[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Rules and Regulations]
[Pages 60726-60745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23887]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 107
[Docket No. PHMSA-2013-0045 (HM-258C)]
RIN 2137-AF02
Hazardous Materials Regulations: Penalty Guidelines
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule; revised statement of policy.
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA) is publishing this revised statement of policy to update
baseline assessments for frequently-cited violations of the Hazardous
Materials Regulations (HMR) and to clarify additional factors that
affect penalty amounts. This revised statement of policy is intended to
provide the regulated community and the general public with information
on the hazardous materials penalty assessment process.
DATES: This rule is effective October 1, 2013.
FOR FURTHER INFORMATION CONTACT: Meridith L. Kelsch or Shawn Wolsey,
Office of the Chief Counsel, at (202) 366-4400, or Deborah L. Boothe,
Standards and Rulemaking Branch, at (202) 366-8553, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Contents
I. Background
II. Discussion of Revisions
A. Revisions to Part II, List of Frequently Cited Violations
B. Revisions to Parts III and IV
III. Regulatory Analyses and Notices
A. Statutory/Legal Authority for the Rulemaking
B. Executive Order 13610, Executive Order 13563, Executive Order
12866, and DOT Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act of 1995
I. Environmental Assessment
J. Privacy Act
K. Executive Order 13609 and International Trade Analysis
L. National Technology Transfer and Advancement Act
I. Background
The Pipeline and Hazardous Materials Safety Administration (PHMSA)
publishes hazardous materials transportation enforcement civil penalty
guidelines in Appendix A to 49 CFR part 107, subpart D. The Research
and Special Programs Administration (RSPA; PHMSA's predecessor agency)
first published these guidelines in the Federal Register on March 6,
1995, in response to a request contained in Senate Report 103-150 that
[[Page 60727]]
accompanied the Department of Transportation and Related Agencies
Appropriations Act of 1994 (See 60 FR 12139). RSPA and PHMSA published
additional revisions of these guidelines on January 21, 1997 (62 FR
2970), September 8, 2003 (68 FR 52844), February 17, 2006 (71 FR 8485),
December 29, 2009 (74 FR 68701), and September 1, 2010 (75 FR 53593).
These guidelines provide the regulated community and the general public
with information about PHMSA's hazmat penalty assessment process and
the types of information or documentation that respondents in
enforcement cases can provide to justify possible reductions of
proposed penalties.
PHMSA's field operations personnel and attorneys use these
guidelines, which are updated periodically, as a standard for
determining civil penalties for violations of the Federal hazardous
materials transportation law (49 U.S.C. 5101-5128) and the regulations
issued under that law. The baseline penalties and aggravating or
mitigating factors outlined in these guidelines are a tool to aid PHMSA
in applying similar civil penalties and adjustments in comparable
situations. These baselines and adjustment criteria are based on
factors PHMSA is required, under 49 U.S.C. 5123(c) and 49 CFR 107.331,
to consider in each case. PHMSA selected the baseline penalties set out
in Part II by considering the relative nature, circumstances, extent,
and gravity of the particular violation. The aggravating and mitigating
factors discussed in Parts III and IV represent all information PHMSA
is required to consider under these provisions.
Since the guidelines are intended to reflect the statutory
considerations, they are subject to adjustments, as appropriate, for
the specific facts of individual cases. The guidelines are neither
binding nor mandatory, but serve as a standard to promote consistency.
Using the baselines as a starting point allows PHMSA to handle
analogous violations similarly; and combining baselines with the
mitigating and aggravating adjustments, helps us treat respondents in
enforcement actions fairly. These baselines, however, only provide a
starting point and may be adjusted as appropriate to reflect additional
relevant factors. As such, they do not impose any requirement and are
not binding.
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 serve only as instruction or a guide. As such, they
constitute a statement of agency policy and serve to provide greater
transparency for effected entities. For these reasons, they do not
establish a rule or requirement and no notice of proposed rulemaking or
comment period is necessary. For further discussion of the nature and
PHMSA's use of these penalty guidelines, see the preambles to the final
rules published on March 6, 1995 (60 FR 12139) and January 21, 1997 (62
FR 2970).
II. Discussion of Revisions
In this final rule, PHMSA is publishing an updated statement of
policy, revising Appendix A to Part 107, Subpart D, including the List
of Frequently Cited Violations in Part II of the guidelines, and Parts
III and IV, which provide additional factors that affect penalty
amounts. The revisions to Part II include modifications to individual
baseline assessments, the addition of frequently-cited violations that
were not previously included in the guidelines, and assigned penalties
instead of penalty ranges, where appropriate, to reflect safety risks,
such as packing group. The revisions to Parts III and IV of the
guidelines clarify the criteria PHMSA considers when determining a
civil penalty amount that appropriately reflects the risk posed by a
violation, the culpability of the respondent, and aggravating or
mitigating factors.
A. Revisions to Part II, List of Frequently Cited Violations
The revisions to Part II of the guidelines are the result of
inflation and statutory adjustments, as well as an overall review of
the current penalty guidelines and regulatory requirements. PHMSA
evaluated the baseline penalties to ensure they are comprehensive,
clear, consistent, and appropriately reflect the safety implications of
the violations.
As part of these adjustments, in this revised statement of policy,
PHMSA is modifying the baselines in the List of Frequently Cited
Violations in Part II of the guidelines to reflect inflation and the
statutory increase in the maximum civil penalty, which took effect
October 1, 2012. Both of these factors necessitate an overall increase
in the baseline penalties.
Section 33010 of the Hazardous Materials Transportation Safety
Improvement Act of 2012 (Title III of the Moving Ahead for Progress in
the 21st Century Act (``MAP-21,''), Pub. L. 112-141, 126 Stat. 405, 837
(codified as amended at 49 U.S.C. 5123(a)) increased the maximum civil
penalty for a knowing violation of the Federal hazardous materials
transportation law, or a regulation, order, special permit, or approval
issued under that law, from $55,000 to $75,000 and increased the
maximum civil penalty from $110,000 to $175,000 if the violation
results in death, serious illness or severe injury to any person or
substantial destruction of property. This statutory change took effect
October 1, 2012, and PHMSA incorporated these changes into the
regulations effective April 17, 2013 (78 FR 22798). Since the maximum
civil penalties have increased, it is appropriate to also increase the
individual baselines for consistency.
Additionally, PHMSA is increasing individual baselines for
inflation because many of the current baselines have not been adjusted
since they were first published. Specifically, RSPA initially published
the guidelines in 1995 (60 FR 12139). In 1997, RSPA adjusted the
maximum civil penalty for inflation, added, deleted and combined
several baselines, and altered several baselines to reflect the
comparative risks of the violation for different hazardous materials.
Again in 2003, RSPA adjusted the maximum and minimum civil penalties
for inflation and added, modified, and increased several specific
baselines (68 FR 52844). In 2006, PHMSA adjusted the maximum and
minimum civil penalties, adopting the limits established by Congress in
2005 in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU; Pub. L. 109-59, 119 Stat.
1144 (codified as amended at 49 U.S.C. 5123(a))). At the same time,
PHMSA adjusted a small number of individual baselines (71 FR 8485).
Again in 2009, PHMSA adjusted the maximum and minimum civil penalties
for inflation (74 FR 68701). The 2010 adjustments merely corrected
errors in the 2009 calculations (75 FR 53593). Notably, since the
guidelines were first published in 1995, certain individual baselines
were adjusted but never comprehensively adjusted for inflation.
In order to remain consistent with the MAP-21 increase to the
maximum civil penalties, as well as make appropriate adjustments for
inflation, PHMSA reviewed the entire list of baseline penalties and
generally increased them. We are not increasing all of the baselines,
however, as we considered each individually to ensure the baselines
appropriately reflect the safety implications associated with the
particular violation.
For those baselines that PHMSA is increasing for inflation and
consistency with MAP-21, we used a uniform calculation to determine the
amount of increase. PHMSA determined the
[[Page 60728]]
inflation adjustment by using the calculation found in the Federal
Civil Penalties Inflation Adjustment Act of 1990 (the Act), as amended
by the Debt Collection Improvement Act of 1996 (the Act is set forth in
the note to 28 U.S.C. 2461). The Act requires each Federal agency to
adjust maximum and minimum civil penalties it administers at least
every four years, to correspond with the effects of inflation, but
applies a maximum increase of 10 percent for first-time adjustments.
Congress, effective October 1, 2012 (see MAP-21 discussion above)
adjusted the maximum and minimum penalties for inflation; so PHMSA is
increasing only individual baselines.
Because this revised statement of policy does not address inflation
adjustments for maximum and minimum penalties, the adjustments are not
mandated, and the formula provided in the Act is not binding on these
revisions. Nevertheless, PHMSA applied the formula in the Act to
calculate the baseline increases, for consistency and continuity, as
the Act is a standard recognized method of calculating inflation
adjustments for regulatory penalties.
The formula for inflation adjustments set out in the Act provides
that the increase is 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. In applying this calculation, PHMSA used 2003
as the year in which the last adjustment was made. This is because 2003
is the last time there were numerous adjustments and those revisions
were the most similar to the current changes, in that there were
extensive adjustments to individual baselines and not just maximum and
minimum civil penalties. Since this revised statement of policy is
adjusting individual baselines, 2003 represents the most-recent
instance of comparable adjustments.
Applying the adjustment formula in the Act, PHMSA calculated the
percentage by which the CPI-U in June 2012 (229.478) (the year
preceding the adjustment) exceeds the CPI-U in June 2003 (183.7) (the
year in which the baseline penalties were last adjusted). This
comparison shows that the CPI-U increased by 25 percent during that
period. Accordingly, PHMSA is increasing the baseline civil penalties
by 25 percent. To avoid increasing any penalties by more than 25
percent, PHMSA rounded down the calculated adjustments to the nearest
one-hundred dollars.
Although the Act provides a 10 percent limit on first-time
adjustments, PHMSA is not conforming to this limitation for several
reasons. First, many individual baselines have been adjusted before, so
this is not a first-time adjustment. We are applying the same
calculated inflation adjustment to all of the individual baselines that
we are increasing for uniformity. To apply the 25 percent increase to
those baselines that have been changed before, and 10 percent to those
that have not, would create inconsistencies by creating larger
differences between baselines that have been deemed comparatively
appropriate in all prior revisions. Second, PHMSA is not required to
comply with the 10 percent limit in these adjustments because the
adjustments in this updated statement of policy are not mandated under
the Act, as the Act does not apply to adjustments to individual
baselines. Rather, we are merely using the Act as a uniform and
recognized standard for consistency. Finally, the changes in MAP-21
increased the maximum civil penalty by approximately 36 percent (from
$55,000 to $75,000) for a knowing violation and 59 percent (from
$110,000 to $175,000) for violations resulting in serious harms. By
comparison, a 25 percent increase to individual baseline penalties is
significantly lower than the changes to the maximum civil penalties
imposed by MAP-21.
Another change in this revised statement of policy is to add
baseline penalties with violation descriptions to provide consistency
and clarity for imposing similar penalties in similar cases. To
identify violations that have been cited frequently but were not listed
in the table of baseline penalties, PHMSA reviewed past Notices of
Probable Violations and the regulations. We are now listing baseline
penalties with violation descriptions in the List of Frequently Cited
Violations for these violations. We are establishing these baseline
penalties based on civil penalties that have been applied in past
enforcement cases and by analogy to baselines for comparable violations
that are already listed and relative safety implications.
In general, we are expanding the following categories in the List
of Frequently Cited Violations: Security plans; Special permits and
approvals; Undeclared shipments; Shipping papers; Emergency response
requirements; Package marking requirements; Package labeling
requirements; Placarding requirements; Packaging requirements; Offeror
Requirements for specific hazardous materials: Cigarette lighters,
Explosives, Radioactive Materials, Compressed Gases in cylinders;
Packaging Manufacturers, Drum Manufacturers and Reconditioners, IBC and
Portable Tank Requalification; Cylinder Manufacturers and Rebuilders;
Cylinder Requalification; Incident Notification and Stowage/Attendance/
Transportation Requirements. We are adding these new categories:
Offeror Requirements for specific hazardous materials: Oxygen
Generators and Batteries; Manufacturing, Reconditioning, Retesting
Requirements: Activities subject to Approvals and Cargo Tank Motor
Vehicles.
Another modification PHMSA is making in this revised statement of
policy is to eliminate many baseline ranges (e.g., $3,000 to $6,000) in
the List of Frequently Cited Violations, and replace them with specific
baselines (e.g., $6,000 for PG I; $4,500 for PG II; $3,000 for PG III).
Baseline ranges provided flexibility to adjust penalties depending on
the safety risks or severity of a particular case. We will now divide
many ranges into distinct baseline amounts that reflect the relative
risks of specific packing groups, explosive classifications, or
hazardous materials. Applying specific baselines instead of ranges will
continue to reflect the relative safety risks of various hazardous
materials within a particular violation, while assuring consistency and
clarity.
Finally, PHMSA comprehensively reviewed the baseline penalties and
descriptions, and we are adopting several modifications to ensure they
are current, consistent, and appropriate. In this revised statement of
policy, we are removing outdated or duplicative descriptions and
updating language to reflect the regulatory text, where necessary. We
are also decreasing and increasing baselines, as appropriate, to ensure
comparable, similar, or related violations have commensurate baseline
penalties and that each baseline reflects the risks associated with the
violation.
B. Revisions to Part III--Consideration of Statutory Criteria and Part
IV--Miscellaneous Factors Affecting Penalty Amounts
This statement of policy also modifies Parts III and IV of the
guidelines, which provide factors that affect penalty amounts. As
specified in 49 U.S.C. 5123(c) and 49 CFR 107.331, PHMSA must consider
several factors when assessing a civil penalty, including the nature,
circumstances, extent and gravity of a violation, the degree of
culpability and compliance history of the respondent, the financial
impact of
[[Page 60729]]
the penalty on the respondent, and other matters as justice requires.
As described below, PHMSA will also consider a respondent's corrective
actions and that point in time at which those actions are taken. Parts
III and IV elaborate on several of these factors and explain how PHMSA
considers this information to adjust penalties, where appropriate.
In this revision, PHMSA is clarifying Parts III and IV to provide
transparency and ensure consistency in how mitigating and aggravating
factors affect penalty assessments. In general, we are modifying some
of the language in these Parts to articulate clearly how PHMSA
considers relevant information and performs adjustments. We are also
adding new points that will enhance transparency and consistency.
1. Revisions to Part III--Consideration of Statutory Criteria
Previously, Part III--Consideration of Statutory Criteria has
outlined the process PHMSA uses for setting initial penalties and
listed the statutory criteria PHMSA must consider under 49 U.S.C.
5123(c) and 49 CFR 107.331. In this revision, we are providing this
same information as well as additional details.
In the revised guidelines, we are still identifying the statutory
considerations, but have revised the language to add greater clarity.
Specifically, we have added details to elaborate on the information
that may be relevant in considering the statutory criteria. For
example, in evaluating the gravity of a violation, we explain that
actual and potential consequences of a violation are factors we
consider in setting a civil penalty in a case. We are including this
and similar factors to help demonstrate the types of information that
are pertinent to the statutory criteria.
We are also explaining where we obtain the information that is
relevant to the statutory criteria and at what stages we collect it.
Specifically, we may obtain information concerning the statutory
criteria at any stage of the enforcement proceedings, and we may
receive this information from any appropriate source, including the
regulated entity. This additional information serves to clarify that
determining a civil penalty is an ongoing process that develops
throughout an enforcement proceeding. As such, this clarification
notifies respondents in enforcement cases that they may provide
relevant information to PHMSA at any stage and we will consider it.
Finally, we are providing a specific order in which PHMSA will
apply increases and decreases to baseline penalty amounts. While the
previous guidelines alluded to this, we are establishing a clear
sequence of adjustments in this revision. Specifically, after selecting
an appropriate baseline penalty, we will generally apply decreases for
reshippers, increases for multiple counts, increases for prior
violations, decreases for corrective actions, and then decreases for
financial considerations, in order to consider all of the statutory
criteria. Clearly establishing this sequence will provide for
consistency in how respondents are treated in enforcement actions.
2. Revisions to Part IV--Miscellaneous Factors Affecting Penalty
Amounts
In the revised guidelines, we are also modifying the language in
Part IV--Miscellaneous Factors Affecting Penalty Amounts. These
modifications provide greater clarity and transparency by revising
language, including more detail, and setting out more-clearly defined
procedures for applying aggravating and mitigating factors. We are also
restructuring this section so that the factors are listed in the order
in which PHMSA applies the penalty increases or decreases, as set out
in Part III.
With respect to respondents that act as reshippers, we have revised
the language in this section so that our procedures and relevant
criteria are understandable. Additionally, we have extended the
reshipper mitigating factor to carriers who reasonably rely on a
shipment as they receive it and do not open or alter the package before
continuing in transportation. We expanded this to carriers to reflect
their similarity to reshippers in so far as both may receive fully-
prepared shipments and rely on another party's preparation and
compliance. Apart from extending this provision to carriers, we have
not made any substantive changes to this section.
We are also modifying the provisions regarding multiple counts of a
violation. The revised language provides more detail in describing how
PHMSA handles multiple counts, which promotes greater consistency and
transparency. Although this is a highly fact-specific determination,
the additional language will provide more comprehensive guidance. For
example, we are including fuller explanations of the factors that are
relevant, such as whether multiple counts demonstrate a company's
regular business practice. Additionally, we are including specific
examples of when multiple counts may be treated as one violation, when
a penalty may be increased by 25 percent for each additional count, and
when separate counts may be warranted.
The provisions pertaining to prior violations are also being
updated to establish a clear timeframe and consistent application. We
are specifying that the six-year period used to evaluate increases for
prior violations will be determined using the dates of the last exit
briefings issued. Previously, this period was calculated using the date
a case or ticket was ``initiated,'' without specifying what constituted
initiation of a case. We are now specifying that the initiation date of
a case is the date of the exit briefing. The date of the exit briefing
best represents the date a case is initiated because it is the date a
respondent first receives notice of a non-compliance issue and
commences the enforcement process. Additionally, the date of the exit
briefing is the most consistent measure that can be replicated for all
cases.
Generally, an exit briefing is issued on or near the date a
violation is found, whereas a ticket or Notice of Probable Violation
may be issued substantially later and are not issued within the same
time frame for all cases. Using a calendar year instead of a specific
date can lead to some respondents being penalized for prior cases that
happened more than six years previously (e.g., a prior violation in
January 2007 would be within six years of a case issued in September
2013), while others are penalized for only less than a six-year period
(e.g., a prior violation in December 2006 would be outside the six
years for a case issued in January 2013). To avoid these disparities,
PHMSA is applying the date of the exit briefing as the date a case is
``initiated.'' Although PHMSA is using the exit briefing to represent
the initiation of a case, only cases that have been finally-adjudicated
will be considered as prior violations. As such, the issuance of an
exit briefing alone, with no further action does not constitute a prior
violation.
In addition, we are including a specific provision for the use of
expired special permits that was previously included in a separate
section. Under this provision, if a respondent is cited for operating
under an expired special permit and has previously committed the same
violation, the penalty will be doubled (i.e., increased by 100
percent). This is the same as the previous language, we are simply
relocating it so that all of the factors relating to prior violations
are discussed together.
We are also adding one factor that PHMSA will consider in
determining penalty increases for prior violations. If PHMSA finds that
a respondent has
[[Page 60730]]
been cited for an identical violation within the six-year period
specified above, we will generally increase the penalty for that
violation by 100 percent. The rationale for this is that the respondent
was previously notified of the violation and had the opportunity to
correct it; failing to correct an issue and committing the exact same
violation demonstrates a disregard for compliance and justifies an
additional increase to the penalty.
With respect to corrective action, the revised guidelines provide
additional details regarding how PHMSA determines reductions for
corrective action. These revisions supplement, but do not change, the
existing standard. Notably, we are including further explanations of
the primary factors--extent and timing. We are also adding guidance for
how respondents may document their corrective actions. Additionally, we
are setting out standards that describe the factors we consider in
determining whether to reduce a civil penalty for corrective action, up
to 25 percent. Finally, we are incorporating a new provision that
respondents who have committed the same violation previously (as
determined in a finally-adjudicated case) may not receive a reduction
for corrective action because corrective action is warranted when a
respondent in an enforcement case makes sincere, comprehensive, and
effective efforts to remedy a violation. Therefore, if the company was
previously notified of the non-compliance issue and failed to fix it, a
corrective action reduction is not appropriate.
We are also revising the provisions for penalty reductions for
financial considerations in the guidelines; however, we are not making
any substantive changes to this section. We have merely modified and
restructured the language, without changing the meaning.
Finally, we are removing the section regarding penalty increases
for using an expired special permit. Previously, this section included
two provisions: (1) That a prior violation warrants an increase of 25
percent, and (2) that when a respondent uses an expired special permit
and has previously committed the same violation, an increase of 100
percent is appropriate. The first provision is adequately expressed in
the section on prior violations (i.e., 25 percent increase for a prior
violation). And the second provision is now moved to the section on
prior violations as well, in order to keep all increases for prior
violations in the same section for organizational purposes.
Although these revisions to the guidelines are intended to provide
consistency and clarity, 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
specific assessment criteria set forth in 49 U.S.C. 5123 and 49 CFR
107.331, including consideration of small businesses. Therefore, PHMSA
will continue to review all relevant information in the record
concerning any alleged violation or the respondent, and we will adjust
the baseline assessments as warranted by the statutory criteria.
These penalty guidelines remain subject to revision and PHMSA will
use the version of the guidelines in effect at the time the violation
in any particular case is committed. Questions concerning PHMSA's
penalty guidelines and any comments or suggested revisions may be
addressed to the persons identified above, in FOR FURTHER INFORMATION
CONTACT.
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of the Federal
hazardous materials transportation law (49 U.S.C. 5101-5128). Section
5123(a) of that law provides civil penalties for knowing violations of
Federal hazardous material transportation law or a regulation, order,
special permit, or approval issued under that law. This rule revises
PHMSA's guidelines for determining civil penalties, which are published
in Appendix A to subpart D of part 107, including the List of
Frequently Cited Violations in Part II, as well as Part III
Consideration of Statutory Criteria and Part IV Miscellaneous Factors
Affecting Penalty Amounts, which provide additional factors and
criteria that affect penalty amounts.
Revisions to Part II include modifications to individual baseline
assessments, the addition of frequently-cited violations not previously
included in the guidelines, and the replacement of penalty ranges with
assigned penalties based on safety risks, such as packing group, where
appropriate. The revisions to Parts III and IV of the guidelines
clarify the criteria PHMSA considers when determining a civil penalty
amount that appropriately reflects the risk posed by a violation, the
culpability of the respondent, and any aggravating or mitigating
factors. More specifically, we are establishing a sequence in which
aggravating and mitigating factors are applied, identifying the period
within which prior violations are considered, specifying that the
repeating of identical violations in multiple cases serves as an
aggravating factor, and clarifying the process by which PHMSA considers
mitigation for corrective actions, reshippers, and financial
considerations as well as penalty increases for multiple counts and
prior violations.
Under 49 U.S.C. 5123(c), when determining a civil penalty amount,
PHMSA must consider the nature, circumstances, extent, and gravity of
the violation, the degree of culpability, history of compliance,
ability to pay, and effect on ability to continue to do business for
the specific respondent, as well as other matters that justice
requires. As such, the baseline penalties in the List of Frequently
Cited Violations and the additional factors in Parts III and IV are
merely guidelines that are subject to adjustments for the unique facts
and circumstances of each case. They do not establish or impose any
requirements, are not finally-determinative of any issues or rights,
are not binding, and do not have the force of law. Rather, they are
guidelines PHMSA uses as a starting point in determining a civil
penalty and a guide outlining relevant factors we consider. Since they
are merely informational guidelines stating general agency policy and
practice, no notice of proposed rulemaking is necessary.
B. Executive Order 13610, Executive Order 13563, Executive Order 12866,
and DOT Regulatory Policies and Procedures
This rulemaking is not considered a significant regulatory action
under Executive Order 12866 and the Regulatory Policies and Procedures
of the Department of Transportation (44 FR 11034). Accordingly, this
final rule was not reviewed by the Office of Management and Budget
(OMB). Further, this rule is not a significant regulatory action under
the Regulatory Policies and Procedures of the DOT because it has
minimal impact on a significant number of small businesses.
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. In addition, Executive Order 13563
specifically requires agencies to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and consider
how to best promote
[[Page 60731]]
retrospective analysis to modify, streamline, expand, or repeal
existing rules that are outmoded, ineffective, insufficient, or
excessively burdensome. The revisions to Appendix A to Subpart D of
Part 107 are consistent with the intent of Executive Order 13563 as
this final rule clarifies the civil penalties process, fosters a
greater understanding of the regulations and associated penalties for
non-compliance and updates the regulations to more-accurately reflect
current economic conditions.
Executive Order 13610 (Identifying and Reducing Regulatory Burdens)
reaffirming the goals of Executive Order 13563 (Improving Regulation
and Regulatory Review) issued January 18, 2011, and Executive Order
12866 (Regulatory Planning and Review) issued September 30, 1993
directs agencies to prioritize ``those initiatives that will produce
significant quantifiable monetary savings or significant quantifiable
reductions in paperwork burdens while protecting public health,
welfare, safety, and our environment.'' Executive Order 13610 further
instructs agencies to give consideration to the cumulative effects of
their regulations, including cumulative burdens, and prioritize reforms
that will significantly reduce burdens.
This final rule does not conflict with Executive Order 12866,
Executive Order 13563, or DOT Regulatory Policies and Procedures. This
rule imposes no new costs upon persons conducting hazardous materials
operations in compliance with the requirements of the HMR. Those
entities not in compliance with the requirements of the HMR may
experience an increased cost based on the penalties levied against them
for non-compliance; however, this is an avoidable, variable cost and
thus is not considered in any evaluation of the significance of this
regulatory action. The amendments in this rule could provide safety
benefits (i.e., larger penalties deterring knowing violators). Overall,
it is anticipated this rulemaking would be cost neutral.
A summary of the regulatory evaluation used to support the
proposals presented in this final rule are discussed below. A copy of
the full regulatory evaluation explaining the rationale behind PHMSA's
conclusions is available in the docket for this rulemaking.
Regulatory Evaluation
For the regulatory evaluation of this final rule, PHMSA assumes:
The cost associated with this rulemaking will be imposed
on those individuals who are in violation of the requirements of the
HMR.
Updating the guidelines and expanding the list of
frequently cited violations will raise awareness of the regulatory
requirements and provide a safety benefit.
PHMSA is raising the baseline penalties for consistency
with MAP-21 and to reflect inflation based on the calculation found in
the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Act),
as amended by the Debt Collection Improvement Act of 1996 (the Act is
set forth in the note to 28 U.S.C. 2461).
PHMSA's current civil penalties program has proven effective in
achieving a high level of transportation safety. However, the lack of
fee increases to keep pace with inflation may have limited the
capability to deter potential violators from knowingly violating the
HMR. While this final rule maintains the current level of safety, we
expect the implementation of the changes published in this final rule
will result in a benefit by providing a more substantial deterrent for
potential violators of the HMR.
PHMSA anticipates the primary costs will be to those who violate
the HMR while the primary benefits will be attributed to an increased
awareness of regulatory requirements, an improved understanding of the
civil penalties process, and a more substantial deterrent for those who
violate the HMR.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (Federalism). This rule
does not impose any regulation having substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government; it is merely an updated informational
statement of policy and guidance and does not impose any requirements.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments). Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs on Indian tribal governments, and does not
preempt tribal law, the funding and consultation requirements of
Executive Order 13175 do not apply, and a tribal summary impact
statement is not required.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess the impact on small entities
unless the agency determines a rule is not expected to have a
significant impact on a substantial number of small entities. If an
agency finds that there is a significant impact, the agency must
consider whether alternative approaches could mitigate the impact on
small entities. The size criteria for small entities are defined by the
Small Business Administration (SBA) in 13 CFR 121.201.
The hazardous materials regulated community consists of
approximately 200,000 offerors. Approximately 90 percent meet the SBA
small business criteria. However, we have determined that, based on the
following analysis, the changes adopted in the final rule will not
result in a significant impact. Based on our review of PHMSA hazardous
materials penalties levied in the last calendar year (January 1, 2012-
December 31, 2012), PHMSA issued 616 cases and tickets. If we used the
assumption that 90 percent of the hazardous materials regulated
community meet the SBA small business criteria than this final rule
would only affect approximately 550 small entities. Therefore, PHMSA
certifies this rule would not have a significant economic impact on a
substantial number of small entities.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d) of Title 5
of the Code of Federal Regulations requires that PHMSA provide
interested members of the public and affected agencies an opportunity
to comment on information and recordkeeping requests. There are no new
information requirements in 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
[[Page 60732]]
this document can be used to cross-reference this action with the
Unified Agenda.
H. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more, in the aggregate, to any of the following:
state, local, or Native American tribal governments, or to the private
sector.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. Sec. Sec. 4321-4375), requires Federal agencies to consider
the consequences of major federal actions and prepare a detailed
statement on actions significantly affecting the quality of the human
environment. When developing potential regulatory requirements, PHMSA
evaluates those requirements to consider the environmental impact of
each amendment. Specifically, the Council on Environmental Quality
(CEQ) regulations require federal agencies to conduct an environmental
review considering: (1) The need for the proposed action; (2)
alternatives to the proposed action; (3) probable environmental impacts
of the proposed action and alternatives; and (4) the agencies and
persons consulted during the consideration process.
Description of Action
In this final rule we are revising 49 CFR Appendix A to Subpart D
of Part 107 (Enforcement) Part II by:
Modifying individual baseline assessments contained in the
penalty guidelines table;
Adding violations not previously included in the list of
frequently-cited violations; and
Replacing penalty ranges with assigned penalties based on
safety risks, such as packing group, where appropriate.
In addition in this final rule we are revising 49 CFR Appendix A to
Subpart D of Part 107, Part III--Consideration of Statutory Criteria
and Part IV--Miscellaneous Factors Affecting Penalty Amounts by:
Establishing a penalty amount that appropriately addresses
the risk posed by a violation; and
Establishing the criteria and PHMSA's process for
considering the statutorily-mandated aggravating or mitigating factors
involved in determining a civil penalty.
Alternatives Considered
Alternative (1)--No action alternative: Leave the HMR as is; do not
adopt above-described guidelines.
PHMSA periodically reviews and updates various regulations and
guidelines to improve the clarity of the HMR and provide relief for
safe alternatives when necessary. If PHMSA chose the no-action
alternative, the public would not receive the benefits of increased
awareness of the civil penalties and the processes that accompany them.
Furthermore, PHMSA civil penalties would continue to be out of date and
not reflective of current economic conditions. Therefore, PHMSA
rejected the do-nothing alternative.
Alternative (2)--Preferred Alternative: Go forward with the
modified guidelines as described in this notice.
Environmental Consequences
Under the HMR, hazardous materials are transported by aircraft,
vessel, rail, and highway. The potential for environmental damage or
contamination exists when packages of hazardous materials are involved
in accidents or en route incidents resulting from cargo shifts, valve
failures, package failures, loading, unloading, collisions, handling
problems, or deliberate sabotage. The release of hazardous materials
can cause human death or injury, the loss of ecological resources (e.g.
wildlife habitats), and the contamination of air, aquatic environments,
and soil. Contamination of soil can lead to the contamination of ground
water. Compliance with the HMR substantially reduces the possibility of
accidental release of hazardous materials.
When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates: The risk of release and
resulting environmental impact; risk to human safety, including any
risk to first responders; longevity of the packaging; and if the
proposed regulation would be carried out in a defined geographic area,
the resources, especially any sensitive areas, and how they could be
impacted by any proposed regulations. As the civil penalty program is
specifically designed to ensure compliance with the HMR it concurrently
reduces the possibility of accidental release of hazardous materials
and thus environmental damage.
Conclusion
Based on the above discussion, the amendments in this final rule
would have no significant negative environmental impacts. Civil
penalties may act as a deterrent to those violating the HMR, which may
have a negligible positive environmental impact as a result of
increased compliance with the HMR. PHMSA concludes there are no
significant environmental impacts associated with this final rule.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be
viewed at http://www.dot.gov/privacy.
K. Executive Order 13609 and International Trade Analysis
Under Executive Order 13609, agencies must consider whether the
impacts associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed
[[Page 60733]]
the effects of the final rule to ensure that it does not cause
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is
consistent with Executive Order 13609 and PHMSA's obligations.
L. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs federal agencies to use voluntary consensus
standards in their regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specification of
materials, test methods, or performance requirements) that are
developed or adopted by voluntary consensus standard bodies. There are
no voluntary consensus standards relevant to the penalty guidelines,
and as such, the revised guidelines do not include any.
IV. Revised Appendix A to Subpart D of Part 107--Guidelines for Civil
Penalties
List of Subjects in 49 CFR Part 107
Administrative practices and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 is revised to read as follows:
Authority: 49 U.S.C. 5101-5128, 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; Pub. L. 112-141 section 33006 33010; 49
C.F.R. 1.81, 1.97.
0
2. Revise Appendix A to Subpart D of Part 107 to read as follows:
Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties
I. This appendix sets forth the guidelines PHMSA uses (as of
October 2, 2013) in making initial baseline determinations for civil
penalties. The first part of these guidelines is a list of baseline
amounts or ranges for frequently-cited probable violations.
Following the list of violations are general guidelines PHMSA uses
in making penalty determinations in enforcement cases.
II. List of Frequently Cited Violations
------------------------------------------------------------------------
Baseline
Violation description Section or cite assessment
------------------------------------------------------------------------
General Requirements
------------------------------------------------------------------------
A. Registration Requirements: 107.608, 107.612.
Failure to register as an
offeror or carrier of hazardous
material and pay registration
fee:
1. Small business or not-for- .................. $1,200 + $600 each
profit. additional year.
2. All others............... .................. $3,500 + $1,000
each additional
year.
B. Training Requirements:
1. Failure to provide 172.702.
initial training to hazmat
employees (general
awareness, function-
specific, safety, and
security awareness
training):
a. More than 10 hazmat .................. $1,500 for each
employees. area.
b. 10 hazmat employees .................. $1,000 for each
or fewer. area.
2. Failure to provide 172.702........... $1,000 for each
recurrent training to area.
hazmat employees (general
awareness, function-
specific, safety, and
security awareness
training).
3. Failure to provide in- 172.702........... Included in
depth security training penalty for no
when a security plan is security plan.
required but has not been
developed.
4. Failure to provide in- 172.702........... $3,100.
depth security training
when a security plan is
required and has been
developed.
5. Failure to create and 172.704.
maintain training records:.
a. More than 10 hazmat .................. $1,000.
employees.
b. 10 hazmat employees .................. $600.
or fewer.
C. Security Plans:
1. Failure to develop a 172.800...........
security plan; failure to
adhere to security plan:
a. Section 172.504 Table .................. $9,300.
1 materials.
b. Packing Group I...... .................. $7,500.
c. Packing Group II..... .................. $5,600.
d. Packing Group III.... .................. $3,700.
2. Incomplete security plan .................. One-quarter (25
or incomplete adherence percent) of above
(one or more of four for each element.
required elements missing).
3. Failure to update a 172.802(b)........ One-third (33
security plan to reflect percent) of
changing circumstances. baseline for no
plan.
4. Failure to put security 172.800(b)........ One-third (33
plan in writing; failure to percent) of
make all copies identical. baseline for no
plan.
D. Notification to a Foreign 171.22(f).
Shipper: Failure to provide a
foreign offeror or forwarding
agent written information of
HMR requirements applicable to
a shipment of hazardous
materials within the United
States, at the place of entry
into the United States:
1. Packing Group I and Sec. .................. $9,300 .*
172.504 Table 1 materials.
2. Packing Group II......... .................. $5,500 .*
3. Packing Group III........ .................. $1,800 .*
------------------------------------------------------------------------
* The baseline applied to the importer shall be equal to or less than
the baseline applied to the foreign offeror or forwarding agent.
------------------------------------------------------------------------
[[Page 60734]]
------------------------------------------------------------------------
Baseline
Violation description Section or cite assessment
------------------------------------------------------------------------
E. Special Permits and
Approvals:
1. Offering or transporting 171.2.
a hazardous material, or
otherwise performing a
function covered by a
special permit or approval,
without authorization:
a. After the special .................. $1,200 + $600 for
permit or approval has each additional
expired. year.
b. After the special .................. $5,000 to $25,000.
permit or approval has
been terminated.
2. Failure to comply with a 171.2.
provision of a special
permit or approval (when no
other baseline is
applicable):
a. That relates to .................. $4,000 and up.
safety.
b. That does not relate .................. $500 and up.
to safety.
3. Failure to maintain a Special Permit.... $1,000.
copy of the special permit
in the transport vehicle or
facility, when required by
the terms of the special
permit.
4. Use an approval or Approval, Various. $9,000.
approval symbol issued to
another person.
------------------------------------------------------------------------
Offeror Requirements--All hazardous materials
------------------------------------------------------------------------
A. Undeclared Shipment:......... 172.200, 172.300,
172.400, 172.500.
1. Offering for
transportation a hazardous
material without shipping
papers, package markings,
labels, and placards (where
required):
a. Packing Group I and .................. $30,000 and up.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $20,000.
c. Packing Group III.... .................. $17,500.
d. Consumer Commodity, .................. $5,000.
ORM-D.
2. Offering for
transportation a hazardous
material that is
misclassified on the
shipping paper, markings,
labels, and placards
(including improper
treatment as consumer
commodity, ORM-D):
a. Packing Group I and .................. $20,000.
Sec. 172.504 Table I
materials.
b. Packing Group II..... .................. $12,000.
c. Packing Group III.... .................. $8,000.
3. Offering for
transportation a forbidden
hazardous material:
a. Packing Group I and .................. $35,000.
Sec. 172.504 Table I
materials.
b. Packing Group II..... .................. $25,000.
c. Packing Group III.... .................. $20,000.
4. Offering for
transportation a lithium
battery, without shipping
papers, package markings,
labels, or placards (when
required):
a. For air transport.... .................. $40,000.
b. For ground transport. .................. $20,000.
B. Shipping Papers:
1. Failure to provide a 172.201,
shipping paper for a 177.817(a).
shipment of hazardous
materials or accepting
hazardous materials for
transportation without a
shipping paper:
a. Packing Group I and .................. $7,500.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $5,600.
c. Packing Group III.... .................. $3,700.
2. Failure to follow one or 172.201(a)(1)..... $1,500.
more of the three approved
formats for listing
hazardous materials and non-
hazardous materials on a
shipping paper.
3. Failure to retain 172.201(e)........ $1,200.
shipping papers as required.
4. Failure to include a 172.202.
proper shipping name in the
shipping description or
using an incorrect proper
shipping name:
a. Packing Group I and .................. $2,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,500.
c. Packing Group III.... .................. $1,000.
5. Failure to include a 172.202.
hazard class/division
number in the shipping
description:
a. Packing Group I and .................. $2,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,500.
c. Packing Group III.... .................. $1,000.
6. Failure to include an 172.202.
identification number in
the shipping description:
a. Packing Group I and .................. $2,500.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,800.
c. Packing Group III.... .................. $1,200.
7. Using an incorrect hazard 172.202.
class:.
a. That does not affect .................. $1,000.
compatibility
requirements.
b. That affects
compatibility
requirements:
i. Packing Group I .................. $7,500.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $5,600.
iii. Packing Group .................. $3,700.
III.
[[Page 60735]]
8. Using an incorrect 172.202.
identification number:.
a. That does not change .................. $1,000.
the response
information.
b. That changes response
information:
i. Packing Group I .................. $7,500.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $5,600.
iii. Packing Group .................. $3,700.
III.
9. Failure to include the 172.202.
Packing Group or using an
incorrect Packing Group:
a. Packing Group I and .................. $1,700.
Sec. 172.504 Table 1
materials.
b. Packing Group II and .................. $1,300.
III.
10. Using a shipping 172.202........... $1,000.
description that includes
additional unauthorized
information (extra or
incorrect words).
11. Using a shipping 172.202........... $600.
description not in required
sequence.
12. Failure to include the 172.202........... $600.
total quantity of hazardous
material covered by a
shipping description
(including net explosive
mass).
13. Failure to include any 172.203(a), (b), $600.
of the following on a (c)(2), (k), (l).
shipping paper, as
required: Special permit
number; ``Limited Quantity
or ``Ltd Qty;'' ``RQ'' for
a hazardous substance;
technical name in
parentheses for a listed
generic or ``n.o.s.''
material; or marine
pollutant.
14. Failure to indicate 172.203(m)........ $2,500.
poison inhalation hazard on
a shipping paper.
15. Failure to include or 172.204........... $1,000.
sign the required shipper's
certification on a shipping
paper.
C. Emergency Response
Information Requirements:
1. Providing incorrect 172.602.
emergency response
information with or on a
shipping paper:
a. No significant .................. $1,000.
difference in response.
b. Significant
difference in response:
i. Packing Group I .................. $7,500.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $5,600.
iii. Packing Group .................. $3,700.
III.
2. Failure to include an 172.604........... $3,200.
emergency response
telephone number on a
shipping paper.
3. Failure to have the 172.604........... $1,600.
emergency response
telephone number monitored
while a hazardous material
is in transportation; or
listing the number in a
manner that it is not
readily identifiable or
cannot be found easily and
quickly (e.g., multiple
telephone numbers); or
failing to include the
name, contract number, or
other unique identifier of
the person registered with
the emergency response
provider.
4. Listing an emergency 172.604........... $3,200 to $5,200
response telephone number
on a shipping paper that
causes emergency responders
delay in obtaining
emergency response
information (e.g., listing
a telephone number that not
working, incorrect, or
otherwise not capable of
providing required
information).
D. Package Marking Requirements:
1. Failure to mark the 172.301(a).
proper shipping name and
identification number on a
package:
a. Packing Group I and .................. $6,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $4,500.
c. Packing Group III.... .................. $3,000.
2. Marking a package with an 172.301(a).
incorrect shipping name and
identification number:
a. That does not change
the response
information:
i. Packing Group I .................. $3,700.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $2,700.
iii. Packing Group .................. $2,200.
III.
b. That changes the
response information:
i. Packing Group I .................. $9,500.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $7,100.
iii. Packing Group .................. $4,700.
III.
3. Failure to mark the 172.301(a).
proper shipping name on a
package or marking an
incorrect shipping name on
a package:
a. Packing Group I and .................. $2,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,500.
c. Packing Group III.... .................. $1,000.
4. Failure to mark the 172.301(a).
identification number on a
package:.
a. Packing Group I and .................. $2,500.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,800.
c. Packing Group III.... .................. $1,200.
5. Marking a package with an 172.301(a).
incorrect identification
number:.
a. That does not change .................. $1,000.
the response
information.
[[Page 60736]]
b. That changes the
response information:
i. Packing Group I .................. $7,500.
and Sec. 172.504
Table 1 materials.
ii. Packing Group II .................. $5,600.
iii. Packing Group .................. $3,700.
III.
6. Failure to include the 172.301(c)........ $600.
required technical name(s)
in parentheses for a listed
generic or ``n.o.s.'' entry.
7. Failure to mark ``non- 172.301(f)........ $2,000.
odorized'' on a cylinder
containing liquefied
petroleum gas.
8. Marking a package as 172.303(a)........ $1,000.
containing hazardous
material when it contains
no hazardous material.
9. Failure to locate 172.304(a)(4)..... $1,000.
required markings away from
other markings that could
reduce their effectiveness.
10. Failure to mark a 172.312.
package containing liquid
hazardous materials with
required orientation
markings:
a. Packing Group I and .................. $4,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $3,500.
c. Packing Group III.... .................. $3,000.
11. Failure to mark 172.313(a), $4,000.
``Biohazard on an 172.323.
infectious substance or
``Inhalation Hazard'' on a
package containing a poison
by inhalation hazard.
12. Failure to apply limited 172.315, $600.
quantity marking or ``RQ'' 172.324(b).
marking on a non-bulk
package containing a
hazardous substance.
13. Listing the technical 172.301(b)........ $1,600.
name of a select agent
hazardous material when it
should not be listed.
14. Failure to apply a 172.317, 172.322, $1,200.
``Keep away from heat,'' 172.325.
marine pollutant, or
elevated temperature
(``HOT'') marking.
15. Failure to properly mark 172.331, 172.334, $1,000.
a bulk container. 172.336, 172.338.
E. Package Labeling
Requirements:
1. Failure to label a 172.400........... $7,000.
package or applying a label
that represents a hazard
other than the hazard
presented by the hazardous
material in the package.
2. Placing a label on a 172.401(a)........ $1,000.
package that does not
contain a hazardous
material.
3. Failure to place a 172.402.
required subsidiary label
on a package:.
a. Packing Group I and .................. $3,100.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,800.
c. Packing Group III.... .................. $600.
4. Placing a label on a 172.406(a)........ $1,000.
different surface of the
package than, or away from,
the proper shipping name.
5. Placing an improper size 172.407(c)........ $1,000.
label on a package.
6. Placing a label on a 172.407(d)........ $1,000.
package that does not meet
color specification
requirements (depending on
the variance).
7. Failure to place a Cargo 172.402(c)........ $5,000.
Aircraft Only label on a
package intended for air
transportation, when
required.
8. Failure to place a Cargo 172.402(c),
Aircraft Only label on a 172.102(c)(1)
package containing a Special Provision
primary lithium battery or 188, 189, 190.
failure to mark a package
containing a primary
lithium battery as
forbidden for transport on
passenger aircraft:
a. For air transport.... .................. $10,000.
b. For ground transport. .................. $1,000.
9. Failure to provide an 172.411........... $3,100.
appropriate class or
division number on an
explosive label.
F. Placarding Requirements:
1. Improperly placarding a 172.504.
freight container or
vehicle containing
hazardous materials:
a. Packing Group I and .................. $1,200 to $11,200.
Sec. 172.504 Table 1
materials.
b. Packing Group II and .................. $1,000 to $9,000.
III.
2. Failure to placard a 172.504.
freight container or
vehicle containing
hazardous materials (no
placard at all):
a. Packing Group I and .................. $12,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II and .................. $8,500.
III.
G. Packaging Requirements:
1. Failure to comply with 173.4, 173.4a, $1,000 to $5,000.
package testing 173.4b, 173.6,
requirements for small 173.156, 173.306.
quantities, excepted
quantities, de minimis,
materials of trade, limited
quantities, and ORM-D.
2. Offering a hazardous Various.
material for transportation
in an unauthorized non-UN
standard or non-
specification packaging
(includes failure to comply
with the terms of a special
permit authorizing use of a
non-standard or non-
specification packaging):
a. Packing Group I, Sec. .................. $11,200.
172.504 Table 1
materials, and Division
2.3 gases.
b. Packing Group II and .................. $8,700.
Divisions 2.1 and 2.2
gases.
c. Packing Group III.... .................. $6,200.
[[Page 60737]]
3. Offering a hazardous Various.
material for transportation
in a package that was not
retested as required:
a. Packing Group I and .................. $8,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $5,000.
c. Packing Group III.... .................. $3,000.
4. Offering a hazardous Various.
material for transportation
in an improper package:
a. When Packing Group I .................. $8,000.
material is packaged in
a Packing Group III
package.
b. When Packing Group I .................. $5,000.
material is packaged in
a Packing Group II
package.
c. When Packing Group II .................. $3,000.
material is packaged in
a Packing Group III
package.
5. Offering a hazardous Various........... $7,500.
material for transportation
in a packaging (including a
packaging manufactured
outside the United States)
that is torn, damaged, has
hazardous material present
on the outside of the
package, or is otherwise
not suitable for shipment.
6. Offering a hazardous 178.601, Various.
material for transportation
in a self-certified
packaging that has not been
subjected to design
qualification testing:
a. Packing Group I and .................. $13,500.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $10,500.
c. Packing Group III.... .................. $7,500.
7. Offering a hazardous 173.32(d), $4,500.
material for transportation 173.24(c).
in a packaging that has
been successfully tested to
an applicable UN standard
but is not marked with the
required UN marking
(including missing
specification plates).
8. Failure to close a UN 173.22(a)(4).
standard packaging in
accordance with the closure
instructions:
a. Packing Group I and .................. $2,000 to $5,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $1,000 to $4,000.
c. Packing Group III.... .................. $500 to $3,000.
9. Offering a hazardous 173.24(b).
material for transportation
in a packaging that leaks
during conditions normally
incident to transportation:
a. Packing Group I and .................. $16,500.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $11,200.
c. Packing Group III.... .................. $7,500.
10. Overfilling or 173.24(b).
underfilling a package so
that the effectiveness is
substantially reduced:
a. Packing Group I and .................. $11,200.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $7,500.
c. Packing Group III.... .................. $3,700.
11. Failure to ensure 173.24(e)......... $9,000 to $12,000.
packaging is compatible
with hazardous material
lading.
12. Failure to mark an 173.25(a)(4)...... $3,700.
overpack as required.
13. Packaging incompatible 173.25(a)(5)...... $9,300.
materials in an overpack.
14. Marking a package 173.25(a).
``overpack'' when the inner
packages do not meet the
requirements of the HMR:
a. Packing Group I and .................. $15,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $10,000.
c. Packing Group III.... .................. $7,000.
15. Failure to comply with 173.27............ $1,000 to $10,000.
additional requirements for
transportation by aircraft.
16. Filling an IBC, portable 173.32(a),
tank, or cargo tank (DOT, 173.33(a)(3),
UN, or IM) that is out of 180.352, 180.407,
test and offering hazardous 180.605.
materials for
transportation in that IBC
or portable tank. (Penalty
amount depends on number of
units and time out of
test.).
a. Packing Group I and
Sec. 172.504 Table 1
materials:
i. All testing .................. $8,700.
overdue.
ii. Only periodic (5 .................. $4,600.
year) tests overdue
or only
intermediate
periodic (2.5 year)
tests overdue.
b. Packing Group II:
i. All testing .................. $6,600.
overdue.
ii. Only periodic (5 .................. $3,300.
year) tests overdue
or only
intermediate
periodic (2.5 year)
tests overdue.
c. Packing Group III:
i. All testing .................. $4,600.
overdue.
ii. Only periodic (5 .................. $2,300.
year) tests overdue
or only
intermediate
periodic (2.5 year)
tests overdue.
17. Manifolding cylinders 173.301(g)........ $3,700 and up.
without conforming to
manifolding requirements.
[[Page 60738]]
18. Failure to ensure a 173.315(n)(3)..... $2,500.
cargo tank motor vehicle in
metered delivery service
has an operational off-
truck remote shut-off
activation device.
19. Offering a hazardous 173.33............ $15,000.
material in a cargo tank
motor vehicle when the
material does not meet
compatibility requirements
with the tank or other
lading or residue.
20. Failure to provide the 173.32(f)(6).
required outage in a
portable tank that results
in a release of hazardous
materials:.
a. Packing Group I and .................. $15,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $11,200.
c. Packing Group III.... .................. $7,500.
------------------------------------------------------------------------
Offeror Requirements--Specific hazardous materials
------------------------------------------------------------------------
A. Cigarette Lighters:
1. Offering for 173.21(i)......... $7,500.
transportation an
unapproved cigarette
lighter, lighter refill, or
similar device, equipped
with an ignition element
and containing fuel.
2. Failure to include the 173.308(d)(1)..... $1,000.
cigarette lighter test
report identifier on the
shipping paper.
3. Failure to mark the 173.308(d)(2)..... $1,000.
approval number on the
package..
B. Class 1--Explosives:
1. Failure to mark the 172.320........... $1,000.
package with the 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 173.54, 173.56(b).
explosive for
transportation:.
a. Division 1.4 .................. $5,000.
fireworks meeting the
chemistry requirements
of APA Standard 87-1.
b. Division 1.3 .................. $7,500.
fireworks meeting the
chemistry requirements
of APA Standard 87-1.
c. All other explosives .................. $12,500 and up.
(including forbidden).
3. Offering an unapproved 173.54, 173.56(b).
explosive for
transportation that
minimally deviates from an
approved design in a manner
that does not impact
safety:
a. Division 1.4......... .................. $3,000.
b. Division 1.3......... .................. $4,000.
c. All other explosives. .................. $6,000.
4. Offering a leaking or 173.54(c).
damaged package of
explosives for
transportation:
a. Division 1.3 and 1.4. .................. $12,500.
b. All other explosives. .................. $16,500.
5. Offering a Class 1 173.60(b)(5)...... $15,000.
material that is fitted
with its own means of
ignition or initiation,
without providing
protection from accidental
actuation.
6. Packaging explosives in 173.61............ $9,300.
the same outer packaging
with other materials.
7. Transporting a detonator 177.835(g)(3)..... $10,000.
on the same vehicle as
incompatible materials
using the approved method
listed in 177.835(g)(3)
without meeting the
requirements of IME
Standard 22.
C. Class 7--Radioactive
Materials:
1. Failure to include 172.203(d)........ $2,000 to $5,000.
required additional entries
for radioactive material on
a shipping paper, or
providing incorrect
information for these
additional entries.
2. Failure to mark the gross 172.310(a)........ $1,000.
mass on the outside of a
package of Class 7 material
that exceeds 110 pounds.
3. Failure to mark each 172.310(b)........ $3,700.
package with the words
``Type A'' or ``Type B,''
as appropriate.
4. Placing a label on Class 172.403........... $6,200.
7 material that understates
the proper label category.
5. Placing a label on Class 172.403(g)........ $2,000 to $5,000.
7 material 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 173.410........... $6,200.
more of the general design
requirements for a package
used to ship a Class 7
material.
7. Failure to comply with 173.411........... $6,200.
the industrial packaging
(IP) requirements when
offering a Class 7 material
for transportation.
8. Failure to provide a 173.412(a)........ $5,000.
tamper-indicating device on
a Type A package used to
ship a Class 7 material.
9. Failure to meet the 173.412(b)-(i).... $6,200.
additional design
requirements of a Type A
package used to ship a
Class 7 material.
10. Failure to meet the 173.412(j)-(l).... $11,200.
performance requirements
for a Type A package used
to ship a Class 7 material.
[[Page 60739]]
11. Offering a DOT 173.415(a),
specification 7A packaging 173.461.
without maintaining
complete documentation of
tests and an engineering
evaluation or comparative
data:
a. Tests and evaluation .................. $13,500.
not performed.
b. Test performed but .................. $2,500 to $6,200.
complete records not
maintained.
12. Offering any Type B, 173.416........... $16,500.
Type B(U), or Type B(M)
packaging that failed to
meet the approved DOT, NRC
or DOE design, as
applicable.
13. Offering a Type B 173.471(a).
packaging without
registering as a party to
the NRC approval
certificate:
a. Never obtained .................. $3,700.
approval.
b. Holding an expired .................. $1,200.
certificate.
14. Failure to meet one or 173.420........... $13,500.
more of the special
requirements for a package
used to ship more than 0.1
kg of uranium hexafluoride.
15. Offering Class 7 173.421(a)........ $8,000.
materials for
transportation as a limited
quantity without meeting
the requirements for a
limited quantity.
16. Offering a multiple- 173.423(a)........ $600 to $3,100.
hazard limited quantity
Class 7 material without
addressing the additional
hazard.
17. Offering Class 7 173.424........... $6,200 to $12,500.
materials for
transportation under
exceptions for radioactive
instruments and articles
while failing to meet the
applicable requirements.
18. Offering Class 7 low 173.427........... $7,500 to $12,500.
specific activity (LSA)
materials or surface
contaminated objects (SCO)
while failing to comply
with applicable transport
requirements (including, an
external dose rate that
exceeds an external
radiation level of 10 mSv/h
at 3 meters from the
unshielded material).
19. Offering Class 7 LSA 173.427(a)(6)..... $1,200.
materials or SCO as
exclusive use without
providing specific
instructions to the carrier
for maintenance of
exclusive use shipment
controls.
20. Offering in excess of a 173.431........... $15,000.
Type A quantity of a Class
7 material in a Type A
packaging.
21. Offering a package that 173.441........... $12,500.
exceeds the permitted
radiation level or
transport index.
22. Offering a package 173.443........... $6,200 and up.
without determining the
level of removable external
contamination, or that
exceeds the limit for
removable external
contamination.
23. Storing packages of 173.447(a)........ $6,200 and up.
radioactive material in a
group with a total
criticality safety index of
more than 50.
24. Offering for 173.448(e)........ $6,200 and up.
transportation or
transporting aboard a
passenger aircraft any
single package or overpack
of Class 7 material with a
transport index greater
than 3.0.
25. Exporting a Type B, Type 173.471(d)........ $3,700.
B(U), Type 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.
26. Offering or exporting 173.476(a), (b)... $3,700.
special form radioactive
materials without
maintaining a complete
safety analysis or
Certificate of Competent
Authority, as required.
27. Shipping a fissile 173.417, 173.453, $12,500.
material as fissile-exempt 173.457.
without meeting one of the
exemption requirements or
otherwise not complying
with fissile material
requirements.
28. Offering Class 7 fissile 173.417........... $1,000 to $12,500.
materials while failing to
have a DOT Competent
Authority Certificate or
NRC Certificate of
Compliance, as required, or
failing to meet the
requirements of the
applicable Certificate.
D. Class 2--Compressed Gases in
Cylinders:
1. Filling and offering a 173.301(a)(6),
cylinder with compressed (a)(7).
gas when the cylinder is
out of test or after its
authorized service life:
a. Table 1 and .................. $10,000 to
compressed gas in $15,000.
solution.
b. Division 2.1 gases... .................. $7,500 to $10,000.
c. Division 2.2 gases... .................. $5,000 to $7,500.
2. Overfilling cylinders:... Various.
a. Division 2.3 gases... .................. $15,000.
b. Division 2.1 gases... .................. $10,000.
c. Division 2.2 gases... .................. $7,500.
d. Aerosols, limited .................. $5,000.
quantities, consumer
commodities.
3. Failure to check each day 173.303(d)........ $6,200.
the 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.
[[Page 60740]]
4. Offering a limited 173.306(a)(3)..... $1,800 to $5,000.
quantity of a 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
131 [deg]F, without
evidence of leakage,
distortion, or other defect.
5. Offering a limited 173.306(a)(3)(v).. $5,000.
quantity of a compressed
gas in a metal container
intended to expel a non-
poisonous material, while
failing to subject the
filled container to a hot
water bath, as required.
6. Offering liquefied 173.315(j)........ $7,500 to $10,000.
petroleum gas for permanent
installation on consumer
premises when the
requirements are not met.
E. Oxygen Generators Offered by
Air:
1. Offering an unapproved 173.168........... $25,000.
oxygen generator for
transportation.
2. Offering an oxygen 173.168........... $12,500 to
generator for $25,000.
transportation without
installing a means of
preventing actuation, as
required.
3. Offering an oxygen 172.102(c)(1) $35,000.
generator as spent when the Special Provision
ignition and chemical 61.
contents were still present.
F. Batteries: 173.159, 173.185,
173.21(c).
1. Offering lithium
batteries in transportation
that have not been tested:
a. Ground transport..... .................. $15,000.
b. Air transport........ .................. $30,000.
2. Offering lithium .................. $5,000 + 25
batteries in transportation percent increase
that have been assembled for each
from tested cells, but have additional
not been tested. design.
3. Failure to create records .................. $2,500 to $9,300.
of design testing.
4. Offering lithium .................. $15,000.
batteries in transportation
that have not been
protected against short
circuit.
5. Offering lithium .................. $12,500.
batteries in transportation
in unauthorized packages.
6. Offering lead acid .................. $10,000.
batteries in transportation
in unauthorized packages.
7. Offering lithium .................. $30,000.
batteries in transportation
on passenger aircraft or
misclassifying them for air
transport.
8. Failure to prepare .................. $6,000.
batteries so as to prevent
damage in transit.
------------------------------------------------------------------------
Manufacturing, Reconditioning, Retesting Requirements
------------------------------------------------------------------------
A. Activities Subject to
Approval:
1. Failure to report in 171.2(c), Approval $700 to $1,500.
writing a change in name, Letter.
address, ownership, test
equipment, management, or
test personnel.
2. Failure by an independent 178.35(c)(1), (2), $5,000 to $16,500.
inspection agency of (3).
specification cylinders to
satisfy all inspector
duties, including
inspecting materials, and
verifying materials of
construction and cylinders
comply with applicable
specifications.
3. Failure to properly 178.25(c)(4), $4,000.
complete or retain Various.
inspector's report for
specification packages.
4. Failure to have a Various........... $2,500.
cylinder manufacturing
registration number/symbol,
when required.
B. Packaging Manufacturers
(General):
1. Failure of a manufacturer 178.2(c).......... $3,100.
or 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 comply with 178.504 to
specified construction 178.523.
requirements for non-bulk
packagings:
a. Packing Group I and .................. $12,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $8,000.
c. Packing Group III.... .................. $4,000.
3. Fail testing: Failure to 178.601(b),
ensure a packaging 178.609, Part 178
certified as meeting the UN subparts O, Q.
standard is capable of
passing the required
performance testing
(depending on size of
package):
a. Infectious substances .................. $16,500.
b. Packing Group I and .................. $13,500 to
Sec. 172.504 Table 1 $16,500.
materials.
c. Packing Group II..... .................. $10,500 to
$13,500.
d. Packing Group III.... .................. $7,500 to $10,500.
4. No testing: Certifying a 178.601(d),
packaging as meeting a UN 178.609, Part 178
standard when design subparts O, Q.
qualification testing was
not performed (depending on
size of package):
a. Infectious substances .................. $16,500.
a. Packing Group I and .................. $13,500 to
Sec. 172.504 table 1 $16,500.
materials.
b. Packing Group II..... .................. $10,500 to
$13,500.
c. Packing Group III.... .................. $7,500 to $10,500.
5. Failure to conduct 178.601(e), Part $2,500 to $16,500.
periodic testing on UN 178 subparts O, Q.
standard packaging
(depending on length of
time, Packing Group, and
size of package).
[[Page 60741]]
6. Improper testing: 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)
(depending on size of
package):
a. Design qualification 178.601(d),
testing:. 178.609, Part 178
subparts O, Q.
i. Infectious .................. $13,500.
substances.
ii. Packing Group I. .................. $10,500 to
$13,500.
iii. Packing Group .................. $7,500 to $10,500.
II.
iv. Packing Group .................. $2,500 to $7,500.
III.
b. Periodic testing:.... 178.601(e),
178.609.
i. Infectious .................. $10,500.
substances.
ii. Packing Group I. .................. $7,000 to $10,500.
iii. Packing Group .................. $4,000 to $7,000.
II.
iv. Packing Group .................. $600 to $4,000.
III.
7. Failure to keep complete 178.601(l).
and accurate testing
records:.
a. No records kept...... .................. $5,000.
b. Incomplete or .................. $1,200 to $3,700.
inaccurate records.
8. Improper marking of UN 178.503........... $600 per item.
certification.
C. Drum Manufacturers &
Reconditioners:
1. Failure to properly 178.604(b), (d),
conduct a production 173.28(b)(2)(i).
leakproofness test on a new
or reconditioned drum:
a. Improper testing:
i. Packing Group I.. .................. $3,000.
ii. Packing Group II .................. $2,500.
iii. Packing Group .................. $2,000.
III.
b. No testing performed:
i. Packing Group I.. .................. $6,200.
ii. Packing Group II .................. $5,000.
iii. Packing Group .................. $3,700.
III.
2. Marking incorrect tester 173.28(b)(2)(ii).
information on a reused
drum:.
a. Incorrect information .................. $1,000.
b. Unauthorized use of .................. $9,000.
another's information.
3. Representing, marking, or 173.28(c)......... $7,500 to $13,500.
certifying a drum as a
reconditioned UN standard
packaging when the drum
does not meet a UN
standard..
4. Representing, marking, or 173.28(d)......... $600
certifying a drum as
altered from one UN
standard to another, when
the drum has not been
altered.
D. IBC and Portable Tank
Requalification:
1. Failure to properly test 180.352, 180.603.
and inspect IBCs or
portable tanks.
a. Packing Group I...... .................. $10,000.
b. Packing Group II..... .................. $7,500.
c. Packing Group III.... .................. $5,000.
2. Failure to properly mark 180.352(e), $600 per item.
an IBC or portable tank 178.703(b),
with the most current 180.605(k).
retest and/or inspection
information.
3. Failure to keep complete 180.352(f),
and accurate records of IBC 180.605(l).
or portable tank retest and
reinspection:
a. No records kept...... .................. $5,000.
b. Incomplete or .................. $1,200 to $3,700.
inaccurate records.
4. Failure to make 180.352(g), 49 $1,200.
inspection and test records U.S.C. 5121(b)(2).
available to a DOT
representative upon request.
5. Failure to perform tests 180.352(d)........ $3,700 to $6,200.
(internal visual,
leakproofness) on an IBC as
part of a repair.
6. Failure to perform 180.350(c)........ $2,500.
routine maintenance on an
IBC.
E. Cylinder Manufacturers &
Rebuilders:
1. Manufacturing, 178.35............ $10,000 to
representing, marking, $25,000.
certifying, or selling a
DOT high-pressure cylinder
that was not inspected and
verified by an approved
independent inspection
agency.
2. Failure to mark a 178.35, Various... $1,000.
registration number/symbol
on a cylinder, when
required.
3. Failure to mark the date 178.65(i)......... $3,700.
of manufacture or lot
number on a DOT-39 cylinder.
4. Failure to have a 107.807, 178.35... $6,200.
chemical analysis performed
in the U.S. for a material
manufactured outside the
U.S., without an approval.
5. Failure to comply with 178.35(d), (e), $5,000.
defect and attachment (f).
requirements, safety device
requirements, or marking
requirements.
6. Failure to meet wall Various........... $9,300 to $18,700.
thickness requirements.
7. Failure to heat treat Various........... $6,200 to $18,700.
cylinders prior to testing.
8. Failure to conduct a Various........... $3,100 to $7,700.
complete visual internal
examination.
9. Failure to conduct a Various........... $3,100 to $7,700.
hydrostatic test, or
conducting a hydrostatic
test with inaccurate test
equipment.
10. Failure to conduct a Various........... $9,300 to $18,700.
flattening test.
[[Page 60742]]
11. Failure to conduct a 178.33-8, 178.33a- $6,200 to $18,700.
burst test on a DOT-2P, 2Q, 8, 178.33b-8,
2S, or 39 cylinder. 178.65(f)(2).
12. Failure to maintain 178.35, Various.
required inspector's
reports:.
a. No reports at all.... .................. $5,000.
b. Incomplete or .................. $1,200 to $3,700.
inaccurate reports.
13. Failure to complete or 178.35(g)......... $6,200.
retain manufacturer's
reports.
14. Representing a DOT-4 180.211(a)........ $10,000 to
series cylinder as repaired $25,000.
or rebuilt to the
requirements of the HMR
without being authorized by
the Associate Administrator.
F. Cargo Tank Motor Vehicles:
1. Failure to maintain 180.417(b), (c).
complete cargo tank test
reports, as required:
a. No records........... .................. $5,000.
b. Incomplete records... .................. $1,200 to $3,700.
2. Failure to have a cargo 180.407(c)........ $8,000 and up;
tank tested or inspected increase by 25
(e.g., visual, thickness, percent for each
pressure, leakproofness). additional.
3. Failure to mark a cargo 180.415........... $600 each item.
tank with test and
inspection markings.
4. Failure to retain a cargo 178.320(b), $6,200.
tank's data report and 178.337-18,
Certificates or design 178.338-19,
certification. 178.345-15.
5. Failure to mark a special 172.301(c)........ $1,800.
permit number on a cargo
tank.
6. Constructing a cargo tank 178.320(b), $13,500.
or cargo tank motor vehicle Special Permit.
not in accordance with a
special permit or design
certification.
7. Failure to mark manhole 178.345-5(e)...... $4,500.
assemblies on a cargo tank
motor vehicle manufactured
after October 1, 2004.
8. Failure to apply 178.337-17,
specification plate and 178.338-18,
name plate:. 178.345-14.
a. No marking........... .................. $4,500.
b. Incomplete marking... .................. $600 per item.
9. Failure to conduct 180.416(d)........ $2,500.
monthly inspections and
tests of discharge system
in cargo tanks.
G. Cylinder Requalification:
1. Certifying or marking as 180.205(a)........ $1,000.
retested a non-
specification cylinder.
2. Failure to have 180.205(b)........ $5,000.
retester's identification
number (RIN).
3. Failure to have current 180.205(b)........ $2,500 + $600 each
authority due to failure to additional year.
renew a RIN.
4. Marking a RIN before 180.205(b)........ $1,000.
successfully completing a
hydrostatic retest.
5. Representing, marking, or 171.2(c), (e), $2,500 to $7,500.
certifying a cylinder as 180.205(c),
meeting the requirements of Special Permit.
a special permit when the
cylinder was not maintained
or retested in accordance
with the special permit.
6. Failure to conduct a 180.205(f)........ $2,600 to $6,500.
complete visual external
and internal examination.
7. Performing hydrostatic 180.205(g)(1), $2,600 to $6,500.
retesting without 180.205(g)(3).
confirming the accuracy of
the test equipment or
failing to conduct
hydrostatic testing.
8. Failure to hold 180.205(g)(5)..... $3,800.
hydrostatic test pressure
for 30 seconds or
sufficiently longer to
allow for complete
expansion.
9. Failure to perform a 180.205(g)(5)..... $3,800.
second retest, after
equipment failure, at a
pressure increased by the
lesser of 10 percent or 100
psi (includes exceeding
90percent of test pressure
prior to conducting a
retest).
10. Failure to condemn a 180.205(i)........ $7,500 to $13,500.
cylinder when required
(e.g., permanent expansion
exceeds 10 percent of total
expansion [5percent for
certain special permit
cylinders], internal or
external corrosion,
denting, bulging, evidence
of rough usage).
11. Failure to properly mark 180.205(i)(2)..... $1,000 to $5,000.
a condemned cylinder or
render it incapable of
holding pressure.
12. Failure to notify the 180.205(i)(2)..... $1,200.
cylinder owner in writing
when a cylinder has been
condemned.
13. Failure to perform 180.209(a)........ $2,600 to $6,500.
hydrostatic retesting at
the minimum specified test
pressure.
14. Marking a star on a 180.209(b)........ $2,500 to $5,000.
cylinder that does not
qualify for that mark.
15. Marking a ``+'' sign on 173.302a(b)....... $2,500 to $5,000.
a cylinder without
determining the average or
minimum wall stress by
calculation or reference to
CGA Pamphlet C-5.
16. Marking a cylinder in or 180.213(b)........ $7,500 to $13,500.
on the sidewall when not
permitted by the applicable
specification.
17. Failure to maintain 180.213(b)(1)..... $1,000.
legible markings on a
cylinder.
18. Marking a DOT 3HT 180.213(c)(2)..... $7,500 to $13,500.
cylinder with a steel stamp
other than a low-stress
steel stamp.
19. Improper marking of the 180.213(d)........ $1,000.
RIN or retest date on a
cylinder.
[[Page 60743]]
20. Marking an FRP cylinder Special Permit.... $7,500 to $13,500.
with steel stamps in the
FRP area of the cylinder
such that the integrity of
the cylinder is compromised.
21. Failure to comply with Appendix C to Part $2,600 to $6,500.
eddy current examination 180.
requirements for DOT 3AL
cylinders manufactured of
aluminum alloy 6351-T6,
when applicable.
22. Failure to maintain 180.215(a)........ $700 to $1,500.
current copies of the HMR,
DOT special permits, and
CGA Pamphlets applicable to
inspection, retesting, and
marking activities.
23. Failure to keep complete 180.215(b).
and accurate records of
cylinder reinspection and
retest:
a. No records kept...... .................. $5,000.
b. Incomplete or .................. $1,200 to $3,700.
inaccurate records.
------------------------------------------------------------------------
Carrier Requirements
------------------------------------------------------------------------
A. Incident Notification:
1. Failure to provide 171.15............ $6,000.
immediate telephone/online
notification of a
reportable hazardous
materials incident
reportable under 171.15(b).
2. Failure to file a written 171.16............ $4,000.
hazardous material incident
report within 30 days of
discovering a hazardous
materials incident
reportable under 171.15(b)
or 171.16(a).
3. Failure to include all 171.15, 171.16.... $1,000.
required information in
hazardous materials
incident notice or report
or failure to update report.
B. Shipping Papers:
1. Failure to retain 174.24(b), $1,200.
shipping papers for 1 year 175.33(c),
after a hazardous material 176.24(b),
(or 3 years for a hazardous 177.817(f).
waste) is accepted by the
initial carrier.
C. Stowage/Attendance/
Transportation Requirements:
1. Transporting packages of Various........... $3,700 and up.
hazardous material that
have not been secured
against movement.
2. Failure to properly Various........... $9,300 and up.
segregate hazardous
materials.
3. Failure to remove a 177.834(h).
package containing
hazardous materials from a
motor vehicle before
discharge of its contents:
a. Packing Group I and .................. $5,000.
Sec. 172.504 Table 1
materials.
b. Packing Group II..... .................. $3,000.
c. Packing Group III.... .................. $1,000.
4. Transporting explosives 177.835(i)........ $6,500 and up.
in a motor 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.
5. Failure to attend Class 1 177.835(k)........ $3,000.
explosive materials during
transportation.
6. Transporting railway 171.2(b), (e)..... $8,700.
track torpedoes outside of
flagging kits, in violation
of DOT-E 7991.
7. Failure to carry a hazmat 107.620(b)........ $1,000.
registration letter or
number in the transport
vehicle.
8. Transporting Class 7 177.842(a)........ $6,200 and up.
(radioactive) material
having a total transport
index greater than 50.
9. Transporting Class 7 177.842(b)........ $6,200 and up.
(radioactive) material
without maintaining the
required separation
distance.
10. Failure to comply with 171.2(b), (e), $6,200 and up.
radiation survey Special Permit.
requirements of a special
permit that authorizes the
transportation of Class 7
(radioactive) material
having a total
transportation index
exceeding 50.
------------------------------------------------------------------------
The baseline penalty amounts in Part II are used as a starting
amount or range appropriate for the normal or typical nature,
extent, circumstances, and gravity of the probable violations
frequently cited in enforcement reports. PHMSA must also consider
any additional factors, as provided in 49 U.S.C. 5123(c) and 49 CFR
107.331, including the nature, circumstances, extent and gravity of
a violation, the degree of culpability and compliance history of the
respondent, the financial impact of the penalty on the respondent,
and other matters as justice requires. Consequently, at each stage
of the administrative enforcement process, up to and including
issuance of a final order or decision on appeal, PHMSA can adjust
the baseline amount in light of the specific facts and circumstances
of each case.
As part of this analysis, PHMSA reviews the factors outlined in
the next section, Miscellaneous Factors Affecting Penalty Amounts,
the safety implications of the violation, the pervasiveness of the
violation, and all other relevant information. PHMSA considers not
only what happened as a result of the violation, but also what could
have happened as a result of continued violation of the regulations.
As a general matter, one or more specific instances of a violation
are presumed to reflect a respondent's general manner of operations,
rather than isolated occurrences.
PHMSA may draw factors relevant to the statutory considerations
from the initial information gathered by PHMSA's Office of Hazardous
Materials Safety Field Operations, the respondent in response to an
exit briefing, ticket, or Notice of Probable Violation (NOPV), or
information otherwise available to us. We will generally apply the
specific statutory factors that are outlined in
[[Page 60744]]
the next section, Miscellaneous Factors Affecting Penalty Amounts,
in the following order:
1. Select the appropriate penalty amount within a specific
baseline or range, with appropriate increases or decreases depending
on the packing group or material involved and other information
regarding the frequency or duration of the violation, the
culpability of the respondent, and the actual or potential
consequences of the violation.
2. Apply decreases for a reshipper or carrier that reasonably
relied on an offeror's non-compliant preparation of a hazardous
materials shipment.
3. Apply increases for multiple counts of the same violation.
4. Apply increases for prior violations of the HMR within the
past six years.
5. Apply decreases for corrective actions.
6. Apply decreases for respondent's inability to pay or adverse
effect on its ability to continue in business.
After each adjustment listed above, PHMSA will use the new modified
baseline to calculate each subsequent adjustment. PHMSA will apply
adjustments separately to each individual violation. All penalty
assessments will be subject to additional adjustments as appropriate
to reflect other matters as justice requires.
A. Respondents That Reship
A person who either receives hazardous materials from another
company and reships them (reshipper), or accepts a hazardous
material for transportation, and transports that material (carrier),
is responsible for ensuring that the shipment complies in all
respects with Federal hazardous materials transportation law. In
both cases, the reshipper or carrier independently may be subject to
enforcement action if the shipment does not comply.
Depending on all the circumstances, however, the person who
originally prepared the shipment and placed it into transportation
may have greater culpability for the noncompliance than the
reshipper or carrier who reasonably relies on the shipment as
received and does not open or alter the package before the shipment
continues in transportation. PHMSA will consider the specific
knowledge and expertise of all parties, as well as which party is
responsible for compliance under the regulations, when evaluating
the culpability of a reshipper or carrier. PHMSA recognizes that a
reshipper or carrier may have reasonably relied upon information
from the original shipper and may reduce the applicable baseline
penalty amount up to 25 percent.
B. Penalty Increases for Multiple Counts
A main objective of PHMSA's enforcement program is to obtain
compliance with the HMR and the correction of violations which, in
many cases, have been part of a company's regular course of
business. As such, there may be multiple instances of the same
violation. Examples include a company shipping various hazardous
materials in the same unauthorized packaging, shipping the same
hazardous material in more than one type of unauthorized packaging,
shipping hazardous materials in one or more packagings with the same
marking errors, or using shipping papers with multiple errors.
Under 49 U.S.C. 5123(a), each violation of the HMR and each day
of a continuing violation (except for violations pertaining to
packaging manufacture or qualification) is subject to a civil
penalty up to $75,000 or $175,000 for a violation occurring on or
after October 1, 2012. As such, PHMSA generally will treat multiple
occurrences that violate a single regulatory provision as separate
violations and assess the applicable baseline penalty for each
distinct occurrence of the violation. PHMSA will generally consider
multiple shipments or, in the case of package testers, multiple
package designs, to be multiple occurrences; and each shipment or
package design may constitute a separate violation.
PHMSA, however, will exercise its discretion in each case to
determine the appropriateness of combining into a single violation
what could otherwise be alleged as separate violations and applying
a single penalty for multiple counts or days of a violation,
increased by 25 percent for each additional instance, as directed by
49 U.S.C. 5123(c). For example, PHMSA may treat a single shipment
containing three items or packages that violate the same regulatory
provision as a single violation and apply a single baseline penalty
with a 50 percent increase for the two additional items or packages;
and PHMSA may treat minor variations in a package design for a
package tester as a single violation and apply a single baseline
penalty with a 25 percent increase for each additional variation in
design.
When aggravating circumstances exist for a particular violation,
PHMSA may handle multiple instances of a single regulatory violation
separately, each meriting a separate baseline or increase the civil
penalty by 25 percent for each additional instance. Aggravating
factors may include increased safety risks, continued violation
after receiving notice, or separate and distinct acts. For example,
if the multiple occurrences each require their own distinct action,
then PHMSA may count each violation separately (e.g., failure to
obtain approvals for separate fireworks devices).
C. Penalty Increases for Prior Violations
The baseline penalty in the List of Frequently Cited Violations
assumes an absence of prior violations. If a respondent has prior
violations of the HMR, generally, PHMSA will increase a proposed
penalty.
When setting a civil penalty, PHMSA will review the respondent's
compliance history and determine if there are any finally-
adjudicated violations of the HMR initiated within the previous six
years. Only cases or tickets that have been finally-adjudicated will
be considered (i.e., the ticket has been paid, a final order has
been issued, or all appeal remedies have been exhausted or expired).
PHMSA will include prior violations that were initiated within six
years of the present case; a case or ticket will be considered to
have been initiated on the date of the exit briefing for both the
prior case and the present case. If multiple cases are combined into
a single Notice of Probable Violation or ticket, the oldest exit
briefing will be used to determine the six-year period. If a
situation arises where no exit briefing is issued, the date of the
Notice of Probable Violation or Ticket will be used to determine the
six-year period. PHMSA may consider prior violations of the
Hazardous Materials Regulations from other DOT Operating
Administrations.
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 percent
increase over the pre-mitigation recommended baseline penalty.
2. For each prior ticket--10 percent increase over the pre-
mitigation recommended baseline penalty.
3. If a respondent is cited for operating under an expired
special permit and previously operated under an expired special
permit (as determined in a finally-adjudicated civil, criminal, or
administrative enforcement case or a ticket), PHMSA will increase
the civil penalty 100 percent.
4. If a respondent is cited for the exact same violation that it
has been previously cited for within the six-year period (in a
finally-adjudicated civil, criminal, or administrative enforcement
case or a ticket), PHMSA will increase the baseline for that
violation by 100 percent. This increase will apply only when the
present violation is identical to the previous violation and applies
only to the specific violation that has recurred.
5. A baseline proposed penalty (both for each individual
violation and the combined total) will not be increased more than
100 percent on the basis of prior violations.
D. Corrective Action
PHMSA may lower a proposed penalty when a respondent's
documented corrective action has fixed an alleged violation.
Corrective action should demonstrate not only that the specific
deficiency is corrected but also that any systemic corrections have
been addressed to prevent recurrence of the violation.
The two primary factors that determine the reduction amount are
the extent and timing of the corrective action. In other words,
PHMSA will determine the amount of mitigation based on how much
corrective action a respondent completes and how soon after the exit
briefing it performs corrective action. Comprehensive systemic
action to prevent future violations may warrant greater mitigation
than actions that simply target violations identified during the
inspection. Actions taken immediately (within the 30 calendar day
period that respondents have to respond to an exit briefing, or upon
approval of Field Operations) may warrant greater mitigation than
actions that are not taken promptly.
PHMSA may consider a respondent's corrective action to assess
mitigation at various stages in the enforcement process, including:
(1) AFTEr an inspection and before an NOPV is issued; (2) on receipt
of an NOPV; or (3) after receipt of an NOPV. In order to reduce a
civil penalty for corrective action, PHMSA must receive satisfactory
[[Page 60745]]
documentation that demonstrates the corrective action was completed.
If a corrective action is of a type that cannot be documented (e.g.,
no longer using a particular packaging), then a respondent may
provide a signed affidavit describing the action it took. The
affidavit must begin with the affirmative oath ``I hereby affirm
under the penalties of perjury that the below statements are true
and correct to the best of my knowledge, information and belief,''
in accordance with 28 U.S.C. 1746.
Generally, corrective action credit may not exceed 25 percent.
Mitigation is applied to individual violations and fact patterns but
should not be considered to be automatic reduction. Thus, in a case
with two violations, if corrective action for the first violation is
more extensive than for the second, the penalty for the first will
be mitigated more than that for the second. If a respondent has
previously committed the same violation, however, as determined in a
finally-adjudicated civil, criminal, or administrative enforcement
case or a ticket, PHMSA will not apply any reduction for corrective
action.
In determining the appropriate civil penalty reduction, PHMSA
will consider the extent to which the respondent corrected the
violation and any risks or harms it created, the respondent's
actions to prevent the violation from recurring, improvements to
overall company practices to address a widespread compliance issue,
and how quickly the corrective action was performed. In general,
PHMSA will apply the following reductions for corrective action,
subject to the facts and circumstances of individual cases and
respondents. If a respondent has given full documentation of timely
corrective action and PHMSA does not believe that anything else can
be done to correct the violation or improve overall company
practices, we will generally reduce the civil penalty by no more
than 25 percent. As noted above, a 25 percent reduction is not
automatic. We will reduce the penalty up to 20 percent when a
respondent promptly and completely corrected the cited violation and
has taken substantial steps toward comprehensive improvements. PHMSA
will generally apply a reduction up to 15 percent when a respondent
has made substantial and timely progress toward correcting the
specific violation as well as overall company practices, but
additional actions are needed. A reduction up to 10 percent is
appropriate when a respondent has taken significant steps toward
addressing the violation, but minimal or no steps toward correcting
broader company policies to prevent future violations. PHMSA may
reduce a penalty up to 5 percent when a respondent made untimely or
minimal efforts toward correcting the violation.
E. Financial Considerations
PHMSA may mitigate a proposed penalty when a respondent
documents that the penalty would either (1) exceed an amount that
the respondent is able to pay, or (2) have an adverse effect on the
respondent's ability to continue in business. These criteria relate
to a respondent's entire business, and not just the product line or
part of its operations involved in a violation. PHMSA may apply this
mitigation by reducing the civil penalty or instituting a payment
plan.
PHMSA will only mitigate a civil penalty based on financial
considerations when a respondent supplies financial documentation
demonstrating one of the factors above. A respondent may submit
documentation of financial hardship at any stage to receive
mitigation or an installment payment plan. Documentation includes
tax records, a current balance sheet, profit and loss statements,
and any other relevant records. Evidence of a respondent's financial
condition is used only to decrease a penalty, and not to increase
it.
In evaluating the financial impact of a penalty on a respondent,
PHMSA will consider all relevant information on a case-by-case
basis. Although PHMSA will determine financial hardship and
appropriate penalty adjustments on an individual basis, in general,
we will consider the following factors.
1. The overall financial size of the respondent's business and
information on the respondent's balance sheet, including the current
ratio (current assets to current liabilities), the nature of current
assets, and net worth (total assets minus total liabilities).
2. A current ratio close to or below 1.0 may suggest that the
company would have difficulty in paying a large penalty or in paying
it in a single lump sum.
3. A small amount of cash on hand (representing limited
liquidity), even with substantial other current assets (such as
accounts receivable or inventory), may suggest a company would have
difficulty in paying a penalty in a single lump sum.
4. A small or negative net worth may suggest a company would
have difficulty in paying a penalty in a single lump sum.
Notwithstanding, many respondents have paid substantial civil
penalties in installments even though net worth was negative. For
this reason, negative net worth alone does not always warrant
reduction of a proposed penalty or even, in the absence of factors
discussed above, a payment plan.
When PHMSA determines that a proposed penalty poses a
significant financial hardship, we may reduce the proposed penalty
and/or implement an installment payment plan. The appropriateness of
these options will depend on the circumstances of the case.
When an installment payment plan is appropriate, the length of
the payment plan should be as short as possible, but may be adjusted
as necessary. PHMSA will not usually exceed six months for a payment
plan. In unusual circumstances, PHMSA may extend the period of a
payment plan. For example, the duration of a payment plan may
reflect fluctuations in a company's income if its business is
seasonal or if the company has documented specific reasons for
current non-liquidity.
Issued in Washington, DC, on September 25, 2013 under authority
delegated in 49 CFR Sec. 1.97.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-23887 Filed 10-1-13; 8:45 am]
BILLING CODE 4910-60-P