are small shipments
(e.g., UPS moves) and
PG III (e.g., the
``low hazard''
materials allowed in
TOFC/COFC service
without an exemption
since HM-197).
--Technical defect not 1,000
likely to cause delay
or error in emergency
response or carrier
handling.
--Minor error not 500
relating to emergency
response or carrier
handling, e.g., not
listing the exemption
number on document
and the exemption is
not one affecting
emergency response.
174.33......................... --Failure to maintain
``an adequate supply
of placards.'' [The
violation is for
``failure to
replace''; if missing
placards are
replaced, the supply
is obviously
adequate, if not,
failure to have a
placard is not a
separate violation
from failure to
replace it.]
--Failure to replace 1,000
lost or destroyed
placards based on
shipping paper
information. (This is
in addition to the
basic placarding
mistakes in, for
instance, Sec.
172.504.).
Note: A railroad's
placarding duties are
to not accept a car
without placards
[Sec. 172.508(b)];
to maintain an
``adequate supply''
of placards and to
replace them based on
shipping paper
information [Sec.
174.33]; and to not
transport a car
without placards
[Sec. 174.59]. At
each inspection
point, a railroad
must determine that
all placards are in
place. [Sec.
172.8(b)] The ``next
inspection point''
replacement
requirement in Sec.
174.59, q.v., refers
to placards that
disappear between
inspection points; a
car at an inspection
point must be
placarded because it
is in transportation,
even if held up at
that point. [49
U.S.C. 5102(12)]
174.45......................... Failure to report
hazardous materials
accidents or
incidents. Cite Secs.
171.15 or 171.16 as
appropriate.
174.50......................... Moving leaking tank 7,500
car unnecessarily.
Failure to stencil 3,500
leaking tank car.
Loss of product 15,000
resulted in human
being contact because
of improper carrier
handling.
174.55......................... Failure to block and
brace as prescribed.
(See also Secs.
174.61, .63, .101,
.112, .115; where
these more specific
sections apply, cite
them.) Note: The
regulatory
requirement is that
hazardous materials
packages be loaded
and securely blocked
and braced to prevent
the packages from
changing position,
falling to the floor,
or sliding into each
other. If the load is
tight and secure,
pieces of lumber or
other materials may
not be necessary to
achieve the ``tight
load'' requirement.
Be careful on these
and consult freely
with the expert
attorney and
specialists in the
Hazardous Materials
Division.
--General failure to 5,000
block and brace.
--Inadequate blocking 2,500
and bracing (an
attempt was made but
blocking/bracing was
insufficient.).
--Inadequate blocking 7,500
and bracing leading
to a leak.
--Inadequate blocking 15,000
and bracing leading
to a leak and human
being contact.
174.59......................... Marking and
placarding. Note: As
stated elsewhere, a
railroad's placarding
duties are to not
accept a car without
placards [Sec.
172.508(b)], to
maintain an
``adequate supply''
of placards and to
replace them based on
shipping paper
information [Sec.
174.33], and to not
transport a car
without placards
[Sec. 174.59]. At
each inspection
point, a railroad
must determine that
all placards are in
place. [Sec.
172.8(b)] The ``next
inspection point''
replacement
requirement in this
section refers to
placards that
disappear between
inspection points. A
car at an inspection
point must be
placarded because it
is in transportation
[49 U.S.C. 5102(12)],
even if held up at
that point. Because
the statute creates
civil penalty
liability only if a
violation is
``knowing,'' that is,
``a reasonable person
knew or should have
known that an act
performed by him was
in violation of the
HMR,'' and because
railroads are not
under a duty to
inspect hazardous
materials cars merely
standing in a yard,
violations written
for unplacarded cars
in yards must include
proof that the
railroad knew about
the unplacarded cars
and took no
corrective action
within a reasonable
time. (Note also that
the real problem with
unplacarded cars in a
railyard may be a
lack of emergency
response information,
Secs. 172.600-.604,
and investigation may
reveal that those
sections should be
cited instead of this
one.)
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three;
then use the
guideline above).
For other placarding
violations, see Secs.
172.500-.560 and
determine if one of
them more correctly
states the violation.
174.61......................... Improper 3,000
transportation of
transport vehicle or
freight container on
flat car. (Note: If
improper lading
restraint is the
violation, see Sec.
174.55; if improper
restraint of a bulk
packaging inside a
closed transport
vehicle is the
violation, see Sec.
174.63(b).).
174.63(a) & (c)................ --Improper 3,000
transportation of
portable tank or
other bulk packaging
in TOFC/COFC service.
--Improper 7,500
transportation
leading to a release
of product.
[[Page 38654]]
--Improper 15,000
transportation
leading to a release
and human being
contact.
174.63(b)...................... Improper securement of
bulk packaging inside
enclosed transport
vehicle or freight
container.
--General failure to 5,000
secure.
--Inadequate 2,500
securement (an
attempt to secure was
made but the means of
securement were
inadequate).
--Inadequate 7,500
securement leading to
a leak.
--Inadequate 15,000
securement leading to
a leak and human
being contact.
174.63(e)...................... Transportation of 7,500
cargo tank or multi-
unit tank car tank
without authorization
and in the absence of
an emergency.
174.67(a)(1)................... Tank car unloading 2,500
operations performed
by persons not
properly instructed
(case cannot be based
on inference).
174.67(a)(2)................... Unloading without
brakes set and/or
wheels blocked. (The
enforcement standard,
as per 1995 Hazardous
Materials Technical
Resolution Committee,
is that sufficient
handbrakes must be
applied on one or
more cars to prevent
movement and each car
with a handbrake set
must be blocked in
both directions. The
unloading facility
must make a
determination on how
many brakes to set.)
--No brakes set, no 5,000
wheels blocked, or
fewer brakes set/
wheels blocked than
facility's operating
plan.
--No brakes set, but 3,000
wheels blocked.
--Brakes set, but 4,000
wheels not blocked.
174.67(a)(3)................... Unloading without 2,000
cautions signs
properly displayed.
(See Part 218,
Subpart B).
174.67(c)(2)................... Failure to use non-
metallic block to
prop manway cover
open while unloading
through bottom outlet.
--Flammable or 3,000
combustible liquid,
or other product with
a vapor flash point
hazard.
--Material with no 500
vapor flammability
hazard.
174.67(h)...................... Insecure unloading 10,000
connections, such
that product is
actually leaking.
174.67(i)...................... Unattended unloading.. 5,000
174.67(j)...................... Discontinued unloading 2,000
without disconnecting
all unloading
connections,
tightening valves,
and applying closures
to all other
openings. (Note: If
the car is attended,
this subsection does
not apply.).
174.67(k)...................... Preparation of car
after unloading:
Removal of unloading
connections is
required, as is the
closing of all
openings with a
``suitable tool.''
Note: This subsection
requires unloading
connections to be
``removed'' when
unloading is
complete, Sec.
174.67(j) requires
them to be
``disconnected'' for
a temporary cessation
of unloading. The
penalties recommended
here mirror those in
Sec. 173.29, dealing
with insecure
closures generally.
--Hazardous material 2,000
with insignificant
vapor pressure and
without
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 5,000
--With leak allowing 15,000
the product to
contact any human
being.
--Hazardous material 5,000
with vapor pressure
(essentially any gas
or compressed gas)
and/or with
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 7,500
--With leak allowing 15,000
the product (or fumes
or vapors) to contact
any human being).
Note: Contact with
fumes must be
substantial.
174.69......................... --Complete failure to 6,000
remove loaded
placards and replace
with RESIDUE placard
on tank cars.
--Partial failure. 1,000
(Unit of violation is
the placard; the
guideline is used for
each placard up to 3,
then the penalty
above is applicable.).
174.81......................... --Failure to obey 6,000
segregation
requirements for
materials forbidden
to be stored or
transported together.
(``X'' in the table).
--Failure to obey 4,000
segregation
requirements for
materials that must
be separated to
prevent commingling
in the event of a
leak. (``O'' in the
table).
174.83(a)...................... Improper switching of 5,000
placarded rail cars.
174.83(b)...................... Improper switching of 8,000
loaded rail car
containing Division
1.1/1.2, 2.3 PG I
Zone A, or Division
6.1 PG I Zone A, or
DOT 113 tank car
placarded for 2.1.
174.83(c)-(e).................. Improper switching of 5,000
placarded flatcar.
174.83(f)...................... Switching Division 1.1/ 8,000
1.2 without a buffer
car or placement of
Division 1.1/1.2 car
under a bridge or
alongside a passenger
train or platform.
174.84......................... Improper handling of 4,000
Division 1.1/1.2, 2.3
PG I Zone A, 6.1 PG I
Zone A in relation to
guard or escort cars.
174.85......................... Improper Train
Placement (The unit
of violation under
this section is the
car. Where more than
one placarded car is
involved, e.g., if 2
placarded cars are
too close to the
engine, both are
violations. Where
both have a similar
violation, e.g., a
Division 1.1 car next
to a loaded tank car
of a Class 3
material, each car
gets the appropriate
penalty as listed
below.)
RESIDUE car without at 3,000
least 1 buffer from
engine or occupied
caboose.
Placard Group 1--
Division 1.1/1.2
(Class A explosive)
materials
--Fewer than 6 cars 8,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 7,000
least 1 buffer.
--No buffer at all 8,000
(where train length
doesn't permit 5).
--Next to open top car 7,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 6,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 7,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 7,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 2--
Division 1.3/1.4/1.5
(Class B and C
explosives); Class 2
(compressed gas,
other than Division
2.3, PG 1 Zone A;
Class 3 (flammable
liquids); Class 4
(flammable solid);
Class 5 (oxidizing
materials); Class 6,
(poisonous liquids),
except 6.1 PG 1 Zone
A; Class 8 (corrosive
materials).
[[Page 38655]]
For tank cars:
--Fewer than 6 cars 6,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 5,000
least 1 buffer.
No buffer at all 6,000
(where train length
doesn't permit 5).
--Next to open top car 5,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 4,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 5,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
For other rail cars:
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 3--
Divisions 2.3 (PG 1
Zone A; poisonous
gases) and 6.1 (PG 1
Zone A; poisonous
materials)
For tank cars:
--Fewer than 6 cars 8,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 7,000
least 1 buffer.
No buffer at all 8,000
(where train length
doesn't permit 5).
--Next to open top car 7,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 6,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 7,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 7,000
car, except one from
same placard group or
COMBUSTIBLE.
For other rail cars:
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 4--Class
7 (radioactive)
materials.
For rail cars:
--Next to locomotive 8,000
or occupied caboose.
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
--Next to carload of 3,000
undeveloped film.
174.86......................... Exceeding maximum 3,000
allowable operating
speed (15 mph) while
transporting molten
metals or molten
glass.
174.101(o)(4).................. Failure to have proper
explosives placards
on flatcar carrying
trailers/containers
placarded for Class
1. (Except for a
complete failure to
placard, the unit of
violation is the
placard.).
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three,
then use the
guideline above).
174.104(f)..................... Failure to retain car 1,000
certificates at
``forwarding
station''.
Failure to attach car 1,000
certificates to car.
(Unit of violation is
the certificate, 2
are required.).
174.204........................ Improper tank car 3,000
delivery of gases
(Class 2 materials).
174.304........................ Improper tank car 3,000
delivery of flammable
liquids (Class 3
materials).
174.600........................ Improper tank car 5,000
delivery of materials
extremely poisonous
by inhalation
(Division 2.3 Zone A
or 6.1 Zone A
materials).
------------------------------------------------------------------------
PART 178
------------------------------------------------------------------------
178.2(b)........................... Package not
constructed according
to specifications--
also cite section not
complied with.
--Bulk packages, 8,000
including portable
tanks.
--55-gallon drum...... 2,500
--Smaller package..... 1,000
------------------------------------------------------------------------
PART 179
------------------------------------------------------------------------
179.1(e)........................... Tank car not 8,000
constructed according
to specifications--
also cite section not
complied with. (Note:
Part 179 violations
are against the
builder or repairer.
Sections in this Part
are often cited in
conjunction with
violations of Secs.
172.330 and 173.31
(a)&(b) by shippers.
In such cases, the
Part 179 sections are
cited as references,
not as separate
alleged violations.).
179.6.............................. Repair procedures not 5,000
in compliance with
Appendix R of the
Tank Car Manual.
------------------------------------------------------------------------
\1\ See Sec. 172.334.
\2\ See Sec. 172.516.
\3\ Varies.
\4\ See specific section.
\5\ See penalties: 172.700-.704.
[[Page 38656]]
Donald M. Itzkoff,
Deputy Administrator.
[FR Doc. 96-18823 Filed 7-24-96; 8:45 am]
BILLING CODE 4910-06-P