Railroad safety: Hazardous materials transportation; civil and criminal penalties; penalty guidelines,
[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Rules and Regulations]
[Page 77293-77309]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de06-9]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[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:
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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.
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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.
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Rulemaking Analyses and Notices
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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.
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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.
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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.
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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.
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Paperwork Reduction Act
There are no new information requirements in this final rule.
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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.
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Environmental Assessment
There are no significant environmental impacts associated with this final rule.
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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/. 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.
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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.
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--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.
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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.
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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.)
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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: --
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