49 C.F.R. Appendix B to Part 209—Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
Title 49 - Transportation
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 $275 to $32,500, 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 §§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 §§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 $32,500 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 $32,500 for each violation at any time prior to issuance of an order. [61 FR 38647, July 25, 1996, as amended at 69 FR 30591, May 28, 2004]
Title 49: Transportation
PART 209—RAILROAD SAFETY ENFORCEMENT PROCEDURES
Subpart E—Reporting of Remedial Actions
Appendix B to Part 209—Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
Penalty Assessment Guidelines------------------------------------------------------------------------ Emergency orders Guideline------------------------------------------------------------------------EO16............................... Penalties for 5,000 violations of EO16 vary depending on the circumstances.EO17............................... Penalties for (\1\) violations of EO17 vary depending on the circumstances. Failure to file annual 5,000 report.------------------------------------------------------------------------\1\ Varies.
Penalty Assessment Guidelines------------------------------------------------------------------------ 49 CFR section Description Guideline------------------------------------------------------------------------ PART 107------------------------------------------------------------------------107.608............................ Failure to register or 1,000 to renew registration. (Note: registration_or renewal_is mitigation.).------------------------------------------------------------------------ PART 171------------------------------------------------------------------------171.2(c)........................... Representing (marking, 8,000 certifying, selling, or offering) a packaging as meeting regulatory specification when it does not.171.2(f)(2)........................ Billing, marking, etc. 2,000 for the presence of HM when no HM is present. (Mitigation required for shipments smaller than a carload, i.e., single drum penalty is 1,000).171.12............................. Import 4,000 shipments_Importer not providing shipper and forwarding agent with US requirements. Cannot be based on inference. Import 2,000 shipments_Failure 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 4,000 incident report (form DOT 5800.1). (Note: Multiple failures will aggravate the penalty; see the expert attorney.).------------------------------------------------------------------------ PART 172------------------------------------------------------------------------Shipping Papers: 172.200_.203................... Offering hazardous materials for transportation when the material is not properly described on the shipping paper as required by §§ 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 § 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 §§ 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 § 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 § 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\[inch] where 2[inch] 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 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. 172.313........................ ''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 § 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 §§ 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 § 172.301 regarding the marking of packages.).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 § 172.334.). 172.504(a)..................... Failure to placard; affixing or displaying wrong placard. (See also §§ 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 that 5,000 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. § 172.506.). Placards OK, except 500 they were IMDG labels instead of 10[inch] 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 § 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 when 1,000 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 §§ 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 _Function-specific _Safety (Unit of violation is the ``area,'' and, for a total failure to train, cite 172.702(a) and use that penalty instead of 172.704.) 172.704(c)..................... Initial and recurrent (\3\) training. (Note: Cite this and the relevant substantive section, e.g., 172.702(a), and use penalty provided there.). 172.704(d)..................... Failure to maintain 2,500 record of training. (Unit of violation is the record.).------------------------------------------------------------------------ PART 173------------------------------------------------------------------------173.1.............................. General duty section 2,000 applicable to shippers; also includes subparagraph (b), the requirement to train employees about applicable regulations. (Cite the appropriate section in the 172.700-.704 series for training violations.).173.9(a)........................... Early delivery of 5,000 transport vehicle that has been fumigated. (48 hours must have elapsed since fumigation.).173.9(b)........................... Failure to display 1,000 fumigation placard. (Ordinarily cited against shipper only, not against railroad.).173.10............................. Delivery requirements 3,000 for gases and for flammable liquids. See also 174.204 and 174.304.173.22............................. Shipper (\4\) responsibility: This general duty section should ordinarily be cited only to support a more specific charge.173.22a............................ Improper use of 2,500 packagings authorized under exemption. Failure to maintain 1,000 copy of exemption as required..173.24(b)(1) & 173.24(b)(2) and Securing closures: 173.24(f)(1) & These subsections are 173.24(f)(1)(ii). the general ``no leak'' standard for all packagings. § 173.24(b) deals primarily with packaging as a whole, while § 173.24(f) focuses on closures. Cite the sections accordingly, using both the leak/ non-leak criteria and the package size considerations to reach the appropriate penalty. Any actual leak will aggravate the guideline by, typically, 50%; a leak with contact with a human being will aggravate by at least 100%, up to the maximum of $25,000 if the HMR violation causes the injury. With tank cars, § 173.31(b) applies, and IM portable tanks [§ 173.32c], and other tanks of that size range, should use the tank car penalty amounts, stated in reference to that section. _Small bottle or box.. 1,000 _55-gallon drum....... 2,500 _Larger container, 5,000 e.g., IBC; not portable tank or tank car.173.24(c).......................... Use of package not meeting specifications, including required stencils and markings. The most specific section for the package involved should be cited (see below). The penalty guideline should be adjusted for the size of the container. Any actual leak will aggravate the guideline by, typically, 50%; a leak with contact with a human being will aggravate by at least 100%, up to the maximum of $25,000 if the HMR violation causes the injury. _Small bottle or box.. 1,000 _55-gallon drum....... 2,500 _Larger container, 5,000 e.g., IBC; not portable tank or tank car. For more specific sections: Tank cars_§ 173.31(a), portable tanks_§ 173.32, and IM portable tanks_§§ 173.32a, .32b, and .32c, q.v173.24a(a)(3)...................... Non-bulk packagings: 1,000 Failure to secure and cushion inner packagings. _Causes leak.......... 3,000 _Leak with any contact 10,000 between product and any human being.173.24a(b)&(d)................. Non-bulk packagings: 1,000 Exceeding filling limits. _Causes leak.......... 3,000 _Leak with any contact 10,000 between product and any human being.173.24b(a)......................... Insufficient outage: 3,000 _<1% _Causes leak.......... 5,000 _Leak with any contact 10,000 between product and any human being.173.24b(a)(3)...................... Outage <5% on PIH 5,000 material. _Causes leak.......... 7,500 _Leak with any contact 10,000 between product and any human being.173.26............................. Loaded beyond gross 5,000 weight or capacity as stated in specification. (Applies only if quantity limitations do not appear in packaging requirements of Part 173.).173.28............................. Improper reuse, 1,000 reconditioning, or remanufacture of packagings..173.29(a).......................... Offering residue tank car for transportation when openings are not tightly closed (§ 174.67(k) is also usually applicable). The regulation requires offering ``in the same manner as when'' loaded and may be cited when a car not meeting specifications (see § 173.31(a)(1)) is released back into transportation after unloading; same guideline amount. Guidelines vary with the type of commodity involved: _Hazardous material 2,000 with insignificant vapor pressure and without classification as ``poison'' or ``inhalation hazard''. _With actual leak..... 5,000 _With leak allowing 15,000 the product to contact any human being. _Hazardous material 5,000 with vapor pressure (essentially any gas or compressed gas) and/or with classification as ``poison'' or ``inhalation hazard.''. _With actual leak..... 7,500 _With leak allowing 15,000 the product (or fumes or vapors) to contact any human being. (In the case of fumes, the ``contact'' must be substantial.). _Where only violation 1,000 is failure to secure a protective housing, e.g., the covering for the gaging device.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 § 172.101 Hazardous Materials Table reference is: § 173.240........ 1,000 § 173.241........ 2,500 § 173.242........ 5,000 § 173.243........ 5,000 § 173.244........ 7,500 § 173.245........ 7,500 § 173.247........ 1,000 § 173.314, .315.. 5,000 _Minor defect not 500 affecting the ability of the package to contain a hazardous material, e.g., no chain on a bottom outlet closure plug. Tank meets 1,000 specification, but specification is not stenciled on car. Note: § 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 § 173.22(a)(3).). Tank car not stenciled ``Not for flammable liquids,'' and it should be. (AAR Tank Car Manual, Appendix C, C3.03(a)5.) _Most cars............ 2,500 _Molten sulfur car.... 500 _If flammable liquid 5,000 is actually in the car.173.31(a)(4)....................... Use of a tank car 5,000 stenciled for one commodity to transport another.173.31(a)(5)....................... Use of DOT- 10,000 specification tank car without shelf couplers. (Note: prior to November 15, 1992, this did not apply to a car not carrying hazardous materials.). _Against a carrier, 6,000 cite § 174.3 and this section.173.31(a)(6)....................... Use of non-DOT 10,000 specification car without shelf couplers to carry hazardous materials. (Applies only since November 15, 1990.). _Against a carrier, 6,000 cite § 174.3 and this section.173.31(a)(7)....................... Use of tank car 5,000 without air brake support attachments welded to pads. (Effective July 1, 1991).173.31(a)(15)...................... Tank car with 7,500 nonreclosing pressure relief device used to transport Class 2 gases, Class 3 or 4 liquids, or Division 6.1 liquids, PG I or II.173.31(a)(17)...................... Tank car with interior 7,500 heating coils used to transport Division 2.3 or Division 6.1, PG I, based on inhalation toxicity.173.31(b)(1), 173.31(b)(3)......... Shipper failure to 5,000 determine (to the extent practicable) that tank, safety appurtenances, and fittings are in proper condition for transportation; failure to properly secure closures. (Sections 173.31(b)(1) & .31(b)(3), often cited as together for loose closure violations, are taken as one violation.) The unit of violation is the car, aggravated if necessary for truly egregious condition. Sections 173.24(b) & (f) establish a ``no-leak'' design standard, and 173.31 imposes that standard on operations. _With actual leak of 10,000 product. _With actual leak 15,000 allowing the product (or fumes or vapors) to contact any human being. (With safety vent, be careful because carrier might be at fault.). _Minor violation, 1,000 e.g., bottom outlet cap loose on tank car of molten sulfur (because product is a solid when shipped). _Failure (.31(b)(1)) 1,000 to have bottom outlet cap off during loading.173.31(b)(4)....................... Filling and offering 6,000 for transportation a tank car overdue for retest of tank, interior heater system, and/or safety relief valve. Note that the car may be filled while in-date, held, and then shipped out-of-date. (Adjust penalty if less than one month or more than one year overdue.).173.31(c)(1)....................... Tank, interior heater system, and/or safety valve overdue for retest. If these conditions exist, the violation is of § 173.31(b)(4). If the violation is for improperly conducting the test(s), see the expert attorney.173.31(c)(10)...................... Failure to properly 1,000 stencil a retest that was performed.173.32c............................ Loose closures on an 5,000 IM portable tank (§ 173.24 establishes the ``tight closure'' standard; § 172.32c applies it to IM portable tanks.) (The scale of penalties is the same as for tank cars.). _With actual leak of 10,000 product. _With actual leak and 15,000 human being contact. _Minor violation...... 1,000173.314(b)(5)...................... No commodity stencil, 2,500 compressed gas tank car. (See also § 172.330).173.314(c)......................... Compressed gas loaded 6,000 in excess of filling density (same basic concept as insufficient outage). _``T'' car with 5,000 excessive voids in the thermal coating, such that the car no longer complies with the DOT specification. Section 173.31(a)(1) requires tank cars used to transport hazardous materials to meet the requirements of the applicable specification and this section (§ 173.314(c)) lists 112T/114T cars as allowed for compressed gases.------------------------------------------------------------------------ PART 174------------------------------------------------------------------------General Requirements: 174.3.......................... Acceptance of improperly prepared shipment. This general duty section must be accompanied by a citation to the specific section violated. 174.7.......................... Carrier's failure to (\5\) instruct employees; cannot be based on inference; §§ 172.700- .704 are preferred citations. 174.8(b)....................... _Failure to inspect 4,000 hazardous materials (and adjacent) cars at point where train is required to be inspected. (Unit of violation is the train.) (Note: For all ``failure to inspect'' citations, the mere presence of a nonconforming condition does not prove a failure to inspect.). _Allowing unsafe 8,000 loaded placarded car to continue in transportation beyond point where inspection was required). (Unit of violation is the car.). _Failure to determine 5,000 whether placards are in place and conform to shipping papers (at a required inspection point). (Unit of violation is the car.). 174.9(a)....................... Failure to properly 4,000 inspect loaded, placarded tank car at origin or interchange. 174.9(b)....................... Loose or insecure 1,000 closures on tank car containing a residue of a hazardous material. (FRA policy is that, against a railroad, this violation must be observable from the ground because, for reasons of safety, railroad inspectors do not climb on cars absent an indication of a leak.). 174.9(c)....................... Failure to ``card'' a 3,000 tank car overdue for tank retest. 174.10(c)...................... Offering a 3,000 noncomplying shipment in interchange. 174.10(d)...................... Offering leaking car 10,000 of hazardous materials in interchange. 174.12......................... Improper performance 3,000 of intermediate shipper/carrier duties; applies to forwarders and highway carriers delivering TOFC/COFC shipments to railroads. 174.14......................... Failure to expedite: 1,000 violation of ``48- hour rule.'' Note: does not apply to cars ``held short'' of destination or constructively placed.General Operating Requirements..... Note: This subpart (Subpart B) of Part 174 has three sections referring to shipment documentation: § 174.24 relating to accepting documents, § 174.25 relating to the preparation of movement documents, and § 174.26 relating to movement documents in the possession of the train crew. Only the most relevant section should be cited. In most cases, the unit of violation is the shipment, although where a unified consist is used to give notice to the crew, there is some justification for making it the train, especially where the discrepancy was generated using automated data processing and the error is repetitious. 174.24......................... Accepting hazardous materials shipment without properly prepared shipping paper. (Note: The carrier's duty extends only to the document received, that is, a shipment of hazardous materials in an unplacarded transport vehicle with a shipping paper showing other than a hazardous material is not a violation against the carrier unless knowledge of the contents of the vehicle is proved. Likewise, receipt of a tank car placarded for Class 3 with a shipping paper indicating a flammable liquid does not create a carrier violation if the car, in fact, contains a corrosive. On the other hand, receipt of a placarded trailer with a shipping paper listing only FAK (``freight-all- kinds''), imposes a duty on the carrier to inquire further and to reject the shipment if it is improperly billed.) _Improper hazardous 7,500 materials information that could cause delay or error in emergency response. _Total absence of 5,000 hazardous materials information. _Technical errors, not 1,000 likely to cause problems, especially with emergency response. _Minor errors not 500 relating to hazardous materials emergency response, e.g., not listing an exemption number and the exemption is not one affecting emergency response. 174.25......................... Preparing improper movement documents. (Similar to the requirements in § 174.24, here the carrier is held responsible for preparing a movement document that accurately reflects the shipping paper tendered to it. With no hazardous materials information on the shipper's bill of lading, the carrier is not in violation_absent knowledge of hazardous contents_for preparing a nonhazardous movement document. While ``movement documents'' in the rail industry used to be waybills or switch tickets (almost exclusively), carriers are now incorporating the essential information into a consist, expanded from its former role as merely a listing of the cars in the train.) _Information on the 15,000 movement document is wrong to the extent that it actually caused or materially contributed to a reaction by emergency responders that aggravated the situation or caused or materially contributed to improper handling by the carrier that led to or materially contributed to a product release. _Total lack of 7,500 hazardous materials information on movement document. (Some shipping names alone contain sufficient information to reduce the guideline to the next lower level, but they may be such dangerous products that aggravation needs to be considered.). _Some information is 5,000 present, but the missing or improper description could cause mishandling by the carrier or a delay or error in emergency response, including missing RESIDUE description required by § 174.25(c). _Missing/improper 3,500 endorsement, unless on a switch ticket as allowed under § 174.25(b). _Movement document 2,500 does not indicate, for a flatcar carrying trailers or containers, which trailers or containers contain hazardous materials. (If all trailers or containers on the flatcar contain hazardous materials, there is no violation.). _When the improper 1,000 description is not likely to cause serious problem (technical defect). _Minor errors not 500 related to hazardous materials emergency response, e.g., not listing an exemption number and the exemption is not one affecting emergency response. Note: Failure to include emergency response information is covered at § 172.600-604; while the normal unit of violation for movement documents is the whole document, failure to provide emergency response information is a separate violation. 174.26(a)...................... Failure to execute the 5,000 required POISON GAS and EXPLOSIVES 1.1/ 1.2 notices. (The notice is the unit of violation, because one notice can cover several shipments.). Failure to deliver the 5,000 required POISON GAS and EXPLOSIVES 1.1/ 1.2 notices to train and engine crew. (Cite this, or the above, as appropriate.). Failure to transfer 3,000 notice from crew to crew. (Note that this is very likely an individual liability situation; the penalty guideline listed here, however, presumes action against a railroad.). Failure to keep copy 1,000 of notice on file. 174.26(b)...................... Train crew does not 6,000 have a document indicating position in train of each loaded, placarded car. Aggravate by 50% for Poison Gas, 2.3, and Explosives, 1.1 and 1.2. (Train is the unit of violation.). _Technical violation, 1,000 e.g., car is listed in correct relative order, but not in exact numerical order, usually because of addition of car or cars to head or tail of train. (Note: Applies only if the actual location is off by 10 or fewer cars.). 174.26(c)...................... Improper paperwork in possession of train crew. (If the investigation of an accident reveals a violation of this section and § 174.25, cite this section.) (Shipment is unit of violation, although there is justification for making it the train if a unified consist is used to carry this information and the violation is a pattern one throughout all, or almost all, of the hazardous materials shipments. For intermodal traffic, ``shipment'' can mean the container or trailer_e.g., a UPS trailer with several non-disclosed hazardous materials packages would be one unit.) _Information on the 15,000 document possessed by the train crew is wrong to the extent that it caused or materially contributed to a reaction by emergency responders that aggravated the situation or caused or materially contributed to improper handling by the carrier that led to or materially contributed to a product release. _Total lack of 7,500 hazardous materials information on movement document. (Some shipping names alone contain sufficient information to reduce the guideline to the next lower level, but they may be such dangerous products that aggravation needs to be considered.). _Some information is 5,000 present but the error(s) could cause mishandling by the carrier or a delay or error in emergency response. Includes missing RESIDUE description required by § 174.25(c). _Improper information, 3,500 but the hazardous materials are small shipments (e.g., UPS moves) and PG III (e.g., the ``low hazard'' materials allowed in TOFC/COFC service without an exemption since HM- 197). _Technical defect not 1,000 likely to cause delay or error in emergency response or carrier handling. _Minor error not 500 relating to emergency response or carrier handling, e.g., not listing the exemption number on document and the exemption is not one affecting emergency response. 174.33......................... _Failure to maintain ``an adequate supply of placards.'' [The violation is for ``failure to replace''; if missing placards are replaced, the supply is obviously adequate, if not, failure to have a placard is not a separate violation from failure to replace it.] _Failure to replace 1,000 lost or destroyed placards based on shipping paper information. (This is in addition to the basic placarding mistakes in, for instance, § 172.504.). Note: A railroad's placarding duties are to not accept a car without placards [§ 172.508(b)]; to maintain an ``adequate supply'' of placards and to replace them based on shipping paper information [§ 174.33]; and to not transport a car without placards [§ 174.59]. At each inspection point, a railroad must determine that all placards are in place. [§ 172.8(b)] The ``next inspection point'' replacement requirement in § 174.59, q.v., refers to placards that disappear between inspection points; a car at an inspection point must be placarded because it is in transportation, even if held up at that point. [49 U.S.C. 5102(12)] 174.45......................... Failure to report hazardous materials accidents or incidents. Cite §§ 171.15 or 171.16 as appropriate. 174.50......................... Moving leaking tank 7,500 car unnecessarily. Failure to stencil 3,500 leaking tank car. Loss of product 15,000 resulted in human being contact because of improper carrier handling. 174.55......................... Failure to block and brace as prescribed. (See also §§ 174.61, .63, .101, .112, .115; where these more specific sections apply, cite them.) Note: The regulatory requirement is that hazardous materials packages be loaded and securely blocked and braced to prevent the packages from changing position, falling to the floor, or sliding into each other. If the load is tight and secure, pieces of lumber or other materials may not be necessary to achieve the ``tight load'' requirement. Be careful on these and consult freely with the expert attorney and specialists in the Hazardous Materials Division. _General failure to 5,000 block and brace. _Inadequate blocking 2,500 and bracing (an attempt was made but blocking/bracing was insufficient.). _Inadequate blocking 7,500 and bracing leading to a leak. _Inadequate blocking 15,000 and bracing leading to a leak and human being contact. 174.59......................... Marking and placarding. Note: As stated elsewhere, a railroad's placarding duties are to not accept a car without placards [§ 172.508(b)], to maintain an ``adequate supply'' of placards and to replace them based on shipping paper information [§ 174.33], and to not transport a car without placards [§ 174.59]. At each inspection point, a railroad must determine that all placards are in place. [§ 172.8(b)] The ``next inspection point'' replacement requirement in this section refers to placards that disappear between inspection points. A car at an inspection point must be placarded because it is in transportation [49 U.S.C. 5102(12)], even if held up at that point. Because the statute creates civil penalty liability only if a violation is ``knowing,'' that is, ``a reasonable person knew or should have known that an act performed by him was in violation of the HMR,'' and because railroads are not under a duty to inspect hazardous materials cars merely standing in a yard, violations written for unplacarded cars in yards must include proof that the railroad knew about the unplacarded cars and took no corrective action within a reasonable time. (Note also that the real problem with unplacarded cars in a railyard may be a lack of emergency response information, §§ 172.600- .604, and investigation may reveal that those sections should be cited instead of this one.) _Complete failure to 7,500 placard. _One placard missing 1,000 (add $1,000 per missing placard up to a total of three; then use the guideline above). For other placarding violations, see §§ 172.500- .560 and determine if one of them more correctly states the violation. 174.61......................... Improper 3,000 transportation of transport vehicle or freight container on flat car. (Note: If improper lading restraint is the violation, see § 174.55; if improper restraint of a bulk packaging inside a closed transport vehicle is the violation, see § 174.63(b).). 174.63(a) & (c)............ _Improper 3,000 transportation of portable tank or other bulk packaging in TOFC/COFC service. _Improper 7,500 transportation leading to a release of product. _Improper 15,000 transportation leading to a release and human being contact. 174.63(b)...................... Improper securement of bulk packaging inside enclosed transport vehicle or freight container. _General failure to 5,000 secure. _Inadequate securement 2,500 (an 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 7,500 cargo tank or multi- unit tank car tank without authorization and in the absence of an emergency. 174.67(a)(1)................... Tank car unloading 2,500 operations performed by persons not properly instructed (case cannot be based on inference). 174.67(a)(2)................... Unloading without brakes set and/or wheels blocked. (The enforcement standard, as per 1995 Hazardous Materials Technical Resolution Committee, is that sufficient handbrakes must be applied on one or more cars to prevent movement and each car with a handbrake set must be blocked in both directions. The unloading facility must make a determination on how many brakes to set.) _No brakes set, no 5,000 wheels blocked, or fewer brakes set/ wheels blocked than facility's operating plan. _No brakes set, but 3,000 wheels blocked. _Brakes set, but 4,000 wheels not blocked. 174.67(a)(3)................... Unloading without 2,000 cautions signs properly displayed. (See Part 218, Subpart B). 174.67(c)(2)................... Failure to use non- metallic block to prop manway cover open while unloading through bottom outlet. _Flammable or 3,000 combustible liquid, or other product with a vapor flash point hazard. _Material with no 500 vapor flammability hazard. 174.67(h)...................... Insecure unloading 10,000 connections, such that product is actually leaking. 174.67(i)...................... Unattended unloading.. 5,000 174.67(j)...................... Discontinued unloading 2,000 without disconnecting all unloading connections, tightening valves, and applying closures to all other openings. (Note: If the car is attended, this subsection does not apply.). 174.67(k)...................... Preparation of car after unloading: Removal of unloading connections is required, as is the closing of all openings with a ``suitable tool.'' Note: This subsection requires unloading connections to be ``removed'' when unloading is complete, § 174.67(j) requires them to be ``disconnected'' for a temporary cessation of unloading. The penalties recommended here mirror those in § 173.29, dealing with insecure closures generally. _Hazardous material 2,000 with insignificant vapor pressure and without classification as ``poison'' or ``inhalation hazard''. _With actual leak..... 5,000 _With leak allowing 15,000 the product to contact any human being. _Hazardous material 5,000 with vapor pressure (essentially any gas or compressed gas) and/or with classification as ``poison'' or ``inhalation hazard''. _With actual leak..... 7,500 _With leak allowing 15,000 the product (or fumes or vapors) to contact any human being). Note: Contact with fumes must be substantial. 174.69......................... _Complete failure to 6,000 remove loaded placards and replace with RESIDUE placard on tank cars. _Partial failure. 1,000 (Unit of violation is the placard; the guideline is used for each placard up to 3, then the penalty above is applicable.). 174.81......................... _Failure to obey 6,000 segregation requirements for materials forbidden to be stored or transported together. (``X'' in the table). _Failure to obey 4,000 segregation requirements for materials that must be separated to prevent commingling in the event of a leak. (``O'' in the table). 174.83(a)...................... Improper switching of 5,000 placarded rail cars. 174.83(b)...................... Improper switching of 8,000 loaded rail car containing Division 1.1/1.2, 2.3 PG I Zone A, or Division 6.1 PG I Zone A, or DOT 113 tank car placarded for 2.1. 174.83(c)-(e).................. Improper switching of 5,000 placarded flatcar. 174.83(f)...................... Switching Division 1.1/ 8,000 1.2 without a buffer car or placement of Division 1.1/1.2 car under a bridge or alongside a passenger train or platform. 174.84......................... Improper handling of 4,000 Division 1.1/1.2, 2.3 PG I Zone A, 6.1 PG I Zone A in relation to guard or escort cars. 174.85......................... Improper Train Placement (The unit of violation under this section is the car. Where more than one placarded car is involved, e.g., if 2 placarded cars are too close to the engine, both are violations. Where both have a similar violation, e.g., a Division 1.1 car next to a loaded tank car of a Class 3 material, each car gets the appropriate penalty as listed below.) RESIDUE car without at 3,000 least 1 buffer from engine or occupied caboose. Placard Group 1_Division 1.1/1.2 (Class A explosive) materials _Fewer than 6 cars 8,000 (where train length permits) from engine or occupied caboose. _As above but with at 7,000 least 1 buffer. _No buffer at all 8,000 (where train length doesn't permit 5). _Next to open top car 7,000 with lading beyond car ends or, if shifted, would be beyond car ends. _Next to loaded flat 6,000 car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices, or car with permanent bulkhead. _Next to operating 7,000 temperature-control equipment or internal combustion engine in operation. _Next to placarded 7,000 car, except one from same placard group or COMBUSTIBLE. Placard Group 2_Division 1.3/1.4/ 1.5 (Class B and C explosives); Class 2 (compressed gas, other than Division 2.3, PG 1 Zone A; Class 3 (flammable liquids); Class 4 (flammable solid); Class 5 (oxidizing materials); Class 6, (poisonous liquids), except 6.1 PG 1 Zone A; Class 8 (corrosive materials). For tank cars: _Fewer than 6 cars 6,000 (where train length permits) from engine or occupied caboose. _As above but with at 5,000 least 1 buffer. No buffer at all 6,000 (where train length doesn't permit 5). _Next to open top car 5,000 with lading beyond car ends or, if shifted, would be beyond car ends. _Next to loaded flat 4,000 car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices, or car with permanent bulkhead. _Next to operating 5,000 temperature-control equipment or internal combustion engine in operation. _Next to placarded 5,000 car, except one from same placard group or COMBUSTIBLE. For other rail cars: _Next to placarded 5,000 car, except one from same placard group or COMBUSTIBLE. Placard Group 3_Divisions 2.3 (PG 1 Zone A; poisonous gases) and 6.1 (PG 1 Zone A; poisonous materials) For tank cars: _Fewer than 6 cars 8,000 (where train length permits) from engine or occupied caboose. _As above but with at 7,000 least 1 buffer. No buffer at all 8,000 (where train length doesn't permit 5). _Next to open top car 7,000 with lading beyond car ends or, if shifted, would be beyond car ends. _Next to loaded flat 6,000 car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices, or car with permanent bulkhead. _Next to operating 7,000 temperature-control equipment or internal combustion engine in operation. _Next to placarded 7,000 car, except one from same placard group or COMBUSTIBLE. For other rail cars: _Next to placarded 5,000 car, except one from same placard group or COMBUSTIBLE. Placard Group 4_Class 7 (radioactive) materials. For rail cars: _Next to locomotive or 8,000 occupied caboose. _Next to placarded 5,000 car, except one from same placard group or COMBUSTIBLE. _Next to carload of 3,000 undeveloped film. 174.86......................... Exceeding maximum 3,000 allowable operating speed (15 mph) while transporting molten metals or molten glass. 174.101(o)(4).................. Failure to have proper explosives placards on flatcar carrying trailers/containers placarded for Class 1. (Except for a complete failure to placard, the unit of violation is the placard.). _Complete failure to 7,500 placard. _One placard missing 1,000 (add $1,000 per missing placard up to a total of three, then use the guideline above). 174.104(f)..................... Failure to retain car 1,000 certificates at ``forwarding station''. Failure to attach car 1,000 certificates to car. (Unit of violation is the certificate, 2 are required.). 174.204........................ Improper tank car 3,000 delivery of gases (Class 2 materials). 174.304........................ Improper tank car 3,000 delivery of flammable liquids (Class 3 materials). 174.600........................ Improper tank car 5,000 delivery of materials extremely poisonous by inhalation (Division 2.3 Zone A or 6.1 Zone A materials).------------------------------------------------------------------------ PART 178------------------------------------------------------------------------178.2(b)........................... Package not constructed according to specifications_also cite section not complied with. _Bulk packages, 8,000 including portable tanks. _55-gallon drum....... 2,500 _Smaller package...... 1,000------------------------------------------------------------------------ PART 179------------------------------------------------------------------------179.1(e)........................... Tank car not 8,000 constructed according to specifications_also cite section not complied with. (Note: Part 179 violations are against the builder or repairer. Sections in this Part are often cited in conjunction with violations of §§ 172.330 and 173.31 (a)&(b) by shippers. In such cases, the Part 179 sections are cited as references, not as separate alleged violations.).179.6.............................. Repair procedures not 5,000 in compliance with Appendix R of the Tank Car Manual.------------------------------------------------------------------------\1\ See § 172.334.\2\ See § 172.516.\3\ Varies.\4\ See specific section.\5\ See penalties: 172.700-.704.
