[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.

-----------------------------------------------------------------------

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.).                     
------------------------------------------------------------------------
                                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.).                
------------------------------------------------------------------------
                                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