[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Rules and Regulations]
[Pages 77293-77309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21850]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 209

[FRA-2006-24512]
RIN 2130-AB70


Revisions to Civil and Criminal Penalties; Penalty Guidelines

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: In this final rule, the Federal Railroad Administration is 
revising its regulations to reflect revisions to the penalty provisions 
in the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005 (Title VII of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users), 
enacted on August 10, 2005. We are also revising baseline assessments 
for several categories of violations, including those related to 
training and security plans, in our Civil Penalty Assessment 
Guidelines. We publish our Guidelines in order to provide the regulated 
community and the general public with information on the hazardous 
materials civil penalty assessment process for violations related to 
the transportation of hazardous materials by rail.

DATES: Effective Date: This final rule is effective December 26, 2006.

FOR FURTHER INFORMATION CONTACT: Roberta Stewart, Trial Attorney, 
Office of Chief Counsel, RCC-12, Mail Stop 10, FRA, 1120 Vermont Ave., 
NW., Washington, DC 20590 (telephone 202-493-6027).

SUPPLEMENTARY INFORMATION:

I. Civil and Criminal Penalties

    On August 10, 2005, the President signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), Public Law 109-59, 119 Stat. 1144. Title VII of SAFETEA-
LU--the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005--revises the maximum and minimum civil 
penalties, and the maximum criminal penalty, for violations of Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.) or a regulation, order, special permit, or approval 
issued under Federal hazmat law (including 49 CFR subtitle B, chapter 
I, subchapters A and C). The Federal Railroad Administration (FRA) is 
revising references in our regulations to the maximum and minimum civil 
penalties, and the maximum criminal penalties, to reflect the following 
statutory changes:

--The maximum civil penalty was increased from $32,500 to $50,000 for a 
knowing violation, and to $100,000 if the violation results in death, 
serious illness or severe injury to any person, or substantial 
destruction of property.
--The minimum civil penalty has reverted from $275 to $250, except that 
a minimum civil penalty of $450 applies to a violation related to 
training.
--Criminal penalties now apply to both reckless and willful violations 
of Federal hazardous material transportation law or a regulation, 
order, special permit, or approval issued thereunder. The criminal 
penalties also apply to a knowing violation of the prohibition in 49 
U.S.C. 5104(b) against tampering with a marking, label, placard, or 
description on a shipping document.
--The maximum criminal penalty of five years' imprisonment and a fine 
in accordance with Title 18 of the United States Code ($250,000 for an 
individual, $500,000 for a corporation) was retained, except that the 
maximum amount of imprisonment has been increased to 10 years in any 
case in which the violation involves the release of a hazardous 
material that results in death or bodily injury to a person.

II. Revisions to Civil Penalty Guidelines

    FRA's hazardous material transportation enforcement civil penalty

[[Page 77294]]

guidelines are published in Appendix B to 49 CFR Part 209, to provide 
the regulated community and the general public with information 
concerning the manner in which FRA generally begins its hazmat penalty 
assessment process and the types of information that respondents in 
enforcement cases should provide to justify reduction of proposed 
penalties. These guidelines were first published in the Federal 
Register on July 25, 1996 in response to a request contained in Senate 
Report 103-150 that accompanied the Department of Transportation and 
Related Agencies Appropriations Act of 1994. 61 FR 38644. These 
guidelines are periodically updated, and we previously published 
revisions to them on May 28, 2004. 69 FR 30590.
    These guidelines are used by FRA's enforcement personnel and 
attorneys as a means of determining a proposed civil penalty for 
violations of Federal hazardous material transportation law and the 
regulations issued under that law. As a general statement of agency 
policy and practice, these guidelines are not fully determinative of 
any issues or rights, and do not have the force of law. They are 
informational, impose no requirements, and constitute a statement of 
agency policy for which no notice of proposed rulemaking is necessary.
    In this final rule, we are revising baseline assessments to reflect 
the increase to $450 in the minimum civil penalty for a violation 
related to training. We are adding baseline assessments applicable to 
the failure to develop or adhere to a security plan and provide 
security training when a security plan is required. We have also 
revised other baseline assessments in an effort to account for the 
relative severity of violations, and to update penalties to more 
appropriate amounts, as some time has passed since many of the 
baselines have been revised.
    FRA is proceeding to a final rule without providing a notice of 
proposed rulemaking or an opportunity for public comment. The 
provisions adopted in this final rule simply set forth changes in the 
law and our general statements of agency policy and procedure, for 
which notice-and-comment procedure is not necessary.

III. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 5123 
and 5124, which provide civil and criminal penalties for violations of 
Federal hazardous material transportation law or a regulation, order, 
special permit, or approval issued under that law. The hazardous 
material transportation regulations are issued by the Pipeline and 
Hazardous Materials Safety Administration (PHMSA). 49 CFR 1.53(b). 
Responsibility for the enforcement of the hazardous materials 
transportation law and regulations primarily in instances where 
violations involve railroads and those entities who ship by rail has 
been delegated to FRA. 49 CFR 1.49(s). This rule revises references in 
FRA's regulations to reflect revisions to the civil and criminal 
penalties in the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005 (Title VII of SAFETEA-LU), which was 
enacted on August 10, 2005. This rule also adds baseline assessments 
relating to training and security plans in our penalty guidelines, and 
revises other baseline assessments.

B. 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 and, therefore, was not 
reviewed by the Office of Management and Budget. This rule is not 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). The economic impact of this 
rule is minimal to the extent that preparation of a regulatory 
evaluation is not warranted.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). As 
amended in SAFETEA-LU, 49 U.S.C. 5125(i) provides that the preemption 
provisions in Federal hazardous material transportation law do ``not 
apply to any * * * penalty * * * utilized by a State, political 
subdivision of a State, or Indian tribe to enforce a requirement 
applicable to the transportation of hazardous material.'' Accordingly, 
this final rule does not have any preemptive effect on State, local, or 
Indian tribe enforcement procedures and penalties, and preparation of a 
federalism assessment is not warranted.

D. Regulatory Flexibility Act and Executive Order 13272

    FRA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
applies to shippers, offerors and carriers of hazardous materials by 
rail, manufacturers, and repairers of packagings used in the transport 
of hazardous materials by rail, and any other persons involved in the 
transportation of hazardous materials by rail. Some of these entities 
are classified as small entities; however, there is no economic impact 
on any person that complies with Federal hazardous materials law and 
the regulations and orders issued under that law.

E. Paperwork Reduction Act

    There are no new information requirements in this final rule.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Act of 1995. It does not result in annual costs of 
$128,100,000 or more, in the aggregate, to any of the following: State, 
local, or Indian tribal governments, or the private sector, and is the 
least burdensome alternative to achieve the objective of the rule.

G. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
spring and fall of each year. The RIN contained in the heading of this 
document can be used to cross-reference this action with the Unified 
Agenda.

List of Subjects in 49 CFR Part 209

    Hazardous materials, Penalties.


0
Therefore, in consideration of the foregoing, chapter II, subtitle B of 
title 49 of the Code of Federal Regulations is amended as follows:

PART 209--[AMENDED]

0
1. The authority citation for part 209 is revised to read as follows:

    Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 
20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Section 209.3 is amended by adding a definition of Federal hazardous 
material transportation law in alphabetical order to read as follows:


Sec.  209.3  Definitions.

* * * * *
    Federal hazardous material transportation law means 49 U.S.C. 5101 
et seq.
* * * * *

0
3. Revise Sec.  209.103 to read as follows:

[[Page 77295]]

Sec.  209.103  Minimum and maximum penalties.

    (a) A person who knowingly violates a requirement of the Federal 
hazardous material transportation law, an order issued thereunder, 
subchapter A or C of Chapter I, subtitle B, of this title, or a special 
permit or approval issued under 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 $50,000 for each violation, except that--
    (1) The maximum civil penalty for a violation is $100,000 if the 
violation results in death, serious illness or severe injury to any 
person, or substantial destruction of property and
    (2) A minimum $450 civil penalty applies to a violation related to 
training.
    (b) When the violation is a continuing one, each day of the 
violation constitutes a separate offense. 49 U.S.C. 5123.
    (c) The maximum and minimum civil penalties described in paragraph 
(a) above apply to violations occurring on or after August 10, 2005.

0
4. Revise the last sentence of Sec.  209.105(c) to read as follows:


Sec.  209.105  Notice of probable violation.

* * * * *
    (c) * * * In an amended notice, FRA may change the civil penalty 
amount proposed to be assessed up to and including the maximum penalty 
amount of $50,000 for each violation, except that if the violation 
results in death, serious illness or severe injury to any person, or 
substantial destruction of property, FRA may change the penalty amount 
proposed to be assessed up to and including the maximum penalty amount 
of $100,000.

0
5. Revise Sec.  209.109(a) to read as follows:


Sec.  209.109  Payment of penalty; compromise.

    (a) Payment of a civil penalty may be made by certified check, 
money order, or credit card. Payments made by certified check or money 
order should be made payable to the Federal Railroad Administration and 
sent to DOT/FRA, Mike Monroney Aero Center, General Accounting 
Division, AMZ-300, P.O. Box 25082, Oklahoma City, OK 73125. Overnight 
express payments may be sent to DOT/FRA, Mike Monroney Aero Center, 
General Accounting Division, AMZ-300, 6500 South MacArthur Blvd. 
Headquarters Building, Room 176, Oklahoma City, OK 73169. Payment by 
credit card must be made via the Internet at https://www.pay.gov/paygov/ paygov/. Instructions for online payment are found on the Web site.
* * * * *

0
6. Revise Sec.  209.131 to read as follows:


Sec.  209.131  Criminal penalties generally.

    A person who knowingly violates 49 U.S.C. 5104(b) or Sec.  171.2(l) 
of this title or willfully or recklessly violates a requirement of the 
Federal hazardous material transportation law or a regulation, order, 
special permit, or approval issued thereunder shall be fined under 
title 18, United States Code, or imprisoned for not more than 5 years, 
or both, except the maximum amount of imprisonment shall be 10 years in 
any case in which the violation involves the release of a hazardous 
material which results in death or bodily injury to any person.

0
7. Revise the first sentence of Sec.  209.133 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 another employee of FRA becomes aware of a 
possible knowing violation of 49 U.S.C. 5104(b) or a willful or 
reckless violation of the Federal hazardous materials transportation 
law or a regulation issued under those laws for which FRA exercises 
enforcement responsibility, he or she shall report it to the Chief 
Counsel. * * *

0
8. In appendix A to part 209, revise the first two sentences of the 
fourth paragraph under the heading ``Extraordinary Remedies'' to read 
as follows:

Appendix A to Part 209--Statement of Agency Policy Concerning 
Enforcement of the Federal Railroad Safety Laws

* * * * *

Extraordinary Remedies

* * * * *
    Criminal penalties are available for knowing violations of 49 
U.S.C. 5104(b), or for willful or reckless violations of the Federal 
hazardous materials transportation law or a regulation issued under 
that law. See 49 U.S.C. Chapter 51, and 49 CFR 209.131, 133. * * *
* * * * *

0
9. Amend Appendix B to part 209 as follows:
0
A. Revise the second sentence of the first paragraph of text;
0
B. Revise the last sentence of the second paragraph of text;
0
C. Revise the last sentence of the third paragraph of text;
0
D. Revise the table in its entirety.
    The revisions read as set forth below:

Appendix B to Part 209--Federal Railroad Administration Guidelines for 
Initial Hazardous Materials Assessments

    * * * 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 of the various violations routinely encountered by 
FRA inspectors on a scale of $250 to $50,000, except the maximum 
civil penalty is $100,000 if the violation results in death, serious 
illness or severe injury to any person, or substantial destruction 
of property, and a minimum $450 penalty applies to a violation 
related to training. * * *
    * * * When a violation of the Federal hazardous materials 
transportation law, an order issued thereunder, the Hazardous 
Materials Regulations or a special permit, approval, or order issued 
under those regulations results in death, serious illness or severe 
injury to any person, or substantial destruction of property, a 
maximum penalty of at least $50,000 and up to and including $100,000 
shall always be assessed initially.
    * * * In fact, FRA reserves the express authority to amend the 
NOPV to seek a penalty of up to $50,000 for each violation, and up 
to $100,000 for any violation resulting in death, serious illness or 
severe injury to any person, or substantial destruction of property, 
at any time prior to issuance of an order. FRA periodically makes 
minor updates and revisions to these guidelines, and the most 
current version may be found on FRA's Web site at http://www.fra.dot.gov.

                   Civil Penalty Assessment Guidelines
                        [As of December 26, 2006]
------------------------------------------------------------------------
                                                             Guideline
       Emergency  orders                                     amount\1\
------------------------------------------------------------------------
EO16...........................  Penalties for            Varies.
                                  violations of EO16
                                  vary depending on the
                                  circumstances.
EO17...........................  Penalties for            Varies.
                                  violations of EO17
                                  vary depending on the
                                  circumstances.
                                 Failure to file annual   $5,000.
                                  report.

[[Page 77296]]

 
EO23...........................  Penalties for            Varies.
                                  violations of EO23
                                  vary depending on the
                                  circumstances.
------------------------------------------------------------------------
\1\ Any person who violates an emergency order issued under the
  authority of 49 U.S.C. Ch. 201 is subject to a civil penalty of at
  least $500 and not more than $11,000 per violation, except that where
  a grossly negligent violation or a pattern of repeated violations has
  created an imminent hazard of death or injury to persons, or has
  caused a death or injury, a penalty not to exceed $27,000 per
  violation may be assessed. Each day that the violation continues is a
  separate offense. 49 U.S.C. 21301; 28 U.S.C. 2461, note.


----------------------------------------------------------------------------------------------------------------
              49 CFR section                       Description                    Guideline amount \2\
----------------------------------------------------------------------------------------------------------------
                                PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
----------------------------------------------------------------------------------------------------------------
107.608..................................  Failure to register or to    1,500.
                                            renew registration. (Note:
                                            registration--or renewal--
                                            is mitigation.).
107.620(d)...............................  Failure to show records on   2,000.
                                            proper request.
                                           Deliberate attempt to hide   Varies.
                                            records-considerable
                                            aggravation possible.
----------------------------------------------------------------------------------------------------------------
                                          PART 171--GENERAL REGULATIONS
----------------------------------------------------------------------------------------------------------------
171.2(a), (b), (c), (e), (f).............  General duty sections--may
                                            be cited in support of
                                            another, more specific
                                            citation to the actual
                                            regulatory section
                                            violated.
171.2(d).................................  Offering or accepting a      1,500.
                                            hazardous material (hazmat
                                            or HM) without being
                                            registered.
171.2(g).................................  Representing (marking,       8,000.
                                            certifying, selling, or
                                            offering) a packaging as
                                            meeting regulatory
                                            specification when it does
                                            not.
171.2(i).................................  Certifying that a hazardous  5,000.
                                            material is offered for
                                            transportation in commerce
                                            in accordance with the
                                            regulations (packaged,
                                            marked, labeled, etc.)
                                            when it is not. A more
                                            specific citation to the
                                            actual underlying
                                            regulation violated should
                                            be used instead of this
                                            section, or accompanying
                                            this section, if possible.
171.2(j).................................  Representing (by marking or  8,000.
                                            otherwise) that a
                                            container or package for
                                            transportation of a
                                            hazardous material is
                                            safe, certified, or in
                                            compliance with the
                                            regulations when it is not.
171.2(k).................................  Representing, marking, etc.  2,000.
                                            for the presence of HM
                                            when no HM is present.
                                            (Mitigation required for
                                            shipments smaller than a
                                            carload, e.g., single drum
                                            penalty is $1,000.)
171.2(l).................................  Tampering with (altering,    Varies--considerable aggravation
                                            removing, defacing, or       possible.
                                            destroying) any marking,
                                            label, placard, or
                                            description on a document
                                            required by hazmat law or
                                            regulations; unlawfully
                                            tampering with a package,
                                            container, motor vehicle,
                                            rail car, aircraft, or
                                            vessel used for the
                                            transportation of
                                            hazardous materials.
171.2(m).................................  Falsifying or altering an    Varies--considerable aggravation
                                            exemption, approval,         possible.
                                            registration, or other
                                            grant of authority issued
                                            under hazmat regulations.
                                            Offering or transporting a
                                            hazmat under an altered
                                            exemption, approval,
                                            registration, or other
                                            grant of authority without
                                            the consent of the issuing
                                            authority. Representing,
                                            marking, certifying, or
                                            selling a packaging or
                                            container under an altered
                                            exemption, approval,
                                            registration, or other
                                            grant of authority.
171.12...................................  Import shipments--Importer   4,000.
                                            not providing shipper and
                                            forwarding agent with U.S.
                                            requirements. Cannot be
                                            based on inference.
                                           Import shipments--Failure    2,000.
                                            to certify by shipper or
                                            forwarding agent.
171.15...................................  Failure to provide           6,000.
                                            immediate notice of
                                            certain hazardous
                                            materials incidents.
171.16...................................  Failure to file incident     4,000.
                                            report (form DOT 5800.1).
                                            (Multiple failures will
                                            aggravate the penalty.).
----------------------------------------------------------------------------------------------------------------
                                            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 Sec.
                                                Sec.   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.) Considerable aggravation of penalties under these sections
                                               is possible, particularly in case involving undeclared hazmat.
----------------------------------------------------------------------------------------------------------------
                                           --Undeclared shipment:       15,000.
                                            offering a hazardous
                                            material without shipping
                                            papers, package markings,
                                            labels, or placards (see
                                            also Sec.  Sec.   172.300,
                                            172.400, 172.500 for
                                            specific requirements).
                                           --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 hazardous    7,500.
                                            materials information on
                                            shipping paper. (Some
                                            shipping names alone
                                            contain sufficient
                                            information to reduce the
                                            guideline to the next
                                            lower level, but there 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.

[[Page 77297]]

 
                                           --When the improper          2,000.
                                            description is not likely
                                            to cause serious problem
                                            (technical defect).
                                           --Shipping paper includes a  7,500.
                                            hazardous material
                                            description and no
                                            hazardous material is
                                            present. (Technically,
                                            this is also a violation
                                            of Sec.   171.2(k); it is
                                            presented here as a
                                            convenience.).
                                           Failure to include emergency response information is covered at Sec.
                                            Sec.   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.
----------------------------------------------------------------------------------------------------------------
172.201(d)...............................  Failure to put emergency     4,000.
                                            response telephone number
                                            on shipping paper.
172.201(e)...............................  Failure to retain shipping   7,500.
                                            paper for required period
                                            (1 year if carrier, 2
                                            years if offeror).
172.204..................................  Offeror's failure to         2,000.
                                            certify.
172.205..................................  Hazardous waste manifest.    Parallel the penalties for Sec.  Sec.
                                            (Applies only to defects     172.200-.203, depending on
                                            in the Hazardous Waste       circumstances.
                                            Manifest form [EPA Form
                                            8700-22 and 8700-22A];
                                            shipping paper defects are
                                            cited and penalized under
                                            Sec.   172.200-.203.).
----------------------------------------------------------------------------------------------------------------
Marking:
----------------------------------------------------------------------------------------------------------------
    172.301..............................  Failure to mark a non-bulk   1,000.
                                            package as required (e.g.,
                                            no commodity name on a 55-
                                            gallon drum). (Shipment is
                                            the unit of violation.).
    172.302..............................  Failure to follow standards  2,000.
                                            for marking bulk packaging.
    172.302(a)...........................  ID number missing or in      2,500.
                                            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 correct   2,000.
                                            size of markings. (Note:
                                            If Sec.   172.326(a) is
                                            also cited, it takes
                                            precedence and Sec.
                                            172.302(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 exemption   2,000.
                                            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 and   10,000.
                                            caused or contributed to a
                                            wrong emergency response.
                                           --Use of a tank car          5,000.
                                            stenciled for one
                                            commodity to transport
                                            another.
                                           --Inconsistent marking;      5,000.
                                            e.g., shipping name and ID
                                            number do not agree.
                                           --Marked as a hazardous      2,000.
                                            material when package does
                                            not contain a hazardous
                                            material.
----------------------------------------------------------------------------------------------------------------
    172.304..............................  Obscured marking...........  2,000.
    172.313..............................  ``Inhalation Hazard'' not    2,500.
                                            marked.
    172.322..............................  Failure to mark for MARINE   1,500.
                                            POLLUTANT where required.
    172.325(a)...........................  Improper, or missing, HOT    1,500.
                                            mark for elevated
                                            temperature material.
    172.325(b)...........................  Improper or missing          2,500.
                                            commodity stencil.
    172.326(a)...........................  Failure to mark a portable   2,500.
                                            tank with the commodity
                                            name.
                                           Failure to have commodity    2,500.
                                            name visible (``legible'')
                                            when portable tank is
                                            loaded on intermodal
                                            equipment.
    172.326(b)...........................  Owner's/lessee's name not    500.
                                            displayed.
    172.326(c)...........................  Failure to mark portable     2,500.
                                            tank with ID number.
                                           Failure to have ID number    2,500.
                                            visible when portable tank
                                            is loaded on intermodal
                                            equipment.
    172.330(a)(1)(i).....................  Offering/transporting        2,500.
                                            hazardous material in a
                                            tank car that does not
                                            have the required ID
                                            number displayed on the
                                            car.
    172.330(a)(1)(ii)....................  Offering/transporting        2,500.
                                            hazardous material in a
                                            tank car that does not
                                            have the required shipping
                                            name or common name
                                            stenciled on the car. This
                                            section ``lists'' the
                                            materials that require
                                            such markings on the tank.
                                            For tank car marking
                                            requirements for molten
                                            aluminum and molten
                                            sulfur, see Sec.
                                            172.325(b).
    172.330(c)...........................  Failing to mark tank car as  2,500.
                                            NON-ODORIZED or NOT
                                            ODORIZED when offering/
                                            transporting tank car or
                                            multi-unit tank car
                                            containing unodorized LPG.
    172.331(b)...........................  Offering bulk packaging      2,500.
                                            other than a portable
                                            tank, cargo tank, or tank
                                            car (e.g., a hopper car)
                                            not marked with ID number.
                                            (E.g., a hopper car
                                            carrying a hazardous
                                            substance, where a placard
                                            is not required).
    172.332..............................  Improper display of          2,000.
                                            identification number
                                            markings. Citation of this
                                            section and Sec.  Sec.
                                            172.326(c) (portable
                                            tanks), 172.328 (cargo
                                            tanks), or 172.330 (tank
                                            cars) does not create two
                                            separate violations.
    172.334(a)...........................  Displaying ID numbers on a   4,000.
                                            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 ID     15,000.
                                            number that caused or
                                            contributed to a wrong
                                            emergency response.
                                           --Improper display of ID     5,000.
                                            number that could cause
                                            carrier mishandling or
                                            minor error in emergency
                                            response.
                                           --Technical error..........  2,000.
    172.334(f)...........................  Displaying ID number on      1,500.
                                            orange panel not in
                                            proximity to the placard.
----------------------------------------------------------------------------------------------------------------

[[Page 77298]]

 
Labeling:
----------------------------------------------------------------------------------------------------------------
    172.400-.406.........................  Failure to label properly.   2,500.
                                            (See also Sec.   172.301
                                            regarding the marking of
                                            packages.).
----------------------------------------------------------------------------------------------------------------
Placarding:
----------------------------------------------------------------------------------------------------------------
    172.502..............................  --Placarded as hazardous     2,000.
                                            material when car does not
                                            contain a hazardous
                                            material.
                                           --Hazardous material is      4,000.
                                            present, but the placard
                                            does not represent hazard
                                            of the contents.
                                           --Display of sign or device  2,000.
                                            that could be confused
                                            with regulatory placard.
                                            Photograph or good, clear
                                            description necessary.
    172.503..............................  Improper display of ID       See Sec.   172.334.
                                            number on placards.
----------------------------------------------------------------------------------------------------------------
    172.504(a)...........................  Failure to placard; affixing or displaying wrong placard. (See also
                                            Sec.  Sec.   172.502(a), 172.504(a), 172.505, 172.512, 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 (add   1,000.
                                            $1,000 per missing placard
                                            up to a total of three;
                                            then use the guideline
                                            above).
                                           --Complete failure to        2,500.
                                            placard, but only two (2)
                                            placards are required
                                            (e.g., intermediate bulk
                                            containers [IBCs]).
----------------------------------------------------------------------------------------------------------------
    172.504(b)...........................  Improper use of DANGEROUS    5,000.
                                            placard for mixed loads.
    172.504(c)...........................  Placarded for wrong hazard   2,000.
                                            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 caused    15,000.
                                            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 that      5,000.
                                            could cause improper
                                            emergency response or
                                            handling by carrier.
                                           --Technical violation......  2,500.
----------------------------------------------------------------------------------------------------------------
    172.505..............................  Improper application of      5,000.
                                            placards for subsidiary
                                            hazards. (This is in
                                            addition to any violation
                                            on the primary hazard
                                            placards.)
    172.508(a)...........................  Offering hazardous material  7,500.
                                            for rail transportation
                                            without affixing placards.
                                            (The preferred section for
                                            a total failure to placard
                                            is Sec.   172.504(a); only
                                            one section should be
                                            cited to avoid a dual
                                            penalty.) (Note also:
                                            Persons offering hazardous
                                            material for rail movement
                                            must affix placards; if
                                            offering for highway
                                            movement, the placards
                                            must be tendered to the
                                            carrier. Sec.   172.506.)
                                           One placard missing (per     1,000.
                                            car). (Add $1,000 per
                                            missing placard up to a
                                            total of three; if all
                                            placards are missing, the
                                            guideline above applies.)
                                           Placards OK, except they     500.
                                            were International
                                            Maritime Dangerous Goods
                                            (IMDG) labels instead of
                                            10'' placards. (Unit of
                                            violation is the
                                            packaging, usually a
                                            portable tank.)
                                           Placards on Container on     See Sec.   172.516.
                                            Flatcar/Trailer on Flatcar
                                            (TOFC/COFC) units not
                                            readily visible. (Sec.
                                            172.516 should be cited).
    172.508(b)...........................  Accepting hazardous          5,000.
                                            material for rail
                                            transportation without
                                            placards affixed.
    172.510(a)...........................  EXPLOSIVES 1.1, EXPLOSIVES   5,000.
                                            1.2, POISON GAS, (Division
                                            2.3, Hazard Zone A),
                                            POISON, (Division 6.1,
                                            Packing Group I, Hazard
                                            Zone A), or a Division 2.1
                                            material transported in a
                                            Class DOT 113 tank car,
                                            placards displayed without
                                            square background.
    172.512(a)...........................  Improper placarding of       Follow Sec.   172.504 guidelines.
                                            freight containers.
    172.514..............................  Improper placarding of bulk  2,000.
                                            packaging other than a
                                            tank car: For the
                                            ``exception'' packages in
                                            174.514(c). 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. 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.
                                          ----------------------------------------------------------------------
                                           --Note that, while placards on freight containers, portable tanks, or
                                            TOFC vehicles may be used in lieu of placards on the rail cars, if
                                            both are placarded, each must be done properly. Thus, for instance,
                                            EXPLOSIVES 1.1 placards on intermodal containers do not require
                                            white square backgrounds, but if the rail car carrying such a
                                            container is placarded, the white square background is required on
                                            the rail car.
                                          ----------------------------------------------------------------------
     172.519(b)(4).......................  Improper display of hazard   2,500.
                                            class on placard--primary
                                            hazard.

[[Page 77299]]

 
                                           Improper display of hazard   2,500.
                                            class on placard--
                                            secondary hazard.
                                          ----------------------------------------------------------------------
Emergency Response Information...........  Violations of Sec.  Sec.   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 (E/R) 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, the number was on the original shipping document.
                                            Considerable aggravation of the penalties under these sections is
                                            possible.
                                          ----------------------------------------------------------------------
    172.600-.602.........................  Where improper emergency     15,000.
                                            response information has
                                            caused an improper
                                            reaction from emergency
                                            forces and the improper
                                            response has aggravated
                                            the situation.
                                           Bad, missing, or improper    5,000.
                                            emergency response
                                            information that could
                                            cause a significant
                                            difference in response.
                                           Bad, missing, or improper    2,500.
                                            emergency response
                                            information not likely to
                                            cause a significant
                                            difference in response.
    172.602(c)...........................  Failure to have emergency    15,000.
                                            response information
                                            ``immediately
                                            accessible,'' resulting in
                                            delay or confusion in
                                            emergency response.
                                           Failure to have emergency    7,500.
                                            response information
                                            ``immediately accessible''
                                            with no negative effect on
                                            emergency response.
    172.604..............................  Emergency response
                                            telephone number.
                                           --Failure to include         4,000.
                                            emergency response
                                            telephone number on a
                                            shipping paper.
                                           --Listing an unauthorized,   4,000.
                                            incorrect, non-working, or
                                            unmonitored (24 hrs. a
                                            day) emergency response
                                            telephone number on a
                                            shipping paper.
----------------------------------------------------------------------------------------------------------------
Training.................................  NOTE: The statutory minimum penalty for training violations is $450.
----------------------------------------------------------------------------------------------------------------
    172.702(a)...........................  General failure to train     7,500.
                                            hazardous material
                                            employees.
    172.702(b)...........................  Hazardous material employee  1,000.
                                            performing covered
                                            function without training.
                                            (Unit of violation is the
                                            employee.)
    172.704(a)...........................  --Failure to train in a      2,500.
                                            required area:
                                           --General awareness/
                                            familiarization;
                                           --Function-specific;
                                           --Safety;
                                           --Security awareness;
                                           --In-depth security
                                            training.
                                           (Unit of violation is the
                                            ``area,'' per employee.
                                            For a total failure to
                                            train, Sec.   172.702(a)
                                            applies.)
    172.704(c)...........................  Initial and recurrent        Varies.
                                            training. (This section
                                            should be cited with the
                                            relevant substantive
                                            section, e.g., Sec.
                                            172.702(a), and use
                                            penalty provided there.)
    172.704(d)...........................  Failure to maintain record   2,500.
                                            of training. (Unit of
                                            violation is the
                                            employee.)
                                           There is some evidence of    4,000.
                                            training, but no (or
                                            inadequate) records and
                                            the employee demonstrates
                                            no or very little
                                            knowledge or skills in
                                            doing the job.
----------------------------------------------------------------------------------------------------------------
Security:
----------------------------------------------------------------------------------------------------------------
    172.800..............................  Total failure to develop     5,000 to 10,000.
                                            security plan. Factors to
                                            consider are the size of
                                            the entity (is it a small
                                            business?); the type of
                                            hazmat handled; and the
                                            quantities of hazmat
                                            handled. Aggravation
                                            should be considered, for
                                            example, if it is a large
                                            entity that handles
                                            significant quantities of
                                            chlorine or other toxic
                                            inhalation hazard (TIH)
                                            material.
                                           Failure to adhere to the     1,000 to 10,000.
                                            developed security plan--
                                            considerable aggravation
                                            possible. Factors to
                                            consider include size of
                                            entity, quantities and
                                            types of hazmat handled,
                                            number of security plan
                                            components not complied
                                            with.
    172.802(a)...........................  Failure to include each      2,000.
                                            required component in
                                            plan:
                                           --Personnel security;
                                           --Unauthorized access;
                                           --En route security.
                                           (Unit of violation is the
                                            ``area.'' For a total
                                            failure to have a security
                                            plan, cite Sec.   172.800
                                            and use that penalty
                                            instead of Sec.
                                            172.802.)
    172.802(b)...........................  Failure to have security     5,000.
                                            plan (or appropriate
                                            portions of it) available
                                            to implementing employees.
                                            (A failure to have the
                                            plan ``in writing'' is
                                            treated as a violation of
                                            the requirement to have a
                                            plan and cited under Sec.
                                             172.800, using that
                                            penalty.)
                                           Failure to revise/update     5,000.
                                            the plan. (The requirement
                                            to revise/update is based
                                            on ``changing
                                            circumstances.'' Specific,
                                            clear, and detailed
                                            explanations of the
                                            circumstances that changed
                                            will be necessary.)
                                           Failure to update all        5,000.
                                            copies of the plan to the
                                            current level (i.e. all
                                            copies should be
                                            identical). (As in the
                                            tank car quality control
                                            area, the requirement to
                                            conform copies applies
                                            only to the ``official''
                                            copies of the plan.
                                            Uncontrolled (and non-
                                            updated) copies of the
                                            security plan are not a
                                            violation if the
                                            uncontrolled copies are
                                            clearly marked as such.)
 

[[Page 77300]]

 
                       PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGES
----------------------------------------------------------------------------------------------------------------
General:
----------------------------------------------------------------------------------------------------------------
    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 transport  5,000.
                                            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 for    3,000.
                                            gases and for flammable
                                            liquids. See also Sec.
                                            Sec.   174.204 and 174.304.
----------------------------------------------------------------------------------------------------------------
Preparation of Hazardous Materials for Transportation:
----------------------------------------------------------------------------------------------------------------
    173.22...............................  Shipper responsibility:      See specific section.
                                            This general duty section
                                            should ordinarily be cited
                                            only to support a more
                                            specific charge.
    173.22a..............................  Improper use of packagings   2,500.
                                            authorized under exemption.
                                           Failure to maintain copy of  1,000.
                                            exemption as required.
----------------------------------------------------------------------------------------------------------------
    173.24(b)(1) and 173.24(b)(2) and      Securing closures: These subsections are the general ``no leak''
     173.24(f)(1) and 173.24(f)(1)(ii).     standard for all packagings. Sec.   173.24(b) deals primarily with
                                            packaging as a whole, while Sec.   173.24(f) focuses on closures.
                                            Use Sec.   173.31(d) for tank cars, when possible. 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 $50,000, and up to $100,000 if the violation results
                                            in death, serious illness or injury or substantial destruction of
                                            property. For intermodal (IM) portable tanks and other tanks of that
                                            size range, use the tank car penalty amounts, as stated in Sec.
                                            173.31.
                                          ----------------------------------------------------------------------
                                           --Small bottle or box......  1,000.
                                           --55-gallon drum...........  2,500.
                                           --Larger container, e.g.,    5,000.
                                            IBC; not portable tank or
                                            tank car.
                                           --IM portable tank, cite
                                            Sec.   173.24(f) and use
                                            the penalty amounts for
                                            tank cars: Residue,
                                            generally, Sec.
                                            173.29(a) and, loaded,
                                            Sec.   173.31(d).
                                           --Residue adhering to        5,000.
                                            outside of package (i.e.,
                                            portable tanks, tank cars,
                                            etc.).
----------------------------------------------------------------------------------------------------------------
    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
                                            $50,000, and up to $100,000 if the violation results in death,
                                            serious illness or injury or substantial destruction of property.
                                          ----------------------------------------------------------------------
                                           --Small bottle or box......  1,000.
                                           --55-gallon drum...........  2,500.
                                           --Larger container, e.g.,    5,000.
                                            IBC; not portable tank or
                                            tank car, but this section
                                            is applicable to a hopper
                                            car.
                                          ----------------------------------------------------------------------
                                           For more specific sections: Tank cars--Sec.   173.31(a), portable
                                            tanks--Sec.   173.32, and IM portable tanks--Sec.  Sec.
                                            173.32a,173.32b, and 173.32c.
----------------------------------------------------------------------------------------------------------------
    173.24a(a)(3)........................  Non-bulk packagings:         1,000.
                                            Failure to secure and
                                            cushion inner packagings.
                                           --Causes leak..............  5,000.
                                           --Leak with any contact      15,000.
                                            between product and any
                                            human being.
    173.24a(b) and (d)...................  Non-bulk packagings:         1,000.
                                            Exceeding filling limits.
                                           --Causes leak..............  5,000.
                                           --Leak with any contact      15,000.
                                            between product and any
                                            human being.
    173.24b(a)...........................  Insufficient outage:
                                           --<1%......................  3,000.
                                           --Causes leak..............  5,000.
                                           Outage <5% on PIH material.  5,000.
                                           --Causes leak..............  7,500.
                                           --Leak with any contact      15,000.
                                            between product and any
                                            human being.
    173.24b(d)(2)........................  Overloaded to exceed the     5,000.
                                            maximum weight of lading
                                            marked on the
                                            specification plate.
    173.26...............................  Loaded beyond gross weight   5,000.
                                            or capacity as stated in
                                            specification. (Applies
                                            only if quantity
                                            limitations do not appear
                                            in packaging requirements
                                            of part 173.) (For tank
                                            cars, see Sec.   179.13.)
                                            For gross weight and
                                            capacity requirements, see
                                            Sec.   179.13. Sec.
                                            173.26 should be the
                                            citation for the violation
                                            and civil penalty; Sec.
                                            179.13 can be cited as a
                                            reference section.
    173.28...............................  Improper reuse,              1,000.
                                            reconditioning, or
                                            remanufacture of
                                            packagings.
----------------------------------------------------------------------------------------------------------------

[[Page 77301]]

 
    173.29(a)............................  Offering residue tank car for transportation when openings are not
                                            tightly closed (Sec.   173.31(d) is also applicable for tank cars).
                                            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. In addition to the vapor pressure factor cited
                                            below, the RQ (reportable quantity) is a fair measure of the danger
                                            of a commodity to the environment. For RQ values <= 10, consider
                                            aggravating the penalties below by no less than 50 percent.
                                          ----------------------------------------------------------------------
                                           --Hazardous material with    2,000.
                                            insignificant vapor
                                            pressure and without
                                            classification as
                                            ``poison'' or ``inhalation
                                            hazard.''.
                                           --With actual leak.........  5,000.
                                           --With leak allowing the     15,000.
                                            product to contact any
                                            human being.
                                           --Hazardous material with    5,000.
                                            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 the     15,000.
                                            product (or fumes or
                                            vapors) to contact any
                                            human being. (In the case
                                            of fumes, the ``contact''
                                            must be substantial.).
                                           --Where only violation is    1,000.
                                            failure to secure a
                                            protective housing, e.g.,
                                            the covering for the
                                            gaging device.
----------------------------------------------------------------------------------------------------------------
    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.   173.249.............  7,500.
                                           Sec.   173.314.............  5,000.
                                           Sec.   173.315.............  5,000.
                                           Sec.   173.319.............  5,000.
                                           Sec.   173.320.............  5,000
                                           Sec.   173.323.............  7,500.
                                           --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.
                                           --Defect of greater          1,000.
                                            importance, e.g., safety
                                            valve tested, but test
                                            date not stenciled on
                                            valve.
                                           --Tank meets specification,  1,000.
                                            but specification is not
                                            stenciled on car. 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     2,500.
                                            according to Appendix C of
                                            the Tank Car Manual. The
                                            sub-reference is to Sec.
                                            179.22 which requires each
                                            tank car to be marked in
                                            accordance with Appendix C
                                            of the Tank Car Manual.
                                            For example, Appendix
                                            3.03(a)(5), requires
                                            marking of the tank ``NOT
                                            FOR FLAMMABLE LIQUIDS'' or
                                            ``NOT FOR FLAMMABLE OR
                                            POISONOUS LIQUIDS.''.
----------------------------------------------------------------------------------------------------------------
    173.31(a)(2).........................  Tank cars and appurtenances  7,500.
                                            used for a material not
                                            authorized on the
                                            certificate of
                                            construction (or by
                                            addendum on Association of
                                            American Railroads (AAR)
                                            form R-1).
    173.31(a)(3).........................  Filling a tank car overdue   7,500.
                                            for a periodic inspection
                                            with a hazardous material
                                            and then offering it for
                                            transportation. (Note:
                                            Offering a residue car,
                                            overdue for inspection, is
                                            not a violation; neither
                                            is filling the car--so
                                            long as it is not offered
                                            for transportation.)
                                            (Adjust penalty if less
                                            than one month or more
                                            than one year overdue.).
    173.31(a)(4).........................  Use of tank car without air  5,000.
                                            brake support attachments
                                            welded to pads..
    173.31(a)(5).........................  Use of a tank car with a     15,000.
                                            self-energized manway
                                            located below the liquid
                                            level of the lading.
    173.31(b)(1).........................  Use of DOT-specification     10,000.
                                            tank car, or any tank car
                                            used for transportation of
                                            a hazardous material,
                                            without shelf couplers.
                                           --Against a carrier, cite    6,000.
                                            Sec.   174.3 and this
                                            section..
    173.31(b)(2).........................  Tank car with nonreclosing   7,500.
                                            pressure relief device
                                            used to transport Class 2
                                            gases, Class 3 or 4
                                            liquids, or Division 6.1
                                            liquids, PG I or II.
                                          ----------------------------------------------------------------------
                                           Tank car has a nonreclosing  1,000.
                                            pressure relief device and
                                            the wrong pressure is
                                            stenciled on the tank.
                                            Cite this section where
                                            the standard in Sec.
                                            179.22(a) is not met and
                                            the respondent is other
                                            than the builder or
                                            manufacturer.
                                           Where either the rupture     5,000.
                                            disc is unmarked for
                                            pressure or manufacturer
                                            name or is marked but is
                                            of the wrong pressure.
                                            Cite this section for a
                                            violation of Sec.
                                            179.156(h) against other
                                            than the builder or
                                            manufacturer.

[[Page 77302]]

 
    173.31(b)(3).........................  Use of a tank car for the transportation of a hazardous material
                                            without the required tank-head protection. See paragraphs
                                            (b)(3)(iii) and (iv) for compliance periods.
----------------------------------------------------------------------------------------------------------------
                                           --Class 2..................  10,000.
                                           --Tank car constructed from  7,500.
                                            aluminum or nickel plate.
                                           --Against a carrier, cite    6,000.
                                            Sec.   174.3 and this
                                            section.
----------------------------------------------------------------------------------------------------------------
    173.31(b)(4).........................  Use of a tank car for the    10,000.
                                            transportation of a Class
                                            2 material without the
                                            required thermal
                                            protection. See paragraphs
                                            (b)(4)(i) for compliance
                                            periods.
    173.31(b)(5).........................  Use of a tank car for the    5,000.
                                            transportation of a
                                            hazardous material without
                                            the required bottom-
                                            discontinuity protection.
                                            See the paragraph for
                                            compliance periods.
    173.31(b)(6).........................  Failure to submit a          2,500.
                                            progress report to the FRA.
    173.31(c)............................  Use of a tank car with an    10,000.
                                            incorrect tank test
                                            pressure.
----------------------------------------------------------------------------------------------------------------
    173.31(d)............................  Offering a tank car for      5,000.
                                            transportation with a
                                            hazardous material, or a
                                            residue of a hazardous
                                            material, that is not in
                                            proper condition or that
                                            is unsafe for
                                            transportation. Sections
                                            173.24(b) and (f)
                                            establish a ``no-leak''
                                            design standard, and
                                            173.31 imposes that
                                            standard on operations. In
                                            addition to the vapor
                                            pressure factor cited
                                            below, the RQ (reportable
                                            quantity) is a fair
                                            measure of the danger of a
                                            commodity to the
                                            environment. For RQ values
                                            <= 10, consider
                                            aggravating the penalties
                                            below by no less than 50
                                            percent. The unit of
                                            violation is the car,
                                            aggravated if necessary
                                            for truly egregious
                                            condition.
                                          ----------------------------------------------------------------------
                                           Loaded car:
                                          ----------------------------------------------------------------------
                                           --Failure to inspect the     5,000.
                                            tank car, service
                                            equipment, or markings
                                            prior to offering the car
                                            for transportation.: If
                                            the failure to inspect
                                            resulted in a release of
                                            product, the appropriate
                                            penalty amount below
                                            applies.
                                           --With actual leak of        10,000.
                                            product.
                                           --With actual leak allowing  15,000.
                                            the product (or fumes or
                                            vapors) to contact any
                                            human being. (With safety
                                            vent, be careful because
                                            carrier might be at fault).
                                           --Minor violation, e.g.,     1,000.
                                            bottom outlet cap loose on
                                            tank car of molten sulfur
                                            (because product is a
                                            solid when shipped).
                                          ----------------------------------------------------------------------
                                           Residue car: (The penalties are the same as in 173.29(a).)
                                          ----------------------------------------------------------------------
                                           Offering residue tank car for transportation when openings are not
                                            tightly closed (Sec.   173.29(a) is also applicable for tank cars)
                                            Guidelines vary with the type of commodity involved:
                                          ----------------------------------------------------------------------
                                           --Hazardous material with    2,000.
                                            insignificant vapor
                                            pressure and without
                                            classification as
                                            ``poison'' or ``inhalation
                                            hazard.''.
                                           --With actual leak.........  5,000.
                                           --With leak allowing the     15,000.
                                            product to contact any
                                            human being.
                                           --Hazardous material with    5,000.
                                            vapor pressure (esentially
                                            any gas or compressed gas)
                                            and/or with classification
                                            as ``poison'' or
                                            ``inhalation hazard.''.
                                           --With actual leak.........  7,500.
                                           --With leak allowing the     15,000.
                                            product (or fumes or
                                            vapors) to contact any
                                            human being. (In the case
                                            of ``fumes,'' the
                                            ``contact'' must be
                                            substantial.).
                                          ----------------------------------------------------------------------
                                           Whether loaded or residue:
----------------------------------------------------------------------------------------------------------------
                                           --Where the only violation   1,000.
                                            is the failure to secure a
                                            protective housing, e.g.,
                                            the covering for the
                                            gaging device.
                                           --Where ``other              2,500 (Varies to account for
                                            conditions'' than a loose    seriousness).
                                            closure make a tank car
                                            not ``in proper condition
                                            for transportation''
                                            (e.g., loose ladders,
                                            seals thrown into safety
                                            valves, etc.).
----------------------------------------------------------------------------------------------------------------
    173.31(e)(1).........................  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(e)(2).........................  Use of a tank car for a      10,000.
                                            material poisonous by
                                            inhalation that does not
                                            meet the minimum
                                            specification i.e., 300
                                            pound tank test pressure,
                                            head protection, and a
                                            metal jacket.) See the
                                            paragraph for the
                                            compliance dates.
    173.31(f)............................  Use of a tank car for a      5,000.
                                            ``listed'' hazardous
                                            substance that does not
                                            meet the minimum
                                            specification (i.e., 200
                                            pound tank test pressure,
                                            head protection, and a
                                            metal jacket.): See the
                                            paragraph for the
                                            compliance dates and Sec.
                                             173.31(f)(2) for the list
                                            of hazardous substances.
    173.31(g)(1).........................  Unloading a tank car         4,000.
                                            without securing access to
                                            the track to prevent entry
                                            by other rail equipment.
                                            Derails, lined and blocked
                                            switches, or other
                                            equipment that provides
                                            equivalent level of
                                            security is acceptable.
    173.31(g)(2).........................  Unloading a tank car         2,000.
                                            without caution signs
                                            properly displayed. (See
                                            Part 218, Subpart B).

[[Page 77303]]

 
    173.31(g)(3).........................  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 wheels   5,000.
                                            blocked, or fewer brakes
                                            set/wheels blocked than
                                            facility's operating plan.
                                           --No brakes set, but wheels  3,000.
                                            blocked.
                                           --Brakes set, but wheels     4,000.
                                            not blocked.
----------------------------------------------------------------------------------------------------------------
    173.32(a)(1).........................  Using a portable tank for    5,000.
                                            transportation of
                                            hazardous materials, when
                                            tank does not meet
                                            regulatory requirements.
                                            (For loose closures or
                                            leaks on portable tanks
                                            use 173.24.).
    173.32(a)(2).........................  Filling and offering         5,000.
                                            portable tank when
                                            periodic test or
                                            inspection overdue.
----------------------------------------------------------------------------------------------------------------
Gases; Preparation and Packaging:
----------------------------------------------------------------------------------------------------------------
    173.314(c)...........................  Compressed gas loaded in     6,000.
                                            excess of filling density
                                            (same basic concept as
                                            insufficient outage).
    173.314(e) through (o)...............  Failure to comply with a     5,000.
                                            special requirement for a
                                            compressed gas.
----------------------------------------------------------------------------------------------------------------
                                           PART 174--CARRIAGE BY RAIL
----------------------------------------------------------------------------------------------------------------
General Requirements:
----------------------------------------------------------------------------------------------------------------
    174.3................................  Acceptance of improperly prepared shipment. This general duty section
                                            shall be accompanied by a citation to the specific section violated.
    174.9................................  Failure to properly inspect  For loaded car 5,000.
                                            a rail car containing a     For residue car 2,000.
                                            hazardous material when
                                            accepted for
                                            transportation or placed
                                            in a train: The carrier
                                            shall inspect the rail
                                            car, at ground level, for
                                            required markings, labels,
                                            placards, securement of
                                            closures and leakage. The
                                            inspection may be
                                            performed in conjunction
                                            with the inspections
                                            required under parts 215
                                            and 232. This requirement
                                            will not ``trigger'' an
                                            inspection and thereby
                                            require a train to be
                                            stopped. For example, in
                                            run-through train
                                            operations, the train crew
                                            of the receiving railroad
                                            simply assumes
                                            responsibility for the
                                            train from the delivering
                                            crew. Acceptance of
                                            responsibility includes
                                            the right to receive a
                                            penalty action for
                                            transporting a rail car
                                            with a non-complying
                                            condition. Note also that
                                            the presence of a non-
                                            complying condition by
                                            itself does not prove that
                                            there was a failure to
                                            inspect. See also Sec.
                                            174.50 for violations
                                            against the carrier for
                                            loose (visible from ground
                                            level) closures on cars.
    174.14...............................  Failure to expedite:         2,500.
                                            Violation of ``48-hour
                                            rule.''.
----------------------------------------------------------------------------------------------------------------
General Operating Requirements...........  This subpart (Subpart B) of Part 174 has two sections referring to
                                            shipment documentation: Sec.   174.24 relating to accepting
                                            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(a)............................  Accepting hazardous
                                            material shipment without
                                            properly prepared shipping
                                            paper. (The carrier's duty
                                            extends only to the
                                            document received, that
                                            is, a shipment of
                                            hazardous material in a
                                            non-placarded 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.
                                            material information that
                                            could cause delay or error
                                            in emergency response.
                                           --Total absence of           5,000.
                                            hazardous material
                                            information.
                                           --Technical errors, not      1,000.
                                            likely to cause problems,
                                            especially with emergency
                                            response.
                                           --Minor errors not relating  500.
                                            to hazardous material
                                            emergency response, e.g.,
                                            not listing an exemption
                                            number and the exemption
                                            is not one affecting
                                            emergency response.
                                          ----------------------------------------------------------------------
                                           Failure to include emergency response information is covered at Sec.
                                            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.
----------------------------------------------------------------------------------------------------------------
    174.24(b)............................  Failure to retain shipping   7,500.
                                            papers for one year.
                                            (Variation over a wide
                                            range is not unusual,
                                            depending upon
                                            circumstances.).

[[Page 77304]]

 
    174.26(a)............................  Train crew does not have a   6,000.
                                            document indicating
                                            position in train of each
                                            rail car containing a
                                            hazardous material.
                                            Routinely aggravate by 50%
                                            for Poison Gas, 2.3, and
                                            Explosives, 1.1 and 1.2.
                                            (Train is the unit of
                                            violation--this is
                                            generally going to be the
                                            consist list for a train.).
                                           Train crew has documents     2,000 to 4,000.
                                            described above but they
                                            have not updated the
                                            document to account for
                                            delivery or pickup of car
                                            or cars. Penalty amount
                                            may vary depending on the
                                            number of cars not listed
                                            or out of place, the
                                            number of places the cars
                                            are off, the type of
                                            commodity in the car, and
                                            the potential effects on
                                            safe handling of the cars
                                            or emergency response.
                                            (Each failure to update is
                                            a separate unit of
                                            violation--if the crew
                                            picked up one cut of cars
                                            and failed to update the
                                            document, that would be
                                            one unit of violation. The
                                            ``update'' requirement
                                            only matures when the crew
                                            has placed the cars into
                                            the train--or removed them
                                            from the train--re-laced
                                            the air hoses, and are
                                            ready to depart.).
----------------------------------------------------------------------------------------------------------------
    174.26(b)............................  Improper paperwork in possession of train crew. (Shipment is unit of
                                            violation, although there is justification for making it the train
                                            if a unified consist [e.g. one that shows both train car order and
                                            hazmat information] is used to carry this information and the
                                            violation is a pattern one throughout all, or almost all, of the
                                            hazardous material shipments. For intermodal traffic, ``shipment''
                                            can mean the container or trailer--e.g., a UPS trailer with several
                                            non-disclosed hazardous material 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.
                                           --Information is present     3,000.
                                            and wrong, but without
                                            adverse emergency response
                                            effect (e.g. insignificant
                                            error in shipping name for
                                            the hazmat; name is
                                            incorrect but the
                                            emergency response would
                                            be the same).
                                           --Total lack of hazardous    7,500.
                                            material information on
                                            movement document. (Some
                                            shipping names alone
                                            contain sufficient
                                            information to reduce the
                                            guideline to the next
                                            lower level, but there 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.
                                            172.203(e)(2).
                                           --Improper information, but  3,000.
                                            the hazardous material are
                                            small shipments (e.g., UPS
                                            moves) and PG III (e.g.,
                                            the ``low hazard''
                                            material allowed in TOFC/
                                            COFC service without an
                                            exemption since HM-197).
                                           --Lack of emergency          4,000.
                                            response phone number.
                                           --Technical defect or minor  500-1,000.
                                            error not likely to cause
                                            delay or error in
                                            emergency response or
                                            carrier handling.
----------------------------------------------------------------------------------------------------------------
    174.50...............................  Forwarding a bulk packaging  For loaded car 5,000.
                                            (e.g. a tank car) that no   For residue car 2,000.
                                            longer conforms to the
                                            hazmat regulations without
                                            first repairing the
                                            defect. This includes such
                                            non-conforming conditions
                                            as loose closures visible
                                            from ground level (e.g.
                                            loose bottom outlet caps),
                                            improper stenciling or
                                            marking.
                                           --Forwarding a leaking, or   5,000.
                                            non-conforming non-bulk
                                            package containing a
                                            hazardous material without
                                            repair or over-packing.
                                           --Forwarding a leaking bulk  10,000.
                                            package beyond the
                                            movement ``as necessary to
                                            reduce or to eliminate an
                                            immediate threat * * *.''
                                            Consider mitigation for
                                            low hazard HM (e.g., HOT)
                                            and for bulk packages
                                            smaller than tank cars.
                                           --Loss of product resulted   15,000.
                                            in human contact because
                                            of improper carrier
                                            handling.
                                           --Failure to obtain          7,500.
                                            movement approval from the
                                            FRA for the transportation
                                            of a bulk packaging that
                                            no longer conforms to the
                                            regulations.
                                           --Failure to follow          5,000.
                                            directives in a movement
                                            approval.
                                           --Failure to report          5,000.
                                            corrective actions (or any
                                            other reporting
                                            requirement in the
                                            movement approval).
----------------------------------------------------------------------------------------------------------------
General Handling and Loading Requirements:
----------------------------------------------------------------------------------------------------------------
    174.55...............................  Failure to block and brace as prescribed. (See also Sec.  Sec.
                                            174.61, 174.63, 174.101, 174.112, 174.115; where these more specific
                                            sections apply, cite them.) Note: The regulatory requirement is that
                                            hazardous material packages be loaded and securely blocked and
                                            braced to prevent the packages from changing position, falling or
                                            sliding into each other. If the load is tight and secure, pieces of
                                            lumber or other material may not be necessary to achieve the ``tight
                                            load'' requirement.
                                          ----------------------------------------------------------------------
                                           --General failure to block   5,000.
                                            and brace.
                                           --Inadequate blocking and    2,500.
                                            bracing (an attempt was
                                            made but blocking/bracing
                                            was insufficient).
                                           --Inadequate blocking and    7,500.
                                            bracing leading to a leak.
                                           --Inadequate blocking and    15,000.
                                            bracing leading to a leak
                                            and human being contact.
----------------------------------------------------------------------------------------------------------------
    174.59...............................  Other specific placarding and marking sections may also be
                                            applicable.

[[Page 77305]]

 
                                           Marking and placarding. A railroad's placarding duties are to not
                                            accept a car without placards [Sec.   172.508(b)], 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.   174.9]. 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 material 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, Sec.  Sec.   172.600-172.604, and
                                            investigation may reveal that those sections should be cited instead
                                            of this one.)
                                          ----------------------------------------------------------------------
                                           --Complete failure to        7,500.
                                            placard or to replace
                                            missing placards.
                                           --One placard missing (per   1,000.
                                            car). (Add $1,000 per
                                            missing placard up to a
                                            total of three; then use
                                            the guideline above).
                                          ----------------------------------------------------------------------
                                           For other placarding violations, see Sec.  Sec.   172.500-.560 and
                                            determine if one of them more correctly states the violation. For
                                            marking violations, see Sec.  Sec.   172.300-.338 and determine if
                                            one of them more correctly states the violation. Note that marking
                                            violations, except for the UN number, are generally applicable to
                                            the shipper/offeror.
----------------------------------------------------------------------------------------------------------------
    174.61...............................  Improper transportation of   3,000.
                                            transport vehicle or
                                            freight container on flat
                                            car. (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) and (c)....................  --Improper transportation    3,000.
                                            of portable tank or other
                                            bulk packaging in TOFC/
                                            COFC service.
                                           --Portable tank double       5,000.
                                            stacked with container
                                            above or below. (Sec.
                                            174.63(c)(5)(i).).
                                           --Portable tank transported  3,000.
                                            in a well car with its
                                            outlet valve facing
                                            inward. (Sec.
                                            174.63(c)(5)(ii).).
                                           --Portable tank transported  5,000.
                                            without securement
                                            fittings engaged and
                                            locked or void filling
                                            devices not properly
                                            deployed.
                                           --Improper transportation    7,500.
                                            leading to a release of
                                            product.
                                           --Improper transportation    15,000.
                                            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 secure  5,000.
                                           --Inadequate securement (an  2,500.
                                            attempt to secure was made
                                            but the means of
                                            securement were
                                            inadequate).
                                           --Inadequate securement      7,500.
                                            leading to a leak.
                                           --Inadequate securement      15,000.
                                            leading to a leak and
                                            human being contact.
----------------------------------------------------------------------------------------------------------------
    174.63(e)............................  Transportation of cargo      7,500.
                                            tank or multi-unit tank
                                            car tank in TOFC or COFC
                                            service without
                                            authorization and in the
                                            absence of an emergency.
    174.67(a)(1).........................  Tank car transloading        5,000.
                                            operations performed by
                                            persons not properly
                                            instructed (case cannot be
                                            based on inference).
                                            (Note: for all
                                            transloading requirements,
                                            there must be clear
                                            evidence that the hazmat
                                            shipment is continuing in
                                            transportation by another
                                            mode. For example,
                                            shipping papers show
                                            another destination than
                                            the one where the tank car
                                            is being unloaded/
                                            transloaded, and the
                                            contents of the tank car
                                            are being transloaded into
                                            a highway tank truck.
                                            Otherwise, the tank car
                                            unloading requirements
                                            contained in section
                                            173.31(g) apply).
----------------------------------------------------------------------------------------------------------------
    174.67(a)(2).........................  Unloading/transloading hazmat 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 wheels   5,000.
                                            blocked, or fewer brakes
                                            set/wheels blocked than
                                            facility's operating plan.
                                           --No brakes set, but wheels  3,000.
                                            blocked.
                                           --Brakes set, but wheels     4,000.
                                            not blocked.
----------------------------------------------------------------------------------------------------------------
    174.67(a)(3).........................  Unloading/transloading       4,000.
                                            without securing access to
                                            the track to prevent entry
                                            by other rail equipment.
                                            Derails, lined and blocked
                                            switches, or other
                                            equipment that provides
                                            equivalent level of
                                            security is acceptable.
    174.67(a)(4).........................  Unloading/transloading       2,000.
                                            without caution signs
                                            properly displayed. (See
                                            Part 218, Subpart B).
    174.67(a)(5).........................  Failure of transloading      2,500.
                                            facility to maintain
                                            written safety procedures
                                            (such as those it may
                                            already be required to
                                            maintain pursuant to the
                                            Department of Labor's
                                            Occupational Safety and
                                            Health Administration
                                            requirements in 29 CFR
                                            1910.119 and 1910.120) in
                                            a location where they are
                                            immediately available to
                                            hazmat employees
                                            responsible for the
                                            transloading operation.
                                          ----------------------------------------------------------------------

[[Page 77306]]

 
    174.67(c)(2).........................  Failure to use non-metallic block to prop manway cover open while
                                            unloading through bottom outlet.
                                          ----------------------------------------------------------------------
                                           --Flammable or combustible   3,000.
                                            liquid, or other product
                                            with a vapor flash point
                                            hazard.
                                           --Material with no vapor     500.
                                            flammability hazard.
    174.67(h)............................  Insecure unloading           10,000.
                                            connections, resulting in
                                            actual leak of product.
                                           Insecure unloading           5,000.
                                            connections, no leak of
                                            product.
    174.67(i)............................  Unattended/unmonitored       5,000.
                                            unloading. Tank car must
                                            be attended by a
                                            designated employee or
                                            monitored by a signaling
                                            system.
    174.67(j)............................  Noncompliance with piping    2,000.
                                            requirements.
                                          ----------------------------------------------------------------------
    174.67(k)............................  Failure to comply with requirements for leaving tank car unloading
                                            connections attached.
                                          ----------------------------------------------------------------------
                                           --Hazardous material with    2,000.
                                            insignificant vapor
                                            pressure and without
                                            classification as
                                            ``poison'' or ``inhalation
                                            hazard.'' (One count can
                                            be assessed for each
                                            element not followed. May
                                            also assess per tank car
                                            if more than one is
                                            involved in violation)..
                                           --With actual leak.........  5,000.
                                           --With leak allowing the     15,000.
                                            product to contact any
                                            human being.
                                           --Hazardous material with    5,000.
                                            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 the     15,000.
                                            product (or fumes or
                                            vapors) to contact any
                                            human being). Contact with
                                            ``fumes'' must be
                                            substantial.
    174.67(l)............................  Failure to remove            2,000.
                                            connections, tighten all
                                            valves with a ``suitable
                                            tool'' and tighten all
                                            other closures once
                                            unloading is complete.
    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).
----------------------------------------------------------------------------------------------------------------
Handling of Placarded Rail Cars, Transport Vehicles and Freight Containers:
----------------------------------------------------------------------------------------------------------------
    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 1.1/1.2   8,000.
                                            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 two
                                            (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.
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½----------------------------------------------------------------------
                                           Placard Group 1--Division 1.1/1.2 materials (Class A explosive) See
                                            chart at Sec.   174.85.
                                          ----------------------------------------------------------------------
                                           --Fewer than six (6) cars    8,000.
                                            (where train length
                                            permits) from engine or
                                            occupied caboose.
                                           --As above but with at       7,000.
                                            least one (1) buffer.
                                           --No buffer at all (where    8,000.
                                            train length doesn't
                                            permit five (5) cars).
                                           --Next to open top car or    7,000.
                                            car with permanent
                                            bulkheads, where lading
                                            extends beyond car ends/
                                            bulkheads or, if shifted,
                                            would be beyond car ends/
                                            bulkheads.
                                           --Next to loaded flat car,   6,000.
                                            except closed TOFC/COFC
                                            equipment, auto carriers,
                                            specially equipped car
                                            with tie-down devices.
                                           --Next to operating          7,000.
                                            temperature-control
                                            equipment or internal
                                            combustion engine in
                                            operation.
                                           --Next to placarded car,     7,000.
                                            except one from same
                                            placard group or
                                            COMBUSTIBLE.
                                          ----------------------------------------------------------------------
                                           Placard Group 2--Division 1.3/1.4/1.5 (Class B and C explosives);
                                            Division 2.1/2.2 (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). See chart at Sec.   174.85.
                                          ----------------------------------------------------------------------
                                           For tank cars:
                                          ----------------------------------------------------------------------
                                           --Fewer than six (6) cars    6,000.
                                            (where train length
                                            permits) from engine or
                                            occupied caboose.
                                           --As above but with at       5,000.
                                            least one (1) buffer.
                                           No buffer at all (where      6,000.
                                            train length doesn't
                                            permit five (5)).
                                           --Next to open top car or    5,000.
                                            car with permanent
                                            bulkheads, where lading
                                            extends beyond car ends/
                                            bulkheads or, if shifted,
                                            would be beyond car ends/
                                            bulkheads.

[[Page 77307]]

 
                                           --Next to loaded flat car,   5,000.
                                            except closed TOFC/COFC
                                            equipment, auto carriers,
                                            specially equipped car
                                            with tie-down devices.
                                           --Next to operating          5,000.
                                            temperature-control
                                            equipment or internal
                                            combustion engine in
                                            operation.
                                           --Next to placarded car,     5,000.
                                            except one from same
                                            placard group or
                                            COMBUSTIBLE.
                                          ----------------------------------------------------------------------
                                           For other rail cars:
                                          ----------------------------------------------------------------------
                                           --Next to placarded car,     5,000.
                                            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 six (6) cars    8,000.
                                            (where train length
                                            permits) from engine or
                                            occupied caboose.
                                           --As above but with at       7,000.
                                            least one (1) buffer
                                           No buffer at all (where      8,000.
                                            train length doesn't
                                            permit five (5)).
                                           --Next to open top car or    7,000.
                                            car with permanent
                                            bulkheads, where lading
                                            extends beyond car ends/
                                            bulkheads or, if shifted,
                                            would be beyond car ends/
                                            bulkheads.
                                           --Next to loaded flat car,   6,000.
                                            except closed TOFC/COFC
                                            equipment, auto carriers,
                                            specially equipped car
                                            with tie-down devices.
                                           --Next to operating          7,000.
                                            temperature-control
                                            equipment or internal
                                            combustion engine in
                                            operation.
                                           --Next to placarded car,     7,000.
                                            except one from same
                                            placard group or
                                            COMBUSTIBLE.
                                          ----------------------------------------------------------------------
                                           For other rail cars:
                                          ----------------------------------------------------------------------
                                           --Next to placarded car,     5,000.
                                            except one from same
                                            placard group or
                                            COMBUSTIBLE.
                                          ----------------------------------------------------------------------
                                           Placard Group 4--Class 7 (radioactive) materials
                                          ----------------------------------------------------------------------
                                           For rail cars:
                                          ----------------------------------------------------------------------
                                           --Next to locomotive or      8,000.
                                            occupied caboose.
                                           --Next to placarded car,     5,000.
                                            except one from same
                                            placard group or
                                            COMBUSTIBLE.
                                           --Next to carload of         3,000.
                                            undeveloped film.
----------------------------------------------------------------------------------------------------------------
    174.86...............................  Exceeding maximum allowable  3,000.
                                            operating speed (15 mph)
                                            while transporting molten
                                            metals or molten glass.
----------------------------------------------------------------------------------------------------------------
Class 1 (Explosive) Materials:
----------------------------------------------------------------------------------------------------------------
    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 (add   1,000.
                                            $1,000 per missing placard
                                            up to a total of three,
                                            then use the guideline
                                            above).
    174.104(b)...........................  Car used to transport        5,000.
                                            Division 1.1 or 1.2
                                            materials does not meet
                                            requirements. (Aggravation
                                            to be considered, and may
                                            be considerable, for
                                            multiple failures to meet
                                            requirements.).
    174.104(c)...........................  Failure to inspect and       7,500.
                                            certify car before placing
                                            for loading with Division
                                            1.1 or 1.2 materials.
    174.104(e)...........................  Failure to supervise the     5,000.
                                            loading and securement of
                                            a container (of Division
                                            1.1 or 1.2 materials) on a
                                            flat car and failure to
                                            certify the car. (Unit of
                                            violation is the
                                            container.).
    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, two (2) are
                                            required.)
----------------------------------------------------------------------------------------------------------------
Detailed Requirements for Class 2 (Gases) Materials:
----------------------------------------------------------------------------------------------------------------
    174.204..............................  Improper tank car delivery   3,000.
                                            of gases (Class 2
                                            materials).
----------------------------------------------------------------------------------------------------------------
Detailed Requirements for Class 3 (Flammable Liquid) Materials:
----------------------------------------------------------------------------------------------------------------
    174.304..............................  Improper tank car delivery   3,000.
                                            of flammable liquids
                                            (Class 3 materials).
----------------------------------------------------------------------------------------------------------------
Detailed Requirements for Division 6.1 (Poisonous) Materials:
----------------------------------------------------------------------------------------------------------------
    174.600..............................  Improper tank car delivery   5,000.
                                            of materials extremely
                                            poisonous by inhalation
                                            (Division 2.3 Zone A or
                                            6.1 Zone A materials).
----------------------------------------------------------------------------------------------------------------

[[Page 77308]]

 
                                     PART 178--SPECIFICATIONS FOR PACKAGINGS
----------------------------------------------------------------------------------------------------------------
178.2(b).................................  Package not constructed according to specifications--also cite
                                            specific section not complied with.
                                          ----------------------------------------------------------------------
                                           --Bulk packages, including   8,000.
                                            portable tanks.
                                           --55-gallon drum...........  2,500.
                                           --Smaller package..........  1,000.
----------------------------------------------------------------------------------------------------------------
                                     PART 179--SPECIFICATIONS FOR TANK CARS
----------------------------------------------------------------------------------------------------------------
179.1(e).................................  Tank car not constructed     8,000.
                                            according to
                                            specifications--also cite
                                            section not complied with.
                                            (Part 179 violations are
                                            against the builder or
                                            repairer. Sections in this
                                            Part are often cited in
                                            conjunction with
                                            violations of Sec.  Sec.
                                            172.330 and 173.31(a) and
                                            (b) by shippers. In such
                                            cases, the part 179
                                            sections are cited as
                                            references, not as
                                            separate alleged
                                            violations.).
179.3....................................  Constructing tank car        10,000.
                                            without securing approval
                                            from Tank Car Committee.
179.5(a).................................  Failure to furnish a         7,500.
                                            Certificate of
                                            Construction before tank
                                            car is placed in service.
179.6....................................  Repair procedures not in     10,000.
                                            compliance with Appendix R
                                            of the Tank Car Manual.
                                          ----------------------------------------------------------------------
179.7....................................  Section 179.7 requires that each tank car facility have a quality
                                            assurance (QA) program that encompasses at least the elements in
                                            Sec.   179.7(b). A tank car facility is an entity that manufactures,
                                            repairs, inspects, tests, qualifies, or maintains a tank car to
                                            ensure that the tank car conforms to parts 179 and 180, or alters
                                            the certificate of construction of the car. As a rule, a facility
                                            ``qualifies'' a tank by ``inspecting'' it and then ``representing''
                                            it as meeting the standard. In addition to the following penalty
                                            amounts, the agency may ``recall'' all tanks qualified by the tank
                                            car facility during the period the facility failed to comply with
                                            the quality assurance requirements. See, for example, Sec.
                                            180.509(b)(4).
                                          ----------------------------------------------------------------------
                                           Total failure to have a      15,000.
                                            quality assurance program.
                                           Failure to perform           10,000.
                                            activities as a tank car
                                            facility other than in
                                            accordance with the
                                            quality assurance program.
                                            See 180.509(l) for
                                            applicability to tank car
                                            maintenance activities.
                                            Note that failures to
                                            perform ministerial
                                            activities such as
                                            updating the pages in a
                                            quality assurance manual
                                            or calibrating an
                                            instrument carry a lesser
                                            penalty (e.g. $2,500),
                                            unless they are the cause
                                            of a release or an injury
                                            or death.
                                           The quality assurance        7,500.
                                            program does not contain
                                            one or more of the
                                            elements in Sec.
                                            179.7(b). (The ``element''
                                            is the unit of violation.).
                                           Failure to provide written   7,500.
                                            procedures to its
                                            employees.
                                           Use of an employee to        10,000.
                                            perform nondestructive
                                            testing on a tank when
                                            that employee does not
                                            have the qualifications
                                            for that type of
                                            nondestructive testing.
179.11...................................  Use of an employee to        10,000.
                                            perform welding on a tank
                                            when that employee does
                                            not have the
                                            qualifications for that
                                            type of welding procedure.
                                            Note: also reference Sec.
                                            Sec.   179.100-9, 179.200-
                                            10, 179.220-10, 179.300-9,
                                            and 179.400-11 as
                                            appropriate.
179.13...................................  Tank cars may not be built   Varies. See 173.26 for overloaded cars.
                                            or converted to exceed
                                            34,500 gallons capacity or
                                            263,000 pounds gross
                                            weight on rail. This is
                                            the building specification
                                            only; for tank cars loaded
                                            beyond capacity or gross
                                            weight see 173.26.
179.15...................................  Pressure relief device       5,000.
                                            (e.g. rupture disc) that
                                            does not conform to the
                                            requirements (loaded car).
                                            May also cite 173.31(d).
179.201-3(a).............................  Failure to properly line a   7,500.
                                            rubber-lined tank car.
179.201-3(b).............................  Three possible violations    5,000.
                                            under this section:
                                           (1) Failure to produce
                                            report certifying that
                                            tank car and its equipment
                                            have been brought into
                                            compliance with
                                            specification. Must occur
                                            prior to lining tank car
                                            with rubber or rubber
                                            compound.
                                           (2) Failure of tank car
                                            liner to provide copy of
                                            report and certification
                                            that tank has been lined
                                            in compliance with specs
                                            to tank car owner.
                                           (3) Failure of tank car
                                            owner to retain reports of
                                            latest lining application
                                            until next re-lining has
                                            been accomplished and
                                            recorded.
----------------------------------------------------------------------------------------------------------------
                        PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS
----------------------------------------------------------------------------------------------------------------
180......................................  Part 180 prescribes the requirements applicable to any person that
                                            manufactures, fabricates, marks, maintains, repairs, inspects, or
                                            services tank cars to ensure that the tank cars are in proper
                                            condition for transportation. In addition to the following penalty
                                            amounts, the agency may ``recall'' all tanks qualified by the tank
                                            car facility during the period the facility failed to comply with
                                            the quality assurance requirements. See, for example, Sec.
                                            180.509(b)(4).
----------------------------------------------------------------------------------------------------------------
180.505..................................  This section brings the quality assurance requirements of Sec.
                                            179.7 (car construction) into the tank car maintenance arena. See
                                            Sec.   179.7 for penalty guidelines, cite this section and reference
                                            the applicable paragraph(s) or subparagraph(s). No dual penalty will
                                            apply. (Part 180 applies the construction standards of Part 179 to
                                            service life maintenance and requalification of tank cars.)
----------------------------------------------------------------------------------------------------------------
Tank car specific provisions:
----------------------------------------------------------------------------------------------------------------

[[Page 77309]]

 
    180.509(a)...........................  Failure to comply with requirements for inspection and test.
                                          ----------------------------------------------------------------------
                                           --Failure to mark a car      See Sec.   180.515.
                                            passing a periodic
                                            inspection and test.
                                           --Failure to prepare         See Sec.   180.517.
                                            written report for
                                            inspection and test
                                            performed under this
                                            section.
    180.509(b)...........................  Failure to perform           5,000.
                                            inspection and test when
                                            at least one of the
                                            qualifying conditions has
                                            been met.
    180.509(c)...........................  Failure to perform           5,000.
                                            inspection and test at
                                            specified interval.
    180.509(d)...........................  Failure to properly perform  7,500.
                                            visual inspection.
    180.509(e)...........................  Failure to properly perform  10,000.
                                            structural integrity
                                            inspection and test.
    180.509(f)...........................  Failure to properly perform  10,000.
                                            thickness test.
    180.509(h)...........................  Failure to properly inspect  7,500.
                                            safety systems.
    180.509(i)...........................  Failure to properly perform  10,000.
                                            lining and coating
                                            inspection and test.
    180.509(j)...........................  Failure to properly perform  7,500.
                                            leakage pressure test.
    180.509(l)...........................  Failure to perform           10,000.
                                            inspection and test in
                                            accordance with the
                                            quality assurance program.
                                            (Applies to all non-DOT
                                            specification tank cars as
                                            of July 1, 2000, but see
                                            Sec.   180.509(l)(3) for
                                            ``20-year'' cars. See also
                                            Sec.   179.7(f).).
    180.513..............................  Failure to repair the tank   10,000.
                                            according to Appendix R of
                                            the AAR Tank Car Manual.
                                           Use of an employee to        10,000.
                                            perform welding on a tank
                                            when that employee does
                                            not have the
                                            qualifications for that
                                            type of welding procedure.
    180.515..............................  Failure to mark the tank as  7,500.
                                            required.
    180.517..............................  Failure to report, record,   7,500.
                                            and retain required
                                            documentation.
----------------------------------------------------------------------------------------------------------------
Provisions for tank cars other than single unit tank car tanks:
----------------------------------------------------------------------------------------------------------------
    180.519(a)...........................  Failure to retest at         Cite 180.519(b)(5).
                                            required interval.
    180.519(b)(1)........................  Failure to perform           7,500.
                                            hydrostatic pressure/
                                            expansion test as required.
    180.519(b)(2)........................  Failure to perform interior  7,500.
                                            air pressure test as
                                            required.
    180.519(b)(3)........................  Failure to test pressure     7,500.
                                            relief valves as required.
    180.519(b)(4)........................  Failure to remove and        5,000.
                                            inspect frangible discs
                                            and fusible plugs.
    180.519(b)(5)........................  Failure to retest at         3,000.
                                            required interval.
    180.519(b)(6)........................  Failure to stamp tank as     5,000.
                                            required.
    180.519(c)...........................  Failure to visually inspect  5,000.
                                            as required.
                                           Failure to use competent     5,000.
                                            persons to perform visual
                                            inspection.
    180.519(d)...........................  Failure to record and        7,500.
                                            retain documentation.
                                            Mitigate/aggravate
                                            depending on the extent of
                                            the violation.
----------------------------------------------------------------------------------------------------------------
\2\ A person who knowingly violates the hazardous materials transportation law, or regulation, special permit,
  approval, or order issued thereunder, is subject to a civil penalty of at least $250 but not more than $50,000
  for each violation, except that the maximum civil penalty for a violation is $100,000 if the violation results
  in death, serious illness or severe injury to any person, or substantial destruction of property; and a
  minimum $450 civil penalty applies to a violation related to training. Each day that the violation continues
  is a separate offense. 49 U.S.C. 5123; 28 U.S.C. 2461, note.


    Issued in Washington, DC on December 14, 2006.
Joseph H. Boardman,
Administrator, Federal Railroad Administration.
 [FR Doc. E6-21850 Filed 12-22-06; 8:45 am]
BILLING CODE 4910-06-P