Appendix B to Part 209 - Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments
49:4.1.1.1.4.8.5.1.2 : Appendix B
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 Railroad Safety (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 $83,439
penalty, except the maximum civil penalty is $194,691 if the
violation results in death, serious illness or severe injury to any
person, or substantial destruction of property, and a minimum $502
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 172.200 through 172.203. All
penalties in these guidelines are subject to change depending upon
the circumstances of the particular case. The general duty
sections, for example §§ 173.1 and 174.7, are not ordinarily cited
as separate violations; they are primarily used as explanatory
citations to demonstrate applicability of a more specific section
where applicability is otherwise unclear.
FRA believes that infractions of the regulations that lead to
personal injury are especially serious; this is directly in line
with Department of Transportation policy that hazardous materials
are only safe for transportation when they are securely sealed in a
proper package. (Some few containers, such as tank cars of carbon
dioxide, are designed to vent off excess internal pressure. They
are exceptions to the “securely sealed” rule.) “Personal injury”
has become somewhat of a term of art, especially in the fields of
occupational safety and of accident reporting. To avoid confusion,
these penalty guidelines use the notion of “human contact” to
trigger penalty aggravation. In essence, any contact by a
hazardous material on a person during transportation is a per se
injury and proof will not be required regarding the extent of the
physical contact or its consequences. When a violation of the
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
$83,439 and up to and including $194,691 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 $83,439 for each violation, and up to $194,691 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.
[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; 81 FR 43104, 43109, July 1,
2016; 81 FR 16131, June 10, 2016; 83 FR 60745, Nov. 27, 2018; 84 FR
23734, May 23, 2019; 84 FR 37072, July 31, 2019; 86 FR 1757, Jan.
11, 2021]