[Code of Federal Regulations] [Title 49, Volume 2] [Revised as of October 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR107.339] [Page 41-50] TITLE 49--TRANSPORTATION CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 107_HAZARDOUS MATERIALS PROGRAM PROCEDURES--Table of Contents Subpart D_Enforcement Sec. 107.339 Imminent hazards. Whenever it appears to the Office of the Chief Counsel that there is a substantial likelihood that death, serious illness, or severe personal injury will result from the transportation of a particular hazardous material or hazardous materials container, before a compliance order proceeding or other administrative hearing or formal proceeding to abate the risk of that harm can be completed, the Administrator, RSPA, or his delegate, may bring an action under 49 U.S.C. 5122(b) in the appropriate United States District Court for an order suspending or restricting the transporation of that hazardous material or those containers or for such other equitable relief as is necessary or appropriate to ameliorate the hazard. [Amdt. 107-11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107-15, 51 FR 34987, Oct. 1, 1986; Amdt. 107-32, 59 FR 49131, Sept. 26, 1994] [[Page 42]] Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties I. This appendix sets forth the guidelines used by the Office of Hazardous Materials Safety (as of October 1, 2003) in making initial baseline determinations for recommending civil penalties. The first part of these guidelines is a list of baseline amounts or ranges for probable violations frequently cited in enforcement reports referred for action. Following the list of violations are general guidelines used by OHMS in making initial penalty determinations in enforcement cases. II. List of Frequently Cited Violations II.--List of Frequently Cited Violations ------------------------------------------------------------------------ Violation description Section or cite Baseline assessment ------------------------------------------------------------------------ General Requirements ------------------------------------------------------------------------ A. Registration requirements: Failure to register as 107.608, 107.612.... $1,000 + $500 each an offeror or carrier additional year. of hazardous material and pay registration fee. 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 .................... $700 and up each hazmat employees. area. b. 10 hazmat .................... $400 and up each employees or fewer. area. 2. Failure to provide 172.702............. recurrent training to hazmat employees (general awareness, function-specific, safety, and security awareness training). a. more than 10 .................... $400 and up each hazmat employees. area. b. 10 hazmat .................... $275 and up each employees or fewer. area. 3. Failure to provide in 172.702............. depth security training (when a security plan is required). a. no security plan .................... included in penalty developed. for no security plan $2,500. b. security plan developed but employee not trained. 4. Failure to create and 172.704............. maintain training records. a. more than 10 .................... $800 and up. hazmat employees. b. 10 hazmat .................... $500 and up. employees or fewer. C. Security plans: 1. Failure to develop a 172.800............. security plan; failure to adhere to security plan. a. No security plan .................... $6,000 and up. at all; no adherence. b. Incomplete .................... $2,000 and up for security plan or each element. incomplete adherence (one or more of three required elements missing). 2. Failure to update a 172.802(b).......... $2,000 and up. security plan to reflect changing circumstances. 3. Failure to put 172.800(b).......... $2,000 and up. security plan in writing; failure to make all copies identical. D. Notification to a foreign shipper: Failure to provide 171.12(a)........... $1,500 to $7,500 information of HMR (corresponding to requirements applicable violations by to a shipment of foreign offeror or hazardous materials forwarding agent). within the United States, to a foreign offeror or forwarding agent at the place of entry into the U.S. E. Expired Exemption: Offering or transporting 171.2(a), (b), (c), $1,000 + $500 each a hazardous material, Various. additional year. or otherwise performing a function covered by an exemption, after expiration of the exemption. ----------------------------- Offeror Requirements--All hazardous materials ------------------------------------------------------------------------ A. Undeclared Shipment: Offering for 172.200, 172.300, $15,000 and up. transportation a 172.400, 172.500. hazardous material without shipping papers, package markings, labels, or placards. B. Shipping Papers: 1. Failure to provide a 172.201............. $3,000 to $6,000. shipping paper for a shipment of hazardous materials. 2. Failure to follow one 172.201(a)(1)....... $1,200. or more of the three approved formats for listing hazardous materials on a shipping paper. [[Page 43]] 3. Failure to retain 172.201(e).......... $1,000. shipping papers for 375 days after a hazardous material (or 3 years for a hazardous waste) is accepted by the initial carrier. 4. Failure to include a 172.202............. $800 to $1,600. proper shipping name in the shipping description or using an incorrect proper shipping name. 5. Failure to include a 172.202............. $1,000 to $2,000. hazard class/division number in the shipping description. 6. Failure to include an 172.202............. $1,000 to $2,000. identification number in the shipping description. 7. Using an incorrect 172.202............. hazard class/ identification number:. a. that does not .................... $800. affect compatibility requirements. b. that affects .................... $3,000 to $6,000. compatibility requirements. 8. Using an incorrect 172.202............. identification number:. a. that does not .................... $800. change the response information. b. that changes the .................... $3,000 to $6,000. response information. 9. Failure to include 172.202............. $1,200. the Packing Group, or using an incorrect Packing Group. 10. Using a shipping 172.202............. $800. description that includes additional unauthorized information (extra or incorrect words). 11. Using a shipping 172.202............. $500. description not in required sequence. 12. Using a shipping 172.202............. description with two or more required elements missing or incorrect:. a. such that the .................... $3,000. material is misdescribed. b. such that the .................... $6,000. material is misclassified. 13. Failure to include 172.202(c).......... $500. the total quantity of hazardous material covered by a shipping description. 14. Failure to list an 172.203(a).......... $800. exemption number in association with the shipping description. 15. Failure to indicate 172.203(b).......... $500. ``Limited Quantity'' or ``Ltd Qty'' following the basic shipping description of a material offered for transportation as a limited quantity. 16. Failure to include 172.203(c)(2)....... $500. ``RQ'' in the shipping description to identify a material that is a hazardous substance. 17. Failure to include a 172.203(k).......... $1,000. required technical name in parenthesis for a listed generic or ``n.o.s.'' material. 18. Failure to include 172.204............. $1,000. the required shipper's certification on a shipping paper. 19. Failure to sign the 172.204............. $800. required shipper's certification on a shipping paper. C. Emergency Response Information Requirements: 1. Providing or listing 172.602............. incorrect emergency response information with or on a shipping paper. a. No significant .................... $800. difference in response. b. Significant .................... $3,000 to $6,000. difference in response. 2. Failure to include an 172.604............. $2,600. emergency response telephone number on a shipping paper. 3. Failure to have the 172.604............. $1,300. emergency response telephone number monitored while a hazardous material is in transportation or listing multiple telephone numbers (without specifying the times for each) that are not monitored 24 hours a day. 4. Listing an 172.604............. $2,600 to $4,200. unauthorized emergency response telephone number on a shipping paper. 5. Listing an incorrect 172.604............. $1,300. or non-working emergency response telephone number on a shipping paper. 6. Failure to provide 172.604............. $1,300. required technical information when the listed emergency response telephone number is contacted. D. Package Marking Requirements: 1. Failure to mark the 172.301(a).......... $800 to $1,600. proper shipping name on a package or marking an incorrect shipping name on a package. 2. Failure to mark the 172.301(a).......... $1,000 to $2,000. identification number on a package. 3. Marking a package 172.301(a).......... with an incorrect identification number. a. that does not .................... $800. change the response information. b. that changes the .................... $3,000 to $6,000. response information. 4. Failure to mark the 172.301(a).......... $3,000 to $6,000. proper shipping name and identification number on a package. 5. Marking a package 172.301(a).......... with an incorrect shipping name and identification number. a. that does not .................... $1,500 to $3,000. change the response information. b. that changes the .................... $3,000 to $6,000. response information. 6. Failure to include 172.301(c).......... $1,000. the required technical name(s) in parenthesis for a listed generic or ``n.o.s.'' entry. [[Page 44]] 7. Marking a package as 172.303(a).......... $800. containing hazardous material when it contains no hazardous material. 8. Failure to locate 172.304(a)(4)....... $800. required markings away from other markings that could reduce their effectiveness. 9. Failure to mark a 172.312............. $2,500 to $3,500. package containing liquid hazardous materials with required orientation marking. 10. Failure to mark 172.324(b).......... $500. ``RQ'' on a non-bulk package containing a hazardous substance. E. Package Labeling Requirements: 1. Failure to label a 172.400............. $5,000. package. 2. Placing a label that 172.400............. $5,000. represents a hazard other than the hazard presented by the hazardous material in the package. 3. Placing a label on a 172.401(a).......... $800. package that does not contain a hazardous material. 4. Failure to place a 172.402............. $500 to $2,500. required subsidiary label on a package. 5. Placing a label on a 172.406(a).......... $800. different surface of the package than, or away from, the proper shipping name. 6. Placing an improper 172.407(c).......... $800. size label on a package. 7. Placing a label on a 172.407(d).......... $600 to $2,500. package that does not meet color specification requirements (depending on the variance). 8. Failure to provide an 172.411............. $2,500. appropriate class or division number on a label. F. Placarding Requirements: Failure to properly 172.504............. placard a freight container or vehicle containing hazardous materials:. a. when Table 1 is .................... $1,000 to $9,000. applicable. b. when Table 2 is .................... $800 to $7,200. applicable. G. Packaging Requirements: 1. Offering a hazardous Various............. material for transportation in an unauthorized non-UN standard or nonspecification packaging (includes failure to comply with the terms of an exemption authorizing use of a nonstandard or nonspecification packaging). a. Packing Group I .................... $9,000. (and Sec. 172.504 Table I materials). b. Packing Group II. .................... $7,000. c. Packing Group III .................... $5,000. 2. 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 .................... $10,800. (and Sec. 172.504 Table I materials). b. Packing Group II. .................... $8,400. c. Packing Group III .................... $6,000. 3. Offering a hazardous 178.503(a).......... $3,600. material for transportation in a packaging that has been successfully tested to an applicable UN standard but is not marked with the required UN marking. 4. Failure to close a UN 173.22(a)(4)........ $2,500. standard packaging in accordance with the closure instructions. 5. Offering a hazardous 173.24(b)........... material for transportation in a packaging that leaks during conditions normally incident to transportation: a. Packing Group I .................... $12,000. (and Sec. 172.504 Table I materials). b. Packing Group II. .................... $9,000. c. Packing Group III .................... $6,000. 6. Overfilling or 173.24(b)........... underfilling a package so that the effectiveness is substantially reduced: a. Packing Group I .................... $9,000. (and Sec. 172.504 Table I materials). b. Packing Group II. .................... $6,000. c. Packing Group III .................... $3,000. 7. Offering a hazardous 171.14.............. material for transportation after October 1, 1996, in a unauthorized non-UN standard packaging marked as manufactured to a DOT specification: a. packaging meets .................... $3,000. DOT specification. b. packaging does .................... $5,000 to $9,000. not meet DOT specification. 8. Failure to mark an 173.25(a)(4)........ $3,000. overpack with a statement that the inside packages comply with prescribed specifications or standards when specification or standard packaging is required. 9. Filling an IBC or a 173.32(a), 180.352, portable tank (DOT, UN, 180.605. or IM) that is out of test and offering hazardous materials for transportation in that IBC or portable tank. a. All testing .................... $3,500 to $7,000. overdue. b. Only periodic (5 .................... $3,500. year) test overdue. c. Only intermediate .................... $3,500. periodic (2.5 year) tests overdue. [[Page 45]] 10. Failure to provide 173.32(f)(6)........ $6,000 to $12,000. the required outage in a portable tank that results in a release of hazardous materials. ----------------------------- Offeror Requirements--Specific hazardous materials ------------------------------------------------------------------------ A. Cigarette Lighters: 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. B. Class 1--Explosives: 1. Failure to mark the 172.320............. $1,200. 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 .................... 173.54, unapproved explosive for transportation: a. Div. 1.3 and 1.4 173.56(b)........... $5,000 to $10,000. fireworks meeting the chemistry requirements (quantity and type) of APA Standard 87- 1. b. All other .................... $10,000 and up. explosives (including forbidden). 3. Offering a leaking or 173.54(c)........... $10,000 and up. damaged package of explosives for transportation. 4. Packaging explosives 173.61.............. $2,500 to $5,000. in the same outer packaging with other materials. C. Class 7--Radioactive Materials: 1. Failure to include 172.203(d).......... $1,000 to $3,000. required additional entries, or providing incorrect information for these additional entries. 2. Failure to mark the 172.310(a).......... $800. gross mass on the outside of a package of Class 7 material that exceeds 110 pounds. 3. Failure to mark each 172.310(b).......... $800. package in letters at least 13 mm (\1/2\ inch) high with the words ``Type A'' or ``Type B'' as appropriate. 4. Placing a label on 172.403............. $5,000. Class 7 material that understates the proper label category. 5. Placing a label on 172.403(g).......... $2,000 to $4,000. Class 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 173.410............. $5,000. or more of the general design requirements for a package used to ship a Class 7 material. 7. Failure to comply 173.411............. $5,000. with the industrial packaging (IP) requirements when offering a Class 7 material for transportation. 8. Failure to provide a 173.412(a).......... $2,000. tamper-indicating device on a Type A package used to ship a Class 7 material. 9. Failure to meet the 173.412(b)-(i)...... $5,000. additional design requirements of a Type A package used to ship a Class 7 material. 10. Failure to meet the 173.412(j)-(l)...... $8,400. performance requirements for a Type A package used to ship a Class 7 material.. 11. Offering a DOT 173.415(a), 173.461 .................... specification 7A packaging without maintaining complete documentation of tests and an engineering evaluation or comparative data: a. Tests and .................... $8,400. evaluation not performed. b. Complete records .................... $2,000 to $5,000. not maintained. 12. Offering any Type B, 173.416............. $9,000. Type B(U), 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 holding a valid NRC approval certificate: a. Never having .................... $3,000. obtained one. b. Holding an .................... $1,000. expired certificate. 14. Failure to meet one 173.420............. $10,800. or more of the special requirements for a package used to ship uranium hexafluoride. 15. Offering Class 7 173.421(a).......... $4,000. material for transportation as a limited quantity without meeting the requirements for limited quantity. 16. Offering a multiple- 173.423(a).......... $500 to $2,500. hazard limited quantity Class 7 material without addressing the additional hazard. 17. Offering Class 7 low 173.427(a)(1)....... $6,000. specific activity (LSA) materials or surface contaminated objects (SCO) with an external dose rate that exceeds an external radiation level of 1 rem/hr at 3 meters from the unshielded material. 18. Offering Class 7 LSA 173.427(a)(6)....... $1,000. materials or SCO as exclusive use without providing specific instructions to the carrier for maintenance of exclusive use shipment controls. 19. Offering in excess 173.431............. $12,000. of Type A quantity of a Class 7 material in a Type A packaging. [[Page 46]] 20. Offering a package 173.441............. $10,000 and up. that exceeds the permitted limits for surface radiation or transport index. 21. Offering a package 173.443............. $5,000 and up. without determining the level of removable external contamination, or that exceeds the limit for removable external contamination. 22. Storing packages of 173.447(a).......... $5,000 and up. radioactive material in a group with a total transport index more than 50. 23. Offering for 173.448(e).......... $5,000 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. 24. Exporting a Type B, 173.471(d).......... $3,000. Type 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. 25. Offering special 173.476(a), (b)..... $2,500. form radioactive materials without maintaining a complete safety analysis or Certificate of Competent Authority. D. Class 2--Compressed Gases .................... in Cylinders: 1. Filling and offering 173.301(a)(6)....... $4,200 to $10,400. a cylinder with compressed gas when the cylinder is out of test. 2. Failure to check each 173.303(d).......... $5,000. day 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. 3. Offering a limited 173.306(a)(3), (h).. $1,500 to $6,000. 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 130 [deg]F, without evidence of leakage, distortion, or other defect. ----------------------------- Manufacturing, Reconditioning, Retesting Requirements ------------------------------------------------------------------------ A. Third-Party Packaging Certifiers (General): Issuing a certification 171.2(e), 178.2(b), $500 per item. that directs the 178.3(a), packaging manufacturer 178.503(a). to improperly mark a packaging (e.g., steel drum to be marked UN 4G). B. Packaging Manufacturers (General): 1. Failure of a 178.2(c)............ $2,500. manufacturer 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 insure a 178.601(b).......... packaging certified as meeting the UN standard is capable of passing the required performance testing. a. Packing Group I .................... $10,800. (and Sec. 172.504 Table 1 materials). b. Packing Group II. .................... $8,400. c. Packing Group III .................... $6,000. 3. Certifying a 178.601(d).......... packaging as meeting a UN standard when design qualification testing was not performed. a. Packing Group I .................... $10,800. (and Sec. 172.504 table 1 materials). b. Packing Group II. .................... $8,400. c. Packing Group III .................... $6,000. 4. Failure to conduct 178.601(e).......... $2,000 to $10,800. periodic retesting on UN standard packaging (depending on length of time and Packing Group). 5. Failure to properly conduct testing for UN standard packaging (e.g., testing with less weight than marked on packaging; drop testing from lesser height than required; failing to condition fiberboard boxes before design test):. a. Design 178.601(d).......... $2,000 to $10,800. qualification testing. b. Periodic 178.601(e).......... $500 to $10,800. retesting. 6. Marking, or causing 178.2(b), 178.3(a), $7,200. the marking of, a 178.503(a)(8). packaging with the symbol of a manufacturer or packaging certifier other than the company that actually manufactured or certified the packaging. 7. Failure to maintain 178.601(l).......... testing records. a. Design .................... $1,000 to $5,000. qualification testing. b. Periodic .................... $500 to $2,000. retesting. 8. Improper marking of 178.503............. $500 per item. UN certification. 9. Manufacturing DOT 171.14.............. specification packaging after October 1, 1994 that is not marked as meeting a UN performance standard. a. If packaging does .................... $3,000. meet DOT specification. b. If packaging does .................... $6,000 to $10,800. not meet DOT specification. C. Drum Manufacturers & Reconditioners: [[Page 47]] 1. Failure to properly 178.604(b), (d), conduct production 173.28(b)(2)(i). leakproofness test on a new or reconditioned drum. a. Improper testing. .................... $2,000. b. No testing .................... $3,000 to $5,000. performed. 2. Marking an incorrect 173.28(b)(2)(ii).... registration number on a reconditioned drum. a. Incorrect number. .................... $800. b. Unauthorized use .................... $7,200. of another reconditioner's number. 3. Representing, 173.28(c), (d)...... $6,000 to $10,800. marking, or certifying a drum as a reconditioned UN standard packaging when the drum does not meet a UN standard. 4. Representing, 173.28(d)........... $500. marking, or certifying a drum as altered from one UN standard to another, when the drum has not actually been altered. D. IBC and Portable Tank Requalification: 1. Failure to properly 180.352(e), $500 per item. mark an IBC or portable 178.703(b), tank with the most 180.605(k). current retest and/or inspection information. 2. Failure to keep 180.352(f), complete and accurate 180.605(l). records of IBC or portable tank retest and reinspection. a. No records kept.. .................... $4,000. b. Incomplete or .................... $1,000 to $3,000. inaccurate records. 3. Failure to make 180.352(f), 49 $1,000. reinspection and retest U.S.C. 5121(b)(2). records available to a DOT representative upon request. E. Cylinder Manufacturers & Rebuilders: 1. Manufacturing, Various............. $7,500 to $15,000. representing, marking, certifying, or selling a DOT high-pressure cylinder that was not inspected and verified by an approved independent inspection agency. 2. Failure to have a Various............. $800. registration number or failure to mark the registration number on the cylinder. 3. Marking another Various............. $7,200. company's number on a cylinder. 4. Failure to mark the 178.65(i)........... $3,000. date of manufacture or lot number on a DOT-39 cylinder. 5. Failure to have a Various............. $5,000. chemical analysis performed in the U.S. for a material manufactured outside the U.S./failure to obtain a chemical analysis from the foreign manufacturer. 6. Failure to meet wall Various............. $7,500 to $15,000. thickness requirements. 7. Failure to heat treat Various............. $5,000 to $15,000. cylinders prior to testing. 8. Failure to conduct a Various............. $2,500 to $6,200. complete visual internal examination. 9. Failure to conduct a Various............. $2,500 to $6,200. hydrostatic test, or conducting a hydrostatic test with inaccurate test equipment. 10. Failure to conduct a Various............. $7,500 to $15,000. flattening test. 11. Failure to conduct a 178.65(f)(2)........ $5,000 to $15,000. burst test on a DOT-39 cylinder. 12. Failure to have Various............. $7,500 to $15,000. inspections and verifications performed by an inspector. 13. Failure to maintain Various............. required inspector's reports. a. No reports at all .................... $5,000. b. Incomplete or .................... $1,000 to $4,000. inaccurate reports. 14. Representing a DOT-4 180.211(a).......... $6,000 to $10,800. series cylinder as repaired or rebuilt to the requirements of the HMR without being authorized by the Associate Administrator. F. Cylinder Requalification: 1. Failure to remark as 173.23(c)........... $800. DOT 3AL an aluminum cylinder manufactured under a former exemption. 2. Certifying or marking 180.205(a).......... $800. as retested a nonspecification cylinder. 3. Failure to have 180.205(b).......... $4,000. retester's identification number (RIN). 4. Failure to have 180.205(b).......... $2,000. current authority due to failure to renew a retester's identification number (RIN). 5. Failure to have a 180.205(b).......... $7,200. retester's identification number and marking another RIN on a cylinder. 6. Marking a RIN before 180.205(b).......... $800. successfully completing a hydrostatic retest. 7. Representing, 171.2(c), (e), $2,000 to $6,000. marking, or certifying 178.205(c), a cylinder as meeting Applicable the requirements of an Exemption. exemption when the cylinder was not maintained or retested in accordance with the exemption. 8. Failure to conduct a 180.205(f).......... $2,100 to $5,200. complete visual external and internal examination. 9. Failure to conduct 180.205(f) & (g).... $4,200 to $10,400. visual inspection or hydrostatic retest. 10. Performing 180.205(g)(3)....... $2,100 to $5,200. hydrostatic retesting without confirming the accuracy of the test equipment. 11. Failure to hold 180.205(g)(5)....... $3,100. hydrostatic test pressure for 30 seconds or sufficiently longer to allow for complete expansion. 12. Failure to perform a 180.205(g)(5)....... $3,100. second retest, after equipment failure, at a pressure increased by the greater of 10% or 100 psi (includes exceeding 90% of test pressure prior to conducting a retest). [[Page 48]] 13. Failure to condemn a 180.205(i).......... $6,000 to $10,800. cylinder when required (e.g., permanent expansion of 10% [5% for certain exemption cylinders], internal or external corrosion, denting, bulging, evidence of rough usage). 14. Failure to properly 180.205(i)(2)....... $800. mark a condemned cylinder or render it incapable of holding pressure. 15. Failure to notify 180.205(i)(2)....... $1,000. the cylinder owner in writing when a cylinder has been condemned. 16. Failure to perform 180.209(a)(1)....... $2,100 to $5,200. hydrostatic retesting at the minimum specified test pressure. 17. Marking a star on a 180.209(b).......... $2,000 to $4,000. cylinder that does not qualify for that mark. 18. Marking a ``+'' sign 173.302a(b)......... $2,000 to $4,000. on a cylinder without determining the average or minimum wall stress by calculation or reference to CGA Pamphlet C-5. 19. Marking a cylinder 180.213(b).......... $6,000 to $10,800. in or on the sidewall when not permitted by the applicable specification. 20. Failure to maintain 180.213(b)(1)....... $800. legible markings on a cylinder. 21. Marking a DOT 3HT 180.213(c)(2)....... $6,000 to $10,800. cylinder with a steel stamp other than a low- stress steel stamp. 22. Improper marking of 180.213(d).......... $800. the RIN or retest date on a cylinder. 23. Marking an FRP Applicable Exemption $6,000 to $10,800. cylinder with steel stamps in the FRP area of the cylinder such that the integrity of the cylinder is compromised. 24. Failure to maintain 180.215(a).......... $600 to $1,200. current copies of 49 CFR, DOT exemptions, and CGA Pamphlets applicable to inspection, retesting, and marking activities. 25. Failure to keep 180.215(b).......... complete and accurate records of cylinder reinspection and retest. a. No records kept.. .................... $4,000. b. Incomplete or .................... $1,000 to $3,000. inaccurate records. 26. Failure to report in 171.2(c) & (e), $600 to $1,200. writing a change in Approval Letter. name, address, ownership, test equipment, management, or retester personnel. ----------------------------- Carrier Requirements ------------------------------------------------------------------------ A. Incident Notification: 1. Failure to give 171.15.............. $3,000. immediate notification of a reportable hazardous materials incident. 2. Failure to file a 171.16.............. $500 to $2,500. written hazardous material incident report within 30 days following an unintentional release of hazardous materials in transportation (or other reportable incident). B. Shipping Papers: Failure to retain 174.24(b), $1,000. shipping papers for 375 175.30(a)(2), days after a hazardous 176.24(b), material (or 3 years 177.817(f). for a hazardous waste) is accepted by the initial carrier. C. Stowage/transportation Requirements: 1. Transporting packages Various............. $3,000. of hazardous material that have not been secured against movement. 2. Failure to properly Various............. $7,500 and up. segregate hazardous materials. 3. Transporting 177.835(i).......... $5,200. explosives 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. 4. Transporting railway 171.2(b) & (e)...... $7,000. track torpedoes outside of flagging kits, in violation of DOT-E 7991. 5. Transporting Class 7 177.842(a).......... $5,000 and up. (radioactive) material having a total transport index greater than 50. 6. Transporting Class 7 177.842(b).......... $5,000 and up. (radioactive) material without maintaining the required separation distance. 7. Failure to comply 171.2(b) & (e)...... with requirements of an exemption authorizing the transportation of Class 7 (radioactive) material having a total transportation index of 50. a. Failure to have .................... $5,000. the required radiation survey record. b. Failure to have .................... $500 each. other required documents. c. Other violations. .................... $5,000 and up. ------------------------------------------------------------------------ [[Page 49]] III. Consideration of Statutory Criteria A. These guidelines are used by the Office of Hazardous Materials Safety (OHMS) in setting initial proposed penalties for hazmat violations. They indicate baseline amounts or ranges for probable violations frequently cited in enforcement reports and set forth general OHMS policy for considering statutory criteria. B. The initial baseline determination partially considers the nature, extent, circumstances, and gravity of the alleged violation. That determination then is adjusted to consider all other evidence concerning the nature, extent, circumstances, and gravity of the alleged violation; degree of culpability; history of prior violations; ability to pay; effect of the penalty on ability to continue to do business; and such other matters as justice may require (a major component of which is corrective action taken by a respondent to prevent a recurrence of similar violations). In making a penalty recommendation, the baseline or range may be increased or decreased on the basis of evidence pertaining to these factors. C. The following miscellaneous factors are used to implement one or more of the statutory assessment criteria. IV. Miscellaneous Factors Affecting Penalty Amounts A. Corrective Action 1. A proposed penalty is mitigated for documented corrective action of alleged violations taken by a respondent. Corrective action may occur: (1) After an inspection and before a Notice of Probable Violation (NOPV) is issued; (2) on receipt of an NOPV; or (3) after receipt of an NOPV (possibly after it is solicited by an RSPA attorney). In general, corrective action may reduce a penalty up to 25%. Mitigation may be taken into account in the referral memo or may be recommended prior to issuance of an Order by RSPA's Chief Counsel. 2. The two primary factors in determining the penalty reduction are extent and timing of the corrective action. In other words, mitigation will be determined on the basis of how much corrective action was taken and when it was taken. Systemic action to prevent future violations is given greater consideration than action simply to remedy violations identified during the inspection. 3. Mitigation is applied to individual violations. 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. B. Respondents That Re-Ship A shipper that reships materials received from another company, in the same packaging and without opening or altering the package, independently is responsible for ensuring that the shipment complies with Federal hazmat law, and independently may be subject to enforcement action if the package does not comply. Nevertheless, the reshipper is considered to have a lesser level of responsibility for compliance in those respects in which it reasonably relies on the compliance of the package as received. In most cases of this type, OHMS will discount the applicable baseline standard by about 25%. The specific knowledge and expertise of all parties must be considered in discounting for reliance on a prior shipper. This discount is applied before any consideration of mitigation based on corrective action. C. Penalty Increases for Multiple Counts Under the Federal hazmat law, 49 U.S.C. 5213(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 of up to $32,500 ($27,500 for a violation occurring after January 21, 1997, and before October 1, 2003). Absent aggravating factors, OHMS, in its exercise of discretion, ordinarily will apply a single penalty for multiple counts or days of violation. In a number of cases, particularly those involving shippers, an inspector may cite two or more similar packaging violations for different hazardous materials. For example, the inspector may cite the same marking violation for two or more packages. OHMS usually will consider those additional violations as counts of the same violation and will not recommend multiples of the same baseline penalty. Rather, OHMS usually will recommend the baseline penalty for a single violation, increased by 25% for each additional violation. D. Financial Considerations 1. Mitigation is appropriate when the baseline penalty would (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 the violation(s). Beyond the overall financial size of the respondent's business, the relevant items of information on a respondent's balance sheet include the current ratio (current assets to current liabilities), the nature of current assets, and net worth (total assets minus total liabilities). 2. These figures are considered on a case-by-case basis. In general, however, a current ratio close to or below 1.0 means that the company may have difficulty in paying a large penalty, and may justify reduction of the penalty or an installment payment plan. A small amount of cash on hand representing [[Page 50]] limited liquidity, even with substantial other current assets (such as accounts receivable or inventory), may warrant a short-term payment plan. Respondent's income statement also will be reviewed to determine whether a payment plan is appropriate. 3. Many companies are able to continue in business for extended periods of time with a small or negative net worth, and 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. 4. In general, an installment payment plan may be justified where reduction of a proposed penalty is not, but the appropriateness of either (or both) will depend on the circumstances of the case. The length of a payment plan should be as short as possible, but the plan may consider seasonal fluctuations in a company's income if the company's business is seasonal (e.g., swimming pool chemical sales, fireworks sales) or if the company has documented specific reasons for current non-liquidity. 5. Evidence of financial condition is used only to decrease a penalty, and not to increase it. E. Penalty Increases for Prior Violations The baseline penalty presumes an absence of prior violations. If prior violations exist, generally they will serve to increase a proposed penalty. The general standards for increasing a baseline proposed penalty on the basis of prior violations are as follows: 1. For each prior civil or criminal enforcement case--25% increase over the pre-mitigation recommended penalty. 2. For each prior ticket--10% increase over the pre-mitigation recommended penalty. 3. A baseline proposed penalty will not be increased more than 100% on the basis of prior violations. 4. A case or ticket of prior violations initiated in a calendar year more than six years before the calendar year in which the current case is initiated normally will not be considered in determining a proposed penalty for the current violation(s). F. Penalty Increases for Use of Expired Exemptions Adjustments to the base line figures for use of expired exemptions can be made depending on how much material has been shipped during the period between the expiration date and the renewal date. If the company previously has been found to have operated under an expired exemption, the penalty is normally doubled. If the company has been previously cited for other violations, the penalty generally will be increased by about 25%. [Amdt. 107-33, 60 FR 12141, Mar. 6, 1995, as amended by Amdt. 107-40, 62 FR 2972, 2977, Jan. 21, 1997; 62 FR 51556, Oct. 1, 1997; 65 FR 58618, Sept. 29, 2000; 66 FR 45180, Aug. 28, 2001; 68 FR 52848, 52855, Sept. 8, 2003; 69 FR 54044, Sept. 7, 2004]