Title 49

PART 107 APPENDIX A

Appendix A to Subpart D of Part 107 - Guidelines for Civil Penalties

49:2.1.1.1.4.4.25.24.1 : Appendix A

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

Violation description	Section or cite	Baseline assessment
General Requirements
A. Registration Requirements: Failure to register as an offeror or carrier of hazardous material and pay registration fee:	107.608, 107.612.
1. Small business or not-for-profit		$1,200 + $600 each additional year.
2. All others		$3,500 + $1,000 each additional year.
B. Training Requirements:
1. Failure to provide initial training to hazmat employees (general awareness, function-specific, safety, and security awareness training):	172.702.
a. More than 10 hazmat employees		$1,500 for each area.
b. 10 hazmat employees or fewer		$1,000 for each area.
2. Failure to provide recurrent training to hazmat employees (general awareness, function-specific, safety, and security awareness training).	172.702	$1,000 for each area.
3. Failure to provide in-depth security training when a security plan is required but has not been developed.	172.702	Included in penalty for no security plan.
4. Failure to provide in-depth security training when a security plan is required and has been developed.	172.702	$3,100.
5. Failure to create and maintain training records:	172.704.
a. More than 10 hazmat employees		$1,000.
b. 10 hazmat employees or fewer		$600.
C. Security Plans:
1. Failure to develop a security plan; failure to adhere to security plan:	172.800
a. Section 172.504 Table 1 materials		$9,300.
b. Packing Group I		$7,500.
c. Packing Group II		$5,600.
d. Packing Group III		$3,700.
2. Incomplete security plan or incomplete adherence (one or more of four required elements missing)		One-quarter (25 percent) of above for each element.
3. Failure to update a security plan to reflect changing circumstances	172.802(b)	One-third (33 percent) of baseline for no plan.
4. Failure to put security plan in writing; failure to make all copies identical	172.800(b)	One-third (33 percent) of baseline for no plan.
D. Notification to a Foreign 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:	171.22(f).
1. Packing Group I and § 172.504 Table 1 materials		$9,300 .*
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.

Violation description	Section or cite	Baseline assessment
E. Special Permits and Approvals:
1. Offering or transporting a hazardous material, or otherwise performing a function covered by a special permit or approval, without authorization:	171.2.
a. After the special permit or approval has expired		$1,200 + $600 for each additional year.
b. After the special permit or approval has been terminated		$5,000 to $25,000.
2. Failure to comply with a provision of a special permit or approval (when no other baseline is applicable):	171.2.
a. That relates to safety		$4,000 and up.
b. That does not relate to safety		$500 and up.
3. Failure to maintain a copy of the special permit in the transport vehicle or facility, when required by the terms of the special permit	Special Permit	$1,000.
4. Use an approval or approval symbol issued to another person	Approval, Various	$9,000.
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 § 172.504 Table 1 materials		$30,000 and up.
b. Packing Group II		$20,000.
c. Packing Group III		$17,500.
d. Consumer Commodity, ORM-D		$5,000.
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 § 172.504 Table I materials		$20,000.
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 § 172.504 Table I materials		$35,000.
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 shipping paper for a shipment of hazardous materials or accepting hazardous materials for transportation without a shipping paper:	172.201, 177.817(a).
a. Packing Group I and § 172.504 Table 1 materials		$7,500.
b. Packing Group II		$5,600.
c. Packing Group III		$3,700.
2. Failure to follow one or more of the three approved formats for listing hazardous materials and non-hazardous materials on a shipping paper	172.201(a)(1)	$1,500.
3. Failure to retain shipping papers as required	172.201(e)	$1,200.
4. Failure to include a proper shipping name in the shipping description or using an incorrect proper shipping name:	172.202.
a. Packing Group I and § 172.504 Table 1 materials		$2,000.
b. Packing Group II		$1,500.
c. Packing Group III		$1,000.
5. Failure to include a hazard class/division number in the shipping description:	172.202.
a. Packing Group I and § 172.504 Table 1 materials		$2,000.
b. Packing Group II		$1,500.
c. Packing Group III		$1,000.
6. Failure to include an identification number in the shipping description:	172.202.
a. Packing Group I and § 172.504 Table 1 materials		$2,500.
b. Packing Group II		$1,800.
c. Packing Group III		$1,200.
7. Using an incorrect hazard class:	172.202.
a. That does not affect compatibility requirements		$1,000.
b. That affects compatibility requirements:
i. Packing Group I and § 172.504 Table 1 materials		$7,500.
ii. Packing Group II		$5,600.
iii. Packing Group III		$3,700.
8. Using an incorrect identification number:	172.202.
a. That does not change the response information		$1,000.
b. That changes response information:
i. Packing Group I and § 172.504 Table 1 materials		$7,500.
ii. Packing Group II		$5,600.
iii. Packing Group III		$3,700.
9. Failure to include the Packing Group or using an incorrect Packing Group:	172.202.
a. Packing Group I and § 172.504 Table 1 materials		$1,700.
b. Packing Group II and III		$1,300.
10. Using a shipping description that includes additional unauthorized information (extra or incorrect words)	172.202	$1,000.
11. Using a shipping description not in required sequence	172.202	$600.
12. Failure to include the total quantity of hazardous material covered by a shipping description (including net explosive mass)	172.202	$600.
13. Failure to include any of the following on a 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	172.203(a), (b), (c)(2), (k), (l)	$600.
14. Failure to indicate poison inhalation hazard on a shipping paper	172.203(m)	$2,500.
15. Failure to include or sign the required shipper's certification on a shipping paper	172.204	$1,000.
C. Emergency Response Information Requirements:
1. Providing incorrect emergency response information with or on a shipping paper:	172.602.
a. No significant difference in response		$1,000.
b. Significant difference in response:
i. Packing Group I and § 172.504 Table 1 materials		$7,500.
ii. Packing Group II		$5,600.
iii. Packing Group III		$3,700.
2. Failure to include an emergency response telephone number on a shipping paper.	172.604	$3,200.
3. Failure to have the 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.	172.604	$1,600.
4. Listing an emergency 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).	172.604	$3,200 to $5,200
D. Package Marking Requirements:
1. Failure to mark the proper shipping name and identification number on a package:	172.301(a).
a. Packing Group I and § 172.504 Table 1 materials		$6,000.
b. Packing Group II		$4,500.
c. Packing Group III		$3,000.
2. Marking a package with an incorrect shipping name and identification number:	172.301(a).
a. That does not change the response information:
i. Packing Group I and § 172.504 Table 1 materials		$3,700.
ii. Packing Group II		$2,700.
iii. Packing Group III		$2,200.
b. That changes the response information:
i. Packing Group I and § 172.504 Table 1 materials		$9,500.
ii. Packing Group II		$7,100.
iii. Packing Group III		$4,700.
3. Failure to mark the proper shipping name on a package or marking an incorrect shipping name on a package:	172.301(a).
a. Packing Group I and § 172.504 Table 1 materials		$2,000.
b. Packing Group II		$1,500.
c. Packing Group III		$1,000.
4. Failure to mark the identification number on a package:	172.301(a).
a. Packing Group I and § 172.504 Table 1 materials		$2,500.
b. Packing Group II		$1,800.
c. Packing Group III		$1,200.
5. Marking a package with an incorrect identification number:	172.301(a).
a. That does not change the response information		$1,000.
b. That changes the response information:
i. Packing Group I and § 172.504 Table 1 materials		$7,500.
ii. Packing Group II		$5,600.
iii. Packing Group III		$3,700.
6. Failure to include the required technical name(s) in parentheses for a listed generic or “n.o.s.” entry	172.301(c)	$600.
7. Failure to mark “non-odorized” on a cylinder containing liquefied petroleum gas	172.301(f)	$2,000.
8. Marking a package as containing hazardous material when it contains no hazardous material	172.303(a)	$1,000.
9. Failure to locate required markings away from other markings that could reduce their effectiveness	172.304(a)(4)	$1,000.
10. Failure to mark a package containing liquid hazardous materials with required orientation markings:	172.312.
a. Packing Group I and § 172.504 Table 1 materials		$4,000.
b. Packing Group II		$3,500.
c. Packing Group III		$3,000.
11. Failure to mark “Biohazard on an infectious substance or “Inhalation Hazard” on a package containing a poison by inhalation hazard	172.313(a), 172.323	$4,000.
12. Failure to apply limited quantity marking or “RQ” marking on a non-bulk package containing a hazardous substance	172.315, 172.324(b)	$600.
13. Listing the technical name of a select agent hazardous material when it should not be listed	172.301(b)	$1,600.
14. Failure to apply a “Keep away from heat,” marine pollutant, or elevated temperature (“HOT”) marking	172.317, 172.322, 172.325	$1,200.
15. Failure to properly mark a bulk container	172.331, 172.334, 172.336, 172.338	$1,000.
E. Package Labeling Requirements:
1. Failure to label a package or applying a label that represents a hazard other than the hazard presented by the hazardous material in the package	172.400	$7,000.
2. Placing a label on a package that does not contain a hazardous material	172.401(a)	$1,000.
3. Failure to place a required subsidiary label on a package:	172.402.
a. Packing Group I and § 172.504 Table 1 materials		$3,100.
b. Packing Group II		$1,800.
c. Packing Group III		$600.
4. Placing a label on a different surface of the package than, or away from, the proper shipping name	172.406(a)	$1,000.
5. Placing an improper size label on a package	172.407(c)	$1,000.
6. Placing a label on a package that does not meet color specification requirements (depending on the variance)	172.407(d)	$1,000.
7. Failure to place a Cargo Aircraft Only label on a package intended for air transportation, when required	172.402(c)	$5,000.
8. Failure to place a Cargo Aircraft Only label on a package containing a primary lithium battery or failure to mark a package containing a primary lithium battery as forbidden for transport on passenger aircraft:	172.402(c), 172.102(c)(1) Special Provision 188, 189, 190.
a. For air transport		$10,000.
b. For ground transport		$1,000.
9. Failure to provide an appropriate class or division number on an explosive label	172.411	$3,100.
F. Placarding Requirements:
1. Improperly placarding a freight container or vehicle containing hazardous materials:	172.504.
a. Packing Group I and § 172.504 Table 1 materials		$1,200 to $11,200.
b. Packing Group II and III		$1,000 to $9,000.
2. Failure to placard a freight container or vehicle containing hazardous materials (no placard at all):	172.504.
a. Packing Group I and § 172.504 Table 1 materials		$12,000.
b. Packing Group II and III		$8,500.
G. Packaging Requirements:
1. Failure to comply with package testing requirements for small quantities, excepted quantities, de minimis, materials of trade, limited quantities, and ORM-D	173.4, 173.4a, 173.4b, 173.6, 173.156, 173.306	$1,000 to $5,000.
2. Offering a hazardous 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):	Various.
a. Packing Group I, § 172.504 Table 1 materials, and Division 2.3 gases		$11,200.
b. Packing Group II and Divisions 2.1 and 2.2 gases		$8,700.
c. Packing Group III		$6,200.
3. Offering a hazardous material for transportation in a package that was not retested as required:	Various.
a. Packing Group I and § 172.504 Table 1 materials		$8,000.
b. Packing Group II		$5,000.
c. Packing Group III		$3,000.
4. Offering a hazardous material for transportation in an improper package:	Various.
a. When Packing Group I material is packaged in a Packing Group III package		$8,000.
b. When Packing Group I material is packaged in a Packing Group II package		$5,000.
c. When Packing Group II material is packaged in a Packing Group III package		$3,000.
5. Offering a hazardous 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	Various	$7,500.
6. Offering a hazardous material for transportation in a self-certified packaging that has not been subjected to design qualification testing:	178.601, Various.
a. Packing Group I and § 172.504 Table 1 materials		$13,500.
b. Packing Group II		$10,500.
c. Packing Group III		$7,500.
7. Offering a hazardous material for transportation in a packaging that has been successfully tested to an applicable UN standard but is not marked with the required UN marking (including missing specification plates)	173.32(d), 173.24(c)	$4,500.
8. Failure to close a UN standard packaging in accordance with the closure instructions:	173.22(a)(4).
a. Packing Group I and § 172.504 Table 1 materials		$2,000 to $5,000.
b. Packing Group II		$1,000 to $4,000.
c. Packing Group III		$500 to $3,000.
9. Offering a hazardous material for transportation in a packaging that leaks during conditions normally incident to transportation:	173.24(b).
a. Packing Group I and § 172.504 Table 1 materials		$16,500.
b. Packing Group II		$11,200.
c. Packing Group III		$7,500.
10. Overfilling or underfilling a package so that the effectiveness is substantially reduced:	173.24(b).
a. Packing Group I and § 172.504 Table 1 materials		$11,200.
b. Packing Group II		$7,500.
c. Packing Group III		$3,700.
11. Failure to ensure packaging is compatible with hazardous material lading.	173.24(e)	$9,000 to $12,000.
12. Failure to mark an overpack as required	173.25(a)(4)	$3,700.
13. Packaging incompatible materials in an overpack	173.25(a)(5)	$9,300.
14. Marking a package “overpack” when the inner packages do not meet the requirements of the HMR:	173.25(a).
a. Packing Group I and § 172.504 Table 1 materials		$15,000.
b. Packing Group II		$10,000.
c. Packing Group III		$7,000.
15. Failure to comply with additional requirements for transportation by aircraft	173.27	$1,000 to $10,000.
16. Filling an IBC, portable tank, or cargo tank (DOT, UN, or IM) that is out of test and offering hazardous materials for transportation in that IBC or portable tank. (Penalty amount depends on number of units and time out of test.)	173.32(a), 173.33(a)(3), 180.352, 180.407, 180.605.
a. Packing Group I and § 172.504 Table 1 materials:
i. All testing overdue		$8,700.
ii. Only periodic (5 year) tests overdue or only intermediate periodic (2.5 year) tests overdue		$4,600.
b. Packing Group II:
i. All testing overdue		$6,600.
ii. Only periodic (5 year) tests overdue or only intermediate periodic (2.5 year) tests overdue		$3,300.
c. Packing Group III:
i. All testing overdue		$4,600.
ii. Only periodic (5 year) tests overdue or only intermediate periodic (2.5 year) tests overdue		$2,300.
17. Manifolding cylinders without conforming to manifolding requirements	173.301(g)	$3,700 and up.
18. Failure to ensure a cargo tank motor vehicle in metered delivery service has an operational off-truck remote shut-off activation device	173.315(n)(3)	$2,500.
19. Offering a hazardous material in a cargo tank motor vehicle when the material does not meet compatibility requirements with the tank or other lading or residue	173.33	$15,000.
20. Failure to provide the required outage in a portable tank that results in a release of hazardous materials:	173.32(f)(6).
a. Packing Group I and § 172.504 Table 1 materials		$15,000.
b. Packing Group II		$11,200.
c. Packing Group III		$7,500.
Offeror Requirements - Specific hazardous materials
A. Cigarette Lighters:
1. Offering for transportation an unapproved cigarette lighter, lighter refill, or similar device, equipped with an ignition element and containing fuel	173.21(i)	$7,500.
2. Failure to include the cigarette lighter test report identifier on the shipping paper.	173.308(d)(1)	$1,000.
3. Failure to mark the approval number on the package.	173.308(d)(2)	$1,000.
B. Class 1 - Explosives:
1. Failure to mark the 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	172.320	$1,000.
2. Offering an unapproved explosive for transportation:	173.54, 173.56(b)
a. Division 1.4 fireworks meeting the chemistry requirements of APA 87-1A or 87-1C		$5,000.
b. Division 1.3 fireworks meeting the chemistry requirements of APA 87-1B		$7,500.
c. All other explosives (including forbidden)		$12,500 and up.
3. Offering an unapproved explosive for transportation that minimally deviates from an approved design in a manner that does not impact safety:	173.54, 173.56(b)
a. Division 1.4		$3,000.
b. Division 1.3		$4,000.
c. All other explosives		$6,000.
4. Offering a leaking or damaged package of explosives for transportation:	173.54(c).
a. Division 1.3 and 1.4		$12,500.
b. All other explosives		$16,500.
5. Offering a Class 1 material that is fitted with its own means of ignition or initiation, without providing protection from accidental actuation	173.60(b)(5)	$15,000.
6. Packaging explosives in the same outer packaging with other materials	173.61	$9,300.
7. Transporting a detonator 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	177.835(g)(3)	$10,000.
C. Class 7 - Radioactive Materials:
1. Failure to include required additional entries for radioactive material on a shipping paper, or providing incorrect information for these additional entries	172.203(d)	$2,000 to $5,000.
2. Failure to mark the gross mass on the outside of a package of Class 7 material that exceeds 110 pounds	172.310(a)	$1,000.
3. Failure to mark each package with the words “Type A” or “Type B,” as appropriate	172.310(b)	$3,700.
4. Placing a label on Class 7 material that understates the proper label category	172.403	$6,200.
5. Placing a label on Class 7 material that fails to contain (or has erroneous) entries for the name of the radionuclide(s), activity, and transport index	172.403(g)	$2,000 to $5,000.
6. Failure to meet one or more of the general design requirements for a package used to ship a Class 7 material	173.410	$6,200.
7. Failure to comply with the industrial packaging (IP) requirements when offering a Class 7 material for transportation	173.411	$6,200.
8. Failure to provide a tamper-indicating device on a Type A package used to ship a Class 7 material	173.412(a)	$5,000.
9. Failure to meet the additional design requirements of a Type A package used to ship a Class 7 material	173.412(b)-(i)	$6,200.
10. Failure to meet the performance requirements for a Type A package used to ship a Class 7 material	173.412(j)-(l)	$11,200.
11. Offering a DOT specification 7A packaging without maintaining complete documentation of tests and an engineering evaluation or comparative data:	173.415(a), 173.461.
a. Tests and evaluation not performed		$13,500.
b. Test performed but complete records not maintained		$2,500 to $6,200.
12. Offering any Type B, Type B(U), or Type B(M) packaging that failed to meet the approved DOT, NRC or DOE design, as applicable	173.416	$16,500.
13. Offering a Type B packaging without registering as a party to the NRC approval certificate:	173.471(a).
a. Never obtained approval		$3,700.
b. Holding an expired certificate		$1,200.
14. Failure to meet one or more of the special requirements for a package used to ship more than 0.1 kg of uranium hexafluoride	173.420	$13,500.
15. Offering Class 7 materials for transportation as a limited quantity without meeting the requirements for a limited quantity	173.421(a)	$8,000.
16. Offering a multiple-hazard limited quantity Class 7 material without addressing the additional hazard	173.423(a)	$600 to $3,100.
17. Offering Class 7 materials for transportation under exceptions for radioactive instruments and articles while failing to meet the applicable requirements	173.424	$6,200 to $12,500.
18. Offering Class 7 low 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)	173.427	$7,500 to $12,500.
19. Offering Class 7 LSA materials or SCO as exclusive use without providing specific instructions to the carrier for maintenance of exclusive use shipment controls	173.427(a)(6)	$1,200.
20. Offering in excess of a Type A quantity of a Class 7 material in a Type A packaging	173.431	$15,000.
21. Offering a package that exceeds the permitted radiation level or transport index	173.441	$12,500.
22. Offering a package without determining the level of removable external contamination, or that exceeds the limit for removable external contamination	173.443	$6,200 and up.
23. Storing packages of radioactive material in a group with a total criticality safety index of more than 50	173.447(a)	$6,200 and up.
24. Offering for transportation or transporting aboard a passenger aircraft any single package or overpack of Class 7 material with a transport index greater than 3.0	173.448(e)	$6,200 and up.
25. Exporting a Type B, Type B(U), Type B(M), or fissile package without obtaining a U.S. Competent Authority Certificate or, after obtaining a U.S. Competent Authority Certificate, failing to submit a copy to the national competent authority of each country into or through which the package is transported	173.471(d)	$3,700.
26. Offering or exporting special form radioactive materials without maintaining a complete safety analysis or Certificate of Competent Authority, as required.	173.476(a), (b)	$3,700.
27. Shipping a fissile material as fissile-exempt without meeting one of the exemption requirements or otherwise not complying with fissile material requirements	173.417, 173.453, 173.457	$12,500.
28. Offering Class 7 fissile 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	173.417	$1,000 to $12,500.
D. Class 2 - Compressed Gases in Cylinders:
1. Filling and offering a cylinder with compressed gas when the cylinder is out of test or after its authorized service life:	173.301(a)(6), (a)(7).
a. Table 1 and compressed gas in solution		$10,000 to $15,000.
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 quantities, consumer commodities		$5,000.
3. Failure to check each day the pressure of a cylinder charged with acetylene that is representative of that day's compression, after the cylinder has cooled to a settled temperature, or failure to keep a record of this test for 30 days	173.303(d)	$6,200.
4. Offering a limited 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	173.306(a)(3)	$1,800 to $5,000.
5. Offering a limited 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	173.306(a)(3)(v)	$5,000.
6. Offering liquefied petroleum gas for permanent installation on consumer premises when the requirements are not met	173.315(j)	$7,500 to $10,000.
E. Oxygen Generators Offered by Air:
1. Offering an unapproved oxygen generator for transportation	173.168	$25,000.
2. Offering an oxygen generator for transportation without installing a means of preventing actuation, as required	173.168	$12,500 to $25,000.
3. Offering an oxygen generator as spent when the ignition and chemical contents were still present	172.102(c)(1) Special Provision 61	$35,000.
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 batteries in transportation that have been assembled from tested cells, but have not been tested		$5,000 + 25 percent increase for each additional design.
3. Failure to create records of design testing		$2,500 to $9,300.
4. Offering lithium batteries in transportation that have not been protected against short circuit		$15,000.
5. Offering lithium batteries in transportation in unauthorized packages		$12,500.
6. Offering lead acid batteries in transportation in unauthorized packages		$10,000.
7. Offering lithium batteries in transportation on passenger aircraft or misclassifying them for air transport		$30,000.
8. Failure to prepare batteries so as to prevent damage in transit		$6,000.
Manufacturing, Reconditioning, Retesting Requirements
A. Activities Subject to Approval:
1. Failure to report in writing a change in name, address, ownership, test equipment, management, or test personnel	171.2(c), Approval Letter	$700 to $1,500.
2. Failure by an independent inspection agency of specification cylinders to satisfy all inspector duties, including inspecting materials, and verifying materials of construction and cylinders comply with applicable specifications	178.35(c)(1), (2), (3)	$5,000 to $16,500.
3. Failure to properly complete or retain inspector's report for specification packages	178.25(c)(4), Various	$4,000.
4. Failure to have a cylinder manufacturing registration number/symbol, when required	Various	$2,500.
B. Packaging Manufacturers (General):
1. Failure of a manufacturer or distributor to notify each person to whom the packaging is transferred of all the requirements not met at the time of transfer, including closure instructions	178.2(c)	$3,100.
2. Failure to comply with specified construction requirements for non-bulk packagings:	178.504 to 178.523.
a. Packing Group I and § 172.504 Table 1 materials		$12,000.
b. Packing Group II		$8,000.
c. Packing Group III		$4,000.
3. Fail testing: Failure to ensure a packaging certified as meeting the UN standard is capable of passing the required performance testing (depending on size of package):	178.601(b), 178.609, part 178 subparts O, Q.
a. Infectious substances		$16,500.
b. Packing Group I and § 172.504 Table 1 materials		$13,500 to $16,500.
c. Packing Group II		$10,500 to $13,500.
d. Packing Group III		$7,500 to $10,500.
4. No testing: Certifying a packaging as meeting a UN standard when design qualification testing was not performed (depending on size of package):	178.601(d), 178.609, part 178 subparts O, Q.
a. Infectious substances		$16,500.
a. Packing Group I and § 172.504 table 1 materials		$13,500 to $16,500.
b. Packing Group II		$10,500 to $13,500.
c. Packing Group III		$7,500 to $10,500.
5. Failure to conduct periodic testing on UN standard packaging (depending on length of time, Packing Group, and size of package)	178.601(e), part 178 subparts O, Q	$2,500 to $16,500.
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 testing:	178.601(d), 178.609, part 178 subparts O, Q.
i. Infectious substances		$13,500.
ii. Packing Group I		$10,500 to $13,500.
iii. Packing Group II		$7,500 to $10,500.
iv. Packing Group III		$2,500 to $7,500.
b. Periodic testing:	178.601(e), 178.609.
i. Infectious substances		$10,500.
ii. Packing Group I		$7,000 to $10,500.
iii. Packing Group II		$4,000 to $7,000.
iv. Packing Group III		$600 to $4,000.
7. Failure to keep complete and accurate testing records:	178.601(l).
a. No records kept		$5,000.
b. Incomplete or inaccurate records		$1,200 to $3,700.
8. Improper marking of UN certification	178.503	$600 per item.
C. Drum Manufacturers & Reconditioners:
1. Failure to properly conduct a production leakproofness test on a new or reconditioned drum:	178.604(b), (d), 173.28(b)(2)(i).
a. Improper testing:
i. Packing Group I		$3,000.
ii. Packing Group II		$2,500.
iii. Packing Group III		$2,000.
b. No testing performed:
i. Packing Group I		$6,200.
ii. Packing Group II		$5,000.
iii. Packing Group III		$3,700.
2. Marking incorrect tester information on a reused drum:	173.28(b)(2)(ii).
a. Incorrect information		$1,000.
b. Unauthorized use of another's information		$9,000.
3. Representing, marking, or certifying a drum as a reconditioned UN standard packaging when the drum does not meet a UN standard.	173.28(c)	$7,500 to $13,500.
4. Representing, marking, or certifying a drum as altered from one UN standard to another, when the drum has not been altered.	173.28(d)	$600
D. IBC and Portable Tank Requalification:
1. Failure to properly test and inspect IBCs or portable tanks	180.352, 180.603.
a. Packing Group I		$10,000.
b. Packing Group II		$7,500.
c. Packing Group III		$5,000.
2. Failure to properly mark an IBC or portable tank with the most current retest and/or inspection information	180.352(e), 178.703(b), 180.605(k)	$600 per item.
3. Failure to keep complete and accurate records of IBC or portable tank retest and reinspection:	180.352(f), 180.605(l).
a. No records kept		$5,000.
b. Incomplete or inaccurate records		$1,200 to $3,700.
4. Failure to make inspection and test records available to a DOT representative upon request	180.352(g), 49 U.S.C. 5121(b)(2)	$1,200.
5. Failure to perform tests (internal visual, leakproofness) on an IBC as part of a repair	180.352(d)	$3,700 to $6,200.
6. Failure to perform routine maintenance on an IBC	180.350(c)	$2,500.
E. Cylinder Manufacturers & Rebuilders:
1. Manufacturing, representing, marking, certifying, or selling a DOT high-pressure cylinder that was not inspected and verified by an approved independent inspection agency	178.35	$10,000 to $25,000.
2. Failure to mark a registration number/symbol on a cylinder, when required	178.35, Various	$1,000.
3. Failure to mark the date of manufacture or lot number on a DOT-39 cylinder	178.65(i)	$3,700.
4. Failure to have a chemical analysis performed in the U.S. for a material manufactured outside the U.S., without an approval	107.807, 178.35	$6,200.
5. Failure to comply with defect and attachment requirements, safety device requirements, or marking requirements	178.35(d), (e), (f)	$5,000.
6. Failure to meet wall thickness requirements	Various	$9,300 to $18,700.
7. Failure to heat treat cylinders prior to testing	Various	$6,200 to $18,700.
8. Failure to conduct a complete visual internal examination	Various	$3,100 to $7,700.
9. Failure to conduct a hydrostatic test, or conducting a hydrostatic test with inaccurate test equipment	Various	$3,100 to $7,700.
10. Failure to conduct a flattening test	Various	$9,300 to $18,700.
11. Failure to conduct a burst test on a DOT-2P, 2Q, 2S, or 39 cylinder	178.33-8, 178.33a-8, 178.33b-8, 178.65(f)(2)	$6,200 to $18,700.
12. Failure to maintain required inspector's reports:	178.35, Various.
a. No reports at all		$5,000.
b. Incomplete or inaccurate reports		$1,200 to $3,700.
13. Failure to complete or retain manufacturer's reports	178.35(g)	$6,200.
14. Representing a DOT-4 series cylinder as repaired or rebuilt to the requirements of the HMR without being authorized by the Associate Administrator	180.211(a)	$10,000 to $25,000.
F. Cargo Tank Motor Vehicles:
1. Failure to maintain complete cargo tank test reports, as required:	180.417(b), (c).
a. No records		$5,000.
b. Incomplete records		$1,200 to $3,700.
2. Failure to have a cargo tank tested or inspected (e.g., visual, thickness, pressure, leakproofness)	180.407(c)	$8,000 and up; increase by 25 percent for each additional.
3. Failure to mark a cargo tank with test and inspection markings	180.415	$600 each item.
4. Failure to retain a cargo tank's data report and Certificates or design certification	178.320(b), 178.337-18, 178.338-19, 178.345-15	$6,200.
5. Failure to mark a special permit number on a cargo tank.	172.301(c)	$1,800.
6. Constructing a cargo tank or cargo tank motor vehicle not in accordance with a special permit or design certification	178.320(b), Special Permit	$13,500.
7. Failure to mark manhole assemblies on a cargo tank motor vehicle manufactured after October 1, 2004	178.345-5(e)	$4,500.
8. Failure to apply specification plate and name plate:	178.337-17, 178.338-18, 178.345-14.
a. No marking		$4,500.
b. Incomplete marking		$600 per item.
9. Failure to conduct monthly inspections and tests of discharge system in cargo tanks	180.416(d)	$2,500.
G. Cylinder Requalification:
1. Certifying or marking as retested a non-specification cylinder	180.205(a)	$1,000.
2. Failure to have retester's identification number (RIN)	180.205(b)	$5,000.
3. Failure to have current authority due to failure to renew a RIN	180.205(b)	$2,500 + $600 each additional year.
4. Marking a RIN before successfully completing a hydrostatic retest	180.205(b)	$1,000.
5. Representing, marking, or certifying a cylinder as meeting the requirements of a special permit when the cylinder was not maintained or retested in accordance with the special permit	171.2(c), (e), 180.205(c), Special Permit	$2,500 to $7,500.
6. Failure to conduct a complete visual external and internal examination	180.205(f)	$2,600 to $6,500.
7. Performing hydrostatic retesting without confirming the accuracy of the test equipment or failing to conduct hydrostatic testing	180.205(g)(1), 180.205(g)(3)	$2,600 to $6,500.
8. Failure to hold hydrostatic test pressure for 30 seconds or sufficiently longer to allow for complete expansion	180.205(g)(5)	$3,800.
9. Failure to perform a 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)	180.205(g)(5)	$3,800.
10. Failure to condemn a 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)	180.205(i)	$7,500 to $13,500.
11. Failure to properly mark a condemned cylinder or render it incapable of holding pressure	180.205(i)(2)	$1,000 to $5,000.
12. Failure to notify the cylinder owner in writing when a cylinder has been condemned	180.205(i)(2)	$1,200.
13. Failure to perform hydrostatic retesting at the minimum specified test pressure	180.209(a)	$2,600 to $6,500.
14. Marking a star on a cylinder that does not qualify for that mark	180.209(b)	$2,500 to $5,000.
15. Marking a “ + ” sign on a cylinder without determining the average or minimum wall stress by calculation or reference to CGA Pamphlet C-5	173.302a(b)	$2,500 to $5,000.
16. Marking a cylinder in or on the sidewall when not permitted by the applicable specification	180.213(b)	$7,500 to $13,500.
17. Failure to maintain legible markings on a cylinder	180.213(b)(1)	$1,000.
18. Marking a DOT 3HT cylinder with a steel stamp other than a low-stress steel stamp	180.213(c)(2)	$7,500 to $13,500.
19. Improper marking of the RIN or retest date on a cylinder	180.213(d)	$1,000.
20. Marking an FRP cylinder with steel stamps in the FRP area of the cylinder such that the integrity of the cylinder is compromised	Special Permit	$7,500 to $13,500.
21. Failure to comply with eddy current examination requirements for DOT 3AL cylinders manufactured of aluminum alloy 6351-T6, when applicable	Appendix C to part 180	$2,600 to $6,500.
22. Failure to maintain current copies of the HMR, DOT special permits, and CGA Pamphlets applicable to inspection, retesting, and marking activities	180.215(a)	$700 to $1,500.
23. Failure to keep complete and accurate records of cylinder reinspection and retest:	180.215(b).
a. No records kept		$5,000.
b. Incomplete or inaccurate records		$1,200 to $3,700.
Carrier Requirements
A. Incident Notification:
1. Failure to provide immediate telephone/online notification of a reportable hazardous materials incident reportable under 171.15(b)	171.15	$6,000.
2. Failure to file a written hazardous material incident report within 30 days of discovering a hazardous materials incident reportable under 171.15(b) or 171.16(a)	171.16	$4,000.
3. Failure to include all required information in hazardous materials incident notice or report or failure to update report	171.15, 171.16	$1,000.
B. Shipping Papers:
1. Failure to retain shipping papers for 1 year after a hazardous material (or 3 years for a hazardous waste) is accepted by the initial carrier	174.24(b), 175.33(c), 176.24(b), 177.817(f)	$1,200.
C. Stowage/Attendance/Transportation Requirements:
1. Transporting packages of hazardous material that have not been secured against movement	Various	$3,700 and up.
2. Failure to properly segregate hazardous materials	Various	$9,300 and up.
3. Failure to remove a package containing hazardous materials from a motor vehicle before discharge of its contents:	177.834(h).
a. Packing Group I and § 172.504 Table 1 materials		$5,000.
b. Packing Group II		$3,000.
c. Packing Group III		$1,000.
4. Transporting explosives in a motor vehicle containing metal or other articles or materials likely to damage the explosives or any package in which they are contained, without segregating in different parts of the load or securing them in place in or on the motor vehicle and separated by bulkheads or other suitable means to prevent damage	177.835(i)	$6,500 and up.
5. Failure to attend Class 1 explosive materials during transportation	177.835(k)	$3,000.
6. Transporting railway track torpedoes outside of flagging kits, in violation of DOT-E 7991	171.2(b), (e)	$8,700.
7. Failure to carry a hazmat registration letter or number in the transport vehicle	107.620(b)	$1,000.
8. Transporting Class 7 (radioactive) material having a total transport index greater than 50	177.842(a)	$6,200 and up.
9. Transporting Class 7 (radioactive) material without maintaining the required separation distance	177.842(b)	$6,200 and up.
10. Failure to comply with radiation survey requirements of a special permit that authorizes the transportation of Class 7 (radioactive) material having a total transportation index exceeding 50	171.2(b), (e), Special Permit	$6,200 and up.

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 the Federal hazmat law, 49 U.S.C. 5123(a), each violation of the HMR and each day of a continuing violation (except for violations relating to packaging manufacture or qualification) is subject to a civil penalty of up to $83,439 or $194,691 for a violation occurring on or after January 11, 2021. 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, as amended at 81 FR 42268, June 29, 2016; 82 FR 18399, Apr. 19, 2017; 84 FR 37071, July 31, 2019; 85 FR 75703, Nov. 25, 2020; 86 FR 1756, Jan. 11, 2021]

Appendix A to Part 107 - Standard Operating Procedures for Special Permits and Approvals

49:2.1.1.1.4.11.25.1.2 : Appendix A

Appendix A to Part 107 - Standard Operating Procedures for Special Permits and Approvals

This appendix sets forth the standard operating procedures (SOPs) for processing an application for a special permit or an approval in conformance with 49 CFR parts 107 and 171 through 180. It is to be used by PHMSA for the internal management of its special permit and approval programs.

The words “special permit” and “approval” are defined in § 107.1. PHMSA receives applications for: (1) Designation as an approval or certification agency, (2) a new special permit or approval, renewal or modification of an existing special permit or an existing approval, (3) granting of party status to an existing special permit, and (4) in conformance with § 107.117, emergency processing for a special permit. Depending on the type of application, the SOP review process includes several phases, such as Completeness, Publication, Evaluation, and Disposition.

Special Permit and Approval Evaluation Review Process

	Special permit	Non-classification approval	Classification approval	Registration approval
1. Completeness	X	X	X	X
2. Publication	X
3. Evaluation
a. Technical	X	X	X
b. Safety Profile	X	X		X
4. Disposition
a. Approval	X	X	X	X
b. Denial	X	X	X	X
c. Reconsideration/Appeal	X	X	X	X

An approval for assessing an applicant's ability to perform a function that does not involve classifying a hazardous material is described as a non-classification approval and certifies that: An approval holder is qualified to requalify, repair, rebuild, and/or manufacture cylinders stipulated in the HMR; an agency is qualified to perform inspections and other functions outlined in an approval and the HMR; an approval holder is providing an equivalent level of safety or safety that is consistent with the public interest in the transportation of hazardous materials outlined in the approval; and a radioactive package design or material classification fully complies with applicable domestic or international regulations. An approval for assessing the hazard class of a material is described as a classification approval and certifies that explosives, fireworks, chemical oxygen generators, self-reactive materials, and organic peroxides have been classed for manufacturing and/or transportation based on requirements stipulated in the HMR. Registration approvals include the issuance of a unique identification number used solely as an identifier or in conjunction with approval holder's name and address, or the issuance of a registration number that is evidence the approval holder is qualified to perform an HMR-authorized function, such as visually requalifying cylinders. This appendix does not include registrations issued under 49 CFR part 107, subpart G.

1. Completeness. PHMSA reviews all special permit and approval applications to determine if they contain all the information required under § 107.105 (for a special permit), § 107.117 (for emergency processing) or § 107.402 (for designation as a certification agency) or § 107.705 (for an approval). If PHMSA determines an application does not contain all the information needed to evaluate the safety of the actions requested in the application, the Associate Administrator may reject the application. If the application is rejected, PHMSA will notify the applicant of the deficiencies in writing. An applicant may resubmit a rejected application as a new application, provided the newly submitted application contains the information PHMSA needs to make a determination.

Emergency special permit applications must comply with all the requirements prescribed in § 107.105 for a special permit application, and contain sufficient information to determine that the applicant's request for emergency processing is justified under the conditions prescribed in § 107.117.

2. Publication. When PHMSA determines an application for a new special permit or a request to modify an existing special permit is complete and sufficient, PHMSA publishes a summary of the application in the Federal Register in conformance with § 107.113(b). This provides the public an opportunity to comment on a request for a new or a modification of an existing special permit.

3. Evaluation. The evaluation phase consists of two assessments, which may be done concurrently, a technical evaluation and a safety profile evaluation. When applicable, PHMSA consults and coordinates its evaluation of applications with the following Operating Administrations (OAs) that share enforcement authority under Federal hazardous material transportation law: Federal Aviation Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, and United States Coast Guard. PHMSA also consults other agencies with hazardous material subject-matter expertise, such as the Nuclear Regulatory Commission and the Department of Energy.

(a) Technical evaluation. A technical evaluation considers whether the proposed special permit or approval will achieve a level of safety at least equal to that required under the HMR or, if a required safety level does not exist, considers whether the proposed special permit is consistent with the public interest in that it will adequately protect against the risks to life and property inherent in the transportation of hazardous material. For a classification approval, the technical evaluation is a determination that the application meets the requirements of the regulations for issuance of the approval. If formal coordination with another OA is included as part of the evaluation phase, that OA is responsible for managing this process within the applicable OA. The OA reviews the application materials and PHMSA's technical evaluation, and may provide their own evaluation, comments and recommendations. The OA may also recommend operational controls or limitations to be incorporated into the special permit or approval to improve its safety.

(b) Safety profile evaluation. Each applicant for a special permit or non-classification approval is subject to a safety profile evaluation to assess if the applicant is fit to conduct the activity authorized by the special permit or approval application. PHMSA will coordinate the safety profile evaluations with the appropriate OA if a proposed activity is specific to a particular mode of transportation, if the proposed activity will set new precedent or have a significant economic impact, or if an OA requests participation. PHMSA does not conduct initial safety profile reviews as part of processing classification approvals, which include fireworks, explosives, organic peroxides, and self-reactive materials. Additionally, cylinder approvals and certification agency approvals do not follow the same minimum safety profile review model.

(i) Automated Review. An applicant for a special permit or approval which requires a safety profile evaluation, but does not include coordination with an OA, is subject to an automated safety profile review. If the applicant passes the initial automated review, the applicant is determined to be fit. If the applicant fails the initial automated review, the applicant is subject to a safety profile evaluation. An applicant that fails a safety profile evaluation may be determined to be unfit. To begin this review, PHMSA or the applicant enters the applicant's information into the web-based Hazardous Materials Information System (HMIS) or Hazmat Intelligence Portal (HIP), or other future application processing technology that provide an integrated information source to identify hazardous material safety trends through the analysis of incident and accident information, and provide access to comprehensive information on hazardous materials incidents, special permits and approvals, enforcement actions, and other elements that support PHMSA's regulatory program. PHMSA then screens the applicant to determine if, within the four years prior to submitting its application, the applicant was involved in any incident attributable to the applicant or package where two or more triggers for a safety profile review or five or more triggers for on-site inspection enforcement case referral events occurred.

(1) The trigger events are listed in the following table:

Trigger for safety profile review	Trigger for on-site inspection *
(1) Any incident that involved a death or injury;	(1) Evidence that an applicant is at risk of being unable to comply with the terms of an application, including those listed below.
(2) Two or more incidents involving a § 172.504(e) (placarding) Table 1 hazardous material;	(2) An on-site inspection at the recommendation of the fitness coordinator if the following criteria applies - Any incident listed under automated review in paragraph 3(b)(i) of this appendix is attributable to the applicant or package, other than driver error.
(3) Three or more incidents involving a bulk packaging, or an applicant that is acting as an interstate carrier of hazardous materials under the terms of the special permit or an approval; or	(3) If, during an inspection, evidence is found in the four years prior to submitting its application that an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested in an application or authorized special permit or approval.
(4) Any incident that involved: Incorrect package selection; leaking packages; not following closure instructions; failure to test packages, if applicable; and failure to secure packages, including incorrect blocking and/or bracing.	(4) Incorrect or missing: (a) Markings, (b) labels, (c) placards, or (d) shipping papers.

* The Fitness Coordinator assesses and applies these triggers.

(2) If an applicant is acting as an interstate carrier of hazardous materials under the terms of the special permit, they will be screened in an automated manner based upon criteria established by FMCSA, such as that contained in its Safety and Fitness Electronic Records (SAFER) system, which consists of interstate carrier data, several states' intrastate data, interstate vehicle registration data, and may include operational data such as inspections and crashes.

(ii) Safety profile evaluation. A fitness coordinator, as defined in § 107.1, conducts a safety profile evaluation of all applicants meeting any of the criteria listed earlier in this appendix under “automated review,” and all applicants whose safety profile evaluations are subject to coordination with an OA, as described in introductory paragraph 3(b) of this appendix. In a safety profile evaluation, PHMSA or the OA performs an in-depth evaluation of the applicant based upon items the automated review triggered concerning the applicant's four-year performance and compliance history prior to the submission of the application. Information considered during this review may include the applicant's history of prior violations, insufficient corrective actions, or evidence that the applicant is at risk of being unable to comply with the terms of an application for an existing special permit, approval, or the HMR. PHMSA performs the review or coordinates with the OAs, if necessary, if two or more modes of transportation are requested in the application, and coordinates this review with the OA(s) of the applicable mode(s). The applicable OA performs the review if one mode of transportation is requested in the application. If necessary, the fitness coordinator will attempt to contact the applicant for clarifying information. If the information provided is sufficient, an on-site inspection may not be necessary. After conducting an evaluation, if the fitness coordinator determines that the applicant may be unfit to conduct the activities requested in the application, the coordinator will forward the request and supporting documentation to PHMSA's Field Operations Division, or a representative of the Department, such as an authorized Operating Administration representative, to perform an on-site inspection. After the safety profile evaluation is completed, if the applicant is not selected for an on-site inspection, the applicant is determined to be fit. On-site inspections are not required for fitness determinations from modal administrations according to their own procedures.

(iii) On-Site Inspection. (A) The factors in paragraph 3(b)(i) and 3(b)(ii) are used as evidence that an applicant is at risk of being unable to comply with the terms of an application, including those listed below. PHMSA's Field Operations Division or representative of the Department, such as an Operating Administration representative, will conduct an on-site inspection at the recommendation of the fitness coordinator if one of the following criteria applies:

(1) Any incident listed under automated review in paragraph 3(b)(i) of this appendix is attributable to the applicant or package, other than driver error;

(2) Insufficient Corrective Actions, as defined in § 107.1, in any enforcement case for a period of four years prior to submitting the application, except when re-inspected with no violations noted; or

(3) Items noted by an IIA on a cylinder requalifier inspection report, except when re-inspected with no violations noted.

(B) If, during an inspection, the PHMSA investigator or a representative of the Department finds evidence in the four years prior to submitting its application that an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested in an application or authorized special permit or approval.

4. Disposition. (a) Special Permit. If an application for a special permit is issued, PHMSA provides the applicant, in writing, with a special permit and an authorization letter if party status is authorized.

(b) Approval. If an application for approval is issued, PHMSA provides the applicant, in writing, with an approval, which may come in various forms, including:

(1) An “EX” approval number for classifying an explosive (including fireworks; see §§ 173.56, 173.124, 173.128, and 173.168(a));

(2) A “RIN” (requalification identification number) to uniquely identify a cylinder requalification, repair, or rebuilding facility (see § 180.203);

(3) A “VIN” (visual identification number) to uniquely identify a facility that performs an internal or external visual inspection, or both, of a cylinder in conformance with 49 CFR part 180, subpart C, or applicable CGA Pamphlet or HMR provision;

(4) An “M” number for identifying packaging manufacturers (see § 178.3); or

(5) A “CA” (competent authority) for general approvals (see §§ 107.705, 173.185, and 173.230).

(c) Denial. An application for a special permit or approval may be denied in whole or in part. For example, if an application contains sufficient information to successfully complete its technical review but the Associate Administrator determines the applicant is unfit, the application will be denied. If an application for a special permit or an approval is denied, PHMSA provides the applicant with a brief statement, in writing, of the reasons for denial and the opportunity to request reconsideration (see §§ 107.113(g), 107.402, and 107.709(f)).

(d) Reconsideration and Appeal. (1) Special Permit. If an application for a special permit is denied, the applicant may request reconsideration as provided in § 107.123 and, if the reconsideration is denied, may appeal as provided in § 107.125. Applicants submitting special permit reconsiderations and appeals must do so in the same manner as new applications, provided the new submission is sufficiently complete to make a determination.

(2) Approval. If an application for an approval is denied, the applicant may request reconsideration as provided in § 107.715 and, if the reconsideration is denied, may appeal as provided in § 107.717. Applicants submitting approval reconsiderations and appeals must do so in the same manner as new applications, provided the new submission is sufficiently complete to make a determination.

[80 FR 54438, Sept. 10, 2015]