Federal Railroad Administration Enforcement of the Hazardous Materials Regulations: Penalty Guidelines

Federal RegisterJul 25, 1996

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 209

RIN 2130-AB00

Federal Railroad Administration Enforcement of the Hazardous

Materials Regulations: Penalty Guidelines

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Policy statement; final rule.

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SUMMARY: FRA is publishing the penalty guideline amounts it uses in

initial determinations of proposed civil penalty assessments for

documented violations of DOT's Hazardous Materials Regulations. This

action will make those against whom FRA enforces the Hazardous

Materials Regulations more aware of the potential consequences for

documented violations. FRA intends the publication of these penalty

guidelines to increase compliance with the Hazardous Materials

Regulations and, thereby, to enhance safety. FRA is also revising its

enforcement procedures to reflect the current statutory minimum and

maximum penalties for violations of the Federal hazardous materials

transportation safety laws.

EFFECTIVE DATE: These guidelines, and the final rule amendments, are

effective July 25, 1996.

FOR FURTHER INFORMATION CONTACT: Raymond V. Kasey, Hazardous Materials

Specialist, Office of Safety Assurance and Compliance, (202) 366-6769;

or Thomas A. Phemister, Trial Attorney, Office of the Chief Counsel,

(202) 366-0628, Federal Railroad Administration, U.S. Department of

Transportation, 400 Seventh Street, S.W., Washington, D.C. 20590.

SUPPLEMENTARY INFORMATION: FRA promulgates and enforces regulations

implementing the Federal railroad safety laws, 49 U.S.C. 20101 et seq.;

49 CFR 1.49, Parts 209, 213-240. For railroads and those who ship

hazardous materials by railroad, FRA enforces regulations implementing

the Federal hazardous materials transportation safety laws, 49 U.S.C.

5101 et seq.; 49 CFR 1.49(s), 107, 171-180. FRA works with its partner

DOT agency, the Research and Special Programs Administration (RSPA), in

the promulgation of railroad-oriented regulations implementing the

Federal hazardous materials transportation law.

In all areas of its railroad safety enforcement authority except

hazardous materials, FRA's traditional practice has been to issue a

penalty schedule

[[Page 38645]]

assigning to each particular regulation specific dollar amounts for

initial penalty assessments. The schedules generally constitute a

statement of agency policy and are ordinarily issued as an appendix to

the relevant part of the Code of Federal Regulations. The same has not

been true for FRA's enforcement of the Hazardous Materials Regulations

against railroads and those who ship by rail. Two main reasons

supported this policy. First, the Research and Special Programs

Administration (RSPA), in partnership with FRA, issues the Hazardous

Materials Regulations promulgated by the Department. On March 6, 1995,

RSPA published its own penalty guidelines (60 FR 12139), taking an

appropriate lead in this area. The guidelines issued by FRA today

complement RSPA's penalty guidelines, which together provide clear

direction to carriers and shippers in this unique intermodal area.

Second, the nature of hazardous materials transportation is such that a

simple penalty schedule (a violation of Sec. X equates to a penalty of

$Y), as used by FRA in most other areas of its enforcement activities,

can only cover the broad categories of violation and does not account

for the vast differences in the hazards between, for instance,

liquefied carbon dioxide and hydrocyanic acid. With the publication of

the guidelines in this document, FRA believes it has given its

customers counsel and direction that a mere schedule of monetary

penalties cannot convey.

Following discussions among the administrations and in response to

a request contained in Senate Report 103-150 that accompanied the

Department of Transportation and Related Agencies Appropriations Act,

1994, FRA has decided to publish an additional appendix to its

enforcement procedures at 49 CFR Part 209. Appendix A--Statement of

Agency Policy Concerning Enforcement of the Federal Railroad Safety

Laws--will continue as the fundamental repository of agency enforcement

policy; Appendix B, published with this notice, will augment it with

penalty guideline information specific to violations of the Hazardous

Materials Regulations. FRA's customers in the regulated community will

now be more aware of the specific potential civil penalty consequences

of not following the regulations, and teams from FRA's Office of Safety

Assurance and Compliance will have a flexible tool to foster

consistency in their recommendations for civil penalties.

FRA does not necessarily take a formal enforcement action every

time it discovers a deviation from the Federal railroad safety laws.

Under the Safety Assurance and Compliance Program announced by FRA in

1995, FRA's efforts are focused on producing safety results, not

imposing punishment. Many deficiencies can be corrected through a

simple conversation between the inspector and the shipper or carrier

personnel on scene. Correction of others may become the focus of FRA

outreach meetings or may be worked into corporate safety action plans.

However, when these efforts do not produce regulatory compliance and

safe practices or when FRA decides that enforcement action is called

for, it has a range of enforcement tools and has the authority to

choose those best suited to the circumstances. One of these tools (the

emergency order, under 49 U.S.C. 20104(a)) can be used to address an

immediate hazard even if no existing law has been violated.

Wide discretion in choosing the means of enforcement calls for

general guidelines to ensure effectiveness, fairness, and an acceptable

level of consistency. The purpose of guidelines is not to dictate

absolutely identical treatment of identical situations; that would be

an unrealistic ideal based on the false assumption that each of the

many variables going into an enforcement decision could objectively and

accurately be quantified. Instead, the purpose of the agency's

hazardous materials civil penalty guidelines is to control the

necessarily subjective elements of this process as much as is feasible

by requiring that those making enforcement decisions weigh the same

factors and make full use of objective information bearing on those

factors. In this way, the appropriate enforcement tool is applied,

responsible discretionary judgments are made, and an acceptable level

of consistency in similar situations is achieved.

FRA's Statement of Agency Policy Concerning Enforcement of the

Federal Railroad Safety Laws (49 CFR Part 209, Appendix A) stresses

that discretion begins at the field and regional levels: Inspectors

make initial determinations on the need for enforcement action, and

regional specialists play an active role in reviewing those

determinations with an eye toward effectiveness and consistency. Office

of Safety Assurance and Compliance headquarters personnel are

responsible for spotting national trends in the data that require

enforcement action and for providing guidance to the regional and field

staffs on difficult enforcement policy issues.

FRA's policy statement sets forth seven factors to be considered in

making enforcement decisions:

The inherent seriousness of the condition or action.

The kind and degree of potential safety hazard the

condition or action poses in light of the immediate factual situation.

Any actual harm to persons or property already caused by

the condition or action.

The offending person's general level of current compliance

as revealed by the inspection as a whole.

The person's recent history of compliance with the

relevant set of regulations, especially at the specific location (or

division of the railroad involved).

Which enforcement remedy is most appropriate under the

circumstances.

Such other factors as the immediate circumstances make

relevant.

Just as there are a series of considerations that inform the

decision to take enforcement action, so there are considerations to be

applied to determining the amount of a civil penalty. By statute, the

following are considered: (a) The nature, circumstances, extent, and

gravity of the violation; (b) with respect to the violator, the degree

of culpability, any history of violations, the ability to pay, and any

effect on the ability to continue to do business; and (c) other matters

as justice requires. (49 U.S.C. Secs. 5123(c) and 21301(a)(3).) FRA has

developed penalty guidelines for hazardous materials cases to aid in

applying these assessment criteria at the initial penalty assessment

stage, based on the information known about a particular case. Because

the guidelines in this notice are merely a general statement of agency

policy and practice, are non-binding, and are periodically updated,

they are being published as an informational appendix to FRA's

enforcement regulations, as Appendix B to 49 CFR Part 209. They are

published without public notice or comment because they are merely

informational, are not finally determinative of any issues or rights,

and do not have the force of law. For a discussion of relevant case

law, see the preamble to RSPA's publication of its penalty guidelines,

60 FR 12139.

The guidelines published in this notice are a preliminary

assessment tool used by FRA personnel, and they create no rights in any

party. They contain baseline amounts for violations that frequently

have been cited by FRA hazardous materials inspectors. When a violation

not described in the guidelines is encountered, a new guideline is

developed, typically by analogy to a similar violation in the

guidelines. Their application is a starting point to

[[Page 38646]]

promote consistency. No two cases are identical. The baseline amount or

range is an initial reflection of the nature, extent, circumstances,

and gravity of the violation as compared with other types of

violations. The FRA attorney can vary from the guidelines as necessary

to reflect a case's particular facts. This notice publishes the

guidelines as they existed on March 31, 1996; FRA plans to publish

updated and revised guidelines from time to time.

A respondent receives the first notice that FRA may be seeking

civil penalties when the FRA inspector informs him/her that a violation

will be recommended. If the inspector's report is approved by the

regional office and passes legal review in the Office of Chief Counsel,

the respondent will receive a Notice of Probable Violation (NOPV) in

which a charge of violation is made, accompanied by a summary of the

alleged violations and the penalty amounts FRA proposes. A separate

document sent with the NOPV lists the respondent's three options: Pay

the penalty proposed, seek an informal conference, or request a formal

hearing before a hearing officer. The election to pursue informal

resolution does not preclude respondent from later seeking a formal

hearing.

During the informal resolution process, the respondent and the FRA

attorney assigned to the case review any defenses or mitigating

information presented. The new information presented and arguments made

since the initial penalty assessment often leads to a re-evaluation of

the penalty in light of statutory considerations. One very important

factor is any remedial action taken by the respondent to prevent a

recurrence of similar violations. Following discussions between the FRA

attorney and the respondent, they typically reach an agreement on the

amount of penalty, if any, to be paid. FRA's findings of fact and the

agreement on the penalty amount are then memorialized in an Order

Assessing Civil Penalty. The respondent pays the penalty, and the case

is closed. Under FRA's procedures, the respondent who will not agree to

a compromise settlement can request a formal hearing.

If the respondent makes such a request, the matter is assigned to a

hearing officer who hears both sides and renders a decision. FRA

retains the right to amend its NOPV prior to hearing and to seek the

maximum statutory amount for each violation. If the decision is against

the respondent, the hearing officer is bound only by the statutory

maximum and minimum civil penalty amounts and the statutory penalty

considerations.

To summarize, the FRA guidelines consist of a listing of violations

and the baseline penalty, or range of penalties, proposed for each as

of March 31, 1996. The guidelines presuppose flexibility in their

application, and FRA proposes to re-publish the then-current guidelines

as appropriate.

The Hazardous Materials Transportation Uniform Safety Act of 1990

(P.L. 101-615), March 16, 1990) amended the penalty provisions for

violations of the Federal hazardous materials transportation safety

laws. The maximum penalty had been $10,000; the 1990 Act increased it

to $25,000 and established a minimum of $250. Accordingly, FRA is

amending the statutory references and minimum and maximum penalty

amounts in its enforcement procedures to reflect current law. FRA also

clarifies that its authority to amend an NOPV at any time prior to

issuance of an order includes authority to amend the proposed penalty

to the statutory maximum. Finally, FRA makes technical amendments to

reflect recodification of the Federal railroad safety laws by Pub. L.

103-272. These amendments affect 49 CFR 209.101, 209.103, 209.105,

209.131, 209.133, and 209.201.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866. This rule is not

significant under the Regulatory Policies and Procedures of the

Department of Transportation (44 FR 11034). The economic impact of this

final rule is minimal to the extent that preparation of a regulatory

evaluation is not warranted.

Executive Order 12612

This final rule merely updates recodified statutory references in a

portion of the CFR; no requirements are changed as a result. The policy

statement is an informational appendix and imposes no requirements.

Thus, preparation of a federalism assessment is not warranted.

Regulatory Flexibility Act

I certify that this final rule will not have a significant economic

impact on a substantial number of small entities. This rule applies to

shippers of hazardous materials by railroad, to manufacturers of

packagings used for the transportation of hazardous materials by

railroad, and to railroads. Some of these are small entities; however,

there will be no significant economic impact.

Paperwork Reduction Act

There are no new information requirements in this final rule.

List of Subjects in 49 CFR Part 209

Administrative practices and procedure, Hazardous materials

transportation, Penalties, Reporting and recordkeeping requirements.

In consideration of the foregoing, 49 CFR Part 209 is amended as

follows:

PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES

1. The authority citation for part 209 continues to read as

follows:

Authority: 49 U.S.C. Chs. 51, 57, 201, and 213; 49 CFR 1.49.

2. Section 209.101(a) is revised to read as follows:

Sec. 209.101 Civil penalties generally.

(a) Sections 209.101 through 209.121 prescribe rules of procedure

for the assessment of civil penalties pursuant to the Federal hazardous

materials transportation safety law, 49 U.S.C. Chapter 51.

* * * * *

3. Section 209.103 is revised to read as follows:

Sec. 209.103 Minimum and maximum penalties.

A person who knowingly violates a requirement of subchapter A or C

of chapter I, Subtitle B of this title is liable for a civil penalty of

at least $250 but not more than $25,000 for each violation. When the

violation is a continuing one, each day of the violation constitutes a

separate offense. 49 U.S.C. 5123.

4. Section 209.105 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 209.105 Notice of probable violation.

(a) FRA, through the Chief Counsel, begins a civil penalty

proceeding by serving a notice of probable violation on a person

charging him or her with having violated one or more provisions of

subchapter A or C of chapter I, subtitle B of this title. Appendix B to

this part contains guidelines used by the chief counsel in making

initial penalty assessments.

* * * * *

prior to the entry of an order assessing a civil penalty. If the

amendment contains any

[[Page 38647]]

new material allegation of fact, the respondent is given an opportunity

to respond. In an amended notice, FRA may change the penalty amount

proposed to be assessed up to and including the maximum penalty amount

of $25,000 for each violation.

5. Section 209.131 is revised to read as follows:

Sec. 209.131 Criminal penalties generally.

The Federal hazardous materials transportation safety laws (49

U.S.C. 5124) provide a criminal penalty of a fine under title 18,

United States Code, and imprisonment for not more than 5 years, or

both, for any person who knowingly violates 49 U.S.C. 5104(b) or who

willfully violates chapter 51 of title 49, United States Code, or a

regulation prescribed or order issued under that chapter.

6. Section 209.133 is revised to read as follows:

Sec. 209.133 Referral for prosecution.

If an inspector, including a certified state inspector under Part

212 of this chapter, or other employee of FRA becomes aware of a

possible willful violation of the Federal hazardous materials

transportation safety laws (49 U.S.C. Chapter 51) or a regulation

issued under those laws for which FRA exercises enforcement

responsibility, he or she reports it to the Chief Counsel. If evidence

exists tending to establish a prima facie case, and if it appears that

assessment of a civil penalty would not be an adequate deterrent to

future violations, the Chief Counsel refers the report to the

Department of Justice for criminal prosecution of the offender.

7. Section 209.201 is revised to read as follows:

Sec. 209.201 Compliance orders generally.

(a) This subpart prescribes rules of procedure leading to the

issuance of compliance orders pursuant to the Federal railroad safety

laws at 49 U.S.C. 5121(a) and/or 20111(b).

(b) The FRA may commence a proceeding under this subpart when FRA

has reason to believe that a person is engaging in conduct or a pattern

of conduct that involves one or more violations of the Federal railroad

safety laws or any regulation or order issued under those laws for

which FRA exercises enforcement authority.

8. Appendix B is added to Part 209 to read as follows:

Appendix B to Part 209--Federal Railroad Administration Guidelines

for Initial Hazardous Materials Assessments

These guidelines establish benchmarks to be used in determining

initial civil penalty assessments for violations of the Hazardous

Materials Regulations (HMR). The guideline penalty amounts reflect

the best judgment of the FRA Office of Safety Assurance and

Compliance (RRS) and of the Safety Law Division of the Office of

Chief Counsel (RCC) on the relative severity, on a scale of $250 to

$25,000, of the various violations routinely encountered by FRA

inspectors. (49 U.S.C. 5123) Unless otherwise specified, the

guideline amounts refer to average violations, that is, violations

involving a hazardous material with a medium level of hazard, and a

violator with an average compliance history. In an ``average

violation,'' the respondent has committed the acts due to a failure

to exercise reasonable care under the circumstances (``knowingly'').

For some sections, the guidelines contain a breakdown according to

relative severity of the violation, for example, the guidelines for

shipping paper violations at 49 CFR Secs. 172.200-.203. All

penalties in these guidelines are subject to change depending upon

the circumstances of the particular case. The general duty sections,

for example Secs. 173.1 and 174.7, are not ordinarily cited as

separate violations; they are primarily used as explanatory

citations to demonstrate applicability of a more specific section

where applicability is otherwise unclear.

FRA believes that infractions of the regulations that lead to

personal injury are especially serious; this is directly in line

with Department of Transportation policy that hazardous materials

are only safe for transportation when they are securely sealed in a

proper package. (Some few containers, such as tank cars of carbon

dioxide, are designed to vent off excess internal pressure. They are

exceptions to the ``securely sealed'' rule.) ``Personal injury'' has

become somewhat of a term of art, especially in the fields of

occupational safety and of accident reporting. To avoid confusion,

these penalty guidelines use the notion of ``human contact'' to

trigger penalty aggravation. In essence, any contact by a hazardous

material on a person during transportation is a per se injury and

proof will not be required regarding the extent of the physical

contact or its consequences. When a violation of the Hazardous

Materials Regulations causes a death or serious injury, the maximum

penalty of $25,000 shall always be assessed initially.

These guidelines are a preliminary assessment tool for FRA's

use. They create no rights in any party. FRA is free to vary from

them when it deems appropriate and may amend them from time to time

without prior notice. Moreover, FRA is not bound by any amount it

initially proposes should litigation become necessary. In fact, FRA

reserves the express authority to amend the NOPV to seek a penalty

of up to $25,000 for each violation at any time prior to issuance of

an order.

Penalty Assessment Guidelines

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Emergency orders Guideline

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

EO16............................... Penalties for 5,000

violations of EO16

vary depending on the

circumstances.

EO17............................... Penalties for (\1\)

violations of EO17

vary depending on the

circumstances.

Failure to file annual 5,000

report.

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

\1\ Varies.

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

49 CFR section Description Guideline

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

PART 107

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

107.608............................ Failure to register or 1,000

to renew

registration. (Note:

registration--or

renewal--is

mitigation.).

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PART 171

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

171.2(c)........................... Representing (marking, 8,000

certifying, selling,

or offering) a

packaging as meeting

regulatory

specification when it

does not.

171.2(f)(2)........................ Billing, marking, etc. 2,000

for the presence of

HM when no HM is

present. (Mitigation

required for

shipments smaller

than a carload, i.e.,

single drum penalty

is 1,000).

171.12............................. Import shipments-- 4,000

Importer not

providing shipper and

forwarding agent with

US requirements.

Cannot be based on

inference.

Import shipments-- 2,000

Failure to certify by

shipper or forwarding

agent.

171.15............................. Failure to provide 6,000

immediate notice of

certain hazardous

materials incidents.

[[Page 38648]]

171.16............................. Failure to file 4,000

incident report (form

DOT 5800.1). (Note:

Multiple failures

will aggravate the

penalty; see the

expert attorney.).

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PART 172

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

Shipping Papers:

172.200--.203.................. Offering hazardous

materials for

transportation when

the material is not

properly described on

the shipping paper as

required by Secs.

172.200--.203. (The

``shipping paper'' is

the document tendered

by the shipper/

offeror to the

carrier. The original

shipping paper

contains the

shipper's

certification at Sec.

172.204.).

--Information on the 15,000

shipping paper is

wrong to the extent

that it caused or

materially

contributed to a

reaction by emergency

responders that

aggravated the

situation or caused

or materially

contributed to

improper handling by

the carrier that led

to or materially

contributed to a

product release.

--Total lack of 7,500

hazardous materials

information on

shipping paper. (Some

shipping names alone

contain sufficient

information to reduce

the guideline to the

next lower level, but

they may be such

dangerous products

that aggravation

needs to be

considered.).

--Some information is 5,000

present but the

missing or improper

description could

cause mishandling by

the carrier or a

delay or error in

emergency response.

--When the improper 2,000

description is not

likely to cause

serious problem

(technical defect).

--Shipping paper 7,500

includes a hazardous

materials description

and no hazardous

materials are present.

Note: Failure to

include emergency

response information

is covered at Secs.

172.600-604; while

the normal unit of

violation for

shipping papers is

the whole document,

failure to provide

emergency response

information is a

separate violation.

172.204........................ Shipper's failure to 2,000

certify.

172.205........................ Hazardous waste 4,000

manifest. (Applies

only to defects in

the Hazardous Waste

Manifest form [EPA

Form 8700-22 and 8700-

22A]; shipping paper

defects are cited and

penalized under Sec.

172.200-.203.).

Marking............................ The guidelines for

``marking''

violations

contemplate a total

lack of the

prescribed mark.

Obviously, where the

package (including a

whole car) is

partially marked,

mitigation should be

applied.

172.301........................ Failure to mark a non- 1,000

bulk package as

required (e.g., no

commodity name on a

55-gallon drum).

(Shipment is the unit

of violation.).

172.302........................ Failure to follow 2,000

standards for marking

bulk packaging.

(Note: If a more

specific section

applies, cite it and

its penalty

guideline.).

172.302(a)..................... ID number missing or 2,500

in improper location.

(The guideline is for

a portable tank; for

smaller bulk

packages, the

guideline should be

mitigated downward.).

172.302(b)..................... Failure to use the 2,000

correct size of

markings. (Note: If

Sec. 172.326(a) is

also cited, it takes

precedence and

.302(b) is not cited.

Note also: the

guideline is for a

gross violation of

marking size--\1/2\''

where 2'' is

required--and

mitigation should be

considered for

markings approaching

the required size.).

172.302(c)..................... Failure to place 2,000

exemption number

markings on bulk

package.

172.303........................ Prohibited marking.

(Package is marked

for a hazardous

material and contains

either another

hazardous material or

no hazardous

material.)

--The marking is wrong 10,000

and caused or

contributed to a

wrong emergency

response.

--Inconsistent 5,000

marking; e.g.,

Shipping name and ID

number do not agree.

--Marked as a 2,000

hazardous material

when package does not

contain a hazardous

material.

172.313........................ ''Inhalation Hazard'' 2,500

not marked.

172.322........................ Failure to mark for 1,500

MARINE POLLUTANT

where required.

172.325(a)..................... Improper, or missing, 1,500

HOT mark for elevated

temperature material.

172.326(a)..................... Failure to mark a 2,500

portable tank with

the commodity name.

172.326(b)..................... Owner's/lessee's name 500

not displayed.

172.326(c)..................... Failure to mark 2,500

portable tank with ID

number.

172.330(a)(1)(i)............... Offering/transporting 2,500

hazardous materials

in a tank car that

does not have the

required shipping

name or common name

stenciled on the car;

include reference to

section requiring

stenciling, such as

Sec. 173.314(b) (5)

or (6).

172.330(a)(1)(ii).............. Offering/transporting 2,500

hazardous materials

in a tank car that

does not have the

required ID number

displayed on the car.

172.331(b)..................... Offering bulk 2,500

packaging other than

a portable tank,

cargo tank, or tank

car (e.g., a hopper

car) not marked with

UN/NA number. (I.e.,

a hopper car carrying

a hazardous

substance, where a

placard is not

required).

172.332........................ Improper display of 2,000

identification number

markings. Note:

Citation of this

section and Secs.

172.326 (portable

tanks), 172.328

(cargo tanks), or

172.330 (tank cars)

does not create two

separate violations.

172.334(a)..................... Displaying ID numbers 4,000

on a RADIOACTIVE,

EXPLOSIVES

1.1,1.2,1.3,1.4,1.5,

or 1.6, or DANGEROUS,

or subsidiary hazard

placard.

172.334(b)..................... --Improper display of 15,000

ID number that caused

or contributed to a

wrong emergency

response.

--Improper display of 5,000

ID number that could

cause carrier

mishandling or minor

error in emergency

response.

--Technical error..... 2,000

172.334(f)..................... Displaying ID number 1,500

on orange panel not

in proximity to the

placard.

Labeling:

172.400-.450................... Failure to label 2,500

properly. (See also

Sec. 172.301

regarding the marking

of packages.).

[[Page 38649]]

Placarding......................... The guidelines for

``placarding''

violations

contemplate a total

lack of the

prescribed placard.

Obviously, where the

package (including a

whole car) is

partially placarded,

mitigation should be

applied.

172.502........................ --Placarded as 2,000

hazardous material

when car does not

contain a hazardous

material.

--Placard does not 2,000

represent hazard of

the contents.

--Display of sign or 2,000

device that could be

confused with

regulatory placard.

Photograph or good,

clear description

necessary.

172.503........................ Improper display of ID (\1\)

number on placards.

(Note: Do not cite

this section; cite

Sec. 172.334.).

172.504(a)..................... Failure to placard;

affixing or

displaying wrong

placard. (See also

Secs. 172.502(a),

172.504(a), 172.505,

172.510(c), 172.516,

174.33, 174.59,

174.69; all

applicable sections

should be cited, but

the penalty should be

set at the amount for

the violation most

directly in point.)

(Generally, the car

is the unit of

violation, and

penalties vary with

the number of errors,

typically at the rate

of $1,000 per

placard.)

--Complete failure to 7,500

placard.

--One placard missing 1,000

(add $1,000 per

missing placard up to

a total of three;

then use the

guideline above).

-- Complete failure to 2,500

placard, but only 2

placards are required

(e.g., intermediate

bulk containers

[IBCs]).

172.504(b)..................... Improper use of 5,000

DANGEROUS placard for

mixed loads.

172.504(c)..................... Placarded for wrong 2,000

hazard class when no

placard was required

due to 1,001 pound

exemption.

172.504(e)..................... Use of placard other

than as specified in

the table:

--Improper placard 15,000

caused or contributed

to improper reaction

by emergency response

forces or caused or

contributed to

improper handling by

carrier that led to a

product release.

--Improper placard 5,000

that could cause

improper emergency

response or handling

by carrier.

--Technical violation. 2,500

172.505........................ Improper application 5,000

of placards for

subsidiary hazards.

(Note: This is in

addition to any

violation on the

primary hazard

placards.).

172.508(a)..................... Offering hazardous 7,500

material for rail

transportation

without affixing

placards. (Note: The

preferred section for

a total failure to

placard is

172.504(a); only one

section should be

cited to avoid a dual

penalty.) (Note also:

Persons offering

hazardous materials

for rail movement

must affix placards;

if offering for

highway movement, the

placards must be

tendered to the

carrier. Sec.

172.506.).

Placards OK, except 500

they were IMDG labels

instead of 10''

placards. (Unit of

violation is the

packaging, usually a

portable tank.).

Placards on TOFC/COFC (\2\)

units not readily

visible. (Note: Do

not cite this

section, cite Sec.

172.516 instead.).

172.508(b)..................... Accepting hazardous 5,000

material for rail

transportation

without placards

affixed.

172.510(a)..................... EXPLOSIVES 1.1, 5,000

EXPLOSIVES 1.2,

POISON GAS, POISON

GAS-RESIDUE,

(Division 2.3, Hazard

Zone A), POISON, or

POISON-RESIDUE

(Division 6.1,

Packing Group I,

Hazard Zone A)

placards displayed

without square

background.

172.510(c)..................... Improper use of

RESIDUE placard.

--Placarded RESIDUE 4,000

when loaded.

--Placarded loaded 1,000

when car contains

only a residue.

--Placarded EMPTY when 500

RESIDUE is required.

172.514........................ Improper placarding of 2,000

bulk packaging other

than a tank car: For

the ``exception''

packages in

174.514(c). Note: Use

the regular

placarding sections

for the guideline

amounts for larger

bulk packages.

172.516........................ Placard not readily 1,000

visible, improperly

located or displayed,

or deteriorated. Good

color photos

``essential'' to

prove deterioration,

and considerable

weathering is

permissible. Placard

is the unit of

violation.

--When placards on an 2,000

intermodal container

are not visible, for

instance, because the

container is in a

well car. Container

is the unit of

violation, and, as a

matter of enforcement

policy, FRA accepts

the lack of

visibility of the end

placards.

Emergency Response Information..... Violations of Secs.

172.600-.604 are in

addition to shipping

paper violations. In

citing a carrier, if

the railroad's

practice is to carry

an emergency response

book or to put the E/

R information as an

attachment to the

consist, the unit of

violation is

generally the train

(or the consist).

``Telephone number''

violations are

generally best cited

against the shipper;

if against a

railroad, there

should be proof that

the number was given

to the railroad, that

is, it was on the

original shipping

document.

172.600-.602................... Where improper 15,000

emergency response

information has

caused an improper

reaction from

emergency forces and

the improper response

has aggravated the

situation. Note:

Proof of this will be

rigorous. For

instance, if the

emergency response

forces had chemical

information with the

correct response and

they relied, instead,

on shipper/carrier

information to their

detriment; the

$15,000 penalty

guideline applies.

Bad, missing, or 4,000

improper emergency

response information.

(Be careful in

transmitting

violations of this

section against a

railroad; there are

many sources of E/R

information and it

does not necessarily

``travel'' with the

shipping documents.).

172.602(c)..................... Failure to have 15,000

emergency response

information

``immediately

accessible''.

172.604........................ Improper or missing 2,500

emergency response

telephone number.

Training:

172.702(a)..................... General failure to 5,000

train hazmat

employees.

172.702(b)..................... Hazmat employee 1,000

performing covered

function without

training. (Unit of

violation is the

employee; see the

expert attorney if

more than 10

employees are

involved.).

172.704(a)..................... Failure to train in 2,500

the required areas:

--General awareness/

familiarization

[[Page 38650]]

--Function-specific

--Safety

(Unit of violation is

the ``area,'' and,

for a total failure

to train, cite

172.702(a) and use

that penalty instead

of 172.704.)

172.704(c)..................... Initial and recurrent (\3\)

training. (Note: Cite

this and the relevant

substantive section,

e.g., 172.702(a), and

use penalty provided

there.).

172.704(d)..................... Failure to maintain 2,500

record of training.

(Unit of violation is

the record.).

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

PART 173

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

173.1.............................. General duty section 2,000

applicable to

shippers; also

includes subparagraph

(b), the requirement

to train employees

about applicable

regulations. (Cite

the appropriate

section in the

172.700-.704 series

for training

violations.).

173.9(a)........................... Early delivery of 5,000

transport vehicle

that has been

fumigated. (48 hours

must have elapsed

since fumigation.).

173.9(b)........................... Failure to display 1,000

fumigation placard.

(Ordinarily cited

against shipper only,

not against

railroad.).

173.10............................. Delivery requirements 3,000

for gases and for

flammable liquids.