(a) Review of route analysis. If the Associate Administrator for Safety determines that a railroad carrier's route selection, analysis and documentation pursuant to Sec. 172.820 of chapter I of this title is deficient and fails to establish that the route chosen by the carrier poses the least overall safety and security risk, the Associate Administrator shall issue a written notice of review (``Notice'') to the railroad carrier. The Notice shall specifically address each deficiency found in the railroad carrier's route analysis. The Notice may also include suggested mitigation measures that the railroad carrier may take to remedy the deficiencies found, including selection of an alternative commercially feasible routing.
(b) Conference to resolve deficiencies. After issuing the Notice, the Associate Administrator conferences with the railroad carrier for a thirty (30)-day period, or such longer period as provided by the Associate Administrator, to resolve the deficiencies identified in the Notice. The Associate Administrator keeps a record of all written correspondence with the railroad carrier and a summary of each meeting and telephone conversation with the railroad carrier that pertains to the Notice.
(c) Consultation with and comment from other agencies. If, after the close of the conference period, the Associate Administrator concludes that the issues identified have not been satisfactorily resolved, the Associate Administrator:
(1) Consults with the Transportation Security Administration (``TSA'') and the Pipeline and Hazardous Materials Safety Administration (PHMSA) regarding the safety and security of the route proposed by the railroad carrier and any alternative route(s) over which the carrier is authorized to operate that are being considered by the Associate Administrator and prepares a written summary of the recommendations from TSA and PHMSA;
(2) Obtains the comments of the Surface Transportation Board (``STB'') regarding whether the alternative route(s) being considered by the Associate Administrator would be commercially practicable; and
(3) Fully considers the input of TSA, PHMSA and the STB and renders a decision pursuant to paragraph (d) of this section which shall be administratively final.
(d) Decision. (1) If the Associate Administrator finds that the route analysis and documentation provided by the railroad carrier are sufficient to support the route selected by the carrier or that valid issues of commercial practicability preclude an alternative route, the Associate Administrator concludes the review without further action and so notifies the railroad carrier in writing.
(1) If the Associate Administrator finds that the route analysis and documentation provided by the railroad carrier are sufficient to support the route selected by the carrier or that valid issues of commercial practicability preclude an alternative route, the Associate Administrator concludes the review without further action and so notifies the railroad carrier in writing.
(2) If the Associate Administrator concludes that the railroad carrier's route analysis does not support the railroad carrier's original selected route, that safety and security considerations establish a significant preference for an alternative route, and that the alternative route is commercially practicable, the Associate Administrator issues a second written notice (2nd Notice) to the railroad carrier that:
(i) Specifically identifies deficiencies found in the railroad carrier's route analysis, including a clear description of the risks on the selected route that have not been satisfactorily mitigated;
(ii) Explains why the available data and reasonable inferences indicate that a commercially practicable alternative route poses fewer overall safety and security risks than the route selected by the railroad carrier; and
(iii) Directs the railroad carrier, beginning within twenty (20) days of the issuance date of the 2nd Notice on the railroad carrier, to temporarily use the alternative route that the Associate Administrator determines poses the least overall safety and security risk until such time as the railroad carrier has adequately mitigated the risks identified by the Associate Administrator on the original route selected by the carrier.
(e) Actions following 2nd Notice and re-routing directive. When issuing a 2nd Notice that directs the use of an alternative route, the Associate Administrator shall make available to the railroad carrier the administrative record relied upon by the Associate Administrator in issuing the 2nd Notice, including the recommendations of TSA, PHMSA and STB to FRA made pursuant to paragraphs (c)(1) and (2) of this section. Within twenty (20) days of the issuance date of the Associate Administrator's 2nd Notice, the railroad carrier may:
(1) Comply with the Associate Administrator's directive to use an alternative route while the carrier works to address the deficiencies in its route analysis identified by the Associate Administrator; or
(2) File a petition for judicial review of the Associate Administrator's 2nd Notice, pursuant to paragraph (g) of this section.
(f) Review and decision by Associate Administrator on revised route analysis submitted in response to 2nd Notice. Upon submission of a revised route analysis containing an adequate showing by the railroad carrier that its original selected route poses the least overall safety and security risk, the Associate Administrator notifies the carrier in writing that the carrier may use its original selected route.
(g) Appellate review. If a railroad carrier is aggrieved by final agency action, it may petition for review of the final decision in the appropriate United States court of appeals as provided in 49 U.S.C. 5127. The filing of the petition for review does not stay or modify the force and effect of the final agency action unless the Associate Administrator or the Court orders otherwise.
(h) Time. In computing any period of time prescribed by this part, the day of any act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. [73 FR 72199, Nov. 26, 2008]
Sec. Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws
The Federal Railroad Administration (``FRA'') enforces the Federal railroad safety statutes under delegation from the Secretary of Transportation. See 49 CFR 1.49(c), (d), (f), (g), (m), and (oo). Those statutes include 49 U.S.C. ch. 201-213 and uncodified provisions of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A, 122 Stat. 4848). On July 4, 1994, the day before the enactment of Public Law 103-272, 108 Stat. 745, the Federal railroad safety statutes included the Federal Railroad Safety Act of 1970 (``Safety Act'') (then codified at 45 U.S.C. 421 et seq.), and a group of statutes enacted prior to 1970 referred to collectively herein as the ``older safety statutes'': the Safety Appliance Acts (then codified at 45 U.S.C. 1-16); the Locomotive Inspection Act (then codified at 45 U.S.C. 22-34); the Accident Reports Act (then codified at 45 U.S.C. 38-43); the Hours of Service Act (then codified at 45 U.S.C. 61-64b); and the Signal Inspection Act (then codified at 49 App. U.S.C. 26). Effective July 5, 1994, Public Law 103-272 repealed certain general and permanent laws related to transportation, including these rail safety laws (the Safety Act and the older safety statutes), and reenacted them as revised by that law but without substantive change in title 49 of the U.S. Code, ch. 201-213. Regulations implementing the Federal rail safety laws are found at 49 CFR parts 209-244. The Rail Safety Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988) (``RSIA'') raised the maximum civil penalties available under the railroad safety laws and made individuals liable for willful violations of those laws. FRA also enforces the hazardous materials transportation laws (49 U.S.C. ch. 51 and uncodified provisions) (formerly the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., which was also repealed by Public Law 103-272, July 5, 1994, and reenacted as revised but without substantive change) as it pertains to the shipment or transportation of hazardous materials by rail.
The Civil Penalty Process
The front lines in the civil penalty process are the FRA safety inspectors: FRA employs over 300 inspectors, and their work is supplemented by approximately 100 inspectors from states participating in enforcement of the federal rail safety laws. These inspectors routinely inspect the equipment, track, and signal systems and observe the operations of the nation's railroads. They also investigate hundreds of complaints filed annually by those alleging noncompliance with the laws. When inspection or complaint investigation reveals noncompliance with the laws, each noncomplying condition or action is listed on an inspection report. Where the inspector determines that the best method of promoting compliance is to assess a civil penalty, he or she prepares a violation report, which is essentially a recommendation to the FRA Office of Chief Counsel to assess a penalty based on the evidence provided in or with the report.
In determining which instances of noncompliance merit penalty recommendations, the inspector considers:
(1) The inherent seriousness of the condition or action;
(2) The kind and degree of potential safety hazard the condition or action poses in light of the immediate factual situation;
(3) Any actual harm to persons or property already caused by the condition or action;
(4) The offending person's (i.e., railroad's or individual's) general level of current compliance as revealed by the inspection as a whole;
(5) The person's recent history of compliance with the relevant set of regulations, especially at the specific location or division of the railroad involved;
(6) Whether a remedy other than a civil penalty (ranging from a warning on up to an emergency order) is more appropriate under all of the facts; and
(7) Such other factors as the immediate circumstances make relevant.
The civil penalty recommendation is reviewed at the regional level by a specialist in the subject matter involved, who requires correction of any technical flaws and determines whether the recommendation is consistent with national enforcement policy in similar circumstances. Guidance on that policy in close cases is sometimes sought from Office of Safety headquarters. Violation reports that are technically and legally sufficient and in accord with FRA policy are sent from the regional office to the Office of Chief Counsel.
The exercise of this discretion at the field and regional levels is a vital part of the enforcement process, ensuring that the exacting and time-consuming civil penalty process is used to address those situations most in need of the deterrent effect of penalties. FRA exercises that discretion with regard to individual violators in the same manner it does with respect to railroads.
The Office of Chief Counsel's Safety Division reviews each violation report it receives from the regional offices for legal sufficiency and assesses penalties based on those allegations that survive that review. Historically, the Division has returned to the regional offices less than five percent of the reports submitted in a given year, often with a request for further work and resubmission.
Where the violation was committed by a railroad, penalties are assessed by issuance of a penalty demand letter that summarizes the claims, encloses the violation report with a copy of all evidence on which FRA is relying in making its initial charge, and explains that the railroad may pay in full or submit, orally or in writing, information concerning any defenses or mitigating factors. The railroad safety statutes, in conjunction with the Federal Claims Collection Act, authorize FRA to adjust or compromise the initial penalty claims based on a wide variety of mitigating factors. This system permits the efficient collection of civil penalties in amounts that fit the actual offense without resort to time-consuming and expensive litigation. Over its history, FRA has had to request that the Attorney General bring suit to collect a penalty on only a very few occasions.
Once penalties have been assessed, the railroad is given a reasonable amount of time to investigate the charges. Larger railroads usually make their case before FRA in an informal conference covering a number of case files that have been issued and investigated since the previous conference. Thus, in terms of the negotiating time of both sides, economies of scale are achieved that would be impossible if each case were negotiated separately. The settlement conferences, held either in Washington or another mutually agreed on location, include technical experts from both FRA and the railroad as well as lawyers for both parties. In addition to allowing the two sides to make their cases for the relative merits of the various claims, these conferences also provide a forum for addressing current compliance problems. Smaller railroads usually prefer to handle negotiations through the mail or over the telephone, often on a single case at a time. Once the two sides have agreed to an amount on each case, that agreement is put in writing and a check is submitted to FRA's accounting division covering the full amount agreed on.
Cases brought under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., are, due to certain statutory requirements, handled under more formal administrative procedures. See 49 CFR part 209, subpart B.
Civil Penalties Against Individuals
The RSIA amended the penalty provisions of the railroad safety statutes to make them applicable to any ``person (including a railroad and any manager, supervisor, official, or other employee or agent of a railroad)'' who fails to comply with the regulations or statutes. E.g., section 3 of the RSIA, amending section 209 of the Safety Act. However, the RSIA also provided that civil penalties may be assessed against individuals ``only for willful violations.''
Thus, any individual meeting the statutory description of ``person'' is liable for a civil penalty for a willful violation of, or for willfully causing the violation of, the safety statutes or regulations. Of course, as has traditionally been the case with respect to acts of noncompliance by railroads, the FRA field inspector exercises discretion in deciding which situations call for a civil penalty assessment as the best method of ensuring compliance. The inspector has a range of options, including an informal warning, a more formal warning letter issued by the Safety Division of the Office of Chief Counsel, recommendation of a civil penalty assessment, recommendation of disqualification or suspension from safety-sensitive service, or, under the most extreme circumstances, recommendation of emergency action.
The threshold question in any alleged violation by an individual will be whether that violation was ``willful.'' (Note that section 3(a) of the RSIA, which authorizes suspension or disqualification of a person whose violation of the safety laws has shown him or her to be unfit for safety-sensitive service, does not require a showing of willfulness. Regulations implementing that provision are found at 49 CFR part 209, subpart D.) FRA proposed this standard of liability when, in 1987, it originally proposed a statutory revision authorizing civil penalties against individuals. FRA believed then that it would be too harsh a system to collect fines from individuals on a strict liability basis, as the safety statutes permit FRA to do with respect to railroads. FRA also believed that even a reasonable care standard (e.g., the Hazardous Materials Transportation Act's standard for civil penalty liability, 49 U.S.C. 1809(a)) would subject individuals to civil penalties in more situations than the record warranted. Instead, FRA wanted the authority to penalize those who violate the safety laws through a purposeful act of free will.
Thus, FRA considers a ``willful'' violation to be one that is an intentional, voluntary act committed either with knowledge of the relevant law or reckless disregard for whether the act violated the requirements of the law. Accordingly, neither a showing of evil purpose (as is sometimes required in certain criminal cases) nor actual knowledge of the law is necessary to prove a willful violation, but a level of culpability higher than negligence must be demonstrated. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Brock v. Morello Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and Donovan v. Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).
Reckless disregard for the requirements of the law can be demonstrated in many ways. Evidence that a person was trained on or made aware of the specific rule involved--or, as is more likely, its corresponding industry equivalent--would suffice. Moreover, certain requirements are so obviously fundamental to safe railroading (e.g., the prohibition against disabling an automatic train control device) that any violation of them, regardless of whether the person was actually aware of the prohibition, should be seen as reckless disregard of the law. See Brock, supra, 809 F.2d 164. Thus, a lack of subjective knowledge of the law is no impediment to a finding of willfulness. If it were, a mere denial of the content of the particular regulation would provide a defense. Having proposed use of the word ``willful,'' FRA believes it was not intended to insulate from liability those who simply claim--contrary to the established facts of the case--they had no reason to believe their conduct was wrongful.
A willful violation entails knowledge of the facts constituting the violation, but actual, subjective knowledge need not be demonstrated. It will suffice to show objectively what the alleged violator must have known of the facts based on reasonable inferences drawn from the circumstances. For example, a person shown to have been responsible for performing an initial terminal air brake test that was not in fact performed would not be able to defend against a charge of a willful violation simply by claiming subjective ignorance of the fact that the test was not performed. If the facts, taken as a whole, demonstrated that the person was responsible for doing the test and had no reason to believe it was performed by others, and if that person was shown to have acted with actual knowledge of or reckless disregard for the law requiring such a test, he or she would be subject to a civil penalty.
This definition of ``willful'' fits squarely within the parameters for willful acts laid out by Congress in the RSIA and its legislative history. Section 3(a) of the RSIA amends the Safety Act to provide:
For purposes of this section, an individual shall be deemed not to have committed a willful violation where such individual has acted pursuant to the direct order of a railroad official or supervisor, under protest communicated to the supervisor. Such individual shall have the right to document such protest.
As FRA made clear when it recommended legislation granting individual penalty authority, a railroad employee should not have to choose between liability for a civil penalty or insubordination charges by the railroad. Where an employee (or even a supervisor) violates the law under a direct order from a supervisor, he or she does not do so of his or her free will. Thus, the act is not a voluntary one and, therefore, not willful under FRA's definition of the word. Instead, the action of the person who has directly ordered the commission of the violation is itself a willful violation subjecting that person to a civil penalty. As one of the primary sponsors of the RSIA said on the Senate floor:
This amendment also seeks to clarify that the purpose of imposing civil penalties against individuals is to deter those who, of their free will, decide to violate the safety laws. The purpose is not to penalize those who are ordered to commit violations by those above them in the railroad chain of command. Rather, in such cases, the railroad official or supervisor who orders the others to violate the law would be liable for any violations his order caused to occur. One example is the movement of railroad cars or locomotives that are actually known to contain certain defective conditions. A train crew member who was ordered to move such equipment would not be liable for a civil penalty, and his participation in such movements could not be used against him in any disqualification proceeding brought by FRA. 133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator Exon).
It should be noted that FRA will apply the same definition of ``willful'' to corporate acts as is set out here with regard to individual violations. Although railroads are strictly liable for violations of the railroad safety laws and deemed to have knowledge of those laws, FRA's penalty schedules contain, for each regulation, a separate amount earmarked as the initial assessment for willful violations. Where FRA seeks such an extraordinary penalty from a railroad, it will apply the definition of ``willful'' set forth above. In such cases--as in all civil penalty cases brought by FRA--the aggregate knowledge and actions of the railroad's managers, supervisors, employees, and other agents will be imputed to the railroad. Thus, in situations that FRA decides warrant a civil penalty based on a willful violation, FRA will have the option of citing the railroad and/or one or more of the individuals involved. In cases against railroads other than those in which FRA alleges willfulness or in which a particular regulation imposes a special standard, the principles of strict liability and presumed knowledge of the law will continue to apply.
The RSIA gives individuals the right to protest a direct order to violate the law and to document the protest. FRA will consider such protests and supporting documentation in deciding whether and against whom to cite civil penalties in a particular situation. Where such a direct order has been shown to have been given as alleged, and where such a protest is shown to have been communicated to the supervisor, the person or persons communicating it will have demonstrated their lack of willfulness. Any documentation of the protest will be considered along with all other evidence in determining whether the alleged order to violate was in fact given.
However, the absence of such a protest will not be viewed as warranting a presumption of willfulness on the part of the employee who might have communicated it. The statute says that a person who communicates such a protest shall be deemed not to have acted willfully; it does not say that a person who does not communicate such a protest will be deemed to have acted willfully. FRA would have to prove from all the pertinent facts that the employee willfully violated the law. Moreover, the absence of a protest would not be dispositive with regard to the willfulness of a supervisor who issued a direct order to violate the law. That is, the supervisor who allegedly issued an order to violate will not be able to rely on the employee's failure to protest the order as a complete defense. Rather, the issue will be whether, in view of all pertinent facts, the supervisor intentionally and voluntarily ordered the employee to commit an act that the supervisor knew would violate the law or acted with reckless disregard for whether it violated the law.
FRA exercises the civil penalty authority over individuals through informal procedures very similar to those used with respect to railroad violations. However, FRA varies those procedures somewhat to account for differences that may exist between the railroad's ability to defend itself against a civil penalty charge and an individual's ability to do so. First, when the field inspector decides that an individual's actions warrant a civil penalty recommendation and drafts a violation report, the inspector or the regional director informs the individual in writing of his or her intention to seek assessment of a civil penalty and the fact that a violation report has been transmitted to the Office of Chief Counsel. This ensures that the individual has the opportunity to seek counsel, preserve documents, or take any other necessary steps to aid his or her defense at the earliest possible time.
Second, if the Office of Chief Counsel concludes that the case is meritorious and issues a penalty demand letter, that letter makes clear that FRA encourages discussion, through the mail, over the telephone or in person, of any defenses or mitigating factors the individual may wish to raise. That letter also advises the individual that he or she may wish to obtain representation by an attorney and/or labor representative. During the negotiation stage, FRA considers each case individually on its merits and gives due weight to whatever information the alleged violator provides.
Finally, in the unlikely event that a settlement cannot be reached, FRA sends the individual a letter warning of its intention to request that the Attorney General sue for the initially proposed amount and giving the person a sufficient interval (e.g., 30 days) to decide if that is the only alternative.
FRA believes that the intent of Congress would be violated if individuals who agree to pay a civil penalty or are ordered to do so by a court are indemnified for that penalty by the railroad or another institution (such as a labor organization). Congress intended that the penalties have a deterrent effect on individual behavior that would be lessened, if not eliminated, by such indemnification.
Although informal, face-to-face meetings are encouraged during the negotiation of a civil penalty charge, the RSIA does not require that FRA give individuals or railroads the opportunity for a formal, trial-type administrative hearing as part of the civil penalty process. FRA does not provide that opportunity because such administrative hearings would be likely to add significantly to the costs an individual would have to bear in defense of a safety claim (and also to FRA's enforcement expenses) without shedding any more light on what resolution of the matter is fair than would the informal procedures set forth here. Of course, should an individual or railroad decide not to settle, that person would be entitled to a trial de novo when FRA, through the Attorney General, sued to collect the penalty in the appropriate United States district court.
Penalty Schedules; Assessment of Maximum Penalties
As recommended by the Department of Transportation in its initial proposal for rail safety legislative revisions in 1987, the RSIA raised the maximum civil penalties for violations of the Federal rail safety laws, regulations, or orders. Id., secs. 3, 13-15, 17. Pursuant to sec. 16 of RSIA, the penalty for a violation of the Hours of Service Act was changed from a flat $500 to a penalty of ``up to $1,000, as the Secretary of Transportation deems reasonable.'' Under all the other statutes, and regulations and orders under those statutes, the maximum penalty was raised from $2,500 to $10,000 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 death or injury,'' the penalty was raised to a maximum of $20,000 per violation (``the aggravated maximum penalty'').
The Rail Safety Enforcement and Review Act (RSERA), Public Law 102-365, 106 Stat. 972, enacted in 1992, increased the maximum penalty from $1,000 to $10,000, and provided for an aggravated maximum penalty of $20,000 for a violation of the Hours of Service Act, making these penalty amounts uniform with those of FRA's other safety laws, regulations, and orders. RSERA also increased the minimum civil monetary penalty from $250 to $500 for all of FRA's safety regulatory provisions and orders. Id., sec. 4(a).
The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996) (Inflation Act) required that agencies adjust by regulation each minimum and maximum civil monetary penalty within the agency's jurisdiction for inflation and make subsequent adjustments once every four years after the initial adjustment. Accordingly, FRA's minimum and maximum civil monetary penalties have been periodically adjusted, pursuant to the Inflation Act, through rulemaking.
The Rail Safety Improvement Act of 2008 (``RSIA of 2008''), enacted October 16, 2008, raised FRA's civil monetary ordinary and aggravated maximum penalties to $25,000 and $100,000 respectively. FRA amended the civil penalty provisions in its regulations so as to make $25,000 the ordinary maximum penalty per violation and $100,000 the aggravated maximum penalty per violation, as authorized by the RSIA of 2008, in a final rule published on December 30, 2008 in the Federal Register. 73 FR 79700. The December 30, 2008 final rule also adjusted the minimum civil penalty from $550 to $650 pursuant to Inflation Act requirements. Id. A correcting amendment to the civil penalty provisions in 49 CFR part 232 was published on April 6, 2009. 74 FR 15388.
Effective June 25, 2012, the aggravated maximum penalty was raised from $100,000 to $105,000 pursuant to the Inflation Act.
FRA's traditional practice has been to issue penalty schedules assigning to each particular regulation or order specific dollar amounts for initial penalty assessments. The schedule (except where issued after notice and an opportunity for comment) constitutes a statement of agency policy, and is ordinarily issued as an appendix to the relevant part of the Code of Federal Regulations. For each regulation or order, the schedule shows two amounts within the $650 to $25,000 range in separate columns, the first for ordinary violations, the second for willful violations (whether committed by railroads or individuals). In one instance--part 231--the schedule refers to sections of the relevant FRA defect code rather than to sections of the CFR text. Of course, the defect code, which is simply a reorganized version of the CFR text used by FRA to facilitate computerization of inspection data, is substantively identical to the CFR text.
The schedule amounts are meant to provide guidance as to FRA's policy in predictable situations, not to bind FRA from using the full range of penalty authority where extraordinary circumstances warrant. The Senate report on the bill that became the RSIA stated:
It is expected that the Secretary would act expeditiously to set penalty levels commensurate with the severity of the violations, with imposition of the maximum penalty reserved for violation of any regulation where warranted by exceptional circumstances. S. Rep. No. 100-153, 10th Cong., 2d Sess. 8 (1987).
Accordingly, under each of the schedules (ordinarily in a footnote), and regardless of the fact that a lesser amount might be shown in both columns of the schedule, FRA reserves the right to assess the statutory maximum penalty of up to $105,000 per violation where a pattern of repeated violations or a grossly negligent violation has created an imminent hazard of death or injury or has caused death or injury. This authority to assess a penalty for a single violation above $25,000 and up to $105,000 is used only in very exceptional cases to penalize egregious behavior. FRA indicates in the penalty demand letter when it uses the higher penalty amount instead of the penalty amount listed in the schedule.
The Extent And Exercise Of FRA's Safety Jurisdiction
The Safety Act and, as amended by the RSIA, the older safety statutes apply to ``railroads.'' Section 202(e) of the Safety Act defines railroad as follows:
The term ``railroad'' as used in this title means all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, as well as any commuter rail service which was operated by the Consolidated Rail Corporation as of January 1, 1979, and (2) high speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.
Prior to 1988, the older safety statutes had applied only to common carriers engaged in interstate or foreign commerce by rail. The Safety Act, by contrast, was intended to reach as far as the Commerce Clause of the Constitution (i.e., to all railroads that affect interstate commerce) rather than be limited to common carriers actually engaged in interstate commerce. In reporting out the bill that became the 1970 Safety Act, the House Committee on Interstate and Foreign Commerce stated:
The Secretary's authority to regulate extends to all areas of railroad safety. This legislation is intended to encompass all those means of rail transportation as are commonly included within the term. Thus, ``railroad'' is not limited to the confines of ``common carrier by railroad'' as that language is defined in the Interstate Commerce Act. H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970).
FRA's jurisdiction was bifurcated until, in 1988, the RSIA amended the older safety statutes to make them coextensive with the Safety Act by making them applicable to railroads and incorporating the Safety Act's definition of the term (e.g.,45 U.S.C. 16, as amended). The RSIA also made clear that FRA's safety jurisdiction is not confined to entities using traditional railroad technology. The new definition of ``railroad'' emphasized that all non-highway high speed ground transportation systems--regardless of technology used--would be considered railroads.
Thus, with the exception of self-contained urban rapid transit systems, FRA's statutory jurisdiction extends to all entities that can be construed as railroads by virtue of their providing non-highway ground transportation over rails or electromagnetic guideways, and will extend to future railroads using other technologies not yet in use. For policy reasons, however, FRA does not exercise jurisdiction under all of its regulations to the full extent permitted by statute. Based on its knowledge of where the safety problems were occurring at the time of its regulatory action and its assessment of the practical limitations on its role, FRA has, in each regulatory context, decided that the best option was to regulate something less than the total universe of railroads.
For example, all of FRA's regulations exclude from their reach railroads whose entire operations are confined to an industrial installation (i.e., ``plant railroads''), such as those in steel mills that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1) (accident reporting regulations). Some rules exclude passenger operations that are not part of the general railroad system (such as some tourist railroads) only if they meet the definition of ``insular.'' E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade crossing signal safety). Other regulations exclude not only plant railroads but all other railroads that are not operated as a part of, or over the lines of, the general railroad system of transportation. E.g., 49 CFR 214.3 (railroad workplace safety).
By ``general railroad system of transportation,'' FRA refers to the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Much of this network is interconnected, so that a rail vehicle can travel across the nation without leaving the system. However, mere physical connection to the system does not bring trackage within it. For example, trackage within an industrial installation that is connected to the network only by a switch for the receipt of shipments over the system is not a part of the system.
Moreover, portions of the network may lack a physical connection but still be part of the system by virtue of the nature of operations that take place there. For example, the Alaska Railroad is not physically connected to the rest of the general system but is part of it. The Alaska Railroad exchanges freight cars with other railroads by car float and exchanges passengers with interstate carriers as part of the general flow of interstate commerce. Similarly, an intercity high speed rail system with its own right of way would be part of the general system although not physically connected to it. The presence on a rail line of any of these types of railroad operations is a sure indication that such trackage is part of the general system: the movement of freight cars in trains outside the confines of an industrial installation, the movement of intercity passenger trains, or the movement of commuter trains within a metropolitan or suburban area. Urban rapid transit operations are ordinarily not part of the general system, but may have sufficient connections to that system to warrant exercise of FRA's jurisdiction (see discussion of passenger operations, below). Tourist railroad operations are not inherently part of the general system and, unless operated over the lines of that system, are subject to few of FRA's regulations.
The boundaries of the general system are not static. For example, a portion of the system may be purchased for the exclusive use of a single private entity and all connections, save perhaps a switch for receiving shipments, severed. Depending on the nature of the operations, this could remove that portion from the general system. The system may also grow, as with the establishment of intercity service on a brand new line. However, the same trackage cannot be both inside and outside of the general system depending upon the time of day. If trackage is part of the general system, restricting a certain type of traffic over that trackage to a particular portion of the day does not change the nature of the line--it remains the general system.
Of course, even where a railroad operates outside the general system, other railroads that are definitely part of that system may have occasion to enter the first railroad's property (e.g., a major railroad goes into a chemical or auto plant to pick up or set out cars). In such cases, the railroad that is part of the general system remains part of that system while inside the installation; thus, all of its activities are covered by FRA's regulations during that period. The plant railroad itself, however, does not get swept into the general system by virtue of the other railroad's activity, except to the extent it is liable, as the track owner, for the condition of its track over which the other railroad operates during its incursion into the plant. Of course, in the opposite situation, where the plant railroad itself operates beyond the plant boundaries on the general system, it becomes a railroad with respect to those particular operations, during which its equipment, crew, and practices would be subject to FRA's regulations.
In some cases, the plant railroad leases track immediately adjacent to its plant from the general system railroad. Assuming such a lease provides for, and actual practice entails, the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant, the lease would remove the plant railroad's operations on that trackage from the general system for purposes of FRA's regulations, as it would make that trackage part and parcel of the industrial installation. (As explained above, however, the track itself would have to meet FRA's standards if a general system railroad operated over it. See 49 CFR 213.5 for the rules on how an owner of track may assign responsibility for it.) A lease or practice that permitted other types of movements by general system railroads on that trackage would, of course, bring it back into the general system, as would operations by the plant railroad indicating it was moving cars on such trackage for other than its own purposes (e.g., moving cars to neighboring industries for hire).
FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. There are two exceptions: (1) operations of less than 24-inch gage (which, historically, have never been considered railroads under the Federal railroad safety laws); and (2) operations that are off the general system and ``insular'' (defined below).
Insularity is an issue only with regard to tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist operation to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public'except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser'would be affected by the operation. A tourist operation will not be considered insular if one or more of the following exists on its line:
A public highway-rail crossing that is in use;
An at-grade rail crossing that is in use;
A bridge over a public road or waters used for commercial navigation; or
A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.
When tourist operations are conducted on the general system, FRA exercises jurisdiction over them, and all of FRA's pertinent regulations apply to those operations unless a waiver is granted or a rule specifically excepts such operations (e.g., the passenger equipment safety standards contain an exception for these operations, 49 CFR 238.3(c)(3), even if conducted on the general system). When a tourist operation is conducted only on track used exclusively for that purpose it is not part of the general system. The fact that a tourist operation has a switch that connects it to the general system does not make the tourist operation part of the general system if the tourist trains do not enter the general system and the general system railroad does not use the tourist operation's trackage for any purpose other than delivering or picking up shipments to or from the tourist operation itself.
If a tourist operation off the general system is insular, FRA does not exercise jurisdiction over it, and none of FRA's rules apply. If, however, such an operation is not insular, FRA exercises jurisdiction over the operation, and some of FRA's rules (i.e., those that specifically apply beyond the general system to such operations) will apply. For example, FRA's rules on accident reporting, steam locomotives, and grade crossing signals apply to these non-insular tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal railroad safety statutes themselves.
In drafting safety rules, FRA has a specific obligation to consider financial, operational, or other factors that may be unique to tourist operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider those factors in determining whether any particular rule will apply to tourist operations. Therefore, although FRA asserts jurisdiction quite broadly over these operations, we work to ensure that the rules we issue are appropriate to their somewhat special circumstances.
It is important to note that FRA's exercise of its regulatory authority on a given matter does not preclude it from subsequently amending its regulations on that subject to bring in railroads originally excluded. More important, the self-imposed restrictions on FRA's exercise of regulatory authority in no way constrain its exercise of emergency order authority under section 203 of the Safety Act. That authority was designed to deal with imminent hazards not dealt with by existing regulations and/or so dangerous as to require immediate, ex parte action on the government's part. Thus, a railroad excluded from the reach of any of FRA's regulations is fully within the reach of FRA's emergency order authority, which is coextensive with FRA's statutory jurisdiction over all railroads.
FRA's Policy on Jurisdiction Over Passenger Operations
Under the Federal railroad safety laws, FRA has jurisdiction over all railroads except ``rapid transit operations in an urban area that are not connected to the general railroad system of transportation.'' 49 U.S.C. 20102. Within the limits imposed by this authority, FRA exercises jurisdiction over all railroad passenger operations, regardless of the equipment they use, unless FRA has specifically stated below an exception to its exercise of jurisdiction for a particular type of operation. This policy is stated in general terms and does not change the reach of any particular regulation under its applicability section. That is, while FRA may generally assert jurisdiction over a type of operation here, a particular regulation may exclude that kind of operation from its reach. Therefore, this statement should be read in conjunction with the applicability sections of all of FRA's regulations.
Intercity Passenger Operations
FRA exercises jurisdiction over all intercity passenger operations. Because of the nature of the service they provide, standard gage intercity operations are all considered part of the general railroad system, even if not physically connected to other portions of the system. Other intercity passenger operations that are not standard gage (such as a magnetic levitation system) are within FRA's jurisdiction even though not part of the general system.
Commuter Operations
FRA exercises jurisdiction over all commuter operations. Congress apparently intended that FRA do so when it enacted the Federal Railroad Safety Act of 1970, and made that intention very clear in the 1982 and 1988 amendments to that act. FRA has attempted to follow that mandate consistently. A commuter system's connection to other railroads is not relevant under the rail safety statutes. In fact, FRA considers commuter railroads to be part of the general railroad system regardless of such connections.
FRA will presume that an operation is a commuter railroad if there is a statutory determination that Congress considers a particular service to be commuter rail. For example, in the Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter authorities. If that presumption does not apply, and the operation does not meet the description of a system that is presumptively urban rapid transit (see below), FRA will determine whether a system is commuter or urban rapid transit by analyzing all of the system's pertinent facts. FRA is likely to consider an operation to be a commuter railroad if:
The system serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area,
The system's primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function, and
The vast bulk of the system's trains are operated in the morning and evening peak periods with few trains at other hours.
Examples of commuter railroads include Metra and the Northern Indiana Commuter Transportation District in the Chicago area; Virginia Railway Express and MARC in the Washington area; and Metro-North, the Long Island Railroad, New Jersey Transit, and the Port Authority Trans Hudson (PATH) in the New York area.
Other Short Haul Passenger Service
The federal railroad safety statutes give FRA authority over ``commuter or other short-haul railroad passenger service in a metropolitan or suburban area.'' 49 U.S.C. 20102. This means that, in addition to commuter service, there are other short-haul types of service that Congress intended that FRA reach. For example, a passenger system designed primarily to move intercity travelers from a downtown area to an airport, or from an airport to a resort area, would be one that does not have the transportation of commuters within a metropolitan area as its primary purpose. FRA would ordinarily exercise jurisdiction over such a system as ``other short-haul service'' unless it meets the definition of urban rapid transit and is not connected in a significant way to the general system.
Urban Rapid Transit Operations
One type of short-haul passenger service requires special treatment under the safety statutes: ``rapid transit operations in an urban area.'' Only these operations are excluded from FRA's jurisdiction, and only if they are ``not connected to the general railroad system.'' FRA will presume that an operation is an urban rapid transit operation if the system is not presumptively a commuter railroad (see discussion above) the operation is a subway or elevated operation with its own track system on which no other railroad may operate, has no highway-rail crossings at grade, operates within an urban area, and moves passengers from station to station within the urban area as one of its major functions.
Where neither the commuter railroad nor urban rapid transit presumptions applies, FRA will look at all of the facts pertinent to a particular operation to determine its proper characterization. FRA is likely to consider an operation to be urban rapid transit if:
The operation serves an urban area (and may also serve its suburbs),
Moving passengers from station to station within the urban boundaries is a major function of the system and there are multiple station stops within the city for that purpose (such an operation could still have the transportation of commuters as one of its major functions without being considered a commuter railroad), and
The system provides frequent train service even outside the morning and evening peak periods.
Examples of urban rapid transit systems include the Metro in the Washington, D.C. area, CTA in Chicago, and the subway systems in New York, Boston, and Philadelphia. The type of equipment used by such a system is not determinative of its status. However, the kinds of vehicles ordinarily associated with street railways, trolleys, subways, and elevated railways are the types of vehicles most often used for urban rapid transit operations.
FRA can exercise jurisdiction over a rapid transit operation only if it is connected to the general railroad system, but need not exercise jurisdiction over every such operation that is so connected. FRA is aware of several different ways that rapid transit operations can be connected to the general system. Our policy on the exercise of jurisdiction will depend upon the nature of the connection(s). In general, a connection that involves operation of transit equipment as a part of, or over the lines of, the general system will trigger FRA's exercise of jurisdiction. Below, we review some of the more common types of connections and their effect on the agency's exercise of jurisdiction. This is not meant to be an exhaustive list of connections.
Rapid Transit Connections Sufficient To Trigger FRA's Exercise of
Jurisdiction
Certain types of connections to the general railroad system will cause FRA to exercise jurisdiction over the rapid transit line to the extent it is connected. FRA will exercise jurisdiction over the portion of a rapid transit operation that is conducted as a part of or over the lines of the general system. For example, rapid transit operations are conducted on the lines of the general system where the rapid transit operation and other railroad use the same track. FRA will exercise its jurisdiction over the operations conducted on the general system. In situations involving joint use of the same track, it does not matter that the rapid transit operation occupies the track only at times when the freight, commuter, or intercity passenger railroad that shares the track is not operating. While such time separation could provide the basis for waiver of certain of FRA's rules (see 49 CFR part 211), it does not mean that FRA will not exercise jurisdiction. However, FRA will exercise jurisdiction over only the portions of the rapid transit operation that are conducted on the general system. For example, a rapid transit line that operates over the general system for a portion of its length but has significant portions of street railway that are not used by conventional railroads would be subject to FRA's rules only with respect to the general system portion. The remaining portions would not be subject to FRA's rules. If the non-general system portions of the rapid transit line are considered a ``rail fixed guideway system'' under 49 CFR part 659, those rules, issued by the Federal Transit Administration (FTA), would apply to them.
Another connection to the general system sufficient to warrant FRA's exercise of jurisdiction is a railroad crossing at grade where the rapid transit operation and other railroad cross each other's tracks. In this situation, FRA will exercise its jurisdiction sufficiently to assure safe operations over the at-grade railroad crossing. FRA will also exercise jurisdiction to a limited extent over a rapid transit operation that, while not operated on the same tracks as the conventional railroad, is connected to the general system by virtue of operating in a shared right-of-way involving joint control of trains. For example, if a rapid transit line and freight railroad were to operate over a movable bridge and were subject to the same authority concerning its use (e.g., the same tower operator controls trains of both operations), FRA will exercise jurisdiction in a manner sufficient to ensure safety at this point of connection. Also, where transit operations share highway-rail grade crossings with conventional railroads, FRA expects both systems to observe its signal rules. For example, FRA expects both railroads to observe the provision of its rule on grade crossing signals that requires prompt reports of warning system malfunctions. See 49 CFR part 234. FRA believes these connections present sufficient intermingling of the rapid transit and general system operations to pose significant hazards to one or both operations and, in the case of highway-rail grade crossings, to the motoring public. The safety of highway users of highway-rail grade crossings can best be protected if they get the same signals concerning the presence of any rail vehicles at the crossing and if they can react the same way to all rail vehicles.
Rapid Transit Connections Not Sufficient To Trigger FRA's Exercise of
Jurisdiction
Although FRA could exercise jurisdiction over a rapid transit operation based on any connection it has to the general railroad system, FRA believes there are certain connections that are too minimal to warrant the exercise of its jurisdiction. For example, a rapid transit system that has a switch for receiving shipments from the general system railroad is not one over which FRA would assert jurisdiction. This assumes that the switch is used only for that purpose. In that case, any entry onto the rapid transit line by the freight railroad would be for a very short distance and solely for the purpose of dropping off or picking up cars. In this situation, the rapid transit line is in the same situation as any shipper or consignee; without this sort of connection, it cannot receive or offer goods by rail.
Mere use of a common right-of-way or corridor in which the conventional railroad and rapid transit operation do not share any means of train control, have a rail crossing at grade, or operate over the same highway-rail grade crossings would not trigger FRA's exercise of jurisdiction. In this context, the presence of intrusion detection devices to alert one or both carriers to incursions by the other one would not be considered a means of common train control. These common rights of way are often designed so that the two systems function completely independently of each other. FRA and FTA will coordinate with rapid transit agencies and railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit trains and conventional equipment.
Where these very minimal connections exist, FRA will not exercise jurisdiction unless and until an emergency situation arises involving such a connection, which is a very unlikely event. However, if such a system is properly considered a rail fixed guideway system, FTA's rules (49 CFR part 659) will apply to it.
Coordination of the FRA and FTA Programs
FTA's rules on rail fixed guideway systems (49 CFR part 659) apply to any rapid transit systems or portions thereof not subject to FRA's rules. On rapid transit systems that are not sufficiently connected to the general railroad system to warrant FRA's exercise of jurisdiction (as explained above), FTA's rules will apply exclusively. On those rapid transit systems that are connected to the general system in such a way as warrant exercise of FRA's jurisdiction, only those portions of the rapid transit system that are connected to the general system will generally be subject to FRA's rules.
A rapid transit railroad may apply to FRA for a waiver of any FRA regulations. See 49 CFR part 211. FRA will seek FTA's views whenever a rapid transit operation petitions FRA for a waiver of its safety rules. In granting or denying any such waiver, FRA will make clear whether its rules do not apply to any segments of the operation so that it is clear where FTA's rules do apply.
Extraordinary Remedies
While civil penalties are the primary enforcement tool under the federal railroad safety laws, more extreme measures are available under certain circumstances. FRA has authority to issue orders directing compliance with the Federal Railroad Safety Act, the Hazardous Materials Transportation Act, the older safety statutes, or regulations issued under any of those statutes. See 45 U.S.C. 437(a) and (d), and 49 App. U.S.C. 1808(a). Such an order may issue only after notice and opportunity for a hearing in accordance with the procedures set forth in 49 CFR part 209, subpart C. FRA inspectors also have the authority to issue a special notice requiring repairs where a locomotive or freight car is unsafe for further service or where a segment of track does not meet the standards for the class at which the track is being operated. Such a special notice may be appealed to the regional director and the FRA Administrator. See 49 CFR part 216, subpart B.
FRA may, through the Attorney General, also seek injunctive relief in federal district court to restrain violations or enforce rules issued under the railroad safety laws. See 45 U.S.C. 439 and 49 App. U.S.C. 1810.
FRA also has the authority to issue, after notice and an opportunity for a hearing, an order prohibiting an individual from performing safety-sensitive functions in the rail industry for a specified period. This disqualification authority is exercised under procedures found at 49 CFR part 209, subpart D.
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. The Accident Reports Act, 45 U.S.C. 39, also contains criminal penalties.
Perhaps FRA's most sweeping enforcement tool is its authority to issue emergency safety orders ``where an unsafe condition or practice, or a combination of unsafe conditions or practices, or both, create an emergency situation involving a hazard of death or injury to persons * * *'' 45 U.S.C. 432(a). After its issuance, such an order may be reviewed in a trial-type hearing. See 49 CFR 211.47 and 216.21 through 216.27. The emergency order authority is unique because it can be used to address unsafe conditions and practices whether or not they contravene an existing regulatory or statutory requirement. Given its extraordinary nature, FRA has used the emergency order authority sparingly. [53 FR 52920, Dec. 29, 1988, as amended at 63 FR 11619, Mar. 10, 1998; 64 FR 62864, Nov. 17, 1999; 65 FR 42544, July 10, 2000; 69 FR 30592, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 72 FR 51196, Sept. 6, 2007; 73 FR 79701, Dec. 30, 2008; 77 FR 24418, Apr. 24, 2012] Sec. Appendix B to Part 209--Federal Railroad Administration Guidelines
for Initial Hazardous Materials Assessments
These guidelines establish benchmarks to be used in determining initial civil penalty assessments for violations of the Hazardous Materials Regulations (HMR). The guideline penalty amounts reflect the best judgment of the FRA Office of Safety Assurance and Compliance (RRS) and of the Safety Law Division of the Office of Chief Counsel (RCC) on the relative severity of the various violations routinely encountered by FRA inspectors on a scale of amounts up to the maximum $75,000 penalty, except the maximum civil penalty is $175,000 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. (49 U.S.C. 5123) Unless otherwise specified, the guideline amounts refer to average violations, that is, violations involving a hazardous material with a medium level of hazard, and a violator with an average compliance history. In an ``average violation,'' the respondent has committed the acts due to a failure to exercise reasonable care under the circumstances (``knowingly''). For some sections, the guidelines contain a breakdown according to relative severity of the violation, for example, the guidelines for shipping paper violations at 49 CFR Secs. 172.200-.203. All penalties in these guidelines are subject to change depending upon the circumstances of the particular case. The general duty sections, for example Secs. 173.1 and 174.7, are not ordinarily cited as separate violations; they are primarily used as explanatory citations to demonstrate applicability of a more specific section where applicability is otherwise unclear.
FRA believes that infractions of the regulations that lead to personal injury are especially serious; this is directly in line with Department of Transportation policy that hazardous materials are only safe for transportation when they are securely sealed in a proper package. (Some few containers, such as tank cars of carbon dioxide, are designed to vent off excess internal pressure. They are exceptions to the ``securely sealed'' rule.) ``Personal injury'' has become somewhat of a term of art, especially in the fields of occupational safety and of accident reporting. To avoid confusion, these penalty guidelines use the notion of ``human contact'' to trigger penalty aggravation. In essence, any contact by a hazardous material on a person during transportation is a per se injury and proof will not be required regarding the extent of the physical contact or its consequences. When a violation of the Federal hazardous material 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 $75,000 and up to and including $175,000 shall always be assessed initially.
These guidelines are a preliminary assessment tool for FRA's use. They create no rights in any party. FRA is free to vary from them when it deems appropriate and may amend them from time to time without prior notice. Moreover, FRA is not bound by any amount it initially proposes should litigation become necessary. In fact, FRA reserves the express authority to amend the NOPV to seek a penalty of up to $75,000 for each violation, and up to $175,000 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.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 $650 and not more than $25,000 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 $105,000 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 Secs.
172.200--.203. (The ``shipping paper'' is the document tendered by
the shipper/offeror to the carrier. The original shipping paper
contains the shipper's certification at Sec. 172.204.) 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 Secs. 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.
--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 Secs.
172.600-604; while the normal unit of violation for shipping papers
is the whole document, failure to provide emergency response
information is a separate violation.----------------------------------------------------------------------------------------------------------------172.201(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 Secs.
(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 Secs.
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.----------------------------------------------------------------------------------------------------------------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
Secs. 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.
Improper display of hazard 2,500.
class on placard--
secondary hazard.
----------------------------------------------------------------------Emergency Response Information........... Violations of Secs. 172.600-.604 are in addition to shipping paper
violations. In citing a carrier, if the railroad's practice is to
carry an emergency response (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.)172.820(a)-(e)........................... General failure to perform 5,000 to 10,000
safety and security route
analysis.
Factors to consider are the
size of the railroad
carrier, and the
quantities of hazmat
transported.172.820(a)-(e)........................... Partial failure to complete 5,000
route analysis; failure to
complete a component of
the route analysis.
--Compilation of
security-sensitive
commodity data.
--Identification of
practicable alternative
routes.
--Consultation with
State, local, and
tribal officials, as
appropriate regarding
security risks to high-
consequence targets
along or in proximity
to a route used by the
carrier to transport
security-sensitive
materials.
--Safety and security
route analysis of route
used.
--Safety and security
alternative route
analysis.172.820(f)............................... Failure to complete route 2,000
analyses within the
prescribed time frame.172.820(g)............................... Failure to include one of 2,000
the following components
in safety and security
plan.
--Procedure for
consultation with
offerors and consignees
to minimize storage of
security-sensitive
materials incidental to
movement.
--Measures to limit
unauthorized access to
the materials during
storage or delays in
transit.
--Measures to mitigate
risk to population
centers associated with
in-transit storage of
the materials.
--Measures to be taken
in the event of
escalating threat
levels for the
materials stored in
transit.
(Unit of violation is the
component. For a total
failure to have a security
plan, cite Sec. 172.800
and use the penalties
provided for that
section.).172.820(h)............................... Failure to maintain records 2,000
and make available to DOT
and DHS authorized
officials.172.820(i)............................... Failure to use route 10,000
designated by FRA
Associate Administrator
for Safety.----------------------------------------------------------------------------------------------------------------
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 Secs.
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 $75,000, and up to $175,000 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.)..
--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
$75,000, and up to $175,000 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-Secs. 173.32a, 173.32b, and
173.32c.
--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--Secs. 173.32a,173.32b,
and 173.32c.----------------------------------------------------------------------------------------------------------------
173.24a(a)(3)........................ Non-bulk packagings: 1,000.
Failure to secure and
cushion inner packagings.
--Causes leak.............. 5,000.
--Leak with any contact 15,000.
between product and any
human being.
173.24a(b) and (d)................... Non-bulk packagings: 1,000.
Exceeding filling limits.
--Causes leak.............. 5,000.
--Leak with any contact 15,000.
between product and any
human being.
173.24b(a)........................... Insufficient outage:
--<1%...................... 3,000.
--Causes leak.............. 5,000.
Outage <5% on PIH material. 5,000.
--Causes leak.............. 7,500.
--Leak with any contact 15,000.
between product and any
human being.
173.24b(d)(2)........................ Overloaded to exceed the 5,000.
maximum weight of lading
marked on the
specification plate.
173.26............................... Loaded beyond gross weight 5,000.
or capacity as stated in
specification. (Applies
only if quantity
limitations do not appear
in packaging requirements
of part 173.) (For tank
cars, see Sec. 179.13.)
For gross weight and
capacity requirements, see
Sec. 179.13. Sec. 173.26
should be the citation for
the violation and civil
penalty; Sec. 179.13 can
be cited as a reference
section.
173.28............................... Improper reuse, 1,000.
reconditioning, or
remanufacture of
packagings.----------------------------------------------------------------------------------------------------------------
173.29(a)............................ Offering residue tank car for transportation when openings are not
tightly closed (Sec. 173.31(d) is also applicable for tank cars).
The regulation requires offering ``in the same manner as when''
loaded and may be cited when a car not meeting specifications (see
Sec. 173.31(a)(1)) is released back into transportation after
unloading; same guideline amount. Guidelines vary with the type of
commodity involved. In addition to the vapor pressure factor cited
below, the RQ (reportable quantity) is a fair measure of the danger
of a commodity to the environment. For RQ values <=10, consider
aggravating the penalties below by no less than 50 percent.
----------------------------------------------------------------------
--Hazardous material with 2,000.
insignificant vapor
pressure and without
classification as
``poison'' or ``inhalation
hazard.''.
--With actual leak......... 5,000.
--With leak allowing the 15,000.
product to contact any
human being.
--Hazardous material with 5,000.
vapor pressure
(essentially any gas or
compressed gas) and/or
with classification as
``poison'' or ``inhalation
hazard.''.
--With actual leak......... 7,500.
--With leak allowing the 15,000.
product (or fumes or
vapors) to contact any
human being. (In the case
of fumes, the ``contact''
must be substantial.).
--Where only violation is 1,000.
failure to secure a
protective housing, e.g.,
the covering for the
gaging device.----------------------------------------------------------------------------------------------------------------
173.30............................... A general duty section that should be cited with the explicit
statement of the duty.
----------------------------------------------------------------------
173.31(a)(1)......................... Use of a tank car not meeting specifications and the ``Bulk
packaging'' authorization in Column 8 of the Sec. 172.101 Hazardous
Materials Table reference is:
----------------------------------------------------------------------
Sec. 173.240.............. 1,000.
Sec. 173.241.............. 2,500.
Sec. 173.242.............. 5,000.
Sec. 173.243.............. 5,000.
Sec. 173.244.............. 7,500.
Sec. 173.245.............. 7,500.
Sec. 173.247.............. 1,000.
Sec. 173.249.............. 7,500.
Sec. 173.314.............. 5,000.
Sec. 173.315.............. 5,000.
Sec. 173.319.............. 5,000.
Sec. 173.320.............. 5,000
Sec. 173.323.............. 7,500.
--Minor defect not 500.
affecting the ability of
the package to contain a
hazardous material, e.g.,
no chain on a bottom
outlet closure plug.
--Defect of greater 1,000.
importance, e.g., safety
valve tested, but test
date not stenciled on
valve.
--Tank meets specification, 1,000.
but specification is not
stenciled on car. Sec.
179.1(e) implies that only
the builder has the duty
here, but it is the
presence of the stencil
that gives the shipper the
right to rely on the
builder. (See Sec.
173.22(a)(3).).
--Tank car not stenciled 2,500.
according to Appendix C of
the Tank Car Manual. The
sub-reference is to Sec.
179.22 which requires each
tank car to be marked in
accordance with Appendix C
of the Tank Car Manual.
For example, Appendix
3.03(a)(5), requires
marking of the tank ``NOT
FOR FLAMMABLE LIQUIDS'' or
``NOT FOR FLAMMABLE OR
POISONOUS LIQUIDS.''.----------------------------------------------------------------------------------------------------------------
173.31(a)(2)......................... Tank cars and appurtenances 7,500.
used for a material not
authorized on the
certificate of
construction (or by
addendum on Association of
American Railroads (AAR)
form R-1).
173.31(a)(3)......................... Filling a tank car overdue 7,500.
for a periodic inspection
with a hazardous material
and then offering it for
transportation. (Note:
Offering a residue car,
overdue for inspection, is
not a violation; neither
is filling the car--so
long as it is not offered
for transportation.)
(Adjust penalty if less
than one month or more
than one year overdue.).
173.31(a)(4)......................... Use of tank car without air 5,000.
brake support attachments
welded to pads..
173.31(a)(5)......................... Use of a tank car with a 15,000.
self-energized manway
located below the liquid
level of the lading.
173.31(b)(1)......................... Use of DOT-specification 10,000.
tank car, or any tank car
used for transportation of
a hazardous material,
without shelf couplers.
--Against a carrier, cite 6,000.
Sec. 174.3 and this
section..
173.31(b)(2)......................... Tank car with nonreclosing 7,500.
pressure relief device
used to transport Class 2
gases, Class 3 or 4
liquids, or Division 6.1
liquids, PG I or II.
----------------------------------------------------------------------
Tank car has a nonreclosing 1,000.
pressure relief device and
the wrong pressure is
stenciled on the tank.
Cite this section where
the standard in Sec.
179.22(a) is not met and
the respondent is other
than the builder or
manufacturer.
Where either the rupture 5,000.
disc is unmarked for
pressure or manufacturer
name or is marked but is
of the wrong pressure.
Cite this section for a
violation of Sec.
179.156(h) against other
than the builder or
manufacturer.
173.31(b)(3)......................... Use of a tank car for the transportation of a hazardous material
without the required tank-head protection. See paragraphs
(b)(3)(iii) and (iv) for compliance periods.----------------------------------------------------------------------------------------------------------------
(3)(iii) and (iv) for compliance periods.----------------------------------------------------------------------------------------------------------------
(iii) and (iv) for compliance periods.----------------------------------------------------------------------------------------------------------------
--Class 2.................. 10,000.
--Tank car constructed from 7,500.
aluminum or nickel plate.
--Against a carrier, cite 6,000.
Sec. 174.3 and this
section.----------------------------------------------------------------------------------------------------------------
173.31(b)(4)......................... Use of a tank car for the 10,000.
transportation of a Class
2 material without the
required thermal
protection. See paragraphs
(b)(4)(i) for compliance
(4)(i) for compliance
(i) for compliance
periods.
173.31(b)(5)......................... Use of a tank car for the 5,000.
transportation of a
hazardous material without
the required bottom-
discontinuity protection.
See the paragraph for
compliance periods.
173.31(b)(6)......................... Failure to submit a 2,500.
progress report to the FRA.
173.31(c)............................ Use of a tank car with an 10,000.
incorrect tank test
pressure.----------------------------------------------------------------------------------------------------------------
173.31(d)............................ Offering a tank car for 5,000.
transportation with a
hazardous material, or a
residue of a hazardous
material, that is not in
proper condition or that
is unsafe for
transportation. Sections
173.24(b) and (f)
establish a ``no-leak''
design standard, and
173.31 imposes that
standard on operations. In
addition to the vapor
pressure factor cited
below, the RQ (reportable
quantity) is a fair
measure of the danger of a
commodity to the
environment. For RQ values
<=10, consider aggravating
the penalties below by no
less than 50 percent. The
unit of violation is the
car, aggravated if
necessary for truly
egregious condition.
----------------------------------------------------------------------
Loaded car:
----------------------------------------------------------------------
--Failure to inspect the 5,000.
tank car, service
equipment, or markings
prior to offering the car
for transportation.: If
the failure to inspect
resulted in a release of
product, the appropriate
penalty amount below
applies.
--With actual leak of 10,000.
product.
--With actual leak allowing 15,000.
the product (or fumes or
vapors) to contact any
human being. (With safety
vent, be careful because
carrier might be at fault).
--Minor violation, e.g., 1,000.
bottom outlet cap loose on
tank car of molten sulfur
(because product is a
solid when shipped).
----------------------------------------------------------------------
Residue car: (The penalties are the same as in 173.29(a).)
----------------------------------------------------------------------
Offering residue tank car for transportation when openings are not
tightly closed (Sec. 173.29(a) is also applicable for tank cars)
Guidelines vary with the type of commodity involved:
----------------------------------------------------------------------
--Hazardous material with 2,000.
insignificant vapor
pressure and without
classification as
``poison'' or ``inhalation
hazard.''.
--With actual leak......... 5,000.
--With leak allowing the 15,000.
product to contact any
human being.
--Hazardous material with 5,000.
vapor pressure (esentially
any gas or compressed gas)
and/or with classification
as ``poison'' or
``inhalation hazard.''.
--With actual leak......... 7,500.
--With leak allowing the 15,000.
product (or fumes or
vapors) to contact any
human being. (In the case
of ``fumes,'' the
``contact'' must be
substantial.).
----------------------------------------------------------------------
Whether loaded or residue:----------------------------------------------------------------------------------------------------------------
--Where the only violation 1,000.
is the failure to secure a
protective housing, e.g.,
the covering for the
gaging device.
--Where ``other 2,500 (Varies to account for
conditions'' than a loose seriousness).
closure make a tank car
not ``in proper condition
for transportation''
(e.g., loose ladders,
seals thrown into safety
valves, etc.).----------------------------------------------------------------------------------------------------------------
173.31(e)(1)......................... Tank car with interior 7,500.
heating coils used to
transport Division 2.3 or
Division 6.1, PG I, based
on inhalation toxicity.
173.31(e)(2)......................... Use of a tank car for a 10,000.
material poisonous by
inhalation that does not
meet the minimum
specification i.e., 300
pound tank test pressure,
head protection, and a
metal jacket.) See the
paragraph for the
compliance dates.
173.31(f)............................ Use of a tank car for a 5,000.
``listed'' hazardous
substance that does not
meet the minimum
specification (i.e., 200
pound tank test pressure,
head protection, and a
metal jacket.): See the
paragraph for the
compliance dates and Sec.
173.31(f)(2) for the list
of hazardous substances.
173.31(g)(1)......................... Unloading a tank car 4,000.
without securing access to
the track to prevent entry
by other rail equipment.
Derails, lined and blocked
switches, or other
equipment that provides
equivalent level of
security is acceptable.
173.31(g)(2)......................... Unloading a tank car 2,000.
without caution signs
properly displayed. (See
Part 218, Subpart B).
173.31(g)(3)......................... Unloading without brakes
set and/or wheels blocked.
(The enforcement standard,
as per 1995 Hazardous
Materials Technical
Resolution Committee, is
that sufficient handbrakes
must be applied on one or
more cars to prevent
movement and each car with
a handbrake set must be
blocked in both
directions. The unloading
facility must make a
determination on how many
brakes to set.).
--No brakes set, no wheels 5,000.
blocked, or fewer brakes
set/wheels blocked than
facility's operating plan.
--No brakes set, but wheels 3,000.
blocked.
--Brakes set, but wheels 4,000.
not blocked.----------------------------------------------------------------------------------------------------------------
173.32(a)(1)......................... Using a portable tank for 5,000.
transportation of
hazardous materials, when
tank does not meet
regulatory requirements.
(For loose closures or
leaks on portable tanks
use 173.24.).
173.32(a)(2)......................... Filling and offering 5,000.
portable tank when
periodic test or
inspection overdue.----------------------------------------------------------------------------------------------------------------Gases; Preparation and Packaging:----------------------------------------------------------------------------------------------------------------
173.314(c)........................... Compressed gas loaded in 6,000.
excess of filling density
(same basic concept as
insufficient outage).
173.314(e) through (o)............... Failure to comply with a 5,000.
special requirement for a
compressed gas.----------------------------------------------------------------------------------------------------------------
PART 174--CARRIAGE BY RAIL----------------------------------------------------------------------------------------------------------------General Requirements:----------------------------------------------------------------------------------------------------------------
174.3................................ Acceptance of improperly prepared shipment. This general duty section
shall be accompanied by a citation to the specific section violated.
174.9................................ Failure to properly inspect For loaded car 5,000.
a rail car containing a For residue car 2,000.
hazardous material when
accepted for
transportation or placed
in a train: The carrier
shall inspect the rail
car, at ground level, for
required markings, labels,
placards, securement of
closures and leakage. The
inspection may be
performed in conjunction
with the inspections
required under parts 215
and 232. This requirement
will not ``trigger'' an
inspection and thereby
require a train to be
stopped. For example, in
run-through train
operations, the train crew
of the receiving railroad
simply assumes
responsibility for the
train from the delivering
crew. Acceptance of
responsibility includes
the right to receive a
penalty action for
transporting a rail car
with a non-complying
condition. Note also that
the presence of a non-
complying condition by
itself does not prove that
there was a failure to
inspect. See also Sec.
174.50 for violations
against the carrier for
loose (visible from ground
level) closures on cars.
174.14............................... Failure to expedite: 2,500.
Violation of ``48-hour
rule.''.----------------------------------------------------------------------------------------------------------------
General Operating Requirements........... This subpart (subpart B) of part 174 has two sections referring to
shipment documentation: Sec. 174.24 relating to accepting
documents, and Sec. 174.26 relating to movement documents in the
possession of the train crew. Only the most relevant section should
be cited. In most cases, the unit of violation is the shipment,
although where a unified consist is used to give notice to the crew,
there is some justification for making it the train, especially
where the discrepancy was generated using automated data processing
and the error is repetitious.----------------------------------------------------------------------------------------------------------------
174.24(a)............................ Accepting hazardous
material shipment without
properly prepared shipping
paper. (The carrier's duty
extends only to the
document received, that
is, a shipment of
hazardous material in a
non-placarded transport
vehicle with a shipping
paper showing other than a
hazardous material is not
a violation against the
carrier unless knowledge
of the contents of the
vehicle is proved.
Likewise, receipt of a
tank car placarded for
Class 3 with a shipping
paper indicating a
flammable liquid does not
create a carrier violation
if the car, in fact,
contains a corrosive. On
the other hand, receipt of
a placarded trailer with a
shipping paper listing
only FAK (``freight-all-
kinds''), imposes a duty
on the carrier to inquire
further and to reject the
shipment if it is
improperly billed.)
----------------------------------------------------------------------
--Improper hazardous 7,500.
material information that
could cause delay or error
in emergency response.
--Total absence of 5,000.
hazardous material
information.
--Technical errors, not 1,000.
likely to cause problems,
especially with emergency
response.
--Minor errors not relating 500.
to hazardous material
emergency response, e.g.,
not listing an exemption
number and the exemption
is not one affecting
emergency response.
----------------------------------------------------------------------
Failure to include emergency response information is covered at Secs.
172.600-172.604; while the normal unit of violation for movement
documents is the whole document, failure to provide emergency
response information is a separate violation.----------------------------------------------------------------------------------------------------------------
174.24(b)............................ Failure to retain shipping 7,500.
papers for one year.
(Variation over a wide
range is not unusual,
depending upon
circumstances.).
174.26(a)............................ Train crew does not have a 6,000.
document indicating
position in train of each
rail car containing a
hazardous material.
Routinely aggravate by 50%
for Poison Gas, 2.3, and
Explosives, 1.1 and 1.2.
(Train is the unit of
violation--this is
generally going to be the
consist list for a train.).
Train crew has documents 2,000 to 4,000.
described above but they
have not updated the
document to account for
delivery or pickup of car
or cars. Penalty amount
may vary depending on the
number of cars not listed
or out of place, the
number of places the cars
are off, the type of
commodity in the car, and
the potential effects on
safe handling of the cars
or emergency response.
(Each failure to update is
a separate unit of
violation--if the crew
picked up one cut of cars
and failed to update the
document, that would be
one unit of violation. The
``update'' requirement
only matures when the crew
has placed the cars into
the train--or removed them
from the train--re-laced
the air hoses, and are
ready to depart.).----------------------------------------------------------------------------------------------------------------
174.26(b)............................ Improper paperwork in possession of train crew. (Shipment is unit of
violation, although there is justification for making it the train
if a unified consist [e.g. one that shows both train car order and
hazmat information] is used to carry this information and the
violation is a pattern one throughout all, or almost all, of the
hazardous material shipments. For intermodal traffic, ``shipment''
can mean the container or trailer--e.g., a UPS trailer with several
non-disclosed hazardous material packages would be one unit.)
----------------------------------------------------------------------
--Information on the 15,000.
document possessed by the
train crew is wrong to the
extent that it caused or
materially contributed to
a reaction by emergency
responders that aggravated
the situation or caused or
materially contributed to
improper handling by the
carrier that led to or
materially contributed to
a product release.
--Information is present 3,000.
and wrong, but without
adverse emergency response
effect (e.g. insignificant
error in shipping name for
the hazmat; name is
incorrect but the
emergency response would
be the same).
--Total lack of hazardous 7,500.
material information on
movement document. (Some
shipping names alone
contain sufficient
information to reduce the
guideline to the next
lower level, but there may
be such dangerous products
that aggravation needs to
be considered.).
--Some information is 5,000.
present but the error(s)
could cause mishandling by
the carrier or a delay or
error in emergency
response. Includes missing
RESIDUE description
required by Sec.
172.203(e)(2).
--Improper information, but 3,000.
the hazardous material are
small shipments (e.g., UPS
moves) and PG III (e.g.,
the ``low hazard''
material allowed in TOFC/
COFC service without an
exemption since HM-197).
--Lack of emergency 4,000.
response phone number.
--Technical defect or minor 500-1,000.
error not likely to cause
delay or error in
emergency response or
carrier handling.----------------------------------------------------------------------------------------------------------------
174.50............................... Forwarding a bulk packaging For loaded car 5,000.
(e.g. a tank car) that no For residue car 2,000.
longer conforms to the
hazmat regulations without
first repairing the
defect. This includes such
non-conforming conditions
as loose closures visible
from ground level (e.g.
loose bottom outlet caps),
improper stenciling or
marking.
--Forwarding a leaking, or 5,000.
non-conforming non-bulk
package containing a
hazardous material without
repair or over-packing.
--Forwarding a leaking bulk 10,000.
package beyond the
movement ``as necessary to
reduce or to eliminate an
immediate threat * * *.''
Consider mitigation for
low hazard HM (e.g., HOT)
and for bulk packages
smaller than tank cars.
--Loss of product resulted 15,000.
in human contact because
of improper carrier
handling.
--Failure to obtain 7,500.
movement approval from the
FRA for the transportation
of a bulk packaging that
no longer conforms to the
regulations.
--Failure to follow 5,000.
directives in a movement
approval.
--Failure to report 5,000.
corrective actions (or any
other reporting
requirement in the
movement approval).----------------------------------------------------------------------------------------------------------------General Handling and Loading Requirements:----------------------------------------------------------------------------------------------------------------
174.55............................... Failure to block and brace as prescribed. (See also Secs. 174.61,
174.63, 174.101, 174.112, 174.115; where these more specific
sections apply, cite them.) Note: The regulatory requirement is that
hazardous material packages be loaded and securely blocked and
braced to prevent the packages from changing position, falling or
sliding into each other. If the load is tight and secure, pieces of
lumber or other material may not be necessary to achieve the ``tight
load'' requirement.
----------------------------------------------------------------------
--General failure to block 5,000.
and brace.
--Inadequate blocking and 2,500.
bracing (an attempt was
made but blocking/bracing
was insufficient).
--Inadequate blocking and 7,500.
bracing leading to a leak.
--Inadequate blocking and 15,000.
bracing leading to a leak
and human being contact.----------------------------------------------------------------------------------------------------------------
174.59............................... Other specific placarding and marking sections may also be
applicable.
Marking and placarding. A railroad's placarding duties are to not
accept a car without placards [Sec. 172.508(b)], and to not
transport a car without placards [Sec. 174.59]. At each inspection
point, a railroad must determine that all placards are in place.
[Sec. 174.9]. The ``next inspection point'' replacement requirement
in this section refers to placards that disappear between inspection
points. A car at an inspection point must be placarded because it is
``in transportation'' [49 U.S.C. 5102(12)], even if held up at that
point. Because the statute creates civil penalty liability only if a
violation is ``knowing,'' that is, ``a reasonable person knew or
should have known that an act performed by him was in violation of
the HMR,'' and because railroads are not under a duty to inspect
hazardous material cars merely standing in a yard, violations
written for unplacarded cars in yards must include proof that the
railroad knew about the unplacarded cars and took no corrective
action within a reasonable time. (Note also that the real problem
with unplacarded cars in a railyard may be a lack of emergency
response information, Secs. 172.600-172.604, and investigation may
reveal that those sections should be cited instead of this one.)
----------------------------------------------------------------------
--Complete failure to 7,500.
placard or to replace
missing placards.
--One placard missing (per 1,000.
car). (Add $1,000 per
missing placard up to a
total of three; then use
the guideline above).
----------------------------------------------------------------------
For other placarding violations, see Secs. 172.500-.560 and
determine if one of them more correctly states the violation. For
marking violations, see Secs. 172.300-.338 and determine if one of
them more correctly states the violation. Note that marking
violations, except for the UN number, are generally applicable to
the shipper/offeror.----------------------------------------------------------------------------------------------------------------
174.61............................... Improper transportation of 3,000.
transport vehicle or
freight container on flat
car. (If improper lading
restraint is the
violation, see Sec.
174.55; if improper
restraint of a bulk
packaging inside a closed
transport vehicle is the
violation, see Sec.
174.63(b).).
174.63(a) and (c).................... --Improper transportation 3,000.
of portable tank or other
bulk packaging in TOFC/
COFC service.
--Portable tank double 5,000.
stacked with container
above or below. (Sec.
174.63(c)(5)(i).).
--Portable tank transported 3,000.
in a well car with its
outlet valve facing
inward. (Sec.
174.63(c)(5)(ii).).
--Portable tank transported 5,000.
without securement
fittings engaged and
locked or void filling
devices not properly
deployed.
--Improper transportation 7,500.
leading to a release of
product.
--Improper transportation 15,000.
leading to a release and
human being contact.----------------------------------------------------------------------------------------------------------------
174.63(b)............................ Improper securement of bulk packaging inside enclosed transport
vehicle or freight container.
----------------------------------------------------------------------
--General failure to secure 5,000.
--Inadequate securement (an 2,500.
attempt to secure was made
but the means of
securement were
inadequate).
--Inadequate securement 7,500.
leading to a leak.
--Inadequate securement 15,000.
leading to a leak and
human being contact.----------------------------------------------------------------------------------------------------------------
174.63(e)............................ Transportation of cargo 7,500.
tank or multi-unit tank
car tank in TOFC or COFC
service without
authorization and in the
absence of an emergency.
174.67(a)(1)......................... Tank car transloading 5,000.
operations performed by
persons not properly
instructed (case cannot be
based on inference).
(Note: for all
transloading requirements,
there must be clear
evidence that the hazmat
shipment is continuing in
transportation by another
mode. For example,
shipping papers show
another destination than
the one where the tank car
is being unloaded/
transloaded, and the
contents of the tank car
are being transloaded into
a highway tank truck.
Otherwise, the tank car
unloading requirements
contained in section
173.31(g) apply).----------------------------------------------------------------------------------------------------------------
174.67(a)(2)......................... Unloading/transloading hazmat without brakes set and/or wheels
blocked. (The enforcement standard, as per 1995 Hazardous Materials
Technical Resolution Committee, is that sufficient handbrakes must
be applied on one or more cars to prevent movement and each car with
a handbrake set must be blocked in both directions. The unloading
facility must make a determination on how many brakes to set.)
----------------------------------------------------------------------
--No brakes set, no wheels 5,000.
blocked, or fewer brakes
set/wheels blocked than
facility's operating plan.
--No brakes set, but wheels 3,000.
blocked.
--Brakes set, but wheels 4,000.
not blocked.----------------------------------------------------------------------------------------------------------------
174.67(a)(3)......................... Unloading/transloading 4,000.
without securing access to
the track to prevent entry
by other rail equipment.
Derails, lined and blocked
switches, or other
equipment that provides
equivalent level of
security is acceptable.
174.67(a)(4)......................... Unloading/transloading 2,000.
without caution signs
properly displayed. (See
Part 218, Subpart B).
174.67(a)(5)......................... Failure of transloading 2,500.
facility to maintain
written safety procedures
(such as those it may
already be required to
maintain pursuant to the
Department of Labor's
Occupational Safety and
Health Administration
requirements in 29 CFR
1910.119 and 1910.120) in
a location where they are
immediately available to
hazmat employees
responsible for the
transloading operation.
----------------------------------------------------------------------
174.67(c)(2)......................... Failure to use non-metallic block to prop manway cover open while
unloading through bottom outlet.
----------------------------------------------------------------------
--Flammable or combustible 3,000.
liquid, or other product
with a vapor flash point
hazard.
--Material with no vapor 500.
flammability hazard.
174.67(h)............................ Insecure unloading 10,000.
connections, resulting in
actual leak of product.
Insecure unloading 5,000.
connections, no leak of
product.
174.67(i)............................ Unattended/unmonitored 5,000.
unloading. Tank car must
be attended by a
designated employee or
monitored by a signaling
system.
174.67(j)............................ Noncompliance with piping 2,000.
requirements.
----------------------------------------------------------------------
174.67(k)............................ Failure to comply with requirements for leaving tank car unloading
connections attached.
----------------------------------------------------------------------
--Hazardous material with 2,000.
insignificant vapor
pressure and without
classification as
``poison'' or ``inhalation
hazard.'' (One count can
be assessed for each
element not followed. May
also assess per tank car
if more than one is
involved in violation)..
--With actual leak......... 5,000.
--With leak allowing the 15,000.
product to contact any
human being.
--Hazardous material with 5,000.
vapor pressure
(essentially any gas or
compressed gas) and/or
with classification as
``poison'' or ``inhalation
hazard.''.
--With actual leak......... 7,500.
--With leak allowing the 15,000.
product (or fumes or
vapors) to contact any
human being). Contact with
``fumes'' must be
substantial.
174.67(l)............................ Failure to remove 2,000.
connections, tighten all
valves with a ``suitable
tool'' and tighten all
other closures once
unloading is complete.
174.81............................... --Failure to obey 6,000.
segregation requirements
for materials forbidden to
be stored or transported
together. (``X'' in the
table).
--Failure to obey 4,000.
segregation requirements
for materials that must be
separated to prevent
commingling in the event
of a leak. (``O'' in the
table).----------------------------------------------------------------------------------------------------------------Handling of Placarded Rail Cars, Transport Vehicles and Freight Containers:----------------------------------------------------------------------------------------------------------------
174.83(a)............................ Improper switching of 5,000.
placarded rail cars.
174.83(b)............................ Improper switching of 8,000.
loaded rail car containing
Division 1.1/1.2, 2.3 PG I
Zone A, or Division 6.1 PG
I Zone A, or DOT 113 tank
car placarded for 2.1.
174.83(c)-(e)........................ Improper switching of 5,000.
placarded flatcar.
174.83(f)............................ Switching Division 1.1/1.2 8,000.
without a buffer car or
placement of Division 1.1/
1.2 car under a bridge or
alongside a passenger
train or platform.
174.84............................... Improper handling of 4,000.
Division 1.1/1.2, 2.3 PG I
Zone A, 6.1 PG I Zone A in
relation to guard or
escort cars.
----------------------------------------------------------------------
174.85............................... Improper Train Placement (The unit of violation under this section is
the car. Where more than one placarded car is involved, e.g., if two
(2) placarded cars are too close to the engine, both are violations.
Where both have a similar violation, e.g., a Division 1.1 car next
to a loaded tank car of a Class 3 material, each car gets the
appropriate penalty as listed below)
----------------------------------------------------------------------
RESIDUE car without at 3,000.
least 1 buffer from engine
or occupied caboose.rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr----------------------------------------------------------------------
Placard Group 1--Division 1.1/1.2 materials (Class A explosive) See
chart at Sec. 174.85.
----------------------------------------------------------------------
--Fewer than six (6) cars 8,000.
(where train length
permits) from engine or
occupied caboose.
--As above but with at 7,000.
least one (1) buffer.
--No buffer at all (where 8,000.
train length doesn't
permit five (5) cars).
--Next to open top car or 7,000.
car with permanent
bulkheads, where lading
extends beyond car ends/
bulkheads or, if shifted,
would be beyond car ends/
bulkheads.
--Next to loaded flat car, 6,000.
except closed TOFC/COFC
equipment, auto carriers,
specially equipped car
with tie-down devices.
--Next to operating 7,000.
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded car, 7,000.
except one from same
placard group or
COMBUSTIBLE.
----------------------------------------------------------------------
Placard Group 2--Division 1.3/1.4/1.5 (Class B and C explosives);
Division 2.1/2.2 (compressed gas, other than Division 2.3, PG 1 Zone
A; Class 3 (flammable liquids); Class 4 (flammable solid); Class 5
(oxidizing materials); Class 6 (poisonous liquids), except 6.1 PG 1
Zone A; Class 8 (corrosive materials). See chart at Sec. 174.85.
----------------------------------------------------------------------
For tank cars:
----------------------------------------------------------------------
--Fewer than six (6) cars 6,000.
(where train length
permits) from engine or
occupied caboose.
--As above but with at 5,000.
least one (1) buffer.
No buffer at all (where 6,000.
train length doesn't
permit five (5)).
--Next to open top car or 5,000.
car with permanent
bulkheads, where lading
extends beyond car ends/
bulkheads or, if shifted,
would be beyond car ends/
bulkheads.
--Next to loaded flat car, 5,000.
except closed TOFC/COFC
equipment, auto carriers,
specially equipped car
with tie-down devices.
--Next to operating 5,000.
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded car, 5,000.
except one from same
placard group or
COMBUSTIBLE.
----------------------------------------------------------------------
For other rail cars:
----------------------------------------------------------------------
--Next to placarded car, 5,000.
except one from same
placard group or
COMBUSTIBLE.
----------------------------------------------------------------------
Placard Group 3--Divisions 2.3 (PG 1 Zone A; poisonous gases) and 6.1
(PG 1 Zone A; poisonous materials).
----------------------------------------------------------------------
For tank cars:
----------------------------------------------------------------------
--Fewer than six (6) cars 8,000.
(where train length
permits) from engine or
occupied caboose.
--As above but with at 7,000.
least one (1) buffer
No buffer at all (where 8,000.
train length doesn't
permit five (5)).
--Next to open top car or 7,000.
car with permanent
bulkheads, where lading
extends beyond car ends/
bulkheads or, if shifted,
would be beyond car ends/
bulkheads.
--Next to loaded flat car, 6,000.
except closed TOFC/COFC
equipment, auto carriers,
specially equipped car
with tie-down devices.
--Next to operating 7,000.
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded car, 7,000.
except one from same
placard group or
COMBUSTIBLE.
----------------------------------------------------------------------
For other rail cars:
----------------------------------------------------------------------
--Next to placarded car, 5,000.
except one from same
placard group or
COMBUSTIBLE.
----------------------------------------------------------------------
Placard Group 4--Class 7 (radioactive) materials
----------------------------------------------------------------------
For rail cars:
----------------------------------------------------------------------
--Next to locomotive or 8,000.
occupied caboose.
--Next to placarded car, 5,000.
except one from same
placard group or
COMBUSTIBLE.
--Next to carload of 3,000.
undeveloped film.----------------------------------------------------------------------------------------------------------------
174.86............................... Exceeding maximum allowable 3,000.
operating speed (15 mph)
while transporting molten
metals or molten glass.----------------------------------------------------------------------------------------------------------------Class 1 (Explosive) Materials:----------------------------------------------------------------------------------------------------------------
174.101(o)(4)........................ Failure to have proper explosives placards on flatcar carrying
trailers/containers placarded for Class 1. (Except for a complete
failure to placard, the unit of violation is the placard.)
----------------------------------------------------------------------
--Complete failure to 7,500.
placard.
--One placard missing (add 1,000.
$1,000 per missing placard
up to a total of three,
then use the guideline
above).
174.104(b)........................... Car used to transport 5,000.
Division 1.1 or 1.2
materials does not meet
requirements. (Aggravation
to be considered, and may
be considerable, for
multiple failures to meet
requirements.).
174.104(c)........................... Failure to inspect and 7,500.
certify car before placing
for loading with Division
1.1 or 1.2 materials.
174.104(e)........................... Failure to supervise the 5,000.
loading and securement of
a container (of Division
1.1 or 1.2 materials) on a
flat car and failure to
certify the car. (Unit of
violation is the
container.).
174.104(f)........................... Failure to retain car 1,000.
certificates at
``forwarding station.''.
Failure to attach car 1,000.
certificates to car. (Unit
of violation is the
certificate, two (2) are
required.)----------------------------------------------------------------------------------------------------------------Detailed Requirements for Class 2 (Gases) Materials:----------------------------------------------------------------------------------------------------------------
174.204.............................. Improper tank car delivery 3,000.
of gases (Class 2
materials).----------------------------------------------------------------------------------------------------------------Detailed Requirements for Class 3 (Flammable Liquid) Materials:----------------------------------------------------------------------------------------------------------------
174.304.............................. Improper tank car delivery 3,000.
of flammable liquids
(Class 3 materials).----------------------------------------------------------------------------------------------------------------Detailed Requirements for Division 6.1 (Poisonous) Materials:----------------------------------------------------------------------------------------------------------------
174.600.............................. Improper tank car delivery 5,000.
of materials extremely
poisonous by inhalation
(Division 2.3 Zone A or
6.1 Zone A materials).----------------------------------------------------------------------------------------------------------------
PART 178--SPECIFICATIONS FOR PACKAGINGS----------------------------------------------------------------------------------------------------------------178.2(b)................................. Package not constructed according to specifications--also cite
specific section not complied with.
----------------------------------------------------------------------
--Bulk packages, including 8,000.
portable tanks.
--55-gallon drum........... 2,500.
--Smaller package.......... 1,000.----------------------------------------------------------------------------------------------------------------
PART 179--SPECIFICATIONS FOR TANK CARS----------------------------------------------------------------------------------------------------------------179.1(e)................................. Tank car not constructed 8,000.
according to
specifications--also cite
section not complied with.
(Part 179 violations are
against the builder or
repairer. Sections in this
Part are often cited in
conjunction with
violations of Secs.
172.330 and 173.31(a) and
(b) by shippers. In such
cases, the part 179
sections are cited as
references, not as
separate alleged
violations.).179.3.................................... Constructing tank car 10,000.
without securing approval
from Tank Car Committee.179.5(a)................................. Failure to furnish a 7,500.
Certificate of
Construction before tank
car is placed in service.179.6.................................... Repair procedures not in 10,000.
compliance with Appendix R
of the Tank Car Manual.
----------------------------------------------------------------------179.7.................................... Section 179.7 requires that each tank car facility have a quality
assurance (QA) program that encompasses at least the elements in
Sec. 179.7(b). A tank car facility is an entity that manufactures,
repairs, inspects, tests, qualifies, or maintains a tank car to
ensure that the tank car conforms to parts 179 and 180, or alters
the certificate of construction of the car. As a rule, a facility
``qualifies'' a tank by ``inspecting'' it and then ``representing''
it as meeting the standard. In addition to the following penalty
amounts, the agency may ``recall'' all tanks qualified by the tank
car facility during the period the facility failed to comply with
the quality assurance requirements. See, for example, Sec.
180.509(b)(4).
----------------------------------------------------------------------
Total failure to have a 15,000.
quality assurance program.
Failure to perform 10,000.
activities as a tank car
facility other than in
accordance with the
quality assurance program.
See 180.509(l) for
applicability to tank car
maintenance activities.
Note that failures to
perform ministerial
activities such as
updating the pages in a
quality assurance manual
or calibrating an
instrument carry a lesser
penalty (e.g. $2,500),
unless they are the cause
of a release or an injury
or death.
The quality assurance 7,500.
program does not contain
one or more of the
elements in Sec.
179.7(b). (The ``element''
is the unit of violation.).
Failure to provide written 7,500.
procedures to its
employees.
Use of an employee to 10,000.
perform nondestructive
testing on a tank when
that employee does not
have the qualifications
for that type of
nondestructive testing.179.11................................... Use of an employee to 10,000.
perform welding on a tank
when that employee does
not have the
qualifications for that
type of welding procedure.
Note: also reference Secs.
179.100-9, 179.200-10,
179.220-10, 179.300-9, and
179.400-11 as appropriate.179.13................................... Tank cars may not be built Varies. See 173.26 for overloaded cars.
or converted to exceed
34,500 gallons capacity or
263,000 pounds gross
weight on rail. This is
the building specification
only; for tank cars loaded
beyond capacity or gross
weight see 173.26.179.15................................... Pressure relief device 5,000.
(e.g. rupture disc) that
does not conform to the
requirements (loaded car).
May also cite 173.31(d).179.201-3(a)............................. Failure to properly line a 7,500.
rubber-lined tank car.179.201-3(b)............................. Three possible violations 5,000.
under this section:
(1) Failure to produce
report certifying that
tank car and its equipment
have been brought into
compliance with
specification. Must occur
prior to lining tank car
with rubber or rubber
compound.
(2) Failure of tank car
liner to provide copy of
report and certification
that tank has been lined
in compliance with specs
to tank car owner.
(3) Failure of tank car
owner to retain reports of
latest lining application
until next re-lining has
been accomplished and
recorded.----------------------------------------------------------------------------------------------------------------
PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS----------------------------------------------------------------------------------------------------------------180...................................... Part 180 prescribes the requirements applicable to any person that
manufactures, fabricates, marks, maintains, repairs, inspects, or
services tank cars to ensure that the tank cars are in proper
condition for transportation. In addition to the following penalty
amounts, the agency may ``recall'' all tanks qualified by the tank
car facility during the period the facility failed to comply with
the quality assurance requirements. See, for example, Sec.
180.509(b)(4).----------------------------------------------------------------------------------------------------------------180.505.................................. This section brings the quality assurance requirements of Sec. 179.7
(car construction) into the tank car maintenance arena. See Sec.
179.7 for penalty guidelines, cite this section and reference the
applicable paragraph(s) or subparagraph(s). No dual penalty will
apply. (Part 180 applies the construction standards of Part 179 to
service life maintenance and requalification of tank cars.)----------------------------------------------------------------------------------------------------------------Tank car specific provisions:----------------------------------------------------------------------------------------------------------------
180.509(a)........................... Failure to comply with requirements for inspection and test.
----------------------------------------------------------------------
--Failure to mark a car See Sec. 180.515.
passing a periodic
inspection and test.
--Failure to prepare See Sec. 180.517.
written report for
inspection and test
performed under this
section.
180.509(b)........................... Failure to perform 5,000.
inspection and test when
at least one of the
qualifying conditions has
been met.
180.509(c)........................... Failure to perform 5,000.
inspection and test at
specified interval.
180.509(d)........................... Failure to properly perform 7,500.
visual inspection.
180.509(e)........................... Failure to properly perform 10,000.
structural integrity
inspection and test.
180.509(f)........................... Failure to properly perform 10,000.
thickness test.
180.509(h)........................... Failure to properly inspect 7,500.
safety systems.
180.509(i)........................... Failure to properly perform 10,000.
lining and coating
inspection and test.
180.509(j)........................... Failure to properly perform 7,500.
leakage pressure test.
180.509(l)........................... Failure to perform 10,000.
inspection and test in
accordance with the
quality assurance program.
(Applies to all non-DOT
specification tank cars as
of July 1, 2000, but see
Sec. 180.509(l)(3) for
``20-year'' cars. See also
Sec. 179.7(f).).
180.513.............................. Failure to repair the tank 10,000.
according to Appendix R of
the AAR Tank Car Manual.
Use of an employee to 10,000.
perform welding on a tank
when that employee does
not have the
qualifications for that
type of welding procedure.
180.515.............................. Failure to mark the tank as 7,500.
required.
180.517.............................. Failure to report, record, 7,500.
and retain required
documentation.----------------------------------------------------------------------------------------------------------------Provisions for tank cars other than single unit tank car tanks:----------------------------------------------------------------------------------------------------------------
180.519(a)........................... Failure to retest at Cite 180.519(b)(5).
required interval.
180.519(b)(1)........................ Failure to perform 7,500.
hydrostatic pressure/
expansion test as required.
180.519(b)(2)........................ Failure to perform interior 7,500.
air pressure test as
required.
180.519(b)(3)........................ Failure to test pressure 7,500.
relief valves as required.
180.519(b)(4)........................ Failure to remove and 5,000.
inspect frangible discs
and fusible plugs.
180.519(b)(5)........................ Failure to retest at 3,000.
required interval.
180.519(b)(6)........................ Failure to stamp tank as 5,000.
required.
180.519(c)........................... Failure to visually inspect 5,000.
as required.
Failure to use competent 5,000.
persons to perform visual
inspection.
180.519(d)........................... Failure to record and 7,500.
retain documentation.
Mitigate/aggravate
depending on the extent of
the violation.----------------------------------------------------------------------------------------------------------------\2\ A person who knowingly violates the hazardous material transportation law or a regulation, order, special
permit, or approval issued thereunder, is subject to a civil penalty of up to $75,000 for each violation,
except that the maximum civil penalty for a violation is $175,000 if the violation results in death, serious
illness, or severe injury to any person or substantial destruction of property; and a minimum $450 civil
penalty applies to a violation related to training. Each day that the violation continues is a separate
offense. 49 U.S.C. 5123; 28 U.S.C. 2461, note. [61 FR 38647, July 25, 1996, as amended at 69 FR 30591, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 73 FR 72200, Nov. 26, 2008; 73 FR 79701, Dec. 30, 2008; 75 FR 43842, July 27, 2010; 77 FR 24419, Apr. 24, 2012; 78 FR 9847, Feb. 12, 2013]
Sec. Appendix C to Part 209--FRA's Policy Statement Concerning Small
Entities
This policy statement required by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) explains FRA's communication and enforcement policies concerning small entities subject to the federal railroad safety laws. These policies have been developed to take into account the unique concerns and operations of small businesses in the administration of the national railroad safety program, and will continue to evolve to meet the needs of the railroad industry. For purposes of this policy statement, the Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the ``excessive demand'' provisions of the Equal Justice Act (5 U.S.C. 504 (a)(4), and 28 U.S.C. 2412 (d)(1)(D)), Class III railroads, contractors and hazardous materials shippers meeting the economic criteria established for Class III railroads in 49 CFR 1201.1-1, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less constitute the class of organizations considered ``small entities'' or ``small businesses.''
FRA understands that small entities in the railroad industry have significantly different characteristics than larger carriers and shippers. FRA believes that these differences necessitate careful consideration in order to ensure that those entities receive appropriate treatment on compliance and enforcement matters, and enhance the safety of railroad operations. Therefore, FRA has developed programs to respond to compliance-related inquiries of small entities, and to ensure proper handling of civil penalty and other enforcement actions against small businesses.
Small Entity Communication Policy
It is FRA's policy that all agency personnel respond in a timely and comprehensive fashion to the inquiries of small entities concerning rail safety statutes, safety regulations, and interpretations of these statutes and regulations. Also, FRA personnel provide guidance to small entities, as needed, in applying the law to specific facts and situations that arise in the course of railroad operations. These agency communications take many forms, and are tailored to meet the needs of the requesting party.
FRA inspectors provide training on the requirements of all railroad safety statutes and regulations for new and existing small businesses upon request. Also, FRA inspectors often provide impromptu training sessions in the normal course of their inspection duties. FRA believes that this sort of preventive, rather than punitive, communication greatly enhances railroad safety. FRA's Office of Safety and Office of Chief Counsel regularly provide oral and written responses to questions raised by small entities concerning the plain meaning of the railroad safety standards, statutory requirements, and interpretations of the law. As required by the SBREFA, when FRA issues a final rule that has a significant impact on a substantial number of small entities, FRA will also issue a compliance guide for small entities concerning that rule.
It is FRA's policy to maintain frequent and open communications with the national representatives of the primary small entity associations and to consult with these organizations before embarking on new policies that may impact the interests of small businesses. In some regions of the country where the concentration of small entities is particularly high, FRA Regional Administrators have established programs in which all small entities in the region meet with FRA regional specialists on a regular basis to discuss new regulations, persistent safety concerns, emerging technology, and compliance issues. Also, FRA regional offices hold periodic conferences, in which specific blocks of time are set aside to meet with small businesses and hear their concerns.
In addition to these communication practices, FRA has instituted an innovative partnership program that expands the extent to which small entities participate in the development of policy and process. The Railroad Safety Advisory Committee (RSAC) has been established to advise the agency on the development and revision of railroad safety standards. The committee consists of a wide range of industry representatives, including organizations that represent the interests of small business. The small entity representative groups that sit on the RSAC may appoint members of their choice to participate in the development of new safety standards. This reflects FRA's policy that small business interests must be heard and considered in the development of new standards to ensure that FRA does not impose unnecessary economic burdens on small businesses, and to create more effective standards. Finally, FRA's Web site (http://www.fra.dot.gov) makes pertinent agency information available instantly to the public.
FRA's longstanding policy of open communication with small entities is apparent in these practices. FRA will make every effort to develop new and equally responsive communication procedures as is warranted by new developments in the railroad industry.
Small Entity Enforcement Policy
FRA has adopted an enforcement policy that addresses the unique nature of small entities in the imposition of civil penalties and resolution of those assessments. Pursuant to FRA's statutory authority, and as described in Appendix A to 49 CFR part 209, it is FRA's policy to consider a variety of factors in determining whether to take enforcement action against persons, including small entities, who have violated the safety laws and regulations. In addition to the seriousness of the violation and the person's history of compliance, FRA inspectors consider ``such other factors as the immediate circumstances make relevant.'' In the context of violations by small entities, those factors include whether the violations were made in good faith e.g., based on an honest misunderstanding of the law), and whether the small entity has moved quickly and thoroughly to remedy the violation(s). In general, the presence of both good faith and prompt remedial action militates against taking a civil penalty action, especially if the violations are isolated events. On the other hand, violations involving willful actions and/or posing serious health, safety, or environmental threats should ordinarily result in enforcement actions, regardless of the entity's size.
Once FRA has assessed a civil penalty, it is authorized to adjust or compromise the initial penalty claims based on a wide variety of mitigating factors, unless FRA must terminate the claim for some reason. FRA has the discretion to reduce the penalty as it deems fit, but not below the statutory minimums. The mitigating criteria FRA evaluates are found in the railroad safety statutes and SBREFA: The severity of the safety or health risk presented; the existence of alternative methods of eliminating the safety hazard; the entity's culpability; the entity's compliance history; the entity's ability to pay the assessment; the impacts an assessment might exact on the entity's continued business; and evidence that the entity acted in good faith. FRA staff attorneys regularly invite small entities to present any information related to these factors, and reduce civil penalty assessments based on the value and integrity of the information presented. Staff attorneys conduct conference calls or meet with small entities to discuss pending violations, and explain FRA's view on the merits of any defenses or mitigating factors presented that may have resulted or failed to result in penalty reductions. Among the ``other factors'' FRA considers at this stage is the promptness and thoroughness of the entity's remedial action to correct the violations and prevent a recurrence. Small entities should be sure to address these factors in communications with FRA concerning civil penalty cases. Long-term solutions to compliance problems will be given great weight in FRA's determinations of a final settlement offer.
Finally, under FRA's Safety Assurance and Compliance Program (SACP), FRA identifies systemic safety hazards that continue to occur in a carrier or shipper operation, and in cooperation with the subject business, develops an improvement plan to eliminate those safety concerns. Often, the plan provides small entities with a reasonable time frame in which to make improvements without the threat of civil penalty. If FRA determines that the entity has failed to comply with the improvement plan, however, enforcement action is initiated.
FRA's small entity enforcement policy is flexible and comprehensive. FRA's first priority in its compliance and enforcement activities is public and employee safety. However, FRA is committed to obtaining compliance and enhancing safety with reasoned, fair methods that do not inflict undue hardship on small entities. [68 FR 24894, May 9, 2003]