[Federal Register Volume 68, Number 173 (Monday, September 8, 2003)]
[Rules and Regulations]
[Pages 52844-52856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22569]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 105, 107 and 171

[Docket No. RSPA-03-15372 (RSP-5)]
RIN 2137-AD71


Hazardous Materials Regulations: Penalty Guidelines and Other 
Procedural Regulations

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: In this final rule, we (RSPA) are increasing to $32,500 and 
$275, respectively, the maximum and minimum civil penalties for a 
knowing violation of Federal hazardous materials transportation law or 
a regulation issued under that law. We are publishing revised baseline 
assessments for frequently cited violations to provide the regulated 
community and the general public with more current information on 
RSPA's hazardous material penalty assessment process. The revisions to 
RSPA's baseline penalty assessments consider the increase in the 
maximum civil penalty to $32,500. We are also advising the public that, 
in proposing or assessing a civil penalty, we will not normally 
consider a prior violation in a case that was initiated in a calendar 
year more than six years prior to the year in which the current 
proceeding is initiated.
    In addition, we are updating the address to which civil penalty 
payments must be sent, and we are making editorial changes to our 
procedural regulations for issuing an administrative determination of 
preemption.

EFFECTIVE DATE: This rule is effective on September 30, 2003.

FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Office of 
Hazardous Materials Enforcement, (202) 366-4700; or Frazer C. Hilder, 
Office of the Chief Counsel, (202) 366-4400, Research and Special 
Programs Administration, U.S. Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Increase in Maximum and Minimum Civil Penalties

    The Federal Civil Penalties Inflation Adjustment Act of 1990 (the 
Act) as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 
104-134) requires each Federal agency to periodically adjust civil 
penalties it administers to consider the effects of inflation. (The Act 
is set forth in the note to 28 U.S.C. 2461.) According to Section 5 of 
the Act, a maximum civil penalty (or the range of minimum and maximum 
civil penalties) must be increased based on a ``cost-of-living 
adjustment'' determined by the increase in the Consumer Price Index 
(CPI-U) for the month of June of the calendar year preceding the 
adjustment as compared to the CPI-U for the month of June of the 
calendar year in which the last adjustment was made. The Act also 
specifies that the amount of the adjustment must be rounded to the 
nearest multiple of $5,000, for a penalty between $10,000 and $100,000, 
and that the first adjustment to a civil penalty is limited to 10%. Any 
increased civil penalty amount applies only to violations that occur 
after the date the increase takes effect.
    In a final rule published in the Federal Register on January 21, 
1997, RSPA increased the maximum civil penalty from $25,000 to $27,500 
for a knowing violation of the Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., or RSPA's regulations in 
subchapters A and C of 49 CFR, Chapter I. 62 FR 2970. Accordingly, we 
are now increasing the maximum civil penalty by $5,000, to $32,500, 
based on the increase in the CPI-U from June 1997 (160.3) to June 2002 
(179.9), or 12.2%, times $27,500 equals $3,355, which must be rounded 
to $5,000. We have not previously adjusted the $250 minimum penalty 
amount specified in 49 U.S.C. 5123(a)(1), so we are increasing the 
minimum civil penalty by $25, to $275, because of the 10% limitation 
for the first adjustment.
    To implement these adjustments, we are amending 49 CFR 107.329 and 
171.1(c) to specify that the higher maximum and minimum civil penalties 
will apply to a violation of the Federal hazardous materials 
transportation law, a regulation or order issued under that law, or an 
exemption issued under subpart B of 49 CFR Part 107 that occurs after 
September 30, 2003. We are also making a similar change to the 
reference to the maximum penalty in Section IV.C. of Appendix A to Part 
107, subpart D.

II. Revisions to Civil Penalty Guidelines

    RSPA's hazardous material transportation enforcement civil penalty 
guidelines are published in Appendix A to 49 CFR Part 107, subpart D. 
These guidelines were first published in the Federal Register on March 
6, 1995, in response to a request contained in Senate Report 03-150 
that accompanied the Department of Transportation and

[[Page 52845]]

Related Agencies Appropriations Act of 1994. See the final rule in 
Docket No. HM-207D, 60 FR 12139. Revisions to these guidelines have 
been published on January 21, 1997, and August 28, 2001, in the final 
rules in Docket Nos. HM-207F, 62 FR 2970, and HM-189S, 66 FR 45177, 
respectively. Publication of these guidelines provides the regulated 
community and the general public with information concerning the manner 
in which RSPA generally begins its hazmat penalty assessment process 
and the information that respondents in enforcement cases should 
provide to justify reduction of proposed penalties.
    These guidelines, which are periodically updated, are used by 
RSPA's enforcement personnel and attorneys as a means of determining a 
proposed civil penalty for violations of Federal hazardous material 
transportation law and the regulations issued under that law. As a 
general statement of agency policy and practice, these guidelines are 
not finally determinative of any issues or rights, and do not have the 
force of law. They are informational, impose no requirements, and 
constitute a statement of agency policy for which no notice of proposed 
rulemaking is necessary. See also the discussion of the nature and 
RSPA's use of these penalty guidelines in the preamble to the final 
rules published on March 6, 1995, 60 FR 12139-40, and January 21, 1997, 
62 FR 2970-71.
    These penalty guidelines remain subject to revision, and, in any 
particular case, RSPA's Office of Hazardous Materials Enforcement 
(OHME) and Office of the Chief Counsel will use the version of the 
guidelines in effect at the time a matter is referred by OHME for 
possible issuance of a notice of probable violation. Questions 
concerning RSPA's penalty guidelines and any comments or suggested 
revisions may be addressed to the persons identified above, in FOR 
FURTHER INFORMATION CONTACT.

A. Baseline Penalty Amounts

    This final rule publishes the latest revisions that RSPA has made 
to the List of Frequently Cited Violations and their baseline 
assessments. These revisions to Part II of the guidelines are the 
result of revisions to the requirements in RSPA's regulations and our 
overall review of the penalty guidelines during the past two years. 
These revisions consider the increase in the maximum civil penalty to 
$32,500, in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996, as discussed above.
    In the List of Frequently Cited Violations, we list the section 
number(s) of 49 CFR for each violation, except the word ``Various'' is 
used when a generally stated violation may be covered by more than one 
section of the regulations (e.g., the testing requirements applicable 
to the manufacture of each different DOT specification cylinder are 
contained in different sections of 49 CFR Part 178). In those instances 
where the baseline assessment is stated as a range (e.g., $5,000 to 
$10,000), the factors generally considered in determining an amount 
within that range are indicated within the description of the violation 
(e.g., the length of time that a continuing violation has lasted). 
Otherwise, we generally apply the top, middle, or bottom of the range 
depending on the Packing Group of the hazardous material involved in a 
violation, or we use the middle of the range for the ``normal'' type of 
violation.
    RSPA created and uses these penalty guidelines to promote 
consistency and provide a standard for imposing similar penalties in 
similar cases. When a violation not described in the guidelines is 
encountered, RSPA often determines a baseline assessment by analogy to 
a similar violation in the guidelines. However, as emphasized in Parts 
III and IV of the guidelines, the baseline assessments are only the 
starting point for assessing a penalty for a violation. Because no two 
cases are identical, rigid use of the guidelines would produce 
arbitrary results and, most significantly, would ignore the statutory 
mandate to consider several specific assessment criteria set forth in 
49 U.S.C. 5123 and 49 CFR 107.331. Therefore, regardless of whether or 
not the guidelines are used to determine a baseline amount for a 
violation, RSPA enforcement and legal personnel must apply the 
statutory assessment criteria to all relevant information in the record 
concerning any alleged violation and the apparent violator. 
Consideration of these criteria often warrants a final penalty that is 
lower or higher than the initial baseline assessment.

B. Increasing Penalties for Prior Violations

    Section 5123(c) of 49 U.S.C. provides that ``any history of prior 
violations'' must be considered in determining the amount of a civil 
penalty for a violation of Federal hazardous material transportation 
law or a regulation or order issued under that law. As set forth in 
Section IV.E of the penalty guidelines, our general standard is to 
increase the baseline penalty for a violation by 25% for each prior 
case, up to a maximum increase of 100%. We are revising this section of 
the guidelines to clarify that we apply an increase of 10% for each 
prior ticket against the same company or individual.
    Until this year, RSPA has generally limited to five years the time 
that it will ``look back'' for prior violations, although we recognize 
that there may be circumstances in which it would be appropriate to 
``look back'' for a longer period of time. We have measured the five 
year period according to the calendar years in which the prior case and 
the new case are initiated. For example, the violations in a prior case 
initiated any time during 1997 or later were generally considered as an 
aggravating factor in a new case in which a Notice of Probable 
Violation was issued at any time during 2002.
    We are revising Section IV.E. of the penalty guidelines to advise 
the public that, starting in 2003, RSPA will ``look back'' six years 
(rather than five) for prior violations from the calendar year in which 
the new case is initiated. Thus, as a general rule, we will disregard 
prior violations in any civil or criminal hazardous materials 
enforcement case (or ticket) that was initiated in a calendar year more 
than six years before the year in which the case is initiated. For 
example, in any case in which RSPA issues a Notice of Probable 
Violation during 2003, we will normally consider prior violations in 
cases and tickets with a number beginning in ``97'' or later in 
proposing and assessing a civil penalty for the new violations; in the 
absence of unusual circumstances, we would not consider prior 
violations in cases initiated in 1996 or earlier in proposing and 
assessing a civil penalty for violations in a case initiated during 
2003.

III. Editorial Revisions

A. Preemption

    In the Homeland Security Act of 2002 (the Act) (Pub. L. 107-296), 
Congress has made it clear that security is a part of the safe 
transportation of hazardous materials in commerce. Section 1711 of the 
Act amended the preemption provisions in 49 U.S.C. 5125(a) and (b) to 
specify that the Federal hazardous material transportation law preempts 
non-Federal requirements that conflict with Federal hazardous material 
transportation law, a regulation issued under that law, ``or a 
hazardous material transportation security regulation or directive 
issued by the Secretary of Homeland Security.'' RSPA is revising its 
procedural regulations in subpart C of 49 CFR Part 107 accordingly. In 
other sections, RSPA is removing references

[[Page 52846]]

to a non-Federal requirement being preempted ``under * * * regulations 
issued'' under the Federal hazardous material transportation law to 
clarify that, while a non-Federal requirement that conflicts with 
RSPA's regulations is preempted under the preemption criteria in 49 
U.S.C. 5125, it is preempted by that Federal law and not by the 
regulations issued pursuant to that law.
    RSPA is also revising the definition of ``Regulations issued under 
Federal hazardous material transportation law'' in 49 CFR 105.5 (and 
removing and reserving Sec.  107.201(c)) to explain that, in addition 
to Subchapters A and C of Title 49, regulations issued by the Federal 
Motor Carrier Safety Administration and the Transportation Security 
Administration in Title 49 and regulations issued by the United States 
Coast Guard in Title 46 are also issued under Federal hazardous 
material transportation law. In addition, RSPA is providing a facsimile 
number and an email address (in addition to a mail address) for 
submission of an application for a preemption determination or for a 
waiver of preemption).

B. Enforcement

    Section 107.315 of 49 CFR contains the address of the Financial 
Operations Division of the Federal Aviation Administration (FAA) which 
processes the payment of civil penalties in RSPA's enforcement cases. 
This rule updates the FAA office code and Post Office box number listed 
in paragraphs (b) and (c) of that section.

Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This rule is not 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). The economic impact of this 
final rule is minimal to the extent that preparation of a regulatory 
evaluation is not warranted.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). 
Because this final rule carries out a statutory mandate without 
interpretation, revises an informational appendix without imposing any 
requirements, and makes editorial changes, preparation of a federalism 
assessment is not warranted.

C. Regulatory Flexibility Act

    I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule applies to 
shippers and carriers of hazardous materials, some of which are small 
entities; however, there is no economic impact on any person who 
complies with Federal hazardous materials law and the regulations and 
orders issued under that law.

D. Paperwork Reduction Act

    There are no new information requirements in this final rule.

E. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Act of 1995. It does not result in annual costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Indian tribal governments, or the private sector, and is the 
least burdensome alternative to achieve the objective of the rule.

F. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
spring and fall of each year. The RIN contained in the heading of this 
document can be used to cross-reference this action with the Unified 
Agenda.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 107

    Administrative practices and procedure, Hazardous materials 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous Waste, 
Imports, Penalties, Reporting and recordkeeping requirements.

0
In consideration of the foregoing, 49 CFR chapter I is amended as 
follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

0
1. The authority citation for part 105 continues to read:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


0
2. In Sec.  105.5(b), revise the definition of ``Regulations issued 
under Federal hazardous materials transportation law'' to read as 
follows:


Sec.  105.5  Definitions.

* * * * *
    (b) * * *
    Regulations issued under Federal hazardous material transportation 
law include this subchapter A (parts 105-110) and subchapter C (parts 
171-180) of this chapter, certain regulations in chapter I (United 
States Coast Guard) of title 46, Code of Federal Regulations, and in 
chapters III (Federal Motor Carrier Safety Administration) and XII 
(Transportation Security Administration) of subtitle B of this title, 
as indicated by the authority citations therein.
* * * * *

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
3. The authority citation for part 107 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; Pub. L. 101-410 section 4 
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 
104-134 section 31001; 49 CFR 1.45, 1.53.


0
4. In Sec.  107.201, revise paragraphs (a)(1) and (a)(2), and remove 
and reserve paragraph (c) to read as follows:


Sec.  107.201  Purpose and scope.

    (a) * * *
    (1) Any person, including a State, political subdivision, or Indian 
tribe, directly affected by a requirement of a State, political 
subdivision, or Indian tribe, may apply for a determination as to 
whether that requirement is preempted under 49 U.S.C. 5125.
    (2) A State, political subdivision, or Indian tribe may apply for a 
waiver of preemption with respect to any requirement that the State, 
political subdivision, or Indian tribe acknowledges to be preempted by 
49 U.S.C. 5125, or that has been determined by a court of competent 
jurisdiction to be so preempted.
* * * * *
    (c) [Reserved]
* * * * *

[[Page 52847]]

0
5. In Sec.  107.202, revise paragraphs (a) introductory text, (b)(1), 
and (b)(2) to read as follows:


Sec.  107.202  Standards for determining preemption.

    (a) Except as provided in Sec.  107.221 and unless otherwise 
authorized by Federal law, any requirement of a State or political 
subdivision thereof or an Indian tribe that concerns one of the 
following subjects and that is not substantively the same as any 
provision of the Federal hazardous materials transportation law, a 
regulation issued under the Federal hazardous material transportation 
law, or a hazardous material transportation security regulation or 
directive issued by the Secretary of Homeland Security that concerns 
that subject, is preempted:
* * * * *
    (b) * * *
    (1) It is not possible to comply with a requirement of the State, 
political subdivision, or Indian tribe and a requirement under the 
Federal hazardous material transportation law, a regulation issued 
under the Federal hazardous material transportation law, or a hazardous 
material transportation security regulation or directive issued by the 
Secretary of Homeland Security;
    (2) The requirement of the State, political subdivision, or Indian 
tribe, as applied or enforced, is an obstacle to accomplishing and 
carrying out the Federal hazardous material transportation law, a 
regulation issued under the Federal hazardous material transportation 
law, or a hazardous material transportation security regulation or 
directive issued by the Secretary of Homeland Security.
* * * * *

0
6. In Sec.  107.203, revise paragraphs (b)(1), (b)(3), and (c) to read 
as follows:


Sec.  107.203  Application.

* * * * *
    (b) * * *
    (1) Be submitted to the Associate Administrator:
    (i) By mail addressed to the Associate Administrator for Hazardous 
Materials Safety (Attn: Hazardous Materials Preemption Docket), 
Research and Special Programs Administration, U.S. Department of 
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001;
    (ii) By fax to the Associate Administrator for Hazardous Materials 
Safety (Attn: Hazardous Materials Preemption Docket), at 202-366-5713; 
or
    (iii) Electronically to the Associate Administrator for Hazardous 
Materials Safety (Attn: Hazardous Materials Preemption Docket), at 
[email protected].
* * * * *
    (3) Specify each requirement of the Federal hazardous materials 
transportation law, regulations issued under the Federal hazardous 
material transportation law, or hazardous material transportation 
security regulations or directives issued by the Secretary of Homeland 
Security with which the applicant seeks the State or political 
subdivision or Indian tribe requirement to be compared;
* * * * *
    (c) The filing of an application for a determination under this 
section does not constitute grounds for noncompliance with any 
requirement of the Federal hazardous materials transportation law, 
regulations issued under the Federal hazardous material transportation 
law, or hazardous material transportation security regulations or 
directives issued by the Secretary of Homeland Security.
* * * * *

0
7. In Sec.  107.209, revise paragraph (d) to read as follows:


Sec.  107.209  Determination.

* * * * *
    (d) A determination issued under this section constitutes an 
administrative determination as to whether a particular requirement of 
a State or political subdivision or Indian tribe is preempted under the 
Federal hazardous materials transportation law. The fact that a 
determination has not been issued under this section with respect to a 
particular requirement of a State or political subdivision or Indian 
tribe carries no implication as to whether the requirement is preempted 
under the Federal hazardous materials transportation law.

0
8. In Sec.  107.215, revise the first sentence in paragraph (a), and 
paragraphs (b)(1), (b)(4), and (b)(5) to read as follows:


Sec.  107.215  Application.

    (a) With the exception of requirements preempted under 49 U.S.C. 
5125(c), any State or political subdivision thereof, or Indian tribe 
may apply to the Associate Administrator for a waiver of preemption 
with respect to any requirement that the State or political subdivision 
thereof or an Indian tribe acknowledges to be preempted under the 
Federal hazardous materials transportation law, or that has been 
determined by a court of competent jurisdiction to be so preempted. * * 
*
* * * * *
    (b) * * *
    (1) Be submitted to the Associate Administrator:
    (i) By mail addressed to the Associate Administrator for Hazardous 
Materials Safety (Attn: Hazardous Materials Preemption Docket), 
Research and Special Programs Administration, U.S. Department of 
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001;
    (ii) By fax to the Associate Administrator for Hazardous Materials 
Safety (Attn: Hazardous Materials Preemption Docket), at 202-366-5713; 
or
    (iii) Electronically to the Associate Administrator for Hazardous 
Materials Safety (Attn: Hazardous Materials Preemption Docket), at 
[email protected].
* * * * *
    (4) Contain an express acknowledgment by the applicant that the 
State, political subdivision, or Indian tribe requirement is preempted 
under Federal hazardous materials transportation law, unless it has 
been so determined by a court of competent jurisdiction or in a 
determination issued under Sec.  107.209;
    (5) Specify each requirement of the Federal hazardous materials 
transportation law that preempts the State, political subdivision, or 
Indian tribe requirement;
* * * * *

0
9. In Sec.  107.219, revise paragraphs (c)(1) and (c)(2) to read as 
follows:


Sec.  107.219  Processing.

* * * * *
    (c) * * *
    (1) The applicant State or political subdivision thereof or Indian 
tribe expressly acknowledges in its application that the State or 
political subdivision or Indian tribe requirement for which the 
determination is sought is inconsistent with the requirements of the 
Federal hazardous materials transportation law, regulations issued 
under the Federal hazardous material transportation law, or hazardous 
material transportation security regulations or directives issued by 
the Secretary of Homeland Security.
    (2) The State or political subdivision thereof or Indian tribe 
requirement has been determined by a court of competent jurisdiction or 
in a ruling issued under Sec.  107.209 to be inconsistent with the 
requirements of the Federal hazardous materials transportation law, 
regulations issued under the Federal hazardous material transportation 
law, or hazardous material transportation security

[[Page 52848]]

regulations or directives issued by the Secretary of Homeland Security.
* * * * *

0
10. In Sec.  107.221, revise paragraph (e) to read as follows:


Sec.  107.221  Determination.

* * * * *
    (e) A determination under this section constitutes an 
administrative finding of whether a particular requirement of a State 
or political subdivision thereof or Indian tribe is preempted under the 
Federal hazardous materials transportation law, or whether preemption 
is waived.


Sec.  107.315  [Amended]

0
11. In Sec.  107.315, in paragraphs (c) and (d), the words ``Financial 
Operations Division (AMZ-320), Federal Aviation Administration, Mike 
Monroney Aeronautical Center, P.O. Box 25880, Oklahoma City, OK 73125'' 
are revised to read: ``Financial Operations Division (AMZ-120), Federal 
Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 
25082, Oklahoma City, OK 73125''.


Sec.  107.329  [Amended]

0
12. In Sec.  107.329, in paragraphs (a) and (b), the words ``$25,000 
($27,500 for a violation occurring after January 21, 1997) and not less 
than $250 for each violation.'' are revised to read: ``$32,500 and not 
less than $275 for each violation. (For a violation that occurred after 
January 21, 1997, and before October 1, 2003, the maximum and minimum 
civil penalties are $27,500 and $250, respectively.)''

Subpart D, Appendix A [Amended]

0
13. In part I of appendix A to subpart D of part 107, the parenthetical 
phrase ``(as of January 18, 1997)'' is revised to read: ``(as of 
October 1, 2003)''.

0
14. Appendix A to subpart D of part 107 is amended by revising the List 
of Frequently Cited Violations (Part II) to read as follows:

                                    II.--List of Frequently Cited Violations
----------------------------------------------------------------------------------------------------------------
           Violation description                      Section or cite                  Baseline assessment
----------------------------------------------------------------------------------------------------------------
                                              General Requirements
----------------------------------------------------------------------------------------------------------------
 
 A. Registration requirements:
    Failure to register as an offeror or     107.608, 107.612.................  $1,000 + $500 each additional
     carrier of hazardous material and pay                                       year.
     registration fee.
B. Training requirements:
    1. Failure to provide initial training   172.702..........................
     to hazmat employees (general
     awareness, function-specific, safety,
     and security awareness training):.
        a. more than 10 hazmat employees...  .................................  $700 and up each area.
        b. 10 hazmat employees or fewer....  .................................  $400 and up each area.
    2. Failure to provide recurrent          172.702..........................
     training to hazmat employees (general
     awareness, function-specific, safety,
     and security awareness training).
        a. more than 10 hazmat employees...  .................................  $400 and up each area.
        b. 10 hazmat employees or fewer....  .................................  $250 and up each area.
    3. Failure to provide in depth security  172.702..........................
     training (when a security plan is
     required).
        a. no security plan developed......  .................................  included in penalty for no
                                                                                 security plan $2,500.
        b. security plan developed but
         employee not trained.
    4. Failure to create and maintain        172.704..........................
     training records.
        a. more than 10 hazmat employees...  .................................  $800 and up.
        b. 10 hazmat employees or fewer....  .................................  $500 and up.
C. Security plans:
    1. Failure to develop a security plan;   172.800..........................
     failure to adhere to security plan.
        a. No security plan at all; no       .................................  $6,000 and up.
         adherence.
        b. Incomplete security plan or       .................................  $2,000 and up for each element.
         incomplete adherence (one or more
         of three required elements
         missing).
    2. Failure to update a security plan to  172.802(b).......................  $2,000 and up.
     reflect changing circumstances.
    3. Failure to put security plan in       172.800(b).......................  $2,000 and up.
     writing; failure to make all copies
     identical.
D. Notification to a foreign shipper:
    Failure to provide information of HMR    171.12(a)........................  $1,500 to $7,500 (corresponding
     requirements applicable to a shipment                                       to violations by foreign
     of hazardous materials within the                                           offeror or forwarding agent).
     United States, to a foreign offeror or
     forwarding agent at the place of entry
     into the U.S.
E. Expired Exemption:
    Offering or transporting a hazardous     171.2(a), (b), (c), Various......  $1,000 + $500 each additional
     material, or otherwise performing a                                         year.
     function covered by an exemption,
     after expiration of the exemption.
--------------------------------------------
 
                                  Offeror Requirements--All hazardous materials
----------------------------------------------------------------------------------------------------------------
 
 A. Undeclared Shipment:
    Offering for transportation a hazardous  172.200, 172.300, 172.400,         $15,000 and up.
     material without shipping papers,        172.500.
     package markings, labels, or placards.
B. Shipping Papers:

[[Page 52849]]

 
    1. Failure to provide a shipping paper   172.201..........................  $3,000 to $6,000.
     for a shipment of hazardous materials.
    2. Failure to follow one or more of the  172.201(a)(1)....................  $1,200.
     three approved formats for listing
     hazardous materials on a shipping
     paper.
    3. Failure to retain shipping papers     172.201(e).......................  $1,000.
     for 375 days after a hazardous
     material (or 3 years for a hazardous
     waste) is accepted by the initial
     carrier.
    4. Failure to include a proper shipping  172.202..........................  $800 to $1,600.
     name in the shipping description or
     using an incorrect proper shipping
     name.
    5. Failure to include a hazard class/    172.202..........................  $1,000 to $2,000.
     division number in the shipping
     description.
    6. Failure to include an identification  172.202..........................  $1,000 to $2,000.
     number in the shipping description.
    7. Using an incorrect hazard class/      172.202..........................
     identification number:.
        a. that does not affect              .................................  $800.
         compatibility requirements.
        b. that affects compatibility        .................................  $3,000 to $6,000.
         requirements.
    8. Using an incorrect identification     172.202..........................
     number:.
        a. that does not change the          .................................  $800.
         response information.
        b. that changes the response         .................................  $3,000 to $6,000.
         information.
    9. Failure to include the Packing        172.202..........................  $1,200.
     Group, or using an incorrect Packing
     Group.
    10. Using a shipping description that    172.202..........................  $800.
     includes additional unauthorized
     information (extra or incorrect words).
    11. Using a shipping description not in  172.202..........................  $500.
     required sequence.
    12. Using a shipping description with    172.202..........................
     two or more required elements missing
     or incorrect:.
        a. such that the material is         .................................  $3,000.
         misdescribed.
        b. such that the material is         .................................  $6,000.
         misclassified.
    13. Failure to include the total         172.202(c).......................  $500.
     quantity of hazardous material covered
     by a shipping description.
    14. Failure to list an exemption number  172.203(a).......................  $800.
     in association with the shipping
     description.
    15. Failure to indicate ``Limited        172.203(b).......................  $500.
     Quantity'' or ``Ltd Qty'' following
     the basic shipping description of a
     material offered for transportation as
     a limited quantity.
    16. Failure to include ``RQ'' in the     172.203(c)(2)....................  $500.
     shipping description to identify a
     material that is a hazardous substance.
    17. Failure to include a required        172.203(k).......................  $1,000.
     technical name in parenthesis for a
     listed generic or ``n.o.s.'' material.
    18. Failure to include the required      172.204..........................  $1,000.
     shipper's certification on a shipping
     paper.
    19. Failure to sign the required         172.204..........................  $800.
     shipper's certification on a shipping
     paper.
C. Emergency Response Information
 Requirements:
    1. Providing or listing incorrect        172.602..........................
     emergency response information with or
     on a shipping paper.
        a. No significant difference in      .................................  $800.
         response.
        b. Significant difference in         .................................  $3,000 to $6,000.
         response.
    2. Failure to include an emergency       172.604..........................  $2,600.
     response telephone number on a
     shipping paper.
    3. Failure to have the emergency         172.604..........................  $1,300.
     response telephone number monitored
     while a hazardous material is in
     transportation or listing multiple
     telephone numbers (without specifying
     the times for each) that are not
     monitored 24 hours a day.
    4. Listing an unauthorized emergency     172.604..........................  $2,600 to $4,200.
     response telephone number on a
     shipping paper.
    5. Listing an incorrect or non-working   172.604..........................  $1,300.
     emergency response telephone number on
     a shipping paper.
    6. Failure to provide required           172.604..........................  $1,300.
     technical information when the listed
     emergency response telephone number is
     contacted.
D. Package Marking Requirements:
    1. Failure to mark the proper shipping   172.301(a).......................  $800 to $1,600.
     name on a package or marking an
     incorrect shipping name on a package.
    2. Failure to mark the identification    172.301(a).......................  $1,000 to $2,000.
     number on a package.

[[Page 52850]]

 
    3. Marking a package with an incorrect   172.301(a).......................
     identification number.
        a. that does not change the          .................................  $800.
         response information.
        b. that changes the response         .................................  $3,000 to $6,000.
         information.
    4. Failure to mark the proper shipping   172.301(a).......................  $3,000 to $6,000.
     name and identification number on a
     package.
    5. Marking a package with an incorrect   172.301(a).......................
     shipping name and identification
     number.
        a. that does not change the          .................................  $1,500 to $3,000.
         response information.
        b. that changes the response         .................................  $3,000 to $6,000.
         information.
    6. Failure to include the required       172.301(c).......................  $1,000.
     technical name(s) in parenthesis for a
     listed generic or ``n.o.s.'' entry.
    7. Marking a package as containing       172.303(a).......................  $800.
     hazardous material when it contains no
     hazardous material.
    8. Failure to locate required markings   172.303(a)(4)....................  $800.
     away from other markings that could
     reduce their effectiveness.
    9. Failure to mark a package containing  172.312..........................  $2,500 to $3,500.
     liquid hazardous materials with
     required orientation marking.
    10. Failure to mark ``RQ'' on a non-     172.324(b).......................  $500.
     bulk package containing a hazardous
     substance.
E. Package Labeling Requirements:
    1. Failure to label a package..........  172.400..........................  $5,000.
    2. Placing a label that represents a     172.400..........................  $5,000.
     hazard other than the hazard presented
     by the hazardous material in the
     package.
    3. Placing a label on a package that     172.401(a).......................  $800.
     does not contain a hazardous material.
    4. Failure to place a required           172.402..........................  $500 to $2,500.
     subsidiary label on a package.
    5. Placing a label on a different        172.406(a).......................  $800.
     surface of the package than, or away
     from, the proper shipping name.
    6. Placing an improper size label on a   172.407(c).......................  $800.
     package.
    7. Placing a label on a package that     172.407(d).......................  $600 to $2,500.
     does not meet color specification
     requirements (depending on the
     variance).
    8. Failure to provide an appropriate     172.411..........................  $2,500.
     class or division number on a label.
F. Placarding Requirements:
    Failure to properly placard a freight    172.504..........................
     container or vehicle containing
     hazardous materials:.
        a. when Table 1 is applicable......  .................................  $1,000 to $9,000.
        b. when Table 2 is applicable......  .................................  $800 to $7,200.
G. Packaging Requirements:
    1. Offering a hazardous material for     Various..........................
     transportation in an unauthorized non-
     UN standard or nonspecification
     packaging (includes failure to comply
     with the terms of an exemption
     authorizing use of a nonstandard or
     nonspecification packaging).
        a. Packing Group I (and Sec.         .................................  $9,000.
         172.504 Table I materials).
        b. Packing Group II................  .................................  $7,000.
        c. Packing Group III...............  .................................  $5,000.
    2. Offering a hazardous material for     178.601 & Various................
     transportation in a self-certified
     packaging that has not been subjected
     to design qualification testing:.
        a. Packing Group I (and Sec.         .................................  $10,800.
         172.504 Table I materials).
        b. Packing Group II................  .................................  $8,400.
        c. Packing Group III...............  .................................  $6,000.
    3. Offering a hazardous material for     178.503(a).......................  $3,600.
     transportation in a packaging that has
     been successfully tested to an
     applicable UN standard but is not
     marked with the required UN marking.
    4. Failure to close a UN standard        173.22(a)(4).....................  $2,500.
     packaging in accordance with the
     closure instructions.
    5. Offering a hazardous material for     173.24(b)........................
     transportation in a packaging that
     leaks during conditions normally
     incident to transportation:
        a. Packing Group I (and Sec.         .................................  $12,000.
         172.504 Table I materials).
        b. Packing Group II................  .................................  $9,000.
        c. Packing Group III...............  .................................  $6,000.

[[Page 52851]]

 
    6. Overfilling or underfilling a         173.24(b)........................
     package so that the effectiveness is
     substantially reduced:
        a. Packing Group I (and Sec.         .................................  $9,000.
         172.504 Table I materials).
        b. Packing Group II................  .................................  $6,000.
        c. Packing Group III...............  .................................  $3,000.
    7. Offering a hazardous material for     171.14...........................
     transportation after October 1, 1996,
     in a unauthorized non-UN standard
     packaging marked as manufactured to a
     DOT specification:
        a. packaging meets DOT               .................................  $3,000.
         specification.
        b. packaging does not meet DOT       .................................  $5,000 to $9,000.
         specification.
    8. Failure to mark an overpack with a    173.25(a)(4).....................  $3,000.
     statement that the inside packages
     comply with prescribed specifications
     or standards when specification or
     standard packaging is required.
    9. Filling an IBC or a portable tank     173.32(a), 180.352, 180.605......
     (DOT, UN, or IM) that is out of test
     and offering hazardous materials for
     transportation in that IBC or portable
     tank.
        a. All testing overdue.............  .................................  $3,500 to $7,000.
        b. Only periodic (5 year) test       .................................  $3,500.
         overdue.
        c. Only intermediate periodic (2.5   .................................  $3,500.
         year) tests overdue.
    10. Failure to provide the required      173.32(f)(6).....................  $6,000 to $12,000.
     outage in a portable tank that results
     in a release of hazardous materials.
--------------------------------------------
 
                                Offeror Requirements--Specific hazardous materials
----------------------------------------------------------------------------------------------------------------
 
 A. Cigarette Lighters:
    Offering for transportation an           173.21(i)........................  $7,500.
     unapproved cigarette lighter, lighter
     refill, or similar device, equipped
     with an ignition element and
     containing fuel.
B. Class 1--Explosives:
    1. Failure to mark the package with the  172.320..........................  $1,200.
     EX number for each substance contained
     in the package or, alternatively,
     indicate the EX number for each
     substance in association with the
     description on the shipping
     description.
    2. Offering an unapproved explosive for  .................................  173.54,
     transportation:
        a. Div. 1.3 and 1.4 fireworks        173.56(b)........................  $5,000 to $10,000.
         meeting the chemistry requirements
         (quantity and type) of APA
         Standard 87-1.
        b. All other explosives (including   .................................  $10,000 and up.
         forbidden).
    3. Offering a leaking or damaged         173.54(c)........................  $10,000 and up.
     package of explosives for
     transportation.
    4. Packaging explosives in the same      173.61...........................  $2,500 to $5,000.
     outer packaging with other materials.
C. Class 7--Radioactive Materials:
    1. Failure to include required           172.203(d).......................  $1,000 to $3,000.
     additional entries, or providing
     incorrect information for these
     additional entries.
    2. Failure to mark the gross mass on     172.310(a).......................  $800.
     the outside of a package of Class 7
     material that exceeds 110 pounds.
    3. Failure to mark each package in       172.310(b).......................  $800.
     letters at least 13 mm (\1/2\ inch)
     high with the words ``Type A'' or
     ``Type B'' as appropriate.
    4. Placing a label on Class 7 material   172.403..........................  $5,000.
     that understates the proper label
     category.
    5. Placing a label on Class 7 material   172.403(g).......................  $2,000 to $4,000.
     that fails to contain (or has
     erroneous) entries for the name of the
     radionuclide(s), activity, and
     transport index.
    6. Failure to meet one or more of the    173.410..........................  $5,000.
     general design requirements for a
     package used to ship a Class 7
     material.
    7. Failure to comply with the            173.411..........................  $5,000.
     industrial packaging (IP) requirements
     when offering a Class 7 material for
     transportation.
    8. Failure to provide a tamper-          173.412(a).......................  $2,000.
     indicating device on a Type A package
     used to ship a Class 7 material.
    9. Failure to meet the additional        173.412(b)-(i)...................  $5,000.
     design requirements of a Type A
     package used to ship a Class 7
     material.

[[Page 52852]]

 
    10. Failure to meet the performance      173.412(j)-(l)...................  $8,400.
     requirements for a Type A package used
     to ship a Class 7 material..
    11. Offering a DOT specification 7A      173.415(a), 173.461                ................................
     packaging without maintaining complete
     documentation of tests and an
     engineering evaluation or comparative
     data:
        a. Tests and evaluation not          .................................  $8,400.
         performed.
        b. Complete records not maintained.  .................................  $2,000 to $5,000.
    12. Offering any Type B, Type B(U),      173.416..........................  $9,000.
     Type B(M) packaging that failed to
     meet the approved DOT, NRC or DOE
     design, as applicable.
    13. Offering a Type B packaging without  173.471(a).                        ................................
     holding a valid NRC approval
     certificate:
        a. Never having obtained one.......  .................................  $3,000.
        b. Holding an expired certificate..  .................................  $1,000.
    14. Failure to meet one or more of the   173.420..........................  $10,800.
     special requirements for a package
     used to ship uranium hexafluoride.
    15. Offering Class 7 material for        173.421(a).......................  $4,000.
     transportation as a limited quantity
     without meeting the requirements for
     limited quantity.
    16. Offering a multiple-hazard limited   173.423(a).......................  $500 to $2,500.
     quantity Class 7 material without
     addressing the additional hazard.
    17. Offering Class 7 low specific        173.427(a)(1)....................  $6,000.
     activity (LSA) materials or surface
     contaminated objects (SCO) with an
     external dose rate that exceeds an
     external radiation level of 1 rem/hr
     at 3 meters from the unshielded
     material.
    18. Offering Class 7 LSA materials or    173.427(a)(6)....................  $1,000.
     SCO as exclusive use without providing
     specific instructions to the carrier
     for maintenance of exclusive use
     shipment controls.
    19. Offering in excess of Type A         173.431..........................  $12,000.
     quantity of a Class 7 material in a
     Type A packaging.
    20. Offering a package that exceeds the  173.441..........................  $10,000 and up.
     permitted limits for surface radiation
     or transport index.
    21. Offering a package without           173.443..........................  $5,000 and up.
     determining the level of removable
     external contamination, or that
     exceeds the limit for removable
     external contamination.
    22. Storing packages of radioactive      173.447(a).......................  $5,000 and up.
     material in a group with a total
     transport index more than 50.
    23. Offering for transportation or       173.448(e).......................  $5,000 and up.
     transporting aboard a passenger
     aircraft any single package or
     overpack of Class 7 material with a
     transport index greater than 3.0.
    24. Exporting a Type B, Type B(U), Type  173.471(d).......................  $3,000.
     B(M), or fissile package without
     obtaining a U.S. Competent Authority
     Certificate or, after obtaining a U.S.
     Competent Authority Certificate,
     failing to submit a copy to the
     national competent authority of each
     country into or through which the
     package is transported.
    25. Offering special form radioactive    173.476(a), (b)..................  $2,500.
     materials without maintaining a
     complete safety analysis or
     Certificate of Competent Authority.
D. Class 2--Compressed Gases in Cylinders:                                      ................................
    1. Filling and offering a cylinder with  173.301(a)(6)....................  $4,200 to $10,400.
     compressed gas when the cylinder is
     out of test.
    2. Failure to check each day the         173.303(d).......................  $5,000.
     pressure of a cylinder charged with
     acetylene that is representative of
     that day's compression, after the
     cylinder has cooled to a settled
     temperature, or failure to keep a
     record of this test for 30 days.
    3. Offering a limited quantity of a      173.306(a)(3), (h)...............  $1,500 to $6,000.
     compressed gas in a metal container
     for the purpose of propelling a
     nonpoisonous material and failure to
     heat the cylinder until the pressure
     is equivalent to the equilibrium
     pressure at 130[deg]F, without
     evidence of leakage, distortion, or
     other defect.
--------------------------------------------
 
                              Manufacturing, Reconditioning, Retesting Requirements
----------------------------------------------------------------------------------------------------------------
 
 A. Third-Party Packaging Certifiers
 (General):

[[Page 52853]]

 
    Issuing a certification that directs     171.2(e), 178.2(b), 178.3(a),      $500 per item.
     the packaging manufacturer to            178.503(a).
     improperly mark a packaging (e.g.,
     steel drum to be marked UN 4G).
B. Packaging Manufacturers (General):
    1. Failure of a manufacturer or          178.2(c).........................  $2,500.
     distributor to notify each person to
     whom the packaging is transferred of
     all the requirements not met at the
     time of transfer, including closure
     instructions.
    2. Failure to insure a packaging         178.601(b).......................
     certified as meeting the UN standard
     is capable of passing the required
     performance testing.
        a. Packing Group I (and Sec.         .................................  $10,800.
         172.504 Table 1 materials).
        b. Packing Group II................  .................................  $8,400.
        c. Packing Group III...............  .................................  $6,000.
    3. Certifying a packaging as meeting a   178.601(d).......................
     UN standard when design qualification
     testing was not performed.
        a. Packing Group I (and Sec.         .................................  $10,800.
         172.504 table 1 materials).
        b. Packing Group II................  .................................  $8,400.
        c. Packing Group III...............  .................................  $6,000.
    4. Failure to conduct periodic           178.601(e).......................  $2,000 to $10,800.
     retesting on UN standard packaging
     (depending on length of time and
     Packing Group).
    5. Failure to properly conduct testing
     for UN standard packaging (e.g.,
     testing with less weight than marked
     on packaging; drop testing from lesser
     height than required; failing to
     condition fiberboard boxes before
     design test):.
        a. Design qualification testing....  178.601(d).......................  $2,000 to $10,800.
        b. Periodic retesting..............  178.601(e).......................  $500 to $10,800.
    6. Marking, or causing the marking of,   178.2(b), 178.3(a), 178.503(a)(8)  $7,200.
     a packaging with the symbol of a
     manufacturer or packaging certifier
     other than the company that actually
     manufactured or certified the
     packaging.
    7. Failure to maintain testing records.  178.601(l).......................
        a. Design qualification testing....  .................................  $1,000 to $5,000.
        b. Periodic retesting..............  .................................  $500 to $2,000.
    8. Improper marking of UN certification  178.503..........................  $500 per item.
    9. Manufacturing DOT specification       171.14...........................
     packaging after October 1, 1994 that
     is not marked as meeting a UN
     performance standard.
        a. If packaging does meet DOT        .................................  $3,000.
         specification.
        b. If packaging does not meet DOT    .................................  $6,000 to $10,800.
         specification.
C. Drum Manufacturers & Reconditioners:
    1. Failure to properly conduct           178.604(b), (d), 173.28(b)(2)(i).
     production leakproofness test on a new
     or reconditioned drum.
        a. Improper testing................  .................................  $2,000.
        b. No testing performed............  .................................  $3,000 to $5,000.
    2. Marking an incorrect registration     173.28(b)(2)(ii).................
     number on a reconditioned drum.
        a. Incorrect number................  .................................  $800.
        b. Unauthorized use of another       .................................  $7,200.
         reconditioner's number.
    3. Representing, marking, or certifying  173.28(c), (d)...................  $6,000 to $10,800.
     a drum as a reconditioned UN standard
     packaging when the drum does not meet
     a UN standard.
    4. Representing, marking, or certifying  173.28(d)........................  $500.
     a drum as altered from one UN standard
     to another, when the drum has not
     actually been altered.
D. IBC and Portable Tank Requalification:
    1. Failure to properly mark an IBC or    180.352(e), 178.703(b),            $500 per item.
     portable tank with the most current      180.605(k).
     retest and/or inspection information.
    2. Failure to keep complete and          180.352(f), 180.605(l)...........
     accurate records of IBC or portable
     tank retest and reinspection.
        a. No records kept.................  .................................  $4,000.
        b. Incomplete or inaccurate records  .................................  $1,000 to $3,000.
    3. Failure to make reinspection and      180.352(f), 49 U.S.C. 5121(b)(2).  $1,000.
     retest records available to a DOT
     representative upon request.
E. Cylinder Manufacturers & Rebuilders:

[[Page 52854]]

 
    1. Manufacturing, representing,          Various..........................  $7,500 to $15,000.
     marking, certifying, or selling a DOT
     high-pressure cylinder that was not
     inspected and verified by an approved
     independent inspection agency.
    2. Failure to have a registration        Various..........................  $800.
     number or failure to mark the
     registration number on the cylinder.
    3. Marking another company's number on   Various..........................  $7,200.
     a cylinder.
    4. Failure to mark the date of           178.65(i)........................  $3,000.
     manufacture or lot number on a DOT-39
     cylinder.
    5. Failure to have a chemical analysis   Various..........................  $5,000.
     performed in the U.S. for a material
     manufactured outside the U.S./failure
     to obtain a chemical analysis from the
     foreign manufacturer.
    6. Failure to meet wall thickness        Various..........................  $7,500 to $15,000.
     requirements.
    7. Failure to heat treat cylinders       Various..........................  $5,000 to $15,000.
     prior to testing.
    8. Failure to conduct a complete visual  Various..........................  $2,500 to $6,200.
     internal examination.
    9. Failure to conduct a hydrostatic      Various..........................  $2,500 to $6,200.
     test, or conducting a hydrostatic test
     with inaccurate test equipment.
    10. Failure to conduct a flattening      Various..........................  $7,500 to $15,000.
     test.
    11. Failure to conduct a burst test on   178.65(f)(2).....................  $5,000 to $15,000.
     a DOT-39 cylinder.
    12. Failure to have inspections and      Various..........................  $7,500 to $15,000.
     verifications performed by an
     inspector.
    13. Failure to maintain required         Various..........................
     inspector's reports.
        a. No reports at all...............  .................................  $5,000.
        b. Incomplete or inaccurate reports  .................................  $1,000 to $4,000.
    14. Representing a DOT-4 series          180.211(a).......................  $6,000 to $10,800.
     cylinder as repaired or rebuilt to the
     requirements of the HMR without being
     authorized by the Associate
     Administrator.
F. Cylinder Requalification:
    1. Failure to remark as DOT 3AL an       173.23(c)........................  $800.
     aluminum cylinder manufactured under a
     former exemption.
    2. Certifying or marking as retested a   180.205(a).......................  $800.
     nonspecification cylinder.
    3. Failure to have retester's            180.205(b).......................  $4,000.
     identification number (RIN).
    4. Failure to have current authority     180.205(b).......................  $2,000.
     due to failure to renew a retester's
     identification number (RIN).
    5. Failure to have a retester's          180.205(b).......................  $7,200.
     identification number and marking
     another RIN on a cylinder.
    6. Marking a RIN before successfully     180.205(b).......................  $800.
     completing a hydrostatic retest.
    7. Representing, marking, or certifying  171.2(c), (e), 178.205(c),         $2,000 to $6,000.
     a cylinder as meeting the requirements   Applicable Exemption.
     of an exemption when the cylinder was
     not maintained or retested in
     accordance with the exemption.
    8. Failure to conduct a complete visual  180.205(f).......................  $2,100 to $5,200.
     external and internal examination.
    9. Failure to conduct visual inspection  180.205(f) & (g).................  $4,200 to $10,400.
     or hydrostatic retest.
    10. Performing hydrostatic retesting     180.205(g)(3)....................  $2,100 to $5,200.
     without confirming the accuracy of the
     test equipment.
    11. Failure to hold hydrostatic test     180.205(g)(5)....................  $3,100.
     pressure for 30 seconds or
     sufficiently longer to allow for
     complete expansion.
    12. Failure to perform a second retest,  180.205(g)(5)....................  $3,100.
     after equipment failure, at a pressure
     increased by the greater of 10% or 100
     psi (includes exceeding 90% of test
     pressure prior to conducting a retest).
    13. Failure to condemn a cylinder when   180.205(i).......................  $6,000 to $10,800.
     required (e.g., permanent expansion of
     10% [5% for certain exemption
     cylinders], internal or external
     corrosion, denting, bulging, evidence
     of rough usage).
    14. Failure to properly mark a           180.205(i)(2)....................  $800.
     condemned cylinder or render it
     incapable of holding pressure.
    15. Failure to notify the cylinder       180.205(i)(2)....................  $1,000.
     owner in writing when a cylinder has
     been condemned.
    16. Failure to perform hydrostatic       180.209(a)(1)....................  $2,100 to $5,200.
     retesting at the minimum specified
     test pressure.
    17. Marking a star on a cylinder that    180.209(b).......................  $2,000 to $4,000.
     does not qualify for that mark.

[[Page 52855]]

 
    18. Marking a ``+'' sign on a cylinder   173.302a(b)......................  $2,000 to $4,000.
     without determining the average or
     minimum wall stress by calculation or
     reference to CGA Pamphlet C-5.
    19. Marking a cylinder in or on the      180.213(b).......................  $6,000 to $10,800.
     sidewall when not permitted by the
     applicable specification.
    20. Failure to maintain legible          180.213(b)(1)....................  $800.
     markings on a cylinder.
    21. Marking a DOT 3HT cylinder with a    180.213(c)(2)....................  $6,000 to $10,800.
     steel stamp other than a low-stress
     steel stamp.
    22. Improper marking of the RIN or       180.213(d).......................  $800.
     retest date on a cylinder.
    23. Marking an FRP cylinder with steel   Applicable Exemption.............  $6,000 to $10,800.
     stamps in the FRP area of the cylinder
     such that the integrity of the
     cylinder is compromised.
    24. Failure to maintain current copies   180.215(a).......................  $600 to $1,200.
     of 49 CFR, DOT exemptions, and CGA
     Pamphlets applicable to inspection,
     retesting, and marking activities.
    25. Failure to keep complete and         180.215(b).......................
     accurate records of cylinder
     reinspection and retest.
        a. No records kept.................  .................................  $4,000.
        b. Incomplete or inaccurate records  .................................  $1,000 to $3,000.
    26. Failure to report in writing a       171.2(c) & (e), Approval Letter..  $600 to $1,200.
     change in name, address, ownership,
     test equipment, management, or
     retester personnel.
--------------------------------------------
 
                                               Carrier Requirements
----------------------------------------------------------------------------------------------------------------
 
 A. Incident Notification:
    1. Failure to give immediate             171.15...........................  $3,000.
     notification of a reportable hazardous
     materials incident.
    2. Failure to file a written hazardous   171.16...........................  $500 to $2,500.
     material incident report within 30
     days following an unintentional
     release of hazardous materials in
     transportation (or other reportable
     incident).
B. Shipping Papers:
    Failure to retain shipping papers for    174.24(b), 175.30(a)(2),           $1,000.
     375 days after a hazardous material      176.24(b), 177.817(f).
     (or 3 years for a hazardous waste) is
     accepted by the initial carrier.
C. Stowage/transportation Requirements:
    1. Transporting packages of hazardous    Various..........................  $3,000.
     material that have not been secured
     against movement.
    2. Failure to properly segregate         Various..........................  $7,500 and up.
     hazardous materials.
    3. Transporting explosives in a motor    177.835(i).......................  $5,200.
     vehicle containing metal or other
     articles or materials likely to damage
     the explosives or any package in which
     they are contained, without
     segregating in different parts of the
     load or securing them in place in or
     on the motor vehicle and separated by
     bulkheads or other suitable means to
     prevent damage.
    4. Transporting railway track torpedoes  171.2(b) & (e)...................  $7,000.
     outside of flagging kits, in violation
     of DOT-E 7991.
    5. Transporting Class 7 (radioactive)    177.842(a).......................  $5,000 and up.
     material having a total transport
     index greater than 50.
    6. Transporting Class 7 (radioactive)    177.842(b).......................  $5,000 and up.
     material without maintaining the
     required separation distance.
    7. Failure to comply with requirements   171.2(b) & (e)...................
     of an exemption authorizing the
     transportation of Class 7
     (radioactive) material having a total
     transportation index of 50.
        a. Failure to have the required      .................................  $5,000.
         radiation survey record.
        b. Failure to have other required    .................................  $500 each.
         documents.
        c. Other violations................  .................................  $5,000 and up.
----------------------------------------------------------------------------------------------------------------


0
15. In part IV of appendix A to subpart D of part 107, under Section 
IV.C. (``Penalty Increases for Multiple Counts''), the words in the 
first sentence ``up to $25,000 ($27,500 for a violation occurring after 
January 21, 1997)'' are revised to read: ``up to $32,500 ($27,500 for a 
violation occurring after January 21, 1997, and before October 1, 
2003).''

0
16. In part IV of appendix A to subpart D of part 107, the text to 
Section IV.E. entitled ``Penalty Increases for Prior Violations'' is 
revised to read as follows:
    The baseline penalty presumes an absence of prior violations. If 
prior violations exist, generally they will serve to increase a 
proposed penalty.

[[Page 52856]]

The general standards for increasing a baseline proposed penalty on the 
basis of prior violations are as follows:
    1. For each prior civil or criminal enforcement case--25% increase 
over the pre-mitigation recommended penalty.
    2. For each prior ticket--10% increase over the pre-mitigation 
recommended penalty.
    3. A baseline proposed penalty will not be increased more than 100% 
on the basis of prior violations.
    4. A case or ticket of prior violations initiated in a calendar 
year more than six years before the calendar year in which the current 
case is initiated normally will not be considered in determining a 
proposed penalty for the current violation(s).

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
17. The authority citation for part 171 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.


Sec.  171.1  [Amended]

0
18. In Sec.  171.1, in paragraph (c), the words ``$25,000 ($27,500 for 
a violation that occurs after January 21, 1997) and not less than $250 
for each violation.'' in the first sentence are revised to read: 
``$32,500 and not less than $275 for each violation. (For a violation 
that occurred after January 21, 1997, and before October 1, 2003, the 
maximum and minimum civil penalties are $27,500 and $250, 
respectively.)''
* * * * *

    Issued in Washington, DC on August 25, 2003, under authority 
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Acting Administrator.
[FR Doc. 03-22569 Filed 9-5-03; 8:45 am]
BILLING CODE 4910-60-P