{"operation":"document","citation":"68 FR 52844","title":"Hazardous Materials Regulations: Penalty Guidelines and Other Procedural Regulations","source_type":"rulemaking","agency":"Research and Special Programs Administration","status":"historical","official":true,"published_on":"2003-09-08","effective_on":"2003-09-30","summary":"In this final rule, we (RSPA) are increasing to $32,500 and $275, respectively, the maximum and minimum civil penalties for a knowing violation of Federal hazardous materials transportation law or a regulation issued under that law. We are publishing revised baseline assessments for frequently cited violations to provide the regulated community and the general public with more current information on RSPA's hazardous material penalty assessment process. The revisions to RSPA's baseline penalty assessments consider the increase in the maximum civil penalty to $32,500. We are also advising the public that, in proposing or assessing a civil penalty, we will not normally consider a prior violation in a case that was initiated in a calendar year more than six years prior to the year in which the current proceeding is initiated. In addition, we are updating the address to which civil penalty payments must be sent, and we are making editorial changes to our procedural regulations for issuing an administrative determination of preemption.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-03-22569.json","markdown":"https://regulus.evalyn.ai/document/federal-register-03-22569.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-03-22569","source_url":"https://www.federalregister.gov/documents/2003/09/08/03-22569/hazardous-materials-regulations-penalty-guidelines-and-other-procedural-regulations","body":"Federal Register, Volume 68 Issue 173 (Monday, September 8, 2003) [Federal Register Volume 68, Number 173 (Monday, September 8, 2003)] [Rules and Regulations] [Pages 52844-52856] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 03-22569] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Parts 105, 107 and 171 [Docket No. RSPA-03-15372 (RSP-5)] RIN 2137-AD71 Hazardous Materials Regulations: Penalty Guidelines and Other Procedural Regulations AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this final rule, we (RSPA) are increasing to $32,500 and $275, respectively, the maximum and minimum civil penalties for a knowing violation of Federal hazardous materials transportation law or a regulation issued under that law. We are publishing revised baseline assessments for frequently cited violations to provide the regulated community and the general public with more current information on RSPA's hazardous material penalty assessment process. The revisions to RSPA's baseline penalty assessments consider the increase in the maximum civil penalty to $32,500. We are also advising the public that, in proposing or assessing a civil penalty, we will not normally consider a prior violation in a case that was initiated in a calendar year more than six years prior to the year in which the current proceeding is initiated. In addition, we are updating the address to which civil penalty payments must be sent, and we are making editorial changes to our procedural regulations for issuing an administrative determination of preemption. EFFECTIVE DATE: This rule is effective on September 30, 2003. FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Office of Hazardous Materials Enforcement, (202) 366-4700; or Frazer C. Hilder, Office of the Chief Counsel, (202) 366-4400, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Increase in Maximum and Minimum Civil Penalties The Federal Civil Penalties Inflation Adjustment Act of 1990 (the Act) as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) requires each Federal agency to periodically adjust civil penalties it administers to consider the effects of inflation. (The Act is set forth in the note to 28 U.S.C. 2461.) According to Section 5 of the Act, a maximum civil penalty (or the range of minimum and maximum civil penalties) must be increased based on a ``cost-of-living adjustment'' determined by the increase in the Consumer Price Index (CPI-U) for the month of June of the calendar year preceding the adjustment as compared to the CPI-U for the month of June of the calendar year in which the last adjustment was made. The Act also specifies that the amount of the adjustment must be rounded to the nearest multiple of $5,000, for a penalty between $10,000 and $100,000, and that the first adjustment to a civil penalty is limited to 10%. Any increased civil penalty amount applies only to violations that occur after the date the increase takes effect. In a final rule published in the Federal Register on January 21, 1997, RSPA increased the maximum civil penalty from $25,000 to $27,500 for a knowing violation of the Federal hazardous material transportation law, 49 U.S.C. 5101 et seq., or RSPA's regulations in subchapters A and C of 49 CFR, Chapter I. 62 FR 2970. Accordingly, we are now increasing the maximum civil penalty by $5,000, to $32,500, based on the increase in the CPI-U from June 1997 (160.3) to June 2002 (179.9), or 12.2%, times $27,500 equals $3,355, which must be rounded to $5,000. We have not previously adjusted the $250 minimum penalty amount specified in 49 U.S.C. 5123(a)(1), so we are increasing the minimum civil penalty by $25, to $275, because of the 10% limitation for the first adjustment. To implement these adjustments, we are amending 49 CFR 107.329 and 171.1(c) to specify that the higher maximum and minimum civil penalties will apply to a violation of the Federal hazardous materials transportation law, a regulation or order issued under that law, or an exemption issued under subpart B of 49 CFR Part 107 that occurs after September 30, 2003. We are also making a similar change to the reference to the maximum penalty in Section IV.C. of Appendix A to Part 107, subpart D. II. Revisions to Civil Penalty Guidelines RSPA's hazardous material transportation enforcement civil penalty guidelines are published in Appendix A to 49 CFR Part 107, subpart D. These guidelines were first published in the Federal Register on March 6, 1995, in response to a request contained in Senate Report 03-150 that accompanied the Department of Transportation and [[Page 52845]] Related Agencies Appropriations Act of 1994. See the final rule in Docket No. HM-207D, 60 FR 12139. Revisions to these guidelines have been published on January 21, 1997, and August 28, 2001, in the final rules in Docket Nos. HM-207F, 62 FR 2970, and HM-189S, 66 FR 45177, respectively. Publication of these guidelines provides the regulated community and the general public with information concerning the manner in which RSPA generally begins its hazmat penalty assessment process and the information that respondents in enforcement cases should provide to justify reduction of proposed penalties. These guidelines, which are periodically updated, are used by RSPA's enforcement personnel and attorneys as a means of determining a proposed civil penalty for violations of Federal hazardous material transportation law and the regulations issued under that law. As a general statement of agency policy and practice, these guidelines are not finally determinative of any issues or rights, and do not have the force of law. They are informational, impose no requirements, and constitute a statement of agency policy for which no notice of proposed rulemaking is necessary. See also the discussion of the nature and RSPA's use of these penalty guidelines in the preamble to the final rules published on March 6, 1995, 60 FR 12139-40, and January 21, 1997, 62 FR 2970-71. These penalty guidelines remain subject to revision, and, in any particular case, RSPA's Office of Hazardous Materials Enforcement (OHME) and Office of the Chief Counsel will use the version of the guidelines in effect at the time a matter is referred by OHME for possible issuance of a notice of probable violation. Questions concerning RSPA's penalty guidelines and any comments or suggested revisions may be addressed to the persons identified above, in FOR FURTHER INFORMATION CONTACT. A. Baseline Penalty Amounts This final rule publishes the latest revisions that RSPA has made to the List of Frequently Cited Violations and their baseline assessments. These revisions to Part II of the guidelines are the result of revisions to the requirements in RSPA's regulations and our overall review of the penalty guidelines during the past two years. These revisions consider the increase in the maximum civil penalty to $32,500, in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, as discussed above. In the List of Frequently Cited Violations, we list the section number(s) of 49 CFR for each violation, except the word ``Various'' is used when a generally stated violation may be covered by more than one section of the regulations (e.g., the testing requirements applicable to the manufacture of each different DOT specification cylinder are contained in different sections of 49 CFR Part 178). In those instances where the baseline assessment is stated as a range (e.g., $5,000 to $10,000), the factors generally considered in determining an amount within that range are indicated within the description of the violation (e.g., the length of time that a continuing violation has lasted). Otherwise, we generally apply the top, middle, or bottom of the range depending on the Packing Group of the hazardous material involved in a violation, or we use the middle of the range for the ``normal'' type of violation. RSPA created and uses these penalty guidelines to promote consistency and provide a standard for imposing similar penalties in similar cases. When a violation not described in the guidelines is encountered, RSPA often determines a baseline assessment by analogy to a similar violation in the guidelines. However, as emphasized in Parts III and IV of the guidelines, the baseline assessments are only the starting point for assessing a penalty for a violation. Because no two cases are identical, rigid use of the guidelines would produce arbitrary results and, most significantly, would ignore the statutory mandate to consider several specific assessment criteria set forth in 49 U.S.C. 5123 and 49 CFR 107.331. Therefore, regardless of whether or not the guidelines are used to determine a baseline amount for a violation, RSPA enforcement and legal personnel must apply the statutory assessment criteria to all relevant information in the record concerning any alleged violation and the apparent violator. Consideration of these criteria often warrants a final penalty that is lower or higher than the initial baseline assessment. B. Increasing Penalties for Prior Violations Section 5123(c) of 49 U.S.C. provides that ``any history of prior violations'' must be considered in determining the amount of a civil penalty for a violation of Federal hazardous material transportation law or a regulation or order issued under that law. As set forth in Section IV.E of the penalty guidelines, our general standard is to increase the baseline penalty for a violation by 25% for each prior case, up to a maximum increase of 100%. We are revising this section of the guidelines to clarify that we apply an increase of 10% for each prior ticket against the same company or individual. Until this year, RSPA has generally limited to five years the time that it will ``look back'' for prior violations, although we recognize that there may be circumstances in which it would be appropriate to ``look back'' for a longer period of time. We have measured the five year period according to the calendar years in which the prior case and the new case are initiated. For example, the violations in a prior case initiated any time during 1997 or later were generally considered as an aggravating factor in a new case in which a Notice of Probable Violation was issued at any time during 2002. We are revising Section IV.E. of the penalty guidelines to advise the public that, starting in 2003, RSPA will ``look back'' six years (rather than five) for prior violations from the calendar year in which the new case is initiated. Thus, as a general rule, we will disregard prior violations in any civil or criminal hazardous materials enforcement case (or ticket) that was initiated in a calendar year more than six years before the year in which the case is initiated. For example, in any case in which RSPA issues a Notice of Probable Violation during 2003, we will normally consider prior violations in cases and tickets with a number beginning in ``97'' or later in proposing and assessing a civil penalty for the new violations; in the absence of unusual circumstances, we would not consider prior violations in cases initiated in 1996 or earlier in proposing and assessing a civil penalty for violations in a case initiated during 2003. III. Editorial Revisions A. Preemption In the Homeland Security Act of 2002 (the Act) (Pub. L. 107-296), Congress has made it clear that security is a part of the safe transportation of hazardous materials in commerce. Section 1711 of the Act amended the preemption provisions in 49 U.S.C. 5125(a) and (b) to specify that the Federal hazardous material transportation law preempts non-Federal requirements that conflict with Federal hazardous material transportation law, a regulation issued under that law, ``or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security.'' RSPA is revising its procedural regulations in subpart C of 49 CFR Part 107 accordingly. In other sections, RSPA is removing references [[Page 52846]] to a non-Federal requirement being preempted ``under * * * regulations issued'' under the Federal hazardous material transportation law to clarify that, while a non-Federal requirement that conflicts with RSPA's regulations is preempted under the preemption criteria in 49 U.S.C. 5125, it is preempted by that Federal law and not by the regulations issued pursuant to that law. RSPA is also revising the definition of ``Regulations issued under Federal hazardous material transportation law'' in 49 CFR 105.5 (and removing and reserving Sec. 107.201(c)) to explain that, in addition to Subchapters A and C of Title 49, regulations issued by the Federal Motor Carrier Safety Administration and the Transportation Security Administration in Title 49 and regulations issued by the United States Coast Guard in Title 46 are also issued under Federal hazardous material transportation law. In addition, RSPA is providing a facsimile number and an email address (in addition to a mail address) for submission of an application for a preemption determination or for a waiver of preemption). B. Enforcement Section 107.315 of 49 CFR contains the address of the Financial Operations Division of the Federal Aviation Administration (FAA) which processes the payment of civil penalties in RSPA's enforcement cases. This rule updates the FAA office code and Post Office box number listed in paragraphs (b) and (c) of that section. Rulemaking Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The economic impact of this final rule is minimal to the extent that preparation of a regulatory evaluation is not warranted. B. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (``Federalism''). Because this final rule carries out a statutory mandate without interpretation, revises an informational appendix without imposing any requirements, and makes editorial changes, preparation of a federalism assessment is not warranted. C. Regulatory Flexibility Act I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule applies to shippers and carriers of hazardous materials, some of which are small entities; however, there is no economic impact on any person who complies with Federal hazardous materials law and the regulations and orders issued under that law. D. Paperwork Reduction Act There are no new information requirements in this final rule. E. Unfunded Mandates Reform Act of 1995 This final rule does not impose unfunded mandates under the Unfunded Mandates Act of 1995. It does not result in annual costs of $100 million or more, in the aggregate, to any of the following: State, local, or Indian tribal governments, or the private sector, and is the least burdensome alternative to achieve the objective of the rule. F. Environmental Assessment There are no significant environmental impacts associated with this final rule. G. Regulation Identifier Number (RIN) A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects 49 CFR Part 105 Administrative practice and procedure, Hazardous materials transportation. 49 CFR Part 107 Administrative practices and procedure, Hazardous materials transportation, Packaging and containers, Penalties, Reporting and recordkeeping requirements. 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous Waste, Imports, Penalties, Reporting and recordkeeping requirements. 0 In consideration of the foregoing, 49 CFR chapter I is amended as follows: PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL PROCEDURES 0 1. The authority citation for part 105 continues to read: Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53. 0 2. In Sec. 105.5(b), revise the definition of ``Regulations issued under Federal hazardous materials transportation law'' to read as follows: Sec. 105.5 Definitions. * * * * * (b) * * * Regulations issued under Federal hazardous material transportation law include this subchapter A (parts 105-110) and subchapter C (parts 171-180) of this chapter, certain regulations in chapter I (United States Coast Guard) of title 46, Code of Federal Regulations, and in chapters III (Federal Motor Carrier Safety Administration) and XII (Transportation Security Administration) of subtitle B of this title, as indicated by the authority citations therein. * * * * * PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES 0 3. The authority citation for part 107 is revised to read as follows: Authority: 49 U.S.C. 5101-5127, 44701; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 104-134 section 31001; 49 CFR 1.45, 1.53. 0 4. In Sec. 107.201, revise paragraphs (a)(1) and (a)(2), and remove and reserve paragraph (c) to read as follows: Sec. 107.201 Purpose and scope. (a) * * * (1) Any person, including a State, political subdivision, or Indian tribe, directly affected by a requirement of a State, political subdivision, or Indian tribe, may apply for a determination as to whether that requirement is preempted under 49 U.S.C. 5125. (2) A State, political subdivision, or Indian tribe may apply for a waiver of preemption with respect to any requirement that the State, political subdivision, or Indian tribe acknowledges to be preempted by 49 U.S.C. 5125, or that has been determined by a court of competent jurisdiction to be so preempted. * * * * * (c) [Reserved] * * * * * [[Page 52847]] 0 5. In Sec. 107.202, revise paragraphs (a) introductory text, (b)(1), and (b)(2) to read as follows: Sec. 107.202 Standards for determining preemption. (a) Except as provided in Sec. 107.221 and unless otherwise authorized by Federal law, any requirement of a State or political subdivision thereof or an Indian tribe that concerns one of the following subjects and that is not substantively the same as any provision of the Federal hazardous materials transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security that concerns that subject, is preempted: * * * * * (b) * * * (1) It is not possible to comply with a requirement of the State, political subdivision, or Indian tribe and a requirement under the Federal hazardous material transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security; (2) The requirement of the State, political subdivision, or Indian tribe, as applied or enforced, is an obstacle to accomplishing and carrying out the Federal hazardous material transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security. * * * * * 0 6. In Sec. 107.203, revise paragraphs (b)(1), (b)(3), and (c) to read as follows: Sec. 107.203 Application. * * * * * (b) * * * (1) Be submitted to the Associate Administrator: (i) By mail addressed to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001; (ii) By fax to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), at 202-366-5713; or (iii) Electronically to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), at [email protected] . * * * * * (3) Specify each requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security with which the applicant seeks the State or political subdivision or Indian tribe requirement to be compared; * * * * * (c) The filing of an application for a determination under this section does not constitute grounds for noncompliance with any requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security. * * * * * 0 7. In Sec. 107.209, revise paragraph (d) to read as follows: Sec. 107.209 Determination. * * * * * (d) A determination issued under this section constitutes an administrative determination as to whether a particular requirement of a State or political subdivision or Indian tribe is preempted under the Federal hazardous materials transportation law. The fact that a determination has not been issued under this section with respect to a particular requirement of a State or political subdivision or Indian tribe carries no implication as to whether the requirement is preempted under the Federal hazardous materials transportation law. 0 8. In Sec. 107.215, revise the first sentence in paragraph (a), and paragraphs (b)(1), (b)(4), and (b)(5) to read as follows: Sec. 107.215 Application. (a) With the exception of requirements preempted under 49 U.S.C. 5125(c), any State or political subdivision thereof, or Indian tribe may apply to the Associate Administrator for a waiver of preemption with respect to any requirement that the State or political subdivision thereof or an Indian tribe acknowledges to be preempted under the Federal hazardous materials transportation law, or that has been determined by a court of competent jurisdiction to be so preempted. * * * * * * * * (b) * * * (1) Be submitted to the Associate Administrator: (i) By mail addressed to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001; (ii) By fax to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), at 202-366-5713; or (iii) Electronically to the Associate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials Preemption Docket), at [email protected] . * * * * * (4) Contain an express acknowledgment by the applicant that the State, political subdivision, or Indian tribe requirement is preempted under Federal hazardous materials transportation law, unless it has been so determined by a court of competent jurisdiction or in a determination issued under Sec. 107.209; (5) Specify each requirement of the Federal hazardous materials transportation law that preempts the State, political subdivision, or Indian tribe requirement; * * * * * 0 9. In Sec. 107.219, revise paragraphs (c)(1) and (c)(2) to read as follows: Sec. 107.219 Processing. * * * * * (c) * * * (1) The applicant State or political subdivision thereof or Indian tribe expressly acknowledges in its application that the State or political subdivision or Indian tribe requirement for which the determination is sought is inconsistent with the requirements of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security. (2) The State or political subdivision thereof or Indian tribe requirement has been determined by a court of competent jurisdiction or in a ruling issued under Sec. 107.209 to be inconsistent with the requirements of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security [[Page 52848]] regulations or directives issued by the Secretary of Homeland Security. * * * * * 0 10. In Sec. 107.221, revise paragraph (e) to read as follows: Sec. 107.221 Determination. * * * * * (e) A determination under this section constitutes an administrative finding of whether a particular requirement of a State or political subdivision thereof or Indian tribe is preempted under the Federal hazardous materials transportation law, or whether preemption is waived. Sec. 107.315 [Amended] 0 11. In Sec. 107.315, in paragraphs (c) and (d), the words ``Financial Operations Division (AMZ-320), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25880, Oklahoma City, OK 73125'' are revised to read: ``Financial Operations Division (AMZ-120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125''. Sec. 107.329 [Amended] 0 12. In Sec. 107.329, in paragraphs (a) and (b), the words ``$25,000 ($27,500 for a violation occurring after January 21, 1997) and not less than $250 for each violation.'' are revised to read: ``$32,500 and not less than $275 for each violation. (For a violation that occurred after January 21, 1997, and before October 1, 2003, the maximum and minimum civil penalties are $27,500 and $250, respectively.)'' Subpart D, Appendix A [Amended] 0 13. In part I of appendix A to subpart D of part 107, the parenthetical phrase ``(as of January 18, 1997)'' is revised to read: ``(as of October 1, 2003)''. 0 14. Appendix A to subpart D of part 107 is amended by revising the List of Frequently Cited Violations (Part II) to read as follows: II.--List of Frequently Cited Violations ---------------------------------------------------------------------------------------------------------------- Violation description Section or cite Baseline assessment ---------------------------------------------------------------------------------------------------------------- General Requirements ---------------------------------------------------------------------------------------------------------------- A. Registration requirements: Failure to register as an offeror or 107.608, 107.612................. $1,000 + $500 each additional carrier of hazardous material and pay year. registration fee. B. Training requirements: 1. Failure to provide initial training 172.702.......................... to hazmat employees (general awareness, function-specific, safety, and security awareness training):. a. more than 10 hazmat employees... ................................. $700 and up each area. b. 10 hazmat employees or fewer.... ................................. $400 and up each area. 2. Failure to provide recurrent 172.702.......................... training to hazmat employees (general awareness, function-specific, safety, and security awareness training). a. more than 10 hazmat employees... ................................. $400 and up each area. b. 10 hazmat employees or fewer.... ................................. $250 and up each area. 3. Failure to provide in depth security 172.702.......................... training (when a security plan is required). a. no security plan developed...... ................................. included in penalty for no security plan $2,500. b. security plan developed but employee not trained. 4. Failure to create and maintain 172.704.......................... training records. a. more than 10 hazmat employees... ................................. $800 and up. b. 10 hazmat employees or fewer.... ................................. $500 and up. C. Security plans: 1. Failure to develop a security plan; 172.800.......................... failure to adhere to security plan. a. No security plan at all; no ................................. $6,000 and up. adherence. b. Incomplete security plan or ................................. $2,000 and up for each element. incomplete adherence (one or more of three required elements missing). 2. Failure to update a security plan to 172.802(b)....................... $2,000 and up. reflect changing circumstances. 3. Failure to put security plan in 172.800(b)....................... $2,000 and up. writing; failure to make all copies identical. D. Notification to a foreign shipper: Failure to provide information of HMR 171.12(a)........................ $1,500 to $7,500 (corresponding requirements applicable to a shipment to violations by foreign of hazardous materials within the offeror or forwarding agent). United States, to a foreign offeror or forwarding agent at the place of entry into the U.S. E. Expired Exemption: Offering or transporting a hazardous 171.2(a), (b), (c), Various...... $1,000 + $500 each additional material, or otherwise performing a year. function covered by an exemption, after expiration of the exemption. -------------------------------------------- Offeror Requirements--All hazardous materials ---------------------------------------------------------------------------------------------------------------- A. Undeclared Shipment: Offering for transportation a hazardous 172.200, 172.300, 172.400, $15,000 and up. material without shipping papers, 172.500. package markings, labels, or placards. B. Shipping Papers: [[Page 52849]] 1. Failure to provide a shipping paper 172.201.......................... $3,000 to $6,000. for a shipment of hazardous materials. 2. Failure to follow one or more of the 172.201(a)(1).................... $1,200. three approved formats for listing hazardous materials on a shipping paper. 3. Failure to retain shipping papers 172.201(e)....................... $1,000. for 375 days after a hazardous material (or 3 years for a hazardous waste) is accepted by the initial carrier. 4. Failure to include a proper shipping 172.202.......................... $800 to $1,600. name in the shipping description or using an incorrect proper shipping name. 5. Failure to include a hazard class/ 172.202.......................... $1,000 to $2,000. division number in the shipping description. 6. Failure to include an identification 172.202.......................... $1,000 to $2,000. number in the shipping description. 7. Using an incorrect hazard class/ 172.202.......................... identification number:. a. that does not affect ................................. $800. compatibility requirements. b. that affects compatibility ................................. $3,000 to $6,000. requirements. 8. Using an incorrect identification 172.202.......................... number:. a. that does not change the ................................. $800. response information. b. that changes the response ................................. $3,000 to $6,000. information. 9. Failure to include the Packing 172.202.......................... $1,200. Group, or using an incorrect Packing Group. 10. Using a shipping description that 172.202.......................... $800. includes additional unauthorized information (extra or incorrect words). 11. Using a shipping description not in 172.202.......................... $500. required sequence. 12. Using a shipping description with 172.202.......................... two or more required elements missing or incorrect:. a. such that the material is ................................. $3,000. misdescribed. b. such that the material is ................................. $6,000. misclassified. 13. Failure to include the total 172.202(c)....................... $500. quantity of hazardous material covered by a shipping description. 14. Failure to list an exemption number 172.203(a)....................... $800. in association with the shipping description. 15. Failure to indicate ``Limited 172.203(b)....................... $500. Quantity'' or ``Ltd Qty'' following the basic shipping description of a material offered for transportation as a limited quantity. 16. Failure to include ``RQ'' in the 172.203(c)(2).................... $500. shipping description to identify a material that is a hazardous substance. 17. Failure to include a required 172.203(k)....................... $1,000. technical name in parenthesis for a listed generic or ``n.o.s.'' material. 18. Failure to include the required 172.204.......................... $1,000. shipper's certification on a shipping paper. 19. Failure to sign the required 172.204.......................... $800. shipper's certification on a shipping paper. C. Emergency Response Information Requirements: 1. Providing or listing incorrect 172.602.......................... emergency response information with or on a shipping paper. a. No significant difference in ................................. $800. response. b. Significant difference in ................................. $3,000 to $6,000. response. 2. Failure to include an emergency 172.604.......................... $2,600. response telephone number on a shipping paper. 3. Failure to have the emergency 172.604.......................... $1,300. response telephone number monitored while a hazardous material is in transportation or listing multiple telephone numbers (without specifying the times for each) that are not monitored 24 hours a day. 4. Listing an unauthorized emergency 172.604.......................... $2,600 to $4,200. response telephone number on a shipping paper. 5. Listing an incorrect or non-working 172.604.......................... $1,300. emergency response telephone number on a shipping paper. 6. Failure to provide required 172.604.......................... $1,300. technical information when the listed emergency response telephone number is contacted. D. Package Marking Requirements: 1. Failure to mark the proper shipping 172.301(a)....................... $800 to $1,600. name on a package or marking an incorrect shipping name on a package. 2. Failure to mark the identification 172.301(a)....................... $1,000 to $2,000. number on a package. [[Page 52850]] 3. Marking a package with an incorrect 172.301(a)....................... identification number. a. that does not change the ................................. $800. response information. b. that changes the response ................................. $3,000 to $6,000. information. 4. Failure to mark the proper shipping 172.301(a)....................... $3,000 to $6,000. name and identification number on a package. 5. Marking a package with an incorrect 172.301(a)....................... shipping name and identification number. a. that does not change the ................................. $1,500 to $3,000. response information. b. that changes the response ................................. $3,000 to $6,000. information. 6. Failure to include the required 172.301(c)....................... $1,000. technical name(s) in parenthesis for a listed generic or ``n.o.s.'' entry. 7. Marking a package as containing 172.303(a)....................... $800. hazardous material when it contains no hazardous material. 8. Failure to locate required markings 172.303(a)(4).................... $800. away from other markings that could reduce their effectiveness. 9. Failure to mark a package containing 172.312.......................... $2,500 to $3,500. liquid hazardous materials with required orientation marking. 10. Failure to mark ``RQ'' on a non- 172.324(b)....................... $500. bulk package containing a hazardous substance. E. Package Labeling Requirements: 1. Failure to label a package.......... 172.400.......................... $5,000. 2. Placing a label that represents a 172.400.......................... $5,000. hazard other than the hazard presented by the hazardous material in the package. 3. Placing a label on a package that 172.401(a)....................... $800. does not contain a hazardous material. 4. Failure to place a required 172.402.......................... $500 to $2,500. subsidiary label on a package. 5. Placing a label on a different 172.406(a)....................... $800. surface of the package than, or away from, the proper shipping name. 6. Placing an improper size label on a 172.407(c)....................... $800. package. 7. Placing a label on a package that 172.407(d)....................... $600 to $2,500. does not meet color specification requirements (depending on the variance). 8. Failure to provide an appropriate 172.411.......................... $2,500. class or division number on a label. F. Placarding Requirements: Failure to properly placard a freight 172.504.......................... container or vehicle containing hazardous materials:. a. when Table 1 is applicable...... ................................. $1,000 to $9,000. b. when Table 2 is applicable...... ................................. $800 to $7,200. G. Packaging Requirements: 1. Offering a hazardous material for Various.......................... transportation in an unauthorized non- UN standard or nonspecification packaging (includes failure to comply with the terms of an exemption authorizing use of a nonstandard or nonspecification packaging). a. Packing Group I (and Sec. ................................. $9,000. 172.504 Table I materials). b. Packing Group II................ ................................. $7,000. c. Packing Group III............... ................................. $5,000. 2. Offering a hazardous material for 178.601 & Various................ transportation in a self-certified packaging that has not been subjected to design qualification testing:. a. Packing Group I (and Sec. ................................. $10,800. 172.504 Table I materials). b. Packing Group II................ ................................. $8,400. c. Packing Group III............... ................................. $6,000. 3. Offering a hazardous material for 178.503(a)....................... $3,600. transportation in a packaging that has been successfully tested to an applicable UN standard but is not marked with the required UN marking. 4. Failure to close a UN standard 173.22(a)(4)..................... $2,500. packaging in accordance with the closure instructions. 5. Offering a hazardous material for 173.24(b)........................ transportation in a packaging that leaks during conditions normally incident to transportation: a. Packing Group I (and Sec. ................................. $12,000. 172.504 Table I materials). b. Packing Group II................ ................................. $9,000. c. Packing Group III............... ................................. $6,000. [[Page 52851]] 6. Overfilling or underfilling a 173.24(b)........................ package so that the effectiveness is substantially reduced: a. Packing Group I (and Sec. ................................. $9,000. 172.504 Table I materials). b. Packing Group II................ ................................. $6,000. c. Packing Group III............... ................................. $3,000. 7. Offering a hazardous material for 171.14.............","truncated":true,"body_characters":63708}