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, PHMSA, 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] Sec. 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.------------------------------------------------------------------------ ------------------------------------------------------------------------
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.
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.
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.
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.
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.
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.
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 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).
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.
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 173.302a(b)....... $2,500 to $5,000.
on 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.
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 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 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. [78 FR 60733, Oct. 2, 2013]