Hazardous Materials Program Procedures by tcd51196

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									                                 § 106.120                                                                 49 CFR Ch. I (10–1–03 Edition)

                                   (b) Appeal of a decision. If you appeal                     the 90-day period and we anticipate a
                                 RSPA’s decision on a petition for rule-                       substantial delay, we will notify you
                                 making, you must include the fol-                             directly about the delay and will give
                                 lowing:                                                       you an expected decision date. We will
                                   (1) The contested aspects of the deci-                      also publish a notice of the delay in the
                                 sion.                                                         FEDERAL REGISTER.
                                   (2) Any new arguments or informa-                             (b) Appeal of a decision. (1) We will
                                 tion.                                                         not consider your appeal if it merely
                                                                                               repeats arguments that RSPA has pre-
                                 § 106.120 Appeal deadline.                                    viously rejected.
                                    (a) Appeal of a final rule or withdrawal                     (2) RSPA will notify you, in writing,
                                 of a notice of proposed rulemaking. If you                    of the action on your appeal within 90
                                 appeal RSPA’s issuance of a final rule                        days after the date that RSPA served
                                 or RSPA’s withdrawal of a proposed                            you with written notice of its decision
                                 rulemaking, your appeal document                              on your petition for rulemaking. If we
                                 must reach us no later than 30 days                           do not issue a decision on your appeal
                                 after the date RSPA published the reg-                        within the 90-day period, and we antici-
                                 ulation or the withdrawal notice in the                       pate a substantial delay, we will notify
                                 FEDERAL REGISTER. After that time,                            you directly about the delay and will
                                 RSPA will consider your petition to be                        give you an expected decision date.
                                 one for rulemaking under § 106.100.
                                    (b) Appeal of a decision. If you appeal                    PART 107—HAZARDOUS MATERIALS
                                 RSPA’s decision on a petition for rule-                            PROGRAM PROCEDURES
                                 making, your appeal document must
                                 reach us no later than 30 days from the                                   Subpart A—Definitions
                                 date RSPA served you with written no-
                                 tice of RSPA’s decision.                                      Sec.
                                                                                               107.1   Definitions.
                                 § 106.125 Filing an appeal.
                                                                                                           Subpart B—Exemptions
                                    Send your appeal to: Docket Manage-
                                 ment System, U.S. Department of                               107.101 Purpose and scope.
                                 Transportation, Room PL 401, 400 7th                          107.105 Application for exemption.
                                                                                               107.107 Application for party status.
                                 Street, SW., Washington, DC 20590–0001.                       107.109 Application for renewal.
                                                                                               107.111 Withdrawal.
                                 § 106.130 RSPA response to an appeal.                         107.113 Application processing and evalua-
                                    Unless RSPA provides otherwise, fil-                           tion.
                                 ing an appeal will not keep a final rule                      107.117 Emergency processing.
                                 from becoming effective. We will han-                         107.121 Modification, suspension or termi-
                                                                                                   nation of exemption or grant of party
                                 dle an appeal according to the fol-
                                                                                                   status.
                                 lowing procedures:                                            107.123 Reconsideration.
                                    (a) Appeal of a final rule or withdrawal                   107.125 Appeal.
                                 of a notice of proposed rulemaking. (1) We                    107.127 Availability of documents for public
                                 may consolidate your appeal with                                  inspection.
                                 other appeals of the same rule.
                                    (2) We may grant or deny your ap-                                      Subpart C—Preemption
                                 peal, in whole or in part, without fur-                       107.201 Purpose and scope.
                                 ther rulemaking proceedings, unless                           107.202 Standards for determining preemp-
                                 granting your appeal would result in                              tion.
                                 the issuance of a new final rule.
                                    (3) If we decide to grant your appeal,                               PREEMPTION DETERMINATIONS
                                 we may schedule further proceedings                           107.203   Application.
                                 and an opportunity to comment.                                107.205   Notice.
                                    (4) RSPA will notify you, in writing,                      107.207   Processing.
                                                                                               107.209   Determination.
                                 of the action on your appeal within 90                        107.211   Petition for reconsideration.
                                 days after the date that RSPA pub-                            107.213   Judicial review.
                                 lished the final rule or withdrawal of
                                 notice of proposed rulemaking at issue                          WAIVER OF PREEMPTION DETERMINATIONS
                                 in the FEDERAL REGISTER. If we do not                         107.215   Application.
                                 issue a decision on your appeal within                        107.217   Notice.

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                                 Research and Special Programs Admin., DOT                                                               § 107.1
                                 107.219    Processing.                                        107.612 Amount of fee.
                                 107.221    Determination.                                     107.616 Payment procedures.
                                 107.223    Petition for reconsideration.                      107.620 Recordkeeping requirements.
                                 107.227    Judicial review.
                                                                                                Subpart H—Approvals, Registrations and
                                              Subpart D—Enforcement                                         Submissions
                                 107.301 Delegated authority           for     enforce-
                                                                                               107.701 Purpose and scope.
                                     ment.
                                 107.303 Purpose and scope.                                    107.705 Registrations, reports, and applica-
                                 107.305 Investigations.                                           tions for approval.
                                                                                               107.709 Processing of an application for ap-
                                    COMPLIANCE ORDERS AND CIVIL PENALTIES                          proval, including an application for re-
                                                                                                   newal or modification.
                                 107.307    General.
                                 107.309    Warning letters.                                   107.711 Withdrawal.
                                 107.310    Ticketing.                                         107.713 Approval modification, suspension
                                 107.311    Notice of probable violation.                          or termination.
                                 107.313    Reply.                                             107.715 Reconsideration.
                                 107.315    Admission of violations.                           107.717 Appeal.
                                 107.317    Informal response.
                                 107.319    Request for a hearing.                             Subpart I—Approval of Independent In-
                                 107.321    Hearing.                                              spection Agencies, Cylinder Requali-
                                 107.323    ALJ’s decision.                                       fiers, and Non-domestic Chemical
                                 107.325    Appeals.                                              Analyses and Tests of DOT Specifica-
                                 107.327    Compromise and settlement.
                                 107.329    Maximum penalties.                                    tion Cylinders
                                 107.331    Assessment considerations.                         107.801 Purpose and scope.
                                                 CRIMINAL PENALTIES                            107.803 Approval of independent inspection
                                                                                                   agency.
                                 107.333 Criminal penalties generally.                         107.805 Approval of cylinder requalifiers.
                                 107.335 Referral for prosecution.                             107.807 Approval of non-domestic chemical
                                 107.336 Limitation on fines and penalties.                        analyses and tests.
                                                  INJUNCTIVE ACTION                              AUTHORITY: 49 U.S.C. 5101–5127, 44701; Pub.
                                 107.337 Injunctions generally.                                L. 101–410 section 4 (28 U.S.C. 2461 note); Pub.
                                 107.339 Imminent hazards.                                     L. 104–121 sections 212–213; Pub. L. 104–134
                                                                                               section 31001; 49 CFR 1.45, 1.53.
                                 APPENDIX A TO SUBPART D OF PART 107—
                                     GUIDELINES FOR CIVIL PENALTIES                              EDITORIAL NOTE: Nomenclature changes to
                                                                                               part 107 appear at 67 FR 61011, Sept. 27, 2002.
                                   Subpart E—Designation of Approval and
                                            Certification Agencies                                       Subpart A—Definitions
                                 107.401 Purpose and scope.
                                 107.402 Application for designation as an ap-                 § 107.1   Definitions.
                                     proval or certification agency.                             All terms defined in 49 U.S.C. 5102 are
                                 107.403 Designation of approval agencies.
                                                                                               used in their statutory meaning. Other
                                 107.404 Conditions of designation.
                                 107.405 Termination of designation.                           terms used in this part are defined as
                                                                                               follows:
                                 Subpart F—Registration of Cargo Tank and                        Acting knowingly means acting or
                                    Cargo Tank Motor Vehicle Manufac-                          failing to act while
                                    turers, Assemblers, Repairers, Inspec-                       (1) Having actual knowledge of the
                                    tors, Testers, and Design Certifying En-                   facts giving rise to the violation, or
                                    gineers                                                      (2) Having the knowledge that a rea-
                                                                                               sonable person acting in the same cir-
                                 107.501 Scope.
                                 107.502 General registration requirements.                    cumstances and exercising due care
                                 107.503 Registration statement.                               would have had.
                                 107.504 Period of registration, updates, and                    Administrator means the Adminis-
                                     record retention.                                         trator, Research and Special Programs
                                                                                               Administration or his or her delegate.
                                   Subpart G—Registration of Persons Who                         Applicant means the person in whose
                                    Offer or Transport Hazardous Materials                     name an exemption, approval, registra-
                                 107.601 Applicability.                                        tion, a renewed or modified exemption
                                 107.606 Exceptions.                                           or approval, or party status to an ex-
                                 107.608 General registration requirements.                    emption is requested to be issued.
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                                 § 107.1                                                                 49 CFR Ch. I (10–1–03 Edition)

                                   Application means a request under                              (3) A separate document issued to one
                                 subpart B of this part for an exemp-                          or more persons by the Associate Ad-
                                 tion, a renewal or modification of an                         ministrator.
                                 exemption, party status to an exemp-                             DOT or Department means U.S. De-
                                 tion, or a request under subpart H of                         partment of Transportation.
                                 this part for an approval, or renewal or                         Exemption means a document issued
                                 modification of an approval.                                  by the Associate Administrator under
                                   Approval means written consent, in-                         the authority of 49 U.S.C. 5117. The doc-
                                 cluding a competent authority ap-                             ument permits a person to perform a
                                 proval, from the Associate Adminis-                           function that is not otherwise per-
                                 trator or other designated Department                         mitted under subchapter A or C of this
                                 official, to perform a function that re-                      chapter, or other regulations issued
                                 quires prior consent under subchapter                         under 49 U.S.C. 5101 through 5127 (e.g.,
                                 C of this chapter (49 CFR parts 171                           Federal Motor Carrier Safety routing
                                 through 180).                                                 requirements.)
                                   Approval Agency means an organiza-                             Federal hazardous material transpor-
                                 tion or a person designated by the                            tation law means 49 U.S.C. 5101 et seq.
                                 RSPA to certify packagings as having                             Filed means received by the appro-
                                 been designed, manufactured, tested,                          priate RSPA or other designated office
                                 modified, marked or maintained in                             within the time specified in a regula-
                                 compliance with applicable DOT regu-                          tion or rulemaking document.
                                 lations.                                                         Holder means the person in whose
                                   Associate Administrator means the As-                       name an exemption or approval has
                                 sociate Administrator for Hazardous                           been issued.
                                 Materials Safety, Research and Special                           Imminent Hazard means the existence
                                 Programs Administration.                                      of a condition which presents a sub-
                                   Competent Authority means a national                        stantial likelihood that death, serious
                                 agency that is responsible, under its                         illness, severe personal injury, or sub-
                                 national law, for the control or regula-                      stantial endangerment to health, prop-
                                 tion of some aspect of hazardous mate-                        erty, or the environment may occur be-
                                 rials (dangerous goods) transportation.                       fore the reasonably foreseeable comple-
                                 Another term for Competent Authority                          tion of an administrative hearing or
                                 is ‘‘Appropriate authority,’’ which is                        other formal proceeding initiated to
                                 used in the International Civil Avia-                         abate the risks of those effects.
                                 tion Organization’s (ICAO) Technical                             Incident means an event resulting in
                                 Instructions for the Safe Transport of                        the unintended and unanticipated re-
                                 Dangerous Goods by Air. The Associate                         lease of a hazardous material or an
                                 Administrator is the United States                            event meeting incident reporting re-
                                 Competent Authority for purposes of                           quirements in § 171.15 or § 171.16 of this
                                 this part 107.                                                chapter.
                                   Competent Authority Approval means                             Indian Tribe has the same meaning
                                 an approval by the competent author-                          given that term in section 4 of the In-
                                 ity that is required under an inter-                          dian Self-Determination and Education
                                 national standard (for example, the                           Assistance Act (25 U.S.C. 450b).
                                 ICAO Technical Instructions for the                              Investigation includes investigations
                                 Safe Transport of Dangerous Goods by                          authorized under 49 U.S.C. 5121 and in-
                                 Air and the International Maritime                            spections authorized under 49 U.S.C.
                                 Dangerous Goods Code). Any of the fol-                        5118 and 5121.
                                 lowing may be considered a competent                             Manufacturing exemption means an
                                 authority approval if it satisfies the re-                    exemption from compliance with speci-
                                 quirement of an international stand-                          fied requirements that otherwise must
                                 ard:                                                          be met before representing, marking,
                                   (1) A specific regulation in sub-                           certifying (including requalifying, in-
                                 chapter A or C of this chapter.                               specting, and testing), selling or offer-
                                   (2) An exemption or approval issued                         ing a packaging or container as meet-
                                 under subchapter A or C of this chap-                         ing the requirements of subchapter C of
                                 ter.                                                          this chapter governing its use in the

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                                 Research and Special Programs Admin., DOT                                                          § 107.105

                                 transportation in commerce of a haz-                          ican Samoa, Guam, or any other terri-
                                 ardous material. A manufacturing ex-                          tory or possession of the United States
                                 emption is an exemption issued to a                           designated by the Secretary.
                                 manufacturer of packagings who does                             Transports or transportation means
                                 not offer for transportation or trans-                        the movement of property and loading,
                                 port hazardous materials in packagings                        unloading, or storage incidental to the
                                 subject to the exemption.                                     movement.
                                    Party means a person, other than a
                                 holder, authorized to act under the                           [Amdt. 107–3, 41 FR 38170, Sept. 9, 1976]
                                 terms of an exemption.                                          EDITORIAL NOTE: For FEDERAL REGISTER ci-
                                    Person means an individual, firm, co-                      tations affecting § 107.1, see the List of CFR
                                 partnership, corporation, company, as-                        Sections Affected which appears in the Find-
                                 sociation, or joint-stock association                         ing Aids section of the printed volume and
                                 (including any trustee, receiver, as-                         on GPO Access.
                                 signee, or similar representative); or a
                                 government or Indian tribe (or an                                     Subpart B—Exemptions
                                 agency or instrumentality of any gov-
                                 ernment or Indian tribe) that trans-                            SOURCE: Amdt. 107–38, 61 FR 21095, May 9,
                                 ports a hazardous material to further a                       1996, unless otherwise noted.
                                 commercial enterprise or offers a haz-
                                 ardous material for transportation in                         § 107.101   Purpose and scope.
                                 commerce. Person does not include the
                                                                                                 This subpart prescribes procedures
                                 following:
                                                                                               for the issuance, modification and ter-
                                    (1) The United States Postal Service.
                                                                                               mination of exemptions from require-
                                    (2) Any agency or instrumentality of
                                                                                               ments of this subchapter, subchapter C
                                 the Federal government, for the pur-
                                                                                               of this chapter, or regulations issued
                                 poses of 49 U.S.C. 5123 (civil penalties)
                                                                                               under chapter 51 of 49 U.S.C.
                                 and 5124 (criminal penalties.)
                                    (3) Any government or Indian tribe                         § 107.105   Application for exemption.
                                 (or an agency or instrumentality of
                                 any government or Indian tribe) that                            (a) General. Each application for an
                                 transports hazardous material for a                           exemption or modification of an ex-
                                 governmental purpose.                                         emption must be written in English
                                    Registration means a written ac-                           and must—
                                 knowledgment from the Associate Ad-                             (1) Be submitted for timely consider-
                                 ministrator that a registrant is author-                      ation, at least 120 days before the re-
                                 ized to perform a function for which                          quested effective date, in duplicate to:
                                 registration is required under sub-                           Associate Administrator for Hazardous
                                 chapter C of this chapter (e.g., registra-                    Materials Safety (Attention: Exemp-
                                 tion in accordance with 49 CFR 178.503                        tions, DHM–31), Research and Special
                                 regarding marking of packagings). For                         Programs Administration, U.S. Depart-
                                 purposes of subparts A through E,                             ment of Transportation, 400 7th Street,
                                 ‘‘registration’’ does not include reg-                        SW., Washington, DC 20590–0001. Alter-
                                 istration under subpart F or G of this                        natively, the application with any at-
                                 part.                                                         tached supporting documentation sub-
                                    Report means information, other than                       mitted in an appropriate format may
                                 an application, registration or part                          be sent by facsimile (fax) to: (202) 366–
                                 thereof, required to be submitted to                          3753 or (202) 366–3308 or by electronic
                                 the Associate Administrator pursuant                          mail             (e-mail)             to:
                                 to this subchapter, subchapter B or                           Exemptions@rspa.dot.gov;
                                 subchapter C of this chapter.                                   (2) State the name, street and mail-
                                    Respondent means a person upon                             ing addresses, e-mail address optional,
                                 whom the RSPA has served a notice of                          and telephone number of the applicant;
                                 probable violation.                                           if the applicant is not an individual,
                                    State means a State of the United                          state the name, street and mailing ad-
                                 States, the District of Columbia, the                         dresses, e-mail address optional, and
                                 Commonwealth of Puerto Rico, the                              telephone number of an individual des-
                                 Commonwealth of the Northern Mar-                             ignated as an agent of the applicant for
                                 iana Islands, the Virgin Islands, Amer-                       all purposes related to the application;

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                                 § 107.107                                                                49 CFR Ch. I (10–1–03 Edition)

                                    (3) If the applicant is not a resident                     emption (see Columns 9A and 9B in the
                                 of the United States, a designation of                        table in 49 CFR 172.101), an applicant
                                 agent for service in accordance with                          for an exemption to transport such
                                 § 105.40 of this part; and                                    Class 1 material on passenger-carrying
                                    (4) For a manufacturing exemption, a                       or cargo-only aircraft must also certify
                                 statement of the name and street ad-                          that no person within the categories
                                 dress of each facility where manufac-                         listed in 18 U.S.C. 842(i) will participate
                                 turing under the exemption will occur.                        in the transportation of the Class 1 ma-
                                    (b) Confidential treatment. To request                     terial.
                                 confidential treatment for information                          (d) Justification of exemption proposal.
                                 contained in the application, the appli-                      The application must demonstrate that
                                 cant shall comply with § 105.30(a).                           an exemption achieves a level of safety
                                    (c) Description of exemption proposal.                     at least equal to that required by regu-
                                 The application must include the fol-                         lation, or if a required safety level does
                                 lowing information that is relevant to                        not exist, is consistent with the public
                                 the exemption proposal:                                       interest. At a minimum, the applica-
                                    (1) A citation of the specific regula-                     tion must provide the following:
                                 tion from which the applicant seeks re-                         (1) Information describing all rel-
                                 lief;                                                         evant shipping and incident experience
                                    (2) Specification of the proposed                          of which the applicant is aware that re-
                                 mode or modes of transportation;                              lates to the application;
                                    (3) A detailed description of the pro-                       (2) A statement identifying any in-
                                 posed exemption (e.g., alternative                            creased risk to safety or property that
                                 packaging, test, procedure or activity)                       may result if the exemption is granted,
                                 including, as appropriate, written de-                        and a description of the measures to be
                                 scriptions, drawings, flow charts, plans                      taken to address that risk; and
                                 and other supporting documents;                                 (3) Either—
                                    (4) A specification of the proposed du-                      (i) Substantiation, with applicable
                                 ration or schedule of events for which                        analyses, data or test results, that the
                                 the exemption is sought;                                      proposed alternative will achieve a
                                    (5) A statement outlining the appli-                       level of safety that is at least equal to
                                 cant’s basis for seeking relief from                          that required by the regulation from
                                 compliance with the specified regula-                         which the exemption is sought; or
                                 tions and, if the exemption is requested                        (ii) If the regulations do not establish
                                 for a fixed period, a description of how                      a level of safety, an analysis that iden-
                                 compliance will be achieved at the end                        tifies each hazard, potential failure
                                 of that period;                                               mode and the probability of its occur-
                                    (6) If the applicant seeks emergency                       rence, and how the risks associated
                                 processing specified in § 107.117, a state-                   with each hazard and failure mode are
                                 ment of supporting facts and reasons;                         controlled for the duration of an activ-
                                    (7) Identification and description of                      ity or life-cycle of a packaging.
                                 the hazardous materials planned for                           [Amdt. 107–38, 61 FR 21095, May 9, 1996, as
                                 transportation under the exemption;                           amended at 62 FR 51556, Oct. 1, 1997; 65 FR
                                    (8) Description of each packaging, in-                     50457, Aug. 18, 2000; 65 FR 58618, Sept. 29, 2000;
                                 cluding specification or exemption                            67 FR 61010, 61011, Sept. 27, 2002; 68 FR 23841,
                                 number, as applicable, to be used in                          May 5, 2003]
                                 conjunction with the requested exemp-
                                 tion;                                                         § 107.107 Application for party status.
                                    (9) For alternative packagings, docu-                         (a) Any person eligible to apply for
                                 mentation of quality assurance con-                           an exemption may apply to be made
                                 trols, package design, manufacture,                           party to an application or an existing
                                 performance test criteria, in-service                         exemption, other than a manufacturing
                                 performance and service-life limita-                          exemption.
                                 tions.                                                           (b) Each application filed under this
                                    (10) A certification that the applicant                    section must—
                                 is in compliance with transportation                             (1) Be submitted in duplicate to: As-
                                 security laws and regulations. When a                         sociate Administrator for Hazardous
                                 Class 1 material is forbidden for trans-                      Materials Safety (Attention: Exemp-
                                 portation by air except under an ex-                          tions, DHM–31), Research and Special

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                                 Research and Special Programs Admin., DOT                                                        § 107.109

                                 Programs Administration, U.S. Depart-                           (2) Identify by number the exemption
                                 ment of Transportation, 400 7th Street,                       for which renewal is requested;
                                 SW, Washington, DC 20590–0001. Alter-                           (3) State the name, street and mail-
                                 natively, the application with any at-                        ing addresses, e-mail address optional,
                                 tached supporting documentation sub-                          and telephone number of the applicant;
                                 mitted in an appropriate format may                           if the applicant is not an individual,
                                 be sent by facsimile (fax) to: (202) 366–                     state the name, street and mailing ad-
                                 3753 or (202) 366–3308 or by electronic                       dresses, e-mail address optional, and
                                 mail                (e-mail)           to:                    telephone number of an individual des-
                                 Exemptions@rspa.dot.gov;                                      ignated as an agent of the applicant for
                                    (2) Identify by number the exemption                       all purposes related to the application;
                                 application or exemption to which the                           (4) Include either a certification by
                                 applicant seeks to become a party;                            the applicant that the original applica-
                                    (3) State the name, street and mail-
                                                                                               tion, as it may have been updated by
                                 ing addresses, e-mail address optional,
                                                                                               any application for renewal, remains
                                 and telephone number of the applicant;
                                                                                               accurate and complete; or include an
                                 if the applicant is not an individual,
                                                                                               amendment to the previously sub-
                                 state the name, street and mailing ad-
                                                                                               mitted application as is necessary to
                                 dresses, e-mail address optional, and
                                                                                               update and assure the accuracy and
                                 telephone number of an individual des-
                                                                                               completeness of the application, with
                                 ignated as the applicant’s agent for all
                                                                                               certification by the applicant that the
                                 purposes related to the application;
                                 and                                                           application as amended is accurate and
                                    (4) If the applicant is not a resident                     complete; and
                                 of the United States, provide a designa-                        (5) Include a statement describing all
                                 tion of agent for service in accordance                       relevant shipping and incident experi-
                                 with § 105.40.                                                ence of which the applicant is aware in
                                    (c) The Associate Administrator                            connection with the exemption since
                                 grants or denies an application for                           its issuance or most recent renewal. If
                                 party status in the manner specified in                       the applicant is aware of no incidents,
                                 § 107.113(e) and (f) of this subpart.                         the applicant shall so certify. When
                                    (d) A party to an exemption is sub-                        known to the applicant, the statement
                                 ject to all terms of that exemption, in-                      should indicate the approximate num-
                                 cluding the expiration date. If a party                       ber of shipments made or packages
                                 to an exemption wishes to renew party                         shipped, as the case may be, and num-
                                 status, the exemption renewal proce-                          ber of shipments or packages involved
                                 dures set forth in § 107.109 apply.                           in any loss of contents, including loss
                                                                                               by venting other than as authorized in
                                 [Amdt. 107–38, 61 FR 21095, May 9, 1996, as
                                 amended at 65 FR 50457, Aug. 18, 2000; 67 FR
                                                                                               subchapter C.
                                 61010, 61011, Sept. 27, 2002]                                   (6) Include a certification that the
                                                                                               applicant is in compliance with trans-
                                 § 107.109 Application for renewal.                            portation security laws and regula-
                                    (a) Each application for renewal of an                     tions. When a Class 1 material is for-
                                 exemption or party status to an exemp-                        bidden for transportation by air except
                                 tion must—                                                    under an exemption (see Columns 9A
                                    (1) Be submitted in duplicate to: As-                      and 9B in the table in 49 CFR 172.101),
                                 sociate Administrator for Hazardous                           an applicant for an exemption to trans-
                                 Materials Safety (Attention: Exemp-                           port such Class 1 material on pas-
                                 tions, DHM–31), Research and Special                          senger-carrying or cargo-only aircraft
                                 Programs Administration, U.S. Depart-                         must also certify that no person within
                                 ment of Transportation, 400 7th Street,                       the categories listed in 18 U.S.C. 842(i)
                                 SW, Washington, DC 20590–0001. Alter-                         will participate in the transportation
                                 natively, the application with any at-                        of the Class 1 material.
                                 tached supporting documentation sub-                            (b) If at least 60 days before an exist-
                                 mitted in an appropriate format may                           ing exemption expires the holder files
                                 be sent by facsimile (fax) to: (202) 366–                     an application for renewal that is com-
                                 3753 or (202) 366–3308 or by electronic                       plete and conforms to the requirements
                                 mail              (e-mail)            to:                     of this section, the exemption will not
                                 Exemptions@rspa.dot.gov;                                      expire until final administrative action

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                                 § 107.111                                                               49 CFR Ch. I (10–1–03 Edition)

                                 on the application for renewal has been                         (d) During the processing and evalua-
                                 taken.                                                        tion of an application, the Associate
                                 [Amdt. 107–38, 61 FR 21095, May 9, 1996, as
                                                                                               Administrator may request additional
                                 amended at 65 FR 50457, Aug. 18, 2000; 67 FR                  information from the applicant. If the
                                 61011, Sept. 27, 2002; 68 FR 23842, May 5, 2003]              applicant does not respond to a written
                                                                                               request for additional information
                                 § 107.111 Withdrawal.                                         within 30 days of the date the request
                                    An application may be withdrawn at                         was received, the application may be
                                 any time before a decision to grant or                        deemed incomplete and denied. How-
                                 deny it is made. Withdrawal of an ap-                         ever, if the applicant responds in writ-
                                 plication does not authorize the re-                          ing within the 30-day period requesting
                                 moval of any related records from the                         an additional 30 days within which it
                                 RSPA dockets or files. Applications                           will gather the requested information,
                                 that are eligible for confidential treat-                     the Associate Administrator may grant
                                 ment under § 105.30 will remain con-                          the 30-day extension.
                                 fidential after the application is with-                        (e) The Associate Administrator may
                                 drawn. The duration of this confiden-                         grant or deny an application, in whole
                                 tial treatment for trade secrets and                          or in part. In the Associate Adminis-
                                 commercial or financial information is                        trator’s discretion, an application may
                                 indefinite, unless the party requesting                       be granted subject to provisions that
                                 the confidential treatment of the ma-                         are appropriate to protect health, safe-
                                 terials notifies the Associate Adminis-                       ty or property. The Associate Adminis-
                                 trator that the confidential treatment                        trator may impose additional provi-
                                 is no longer required.                                        sions not specified in the application or
                                                                                               remove conditions in the application
                                 § 107.113 Application processing and                          that are unnecessary.
                                      evaluation.
                                                                                                 (f) The Associate Administrator may
                                    (a) The Associate Administrator re-                        grant an application on finding that—
                                 views an application for exemption,                             (1) The application complies with
                                 modification of exemption, party to ex-                       this subpart;
                                 emption, or renewal of an exemption to                          (2) The application demonstrates
                                 determine if it is complete and con-                          that the proposed alternative will
                                 forms with the requirements of this                           achieve a level of safety that:
                                 subpart. This determination will be
                                                                                                 (i) Is at least equal to that required
                                 made within 30 days of receipt of the
                                                                                               by the regulation from which the ex-
                                 application for exemption, modifica-
                                                                                               emption is sought, or
                                 tion of exemption, or party to exemp-
                                 tion, and within 15 days of receipt of an                       (ii) If the regulations do not establish
                                 application for renewal of an exemp-                          a level of safety, is consistent with the
                                 tion. If an application is determined to                      public interest and adequately will pro-
                                 be incomplete, the applicant is in-                           tect against the risks to life and prop-
                                 formed of the reasons.                                        erty inherent in the transportation of
                                    (b) An application, other than a re-                       hazardous materials in commerce;
                                 newal, party to, or emergency exemp-                            (3) The application states all mate-
                                 tion application, that is determined to                       rial facts, and contains no materially
                                 be complete is docketed. Notice of the                        false or materially misleading state-
                                 application is published in the FED-                          ment;
                                 ERAL REGISTER, and an opportunity for                           (4) The applicant meets the qualifica-
                                 public comment is provided. All com-                          tions required by applicable regula-
                                 ments received during the comment pe-                         tions; and
                                 riod are considered before final action                         (5) The applicant is fit to conduct the
                                 is taken on the application.                                  activity authorized by the exemption.
                                    (c) No public hearing or other formal                      This assessment may be based on infor-
                                 proceeding is required under this sub-                        mation in the application, prior com-
                                 part before the disposition of an appli-                      pliance history of the applicant, and
                                 cation. Unless emergency processing                           other information available to the As-
                                 under § 107.117 is requested and granted,                     sociate Administrator.
                                 applications are usually processed in                           (g) An applicant is notified in writing
                                 the order in which they are filed.                            whether the application is granted or

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                                 Research and Special Programs Admin., DOT                                                        § 107.117

                                 denied. A denial contains a brief state-                      partment official deems necessary to
                                 ment of reasons.                                              process the application. An application
                                   (h) An exemption and any renewal                            on an emergency basis must be sub-
                                 thereof terminates according to its                           mitted to the Department modal con-
                                 terms or, if not otherwise specified,                         tact official for the initial mode of
                                 two years after the date of issuance. A                       transportation to be utilized, as fol-
                                 grant of party status to an exemption,                        lows:
                                 unless otherwise stated, terminates on                           (1) Certificate-Holding Aircraft: The
                                 the date that the exemption expires.                          Federal Aviation Administration Civil
                                   (i) The Associate Administrator, on                         Aviation Security Office that serves
                                 determining that an application con-                          the place where the flight will origi-
                                 cerns a matter of general applicability                       nate or that is responsible for the air-
                                 and future effect and should be the sub-                      craft operator’s overall aviation secu-
                                 ject of rulemaking, may initiate rule-                        rity program. The nearest Civil Avia-
                                 making under part 106 of this chapter                         tion Security Office may be located by
                                 in addition to or instead of acting on                        calling the FAA Duty Officer, 202–267–
                                 the application.                                              3333 (any hour).
                                   (j) The Associate Administrator pub-                           (2)   Noncertificate-Holding    Aircraft
                                 lishes in the FEDERAL REGISTER a list                         (Those Which Operate Under 14 CFR Part
                                 of all exemption grants, denials, and                         91): The Federal Aviation Administra-
                                 modifications and all exemption appli-                        tion Civil Aviation Security Office that
                                 cations withdrawn under this section.                         serves the place where the flight will
                                 [Amdt. 107–38, 61 FR 21095, May 9, 1996, as                   originate. The nearest Civil Aviation
                                 amended at 67 FR 61011, Sept. 27, 2002]                       Security Office may be located by call-
                                                                                               ing the FAA Duty Officer, 202–267–3333
                                 § 107.117 Emergency processing.                               (any hour).
                                    (a) An application is granted emer-                           (3) Motor Vehicle Transportation:
                                 gency processing if the Associate Ad-                         Chief, Hazardous Materials Division,
                                 ministrator, on the basis of the appli-                       Federal Motor Carrier Safety Adminis-
                                 cation and any inquiry undertaken,                            tration, U.S. Department of Transpor-
                                 finds that—                                                   tation, Washington, DC 20590–0001, 202–
                                    (1) Emergency processing is nec-                           366–6121 (day); 1–800–424–8802 (night).
                                 essary to prevent significant injury to                          (4) Rail Transportation: Staff Director,
                                 persons or property (other than the                           Hazardous Materials Division, Office of
                                 hazardous material to be transported)                         Safety Assurance and Compliance, Fed-
                                 that could not be prevented if the ap-                        eral Railroad Administration, U.S. De-
                                 plication were processed on a routine                         partment of Transportation, Wash-
                                 basis; or                                                     ington, DC 20590–0001, 202–493–6248 or
                                    (2) Emergency processing is nec-                           202–493–6244 (day); 1–800–424–8802 (night).
                                 essary for immediate national security                           (5) Water Transportation: Chief, Haz-
                                 purposes or to prevent significant eco-                       ardous Materials Standards Division,
                                 nomic loss that could not be prevented                        Office of Operating and Environmental
                                 if the application were processed on a                        Standards, United States Coast Guard,
                                 routine basis.                                                U.S. Department of Transportation,
                                    (b) Where the significant economic                         Washington, DC 20593–0001, 202–267–1577
                                 loss is to the applicant, or to a party in                    (day); 1–800–424–8802 (night).
                                 a contractual relationship to the appli-                         (e) On receipt of all information nec-
                                 cant with respect to the activity to be                       essary to process the application, the
                                 undertaken, the Associate Adminis-                            receiving Department official trans-
                                 trator may deny emergency processing                          mits to the Associate Administrator,
                                 if timely application could have been                         by the most rapid available means of
                                 made.                                                         communication, an evaluation as to
                                    (c) A request for emergency proc-                          whether an emergency exists under
                                 essing on the basis of potential eco-                         § 107.117(a) and, if appropriate, rec-
                                 nomic loss must reasonably describe                           ommendations as to the conditions to
                                 and estimate the potential loss.                              be included in the exemption. If the As-
                                    (d) An application submitted under                         sociate Administrator determines that
                                 this section must conform to § 107.105                        an emergency exists under § 107.117(a)
                                 to the extent that the receiving De-                          and that, with reference to the criteria

                                                                                          25



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                                 § 107.121                                                                 49 CFR Ch. I (10–1–03 Edition)

                                 of § 107.113(f), granting of the applica-                     onstrating the holder or party is not fit
                                 tion is in the public interest, the Asso-                     to conduct the activity authorized by
                                 ciate Administrator grants the applica-                       the exemption.
                                 tion subject to such terms as necessary                         (c) Except as provided in paragraph
                                 and immediately notifies the appli-                           (d) of this section, before an exemption
                                 cant. If the Associate Administrator                          or grant of party status is modified,
                                 determines that an emergency does not                         suspended or terminated, the Associate
                                 exist or that granting of the applica-                        Administrator notifies the holder or
                                 tion is not in the public interest, the                       party in writing of the proposed action
                                 applicant immediately is so notified.                         and the reasons for it, and provides an
                                   (f) A determination that an emer-
                                                                                               opportunity to show cause why the pro-
                                 gency does not exist is not subject to
                                                                                               posed action should not be taken.
                                 reconsideration under § 107.123 of this
                                 part.                                                           (1) The holder or party may file a
                                   (g) Within 90 days following issuance                       written response that shows cause why
                                 of an emergency exemption, the Asso-                          the proposed action should not be
                                 ciate Administrator will publish, in the                      taken within 30 days of receipt of no-
                                 FEDERAL       REGISTER,   a   notice   of                     tice of the proposed action.
                                 issuance with a statement of the basis                          (2) After considering the holder’s or
                                 for the finding of emergency and the                          party’s written response, or after 30
                                 scope and duration of the exemption.                          days have passed without response
                                                                                               since receipt of the notice, the Asso-
                                 [Amdt. 107–38, 61 FR 21095, May 9, 1996, as
                                 amended at 62 FR 51556, Oct. 1, 1997; 64 FR                   ciate Administrator notifies the holder
                                 51914, Sept. 27, 1999; 65 FR 58618, Sept. 29,                 or party in writing of the final decision
                                 2000; 66 FR 45377, Aug. 28, 2001; 67 FR 61011,                with a brief statement of reasons.
                                 Sept. 27, 2002]                                                 (d) The Associate Administrator, if
                                                                                               necessary to avoid a risk of significant
                                 § 107.121 Modification, suspension or
                                     termination of exemption or grant                         harm to persons or property, may in
                                     of party status.                                          the notification declare the proposed
                                                                                               action immediately effective.
                                   (a) The Associate Administrator may
                                 modify an exemption or grant of party                         § 107.123   Reconsideration.
                                 status on finding that—
                                   (1) Modification is necessary so that                          (a) An applicant for exemption, an
                                 an exemption reflects current statutes                        exemption holder, or an applicant for
                                 and regulations; or                                           party status to an exemption may re-
                                   (2) Modification is required by                             quest that the Associate Administrator
                                 changed circumstances to meet the                             reconsider a decision under § 107.113(g),
                                 standards of § 107.113(f).                                    § 107.117(e) or § 107.121(c) of this part.
                                   (b) The Associate Administrator may                         The request must—
                                 modify, suspend or terminate an ex-                              (1) Be in writing and filed within 20
                                 emption or grant of party status, as ap-                      days of receipt of the decision;
                                 propriate, on finding that—                                      (2) State in detail any alleged errors
                                   (1) Because of a change in cir-                             of fact and law;
                                 cumstances, the exemption or party                               (3) Enclose any additional informa-
                                 status no longer is needed or no longer                       tion needed to support the request to
                                 would be granted if applied for;                              reconsider; and
                                   (2) The application contained inac-
                                                                                                  (4) State in detail the modification of
                                 curate or incomplete information, and
                                 the exemption or party status would                           the final decision sought.
                                 not have been granted had the applica-                           (b) The Associate Administrator
                                 tion been accurate and complete;                              grants or denies, in whole or in part,
                                   (3) The application contained delib-                        the relief requested and informs the re-
                                 erately inaccurate or incomplete infor-                       questing person in writing of the deci-
                                 mation; or                                                    sion. If necessary to avoid a risk of sig-
                                   (4) The holder or party knowingly                           nificant harm to persons or property,
                                 has violated the terms of the exemp-                          the Associate Administrator may, in
                                 tion or an applicable requirement of                          the notification, declare the action im-
                                 this chapter, in a manner dem-                                mediately effective.

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                                 Research and Special Programs Admin., DOT                                                        § 107.202

                                 § 107.125      Appeal.                                                Subpart C—Preemption
                                   (a) A person who requested reconsid-
                                                                                               § 107.201 Purpose and scope.
                                 eration under § 107.123 and is denied the
                                 relief requested may appeal to the Ad-                           (a) This subpart prescribes proce-
                                 ministrator. The appeal must—                                 dures by which:
                                   (1) Be in writing and filed within 30                          (1) Any person, including a State, po-
                                 days of receipt of the Associate Admin-                       litical subdivision, or Indian tribe, di-
                                 istrator’s decision on reconsideration;                       rectly affected by a requirement of a
                                   (2) State in detail any alleged errors                      State, political subdivision, or Indian
                                 of fact and law;                                              tribe, may apply for a determination as
                                   (3) Enclose any additional informa-                         to whether that requirement is pre-
                                 tion needed to support the appeal; and                        empted under 49 U.S.C. 5125.
                                   (4) State in detail the modification of                        (2) A State, political subdivision, or
                                 the final decision sought.                                    Indian tribe may apply for a waiver of
                                   (b) The Administrator, if necessary                         preemption with respect to any re-
                                 to avoid a risk of significant harm to                        quirement that the State, political
                                 persons or property, may declare the                          subdivision, or Indian tribe acknowl-
                                 Associate Administrator’s action effec-                       edges to be preempted by 49 U.S.C. 5125,
                                 tive pending a decision on appeal.                            or that has been determined by a court
                                   (c) The Administrator grants or de-                         of competent jurisdiction to be so pre-
                                 nies, in whole or in part, the relief re-                     empted.
                                 quested and informs the appellant in                             (b) For purposes of this subpart ‘‘po-
                                 writing of the decision. The Adminis-                         litical subdivision’’ includes a munici-
                                 trator’s decision is the final adminis-                       pality; a public agency or other instru-
                                 trative action.                                               mentality of one or more States, mu-
                                                                                               nicipalities, or other political subdivi-
                                 § 107.127 Availability of documents for                       sions of a State; or a public corpora-
                                     public inspection.                                        tion, board, or commission established
                                                                                               under the laws of one or more States.
                                   (a) Documents related to an applica-
                                                                                                  (c) [Reserved]
                                 tion under this subpart, including the
                                                                                                  (d) Unless otherwise ordered by the
                                 application itself, are available for
                                                                                               Associate Administrator, an applica-
                                 public inspection, except as specified in
                                                                                               tion for a preemption determination
                                 paragraph (b) of this section, at the Of-
                                                                                               which includes an application for a
                                 fice of the Associate Administrator for
                                                                                               waiver of preemption will be treated
                                 Hazardous Materials Safety, Research
                                                                                               and processed solely as an application
                                 and Special Programs Administration,
                                                                                               for a preemption determination.
                                 Office of Hazardous Materials Exemp-
                                 tions and Approvals, U.S. Department                          [Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as
                                 of Transportation, 400 7th Street, SW,                        amended by Amdt. 107–24, 56 FR 8622, Feb. 28,
                                 Washington, DC 20590–0001, Room 8100.                         1991; Amdt. 107–25, 57 FR 20428, May 13, 1992;
                                 Office hours are 8:30 a.m. to 5:00 p.m.,                      Amdt. 107–32, 59 FR 49130, Sept. 26, 1994;
                                                                                               Amdt. 107–35, 60 FR 49108, Sept. 21, 1995;
                                 Monday through Friday, except holi-                           Amdt. 107–38, 61 FR 21098, May 9, 1996; 68 FR
                                 days when the office is closed. Copies of                     52846, Sept. 8, 2003]
                                 available documents may be obtained
                                 as provided in part 7 of this title. Docu-                    § 107.202 Standards for determining
                                 ments numbered 11832 and above may                                 preemption.
                                 also be viewed at the internet website                           (a) Except as provided in § 107.221 and
                                 address http://dms.dot.gov.                                   unless otherwise authorized by Federal
                                   (b) Documents available for inspec-                         law, any requirement of a State or po-
                                 tion do not include materials deter-                          litical subdivision thereof or an Indian
                                 mined to be withheld from public dis-                         tribe that concerns one of the following
                                 closure under § 105.30 and in accordance                      subjects and that is not substantively
                                 with the applicable provisions of sec-                        the same as any provision of the Fed-
                                 tion 552(b) of title 5, United States                         eral hazardous materials transpor-
                                 Code, and part 7 of this title.                               tation law, a regulation issued under
                                 [Amdt. 107–38, 61 FR 21095, May 9, 1996, as                   the Federal hazardous material trans-
                                 amended at 65 FR 58618, Sept. 29, 2000; 66 FR                 portation law, or a hazardous material
                                 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002]            transportation security regulation or

                                                                                          27



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                                 § 107.203                                                                 49 CFR Ch. I (10–1–03 Edition)

                                 directive issued by the Secretary of                          maintaining a capability for emer-
                                 Homeland Security that concerns that                          gency response.
                                 subject, is preempted:                                           (d) For purposes of this section,
                                   (1) The designation, description, and                       ‘‘substantively the same’’ means that
                                 classification of hazardous material.                         the non-Federal requirement conforms
                                   (2) The packing, repacking, handling,                       in every significant respect to the Fed-
                                 labeling, marking, and placarding of                          eral requirement. Editorial and other
                                 hazardous material.                                           similar de minimis changes are per-
                                   (3) The preparation, execution, and                         mitted.
                                 use of shipping documents pertaining
                                                                                               [Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, as
                                 to hazardous material and require-                            amended by Amdt. 107–25, 57 FR 20428, May
                                 ments related to the number, content,                         13, 1992; Amdt. 107–29, 58 FR 51527, Oct. 1,
                                 and placement of those documents.                             1993; Amdt. 107–32, 59 FR 49130, Sept. 26, 1994;
                                   (4) The written notification, record-                       Amdt. 107–38, 61 FR 21098, May 9, 1996; Amdt.
                                 ing, and reporting of the unintentional                       107–39, 61 FR 51337, Oct. 1, 1996; 68 FR 52847,
                                 release in transportation of hazardous                        Sept. 8, 2003]
                                 material.
                                   (5) The design, manufacturing, fab-                               PREEMPTION DETERMINATIONS
                                 rication, marking, maintenance, recon-
                                                                                               § 107.203   Application.
                                 ditioning, repairing, or testing of a
                                 packaging or a container which is rep-                           (a) With the exception of highway
                                 resented, marked, certified, or sold as                       routing matters covered under 49
                                 qualified for use in the transportation                       U.S.C. 5125(c), any person, including a
                                 of hazardous material.                                        State or political subdivision thereof
                                   (b) Except as provided in § 107.221 and                     or an Indian tribe, directly affected by
                                 unless otherwise authorized by Federal                        any requirement of a State or political
                                 law, any requirement of a State or po-                        subdivision thereof or an Indian tribe,
                                 litical subdivision or Indian tribe is                        may apply to the Associate Adminis-
                                 preempted if—                                                 trator for a determination of whether
                                   (1) It is not possible to comply with a                     that requirement is preempted by
                                 requirement of the State, political sub-                      § 107.202 (a) or (b).
                                 division, or Indian tribe and a require-                         (b) Each application filed under this
                                 ment under the Federal hazardous ma-                          section for a determination must:
                                 terial transportation law, a regulation                          (1) Be submitted to the Associate Ad-
                                 issued under the Federal hazardous ma-                        ministrator:
                                 terial transportation law, or a haz-                             (i) By mail addressed to the Asso-
                                 ardous material transportation secu-                          ciate Administrator for Hazardous Ma-
                                 rity regulation or directive issued by                        terials Safety (Attn: Hazardous Mate-
                                 the Secretary of Homeland Security;                           rials Preemption Docket), Research
                                   (2) The requirement of the State, po-                       and Special Programs Administration,
                                 litical subdivision, or Indian tribe, as                      U.S. Department of Transportation, 400
                                 applied or enforced, is an obstacle to                        Seventh Street, SW., Washington, DC
                                 accomplishing and carrying out the                            20590–0001;
                                 Federal hazardous material transpor-                             (ii) By fax to the Associate Adminis-
                                 tation law, a regulation issued under                         trator for Hazardous Materials Safety
                                 the Federal hazardous material trans-                         (Attn: Hazardous Materials Preemption
                                 portation law, or a hazardous material                        Docket), at 202–366–5713; or
                                 transportation security regulation or                            (iii) Electronically to the Associate
                                 directive issued by the Secretary of                          Administrator for Hazardous Materials
                                 Homeland Security.                                            Safety (Attn: Hazardous Materials Pre-
                                   (3) It is preempted under 49 U.S.C.                         emption        Docket),     at    aahms-
                                 5125 (c).                                                     preemption@rspa.dot.gov.
                                   (c) A State, political subdivision, or                         (2) Set forth the text of the State or
                                 Indian tribe may impose a fee related                         political subdivision or Indian tribe re-
                                 to transporting hazardous material                            quirement for which the determination
                                 only if the fee is fair and used for a                        is sought;
                                 purpose related to transporting haz-                             (3) Specify each requirement of the
                                 ardous material, including enforce-                           Federal hazardous materials transpor-
                                 ment and planning, developing and                             tation law, regulations issued under

                                                                                          28



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                                 Research and Special Programs Admin., DOT                                                         § 107.207

                                 the Federal hazardous material trans-                         subdivision, or Indian tribe concerned
                                 portation law, or hazardous material                          accompanied by a statement that the
                                 transportation security regulations or                        State, political subdivision, or Indian
                                 directives issued by the Secretary of                         tribe may submit comments regarding
                                 Homeland Security with which the ap-                          the application to the Associate Ad-
                                 plicant seeks the State or political sub-                     ministrator. The application filed with
                                 division or Indian tribe requirement to                       the Associate Administrator must in-
                                 be compared;                                                  clude a certification that the applicant
                                   (4) Explain why the applicant be-                           has complied with this paragraph and
                                 lieves the State or political subdivision                     must include the names and addresses
                                 or Indian tribe requirement should or                         of each State, political subdivision, or
                                 should not be preempted under the                             Indian tribe official to whom a copy of
                                 standards of § 107.202; and                                   the application was sent.
                                   (5) State how the applicant is af-                             (b) The Associate Administrator will
                                 fected by the State or political subdivi-                     publish notice of, including an oppor-
                                 sion or Indian tribe requirement.                             tunity to comment on, an application
                                   (c) The filing of an application for a                      in the FEDERAL REGISTER and may no-
                                 determination under this section does                         tify in writing any person readily iden-
                                 not constitute grounds for noncompli-                         tifiable as affected by the outcome of
                                 ance with any requirement of the Fed-                         the determination.
                                 eral hazardous materials transpor-                               (c) Each person submitting written
                                 tation law, regulations issued under                          comments to the Associate Adminis-
                                 the Federal hazardous material trans-                         trator with respect to an application
                                 portation law, or hazardous material                          filed under this section shall send a
                                 transportation security regulations or                        copy of the comments to the applicant
                                 directives issued by the Secretary of                         and certify to the Associate Adminis-
                                 Homeland Security.                                            trator that he or she has complied with
                                   (d) Once the Associate Administrator                        this requirement. The Associate Ad-
                                 has published notice in the FEDERAL                           ministrator may notify other persons
                                 REGISTER of an application received                           participating in the proceeding of the
                                 under paragraph (a) of this section, no                       comments and provide an opportunity
                                 applicant for such determination may                          for those other persons to respond.
                                 seek relief with respect to the same or                       Late-filed comments are considered so
                                 substantially the same issue in any                           far as practicable.
                                 court until final action has been taken                       [Amdt. 107–38, 61 FR 21098, May 9, 1996]
                                 on the application or until 180 days
                                 after filing of the application, which-                       § 107.207 Processing.
                                 ever occurs first. Nothing in § 107.203(a)                       (a) The Associate Administrator may
                                 prohibits a State or political subdivi-                       initiate an investigation of any state-
                                 sion or Indian tribe, or any other per-                       ment in an application and utilize in
                                 son directly affected by any require-                         his or her evaluation any relevant facts
                                 ment of a State or political subdivision                      obtained by that investigation. The As-
                                 thereof or Indian tribe, from seeking a                       sociate Administrator may solicit and
                                 determination of preemption in any                            accept submissions from third persons
                                 court of competent jurisdiction in lieu                       relevant to an application and will pro-
                                 of applying to the Associate Adminis-                         vide the applicant an opportunity to
                                 trator under paragraph (a) of this sec-                       respond to all third person submis-
                                 tion.                                                         sions. In evaluating an application, the
                                 [Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, as                  Associate Administrator may consider
                                 amended by Amdt. 107–25, 57 FR 20428, May                     any other source of information. The
                                 13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26,                Associate Administrator on his or her
                                 1994; Amdt. 107–38, 61 FR 21098, May 9, 1996; 68              own initiative may convene a hearing
                                 FR 52847, Sept. 8, 2003]                                      or conference, if he or she considers
                                                                                               that a hearing or conference will ad-
                                 § 107.205 Notice.                                             vance his or her evaluation of the ap-
                                    (a) If the applicant is other than a                       plication.
                                 State, political subdivision, or Indian                          (b) The Associate Administrator may
                                 tribe, the applicant shall mail a copy of                     dismiss the application without preju-
                                 the application to the State, political                       dice if:

                                                                                          29



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                                 § 107.209                                                                49 CFR Ch. I (10–1–03 Edition)

                                   (1) He or she determines that there is                      a petition for reconsideration with the
                                 insufficient information upon which to                        Associate Administrator. The petition
                                 base a determination; or                                      must be filed within 20 days of publica-
                                   (2) He or she requests additional in-                       tion of the determination in the FED-
                                 formation from the applicant and it is                        ERAL REGISTER.
                                 not submitted.                                                  (b) The petition must contain a con-
                                 [Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as
                                                                                               cise statement of the basis for seeking
                                 amended by Amdt. 107–24, 56 FR 8621, 8622,                    review, including any specific factual
                                 Feb. 28, 1991; Amdt. 107–38, 61 FR 21098, May                 or legal error alleged. If the petition
                                 9, 1996]                                                      requests consideration of information
                                                                                               that was not previously made available
                                 § 107.209 Determination.                                      to the Associate Administrator, the pe-
                                    (a) Upon consideration of the applica-                     tition must include the reasons why
                                 tion and other relevant information re-                       such information was not previously
                                 ceived, the Associate Administrator                           made available.
                                 issues a determination.                                         (c) The petitioner shall mail a copy
                                    (b) The determination includes a                           of the petition to each person who par-
                                 written statement setting forth the                           ticipated, either as an applicant or
                                 relevant facts and the legal basis for                        commenter, in the preemption deter-
                                 the determination, and provides that                          mination proceeding, accompanied by a
                                 any person aggrieved thereby may file                         statement that the person may submit
                                 a petition for reconsideration with the                       comments concerning the petition to
                                 Associate Administrator.                                      the Associate Administrator within 20
                                    (c) The Associate Administrator pro-                       days. The petition filed with the Asso-
                                 vides a copy of the determination to                          ciate Administrator must contain a
                                 the applicant and to any other person                         certification that the petitioner has
                                 who substantially participated in the                         complied with this paragraph and in-
                                 proceeding or requested in comments                           clude the names and addresses of all
                                 to the docket to be notified of the de-                       persons to whom a copy of the petition
                                 termination. A copy of each determina-                        was sent. Late-filed comments are con-
                                 tion is placed on file in the public                          sidered so far as practicable.
                                 docket. The Associate Administrator                             (d) The Associate Administrator’s de-
                                 will publish the determination or no-                         cision constitutes final agency action.
                                 tice of the determination in the FED-                         [Amdt. 107–25, 57 FR 20428, May 13, 1992, as
                                 ERAL REGISTER.                                                amended by Amdt. 107–38, 61 FR 21099, May 9,
                                    (d) A determination issued under this                      1996]
                                 section constitutes an administrative
                                 determination as to whether a par-                            § 107.213 Judicial review.
                                 ticular requirement of a State or polit-                         A party to a proceeding under
                                 ical subdivision or Indian tribe is pre-                      § 107.203(a) may seek review by the ap-
                                 empted under the Federal hazardous                            propriate district court of the United
                                 materials transportation law. The fact                        States of a decision of the Associate
                                 that a determination has not been                             Administrator by filing a petition with
                                 issued under this section with respect                        the court within 60 days after the Asso-
                                 to a particular requirement of a State                        ciate Administrator’s determination
                                 or political subdivision or Indian tribe                      becomes final. The determination be-
                                 carries no implication as to whether                          comes final when it is published in the
                                 the requirement is preempted under                            FEDERAL REGISTER.
                                 the Federal hazardous materials trans-                        [Amdt. 107–38, 61 FR 21099, May 9, 1996]
                                 portation law.
                                                                                                        WAIVER OF PREEMPTION
                                 [Amdt. 107–24, 56 FR 8623, Feb. 28, 1991, as
                                 amended by Amdt. 107–25, 57 FR 20428, May                                DETERMINATIONS
                                 13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26,
                                 1994; Amdt. 107–38, 61 FR 21098, May 9, 1996; 68              § 107.215 Application.
                                 FR 52847, Sept. 8, 2003]                                         (a) With the exception of require-
                                                                                               ments preempted under 49 U.S.C.
                                 § 107.211 Petition for reconsideration.                       5125(c), any State or political subdivi-
                                    (a) Any person aggrieved by a deter-                       sion thereof, or Indian tribe may apply
                                 mination issued under § 107.209 may file                      to the Associate Administrator for a

                                                                                          30



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                                 Research and Special Programs Admin., DOT                                                        § 107.217

                                 waiver of preemption with respect to                            (5) Specify each requirement of the
                                 any requirement that the State or po-                         Federal hazardous materials transpor-
                                 litical subdivision thereof or an Indian                      tation law that preempts the State, po-
                                 tribe acknowledges to be preempted                            litical subdivision, or Indian tribe re-
                                 under the Federal hazardous materials                         quirement;
                                 transportation law, or that has been                            (6) State why the applicant believes
                                 determined by a court of competent ju-                        the State, political subdivision or In-
                                 risdiction to be so preempted. The As-                        dian tribe requirements affords an
                                 sociate Administrator may waive pre-                          equal or greater level of protection to
                                 emption with respect to such require-                         the public than is afforded by the re-
                                 ment upon a determination that such                           quirements of the Federal hazardous
                                 requirement—                                                  material transportation law or the reg-
                                   (1) Affords an equal or greater level                       ulations issued thereunder;
                                 of protection to the public than is af-
                                                                                                 (7) State why the applicant believes
                                 forded by the requirements of the Fed-
                                                                                               the State, political subdivision or In-
                                 eral hazardous material transportation
                                 law or the regulations issued there-                          dian tribe requirement does not unrea-
                                 under, and                                                    sonably burden commerce; and
                                   (2) Does not unreasonably burden                              (8) Specify what steps the State, po-
                                 commerce.                                                     litical subdivision or Indian tribe is
                                   (b) Each application filed under this                       taking to administer and enforce effec-
                                 section for a waiver of preemption de-                        tively its inconsistent requirement.
                                 termination must:                                             [Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as
                                   (1) Be submitted to the Associate Ad-                       amended by Amdt. 107–22, 55 FR 39978, Oct. 1,
                                 ministrator:                                                  1990; Amdt. 107–24, 56 FR 8621, 8623, Feb. 28,
                                   (i) By mail addressed to the Asso-                          1991; 56 FR 15510, Apr. 17, 1991; Amdt. 107–23,
                                 ciate Administrator for Hazardous Ma-                         56 FR 66156, Dec. 20, 1991; Amdt. 107–25, 57 FR
                                 terials Safety (Attn: Hazardous Mate-                         20428, May 13, 1992; Amdt. 107–32, 59 FR 49131,
                                                                                               Sept. 26, 1994; Amdt. 107–38, 61 FR 21099, May
                                 rials Preemption Docket), Research
                                                                                               9, 1996; 68 FR 52847, Sept. 8, 2003 ]
                                 and Special Programs Administration,
                                 U.S. Department of Transportation, 400                        § 107.217   Notice.
                                 Seventh Street, SW., Washington, DC
                                 20590–0001;                                                     (a) The applicant shall mail a copy of
                                   (ii) By fax to the Associate Adminis-                       the application and any subsequent
                                 trator for Hazardous Materials Safety                         amendments or other documents relat-
                                 (Attn: Hazardous Materials Preemption                         ing to the application to each person
                                 Docket), at 202–366–5713; or                                  who is reasonably ascertainable by the
                                   (iii) Electronically to the Associate                       applicant as a person who will be af-
                                 Administrator for Hazardous Materials                         fected by the determination sought.
                                 Safety (Attn: Hazardous Materials Pre-                        The copy of the application must be ac-
                                 emption       Docket),      at    aahms-                      companied by a statement that the
                                 preemption@rspa.dot.gov.                                      person may submit comments regard-
                                   (2) Set forth the text of the State or                      ing the application to the Associate
                                 political subdivision requirement for                         Administrator within 45 days. The ap-
                                 which the determination is being                              plication filed with the Associate Ad-
                                 sought;                                                       ministrator must include a certifi-
                                   (3) Include a copy of any court order                       cation that the application has com-
                                 and any ruling issued under § 107.209                         plied with this paragraph and must in-
                                 having a bearing on the application;                          clude the names and addresses of each
                                   (4) Contain an express acknowledg-                          person to whom the application was
                                 ment by the applicant that the State,                         sent.
                                 political subdivision, or Indian tribe                          (b) Notwithstanding the provisions of
                                 requirement is preempted under Fed-                           paragraph (a) of this section, if the
                                 eral hazardous materials transpor-                            State or political subdivision deter-
                                 tation law, unless it has been so deter-                      mines that compliance with paragraph
                                 mined by a court of competent juris-
                                                                                               (a) of this section would be impracti-
                                 diction or in a determination issued
                                                                                               cable, the applicant shall:
                                 under § 107.209;

                                                                                          31



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                                 § 107.219                                                               49 CFR Ch. I (10–1–03 Edition)

                                    (1) Comply with the requirements of                        vance his or her evaluation of the ap-
                                 paragraph (a) of this section with re-                        plication.
                                 gard to those persons whom it is rea-                            (b) The Associate Administrator may
                                 sonable and practicable to notify; and                        dismiss the application without preju-
                                    (2) Include with the application filed                     dice if:
                                 with the Associate Administrator a de-                           (1) He or she determines that there is
                                 scription of the persons or class or                          insufficient information upon which to
                                 classes of persons to whom notice was                         base a determination;
                                 not sent.                                                        (2) Upon his or her request, addi-
                                    (c) The Associate Administrator may                        tional information is not submitted by
                                 require the applicant to provide notice                       the applicant; or
                                 in addition to that required by para-                            (3) The applicant fails to provide the
                                 graphs (a) and (b) of this section, or                        notice required by § 107.217.
                                 may determine that the notice re-                                (c) Except as provided in § 107.201(c),
                                 quired by paragraph (a) of the section                        the Associate Administrator will only
                                 is not impracticable, or that notice                          consider an application for a waiver of
                                 should be published in the FEDERAL                            preemption determination if:
                                 REGISTER. Late-filed comments are                                (1) The applicant State or political
                                 considered so far as practicable.                             subdivision thereof or Indian tribe ex-
                                    (d) The Associate Administrator may                        pressly acknowledges in its application
                                 notify any other persons who may be                           that the State or political subdivision
                                 affected by the outcome of a deter-                           or Indian tribe requirement for which
                                 mination on the application.                                  the determination is sought is incon-
                                    (e) Any person submitting written                          sistent with the requirements of the
                                 comments to the Associate Adminis-                            Federal hazardous materials transpor-
                                 trator with respect to an application                         tation law, regulations issued under
                                 filed under this section shall send a                         the Federal hazardous material trans-
                                 copy of the comments to the applicant.                        portation law, or hazardous material
                                 The person shall certify to the Asso-                         transportation security regulations or
                                 ciate Administrator that he has com-                          directives issued by the Secretary of
                                 plied with the requirements of this                           Homeland Security.
                                 paragraph. The Associate Adminis-                                (2) The State or political subdivision
                                 trator may notify other persons par-                          thereof or Indian tribe requirement has
                                 ticipating in the proceeding of the                           been determined by a court of com-
                                 comments and provide an opportunity                           petent jurisdiction or in a ruling issued
                                 for those other persons to respond.                           under § 107.209 to be inconsistent with
                                 [Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as                  the requirements of the Federal haz-
                                 amended by Amdt. 107–24, 56 FR 8621, Feb. 28,                 ardous materials transportation law,
                                 1991; Amdt. 107–25, 57 FR 20429, May 13, 1992;                regulations issued under the Federal
                                 Amdt. 107–38, 61 FR 21099, May 9, 1996]                       hazardous material transportation law,
                                                                                               or hazardous material transportation
                                 § 107.219      Processing.                                    security regulations or directives
                                   (a) The Associate Administrator may                         issued by the Secretary of Homeland
                                 initiate an investigation of any state-                       Security.
                                 ment in an application and utilize in                            (d) When the Associate Adminis-
                                 his or her evaluation any relevant facts                      trator has received all substantive in-
                                 obtained by that investigation. The As-                       formation it considers necessary to
                                 sociate Administrator may solicit and                         process an application for a waiver of
                                 accept submissions from third persons                         preemption determination, it serves
                                 relevant to an application and will pro-                      notice of that fact upon the applicant
                                 vide the applicant an opportunity to                          and all other persons who received no-
                                 respond to all third person submis-                           tice of the proceeding pursuant to
                                 sions. In evaluating an application, the                      § 107.217.
                                 Associate Administrator on his or her                            (e) To the extent possible, each appli-
                                 own initiative may convene a hearing                          cation for a waiver of preemption de-
                                 or conference, if he or she considers                         termination will be acted upon in a
                                 that a hearing or conference will ad-                         manner consistent with the disposition


                                                                                          32



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                                 Research and Special Programs Admin., DOT                                                        § 107.223

                                 of previous applications for waiver of                        the applicant and to any other person
                                 preemption determinations.                                    who substantially participated in the
                                 [Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as                  proceeding or requested in comments
                                 amended by Amdt. 107–24, 56 FR 8621, 8623,                    to the docket to be notified of the de-
                                 Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept.               termination. A copy of the determina-
                                 26, 1994; Amdt. 107–38, 61 FR 21099, May 9,                   tion is placed on file in the public
                                 1996; 65 FR 58618, Sept. 29, 2000; 68 FR 52847,               docket. The Associate Administrator
                                 Sept. 8, 2003]
                                                                                               will publish the determination or no-
                                 § 107.221 Determination.                                      tice of the determination in the FED-
                                                                                               ERAL REGISTER.
                                    (a) After considering the application
                                                                                                 (e) A determination under this sec-
                                 and other relevant information re-
                                                                                               tion constitutes an administrative
                                 ceived or obtained during the pro-
                                 ceeding, the Associate Administrator                          finding of whether a particular require-
                                 issues a determination.                                       ment of a State or political subdivision
                                    (b) The Associate Administrator may                        thereof or Indian tribe is preempted
                                 issue a waiver of preemption only on                          under the Federal hazardous materials
                                 finding that the requirement of the                           transportation law, or whether preemp-
                                 State or political subdivision thereof                        tion is waived.
                                 or Indian tribe affords the public a                          [Amdt. 107–38, 61 FR 21099, May 9, 1996, as
                                 level of safety at least equal to that af-                    amended at 68 FR 52848, Sept. 8, 2003]
                                 forded by the requirements of the Fed-
                                 eral hazardous material transportation                        § 107.223   Petition for reconsideration.
                                 law or the regulations issued there-
                                                                                                 (a) Any person aggrieved by a deter-
                                 under and does not unreasonably bur-
                                 den commerce. In determining if the                           mination under § 107.221 may file a peti-
                                 requirement of the State or political                         tion for reconsideration with the Asso-
                                 subdivision thereof or Indian tribe un-                       ciate Administrator. The petition must
                                 reasonably burdens commerce, the As-                          be filed within 20 days of publication of
                                 sociate Administrator considers:                              the determination in the FEDERAL REG-
                                    (1) The extent to which increased                          ISTER.
                                 costs and impairment of efficiency re-                          (b) The petition must contain a con-
                                 sult from the requirement of the State                        cise statement of the basis for seeking
                                 or political subdivision thereof or In-                       review, including any specific factual
                                 dian tribe.                                                   or legal error alleged. If the petition
                                    (2) Whether the requirement of the                         requests consideration of information
                                 State or political subdivision thereof                        that was not previously made available
                                 or Indian tribe has a rational basis.                         to the Associate Administrator, the pe-
                                    (3) Whether the requirement of the                         tition must include the reasons why
                                 State or political subdivision thereof                        such information was not previously
                                 or Indian tribe achieves its stated pur-                      made available.
                                 pose.                                                           (c) The petitioner shall mail a copy
                                    (4) Whether there is need for uni-                         of the petition to each person who par-
                                 formity with regard to the subject con-
                                                                                               ticipated, either as an applicant or
                                 cerned and if so, whether the require-
                                                                                               commenter, in the waiver of preemp-
                                 ment of the State or political subdivi-
                                 sion thereof or Indian tribe competes                         tion proceeding, accompanied by a
                                 or conflicts with those of other States                       statement that the person may submit
                                 or political subdivisions thereof or In-                      comments concerning the petition to
                                 dian tribes.                                                  the Associate Administrator within 20
                                    (c) The determination includes a                           days. The petition filed with the Asso-
                                 written statement setting forth rel-                          ciate Administrator must contain a
                                 evant facts and legal bases and pro-                          certification that the petitioner has
                                 viding that any person aggrieved by                           complied with this paragraph and in-
                                 the determination may file a petition                         clude the names and addresses of all
                                 for reconsideration with the Associate                        persons to whom a copy of the petition
                                 Administrator.                                                was sent. Late-filed comments are con-
                                    (d) The Associate Administrator pro-                       sidered so far as practicable.
                                 vides a copy of the determination to

                                                                                          33



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                                 § 107.227                                                               49 CFR Ch. I (10–1–03 Edition)

                                   (d) The Associate Administrator’s de-                       § 107.305 Investigations.
                                 cision constitutes final agency action.                          (a) General. In accordance with its
                                 [Amdt. 107–25, 57 FR 20429, May 13, 1992, as                  delegated authority under part 1 of this
                                 amended by Amdt. 107–38, 61 FR 21099, May 9,                  title, the Associate Administrator may
                                 1996]                                                         initiate investigations relating to com-
                                                                                               pliance by any person with any provi-
                                 § 107.227      Judicial review.                               sions of this subchapter or subchapter
                                    A party to a proceeding under                              C of this chapter, or any exemption,
                                 § 107.215(a) may seek review by the ap-                       approval, or order issued thereunder, or
                                                                                               any court decree relating thereto. The
                                 propriate district court of the United
                                                                                               Associate Administrator encourages
                                 States of a decision of the Associate
                                                                                               voluntary production of documents in
                                 Administrator by filing a petition with                       accordance with and subject to § 105.45,
                                 the court within 60 days after the Asso-                      and hearings may be conducted, and
                                 ciate Administrator’s determination                           depositions taken pursuant to 49 U.S.C.
                                 becomes final. The determination be-                          5121(a). The Associate Administrator
                                 comes final when it is published in the                       may conduct investigative conferences
                                 FEDERAL REGISTER.                                             and hearings in the course of any in-
                                 [Amdt. 107–38, 61 FR 21099, May 9, 1996]
                                                                                               vestigation.
                                                                                                  (b) Investigations and Inspections. In-
                                                                                               vestigations under 49 U.S.C. 5121(a) are
                                           Subpart D—Enforcement                               conducted by personnel duly author-
                                                                                               ized for that purpose by the Associate
                                   SOURCE: Amdt. 107–11, 48 FR 2651, Jan. 20,                  Administrator. Inspections under 49
                                 1983, unless otherwise noted.                                 U.S.C. 5121(c) are conducted by Haz-
                                                                                               ardous Materials Enforcement Special-
                                 § 107.301 Delegated authority for en-                         ists, also known as ‘‘hazmat inspec-
                                     forcement.                                                tors’’ or ‘‘inspectors,’’ whom the Asso-
                                   Under redelegation from the Admin-                          ciate Administrator has designated for
                                 istrator, Research and Special Pro-                           that purpose.
                                                                                                  (1) An inspector will, on request,
                                 grams Administration, the Associate
                                                                                               present his or her credentials for exam-
                                 Administrator for Hazardous Materials
                                                                                               ination, but the credentials may not be
                                 Safety and the Office of the Chief
                                                                                               reproduced.
                                 Counsel exercise their authority for en-                         (2) An inspector may administer
                                 forcement of the Federal hazardous                            oaths and receive affirmations in any
                                 material transportation law, this sub-                        matter under investigation by the As-
                                 chapter, and subchapter C of this sub-                        sociate Administrator.
                                 chapter, in accordance with § 1.53 of                            (3) An inspector may gather informa-
                                 this title.                                                   tion by reasonable means including,
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                                                                               but not limited to, interviews, state-
                                 amended by Amdt. 107–24, 56 FR 8621, Feb. 28,                 ments, photocopying, photography, and
                                 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994]              video- and audio-recording.
                                                                                                  (4) With concurrence of the Director,
                                 § 107.303      Purpose and scope.                             Office of Hazardous Materials Enforce-
                                                                                               ment, Research and Special Programs
                                   This subchapter describes the various                       Administration, an inspector may issue
                                 enforcement authorities exercised by                          a subpoena for the production of docu-
                                 the Associate Administrator for Haz-                          mentary or other tangible evidence if,
                                 ardous Materials Safety and the Office                        on the basis of information available to
                                 of Chief Counsel and the associated                           the inspector, the documents and evi-
                                 sanctions and prescribes the procedures                       dence materially will advance a deter-
                                 governing the exercise of those au-                           mination of compliance with this sub-
                                 thorities and the imposition of those                         chapter or subchapter C. Service of a
                                 sanctions.                                                    subpoena shall be in accordance with
                                                                                               § 105.50. A person to whom a subpoena is
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 amended by Amdt. 107–15, 51 FR 34986, Oct. 1,
                                                                                               directed may seek review of the sub-
                                 1986; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991]                poena by applying to the Office of Chief
                                                                                               Counsel in accordance with § 105.55(a).

                                                                                          34



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                                 Research and Special Programs Admin., DOT                                                        § 107.310

                                 A subpoena issued under this para-                            letter has been issued or a civil penalty
                                 graph may be enforced in accordance                           assessed; and
                                 with § 105.55(b).                                               (4) Seek any other remedy available
                                   (c) Notification. Any person who is the                     under the Federal hazardous material
                                 subject of an Associate Administrator                         transportation law.
                                 investigation and who is requested to                           (b) In the case of a proceeding initi-
                                 furnish information or documentary                            ated for failure to comply with an ex-
                                 evidence is notified as to the general                        emption, the allegation of a violation
                                 purpose for which the information or                          of a term or condition thereof is con-
                                 evidence is sought.                                           sidered by the Associate Administrator
                                   (d) Termination. When the facts dis-                        and the Office of the Chief Counsel to
                                 closed by an investigation indicate                           constitute an allegation that the ex-
                                 that further action is unnecessary or                         emption holder or party to the exemp-
                                 unwarranted at that time, the person                          tion is failing, or has failed to comply
                                 being investigated is notified and the                        with the underlying regulations from
                                 investigative file is closed without                          which relief was granted by the exemp-
                                 prejudice to further investigation by                         tion.
                                 the Associate Administrator.                                  [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                   (e) Confidentiality. Information re-                        amended by Amdt. 107–32, 59 FR 49131, Sept.
                                 ceived in an investigation under this                         26, 1994; Amdt. 107–36, 61 FR 7183, Feb. 26,
                                                                                               1996; 66 FR 45377, Aug. 28, 2001]
                                 section, including the identity of the
                                 person investigated and any other per-                        § 107.309 Warning letters.
                                 son who provides information during
                                 the investigation, shall remain con-                             (a) The Associate Administrator may
                                 fidential under the investigatory file                        issue a warning letter to any person
                                 exception, or other appropriate excep-                        whom the Associate Administrator be-
                                 tion, to the public disclosure require-                       lieves to have committed a probable
                                 ments of 5 U.S.C. 552.                                        violation of the Federal hazardous ma-
                                                                                               terial transportation law or any provi-
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as                  sion of this subchapter, subchapter C of
                                 amended by Amdt. 107–24, 56 FR 8621, Feb. 28,                 this chapter, or any exemption issued
                                 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994;              thereunder.
                                 Amdt. 107–38, 61 FR 21099, May 9, 1996; 66 FR
                                                                                                  (b) A warning letter issued under this
                                 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002]
                                                                                               section includes:
                                       COMPLIANCE ORDERS AND CIVIL                                (1) A statement of the facts upon
                                               PENALTIES                                       which the Associate Administrator
                                                                                               bases its determination that the person
                                 § 107.307      General.                                       has committed a probable violation;
                                                                                                  (2) A statement that the recurrence
                                    (a) When the Associate Adminis-                            of the probable violations cited may
                                 trator and the Office of the Chief Coun-                      subject the person to enforcement ac-
                                 sel have reason to believe that a person                      tion; and
                                 is knowingly engaging or has know-                               (3) An opportunity to respond to the
                                 ingly engaged in conduct which is a                           warning letter by submitting pertinent
                                 violation of the Federal hazardous ma-                        information     or   explanations    con-
                                 terial transportation law or any provi-                       cerning the probable violations cited
                                 sion of this subchapter or subchapter C                       therein.
                                 of this chapter, or any exemption, or
                                 order issued thereunder, for which the                        [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 Associate Administrator or the Office                         amended by Amdt. 107–15, 51 FR 34986, Oct. 1,
                                                                                               1986; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991;
                                 of the Chief Counsel exercise enforce-                        Amdt. 107–32, 59 FR 49131, Sept. 26, 1994;
                                 ment authority, they may—                                     Amdt. 107–36, 61 FR 7183, Feb. 26, 1996; 66 FR
                                    (1) Issue a warning letter, as provided                    45377, Aug. 28, 2001]
                                 in § 107.309;
                                    (2) Initiate proceedings to assess a                       § 107.310 Ticketing.
                                 civil penalty, as provided in either                             (a) For an alleged violation that does
                                 §§ 107.310 or 107.311;                                        not have a direct or substantial impact
                                    (3) Issue an order directing compli-                       on safety, the Associate Administrator
                                 ance, regardless of whether a warning                         may issue a ticket.

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                                 § 107.311                                                               49 CFR Ch. I (10–1–03 Edition)

                                    (b) The Associate Administrator                            subchapter C of this chapter, or any ex-
                                 issues a ticket by mailing it by cer-                         emption, or order issued thereunder.
                                 tified or registered mail to the person                         (b) A notice of probable violation
                                 alleged to have committed the viola-                          issued under this section includes the
                                 tion. The ticket includes:                                    following information:
                                    (1) A statement of the facts on which                        (1) A citation of the provisions of the
                                 the Associate Administrator bases the                         Federal hazardous material transpor-
                                 conclusion that the person has com-
                                                                                               tation law, an order issued thereunder,
                                 mitted the alleged violation;
                                    (2) The maximum penalty provided                           this subchapter, subchapter C of this
                                 for by statute, the proposed full pen-                        chapter, or the terms of any exemption
                                 alty determined according to RSPA’s                           issued thereunder which the Office of
                                 civil penalty guidelines and the statu-                       Chief Counsel believes the respondent
                                 tory criteria for penalty assessment,                         is violating or has violated.
                                 and the ticket penalty amount; and                              (2) A statement of the factual allega-
                                    (3) A statement that within 45 days of                     tions upon which the demand for reme-
                                 receipt of the ticket, the person must                        dial action, a civil penalty, or both, is
                                 pay the penalty in accordance with                            based.
                                 paragraph (d) of this section, make an                          (3) A statement of the respondent’s
                                 informal response under § 107.317, or re-                     right to present written or oral expla-
                                 quest a formal administrative hearing                         nations, information, and arguments in
                                 under § 107.319.                                              answer to the allegations and in miti-
                                    (c) If the person makes an informal                        gation of the sanction sought in the
                                 response or requests a formal adminis-
                                                                                               notice of probable violation.
                                 trative hearing, the Associate Adminis-
                                 trator forwards the inspection report,                          (4) A statement of the respondent’s
                                 ticket and response to the Office of the                      right to request a hearing and the pro-
                                 Chief Counsel for processing under                            cedures for requesting a hearing.
                                 §§ 107.307–107.339, except that the Office                      (5) In addition, in the case of a notice
                                 of the Chief Counsel will not issue a                         of probable violation proposing a com-
                                 Notice of Probable Violation under                            pliance order, a statement of the pro-
                                 § 107.311. The Office of the Chief Counsel                    posed actions to be taken by the re-
                                 may impose a civil penalty that does                          spondent to achieve compliance.
                                 not exceed the proposed full penalty                            (6) In addition, in the case of a notice
                                 set forth in the ticket.                                      of probable violation proposing a civil
                                    (d) Payment of the ticket penalty                          penalty:
                                 amount must be made in accordance                               (i) A statement of the maximum civil
                                 with the instructions on the ticket.                          penalty for which the respondent may
                                    (e) If within 45 days of receiving the                     be liable;
                                 ticket the person does not pay the
                                                                                                 (ii) The amount of the preliminary
                                 ticket amount, make an informal re-
                                 sponse, or request a formal administra-                       civil penalty being sought by the Office
                                 tive hearing, the person has waived the                       of Chief Counsel, constitutes the max-
                                 right to make an informal response or                         imum amount the Chief Counsel may
                                 request a hearing, has admitted the                           seek throughout the proceeding; and
                                 violation and owes the ticket penalty                           (iii) A description of the manner in
                                 amount to RSPA.                                               which the respondent makes payment
                                                                                               of any money due the United States as
                                 [Amdt. 107–36, 61 FR 7183, Feb. 26, 1996, as
                                 amended at 66 FR 45377, Aug. 28, 2001]                        a result of the proceeding.
                                                                                                 (c) The Office of Chief Counsel may
                                 § 107.311 Notice of probable violation.                       amend a notice of probable violation at
                                    (a) The Office of Chief Counsel may                        any time before issuance of a compli-
                                 serve a notice of probable violation on                       ance order or an order assessing a civil
                                 a person alleging the violation of one                        penalty. If the Office of Chief Counsel
                                 or more provisions of the Federal haz-                        alleges any new material facts or seeks
                                 ardous material transportation law or                         new or additional remedial action or an
                                 any provision of this subchapter or                           increase in the amount of the proposed



                                                                                          36



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                                 Research and Special Programs Admin., DOT                                                        § 107.317

                                 civil penalty, it issues a new notice of                      instructions on making payments by
                                 probable violation under this section.                        wire transfer may be obtained from the
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                                                                               Financial Operations Division (AMZ–
                                 amended at 50 FR 45730, Nov. 1, 1985; Amdt.                   120), Federal Aviation Administration,
                                 107–24, 56 FR 8624, Feb. 28, 1991; Amdt. 107–32,              Mike Monroney Aeronautical Center,
                                 59 FR 49131, Sept. 26, 1994; Amdt. 107–35, 60                 P.O. Box 25082, Oklahoma City, OK
                                 FR 49108, Sept. 21, 1995; Amdt. 107–36, 61 FR                 73125.
                                 7184, Feb. 26, 1996]                                            (d) Payment of a civil penalty, when
                                                                                               the amount of the penalty is $10,000 or
                                 § 107.313 Reply.                                              less, must be made either by wire
                                    (a) Within 30 days of receipt of a no-                     transfer, as set forth in paragraph (c)
                                 tice of probable violation, the respond-                      of this section, or certified check or
                                 ent must either:                                              money order payable to ‘‘U.S. Depart-
                                    (1) Admit the violation under                              ment of Transportation’’ and sub-
                                 § 107.315;                                                    mitted to the Financial Operations Di-
                                    (2) Make an informal response under                        vision (AMZ–120), Federal Aviation Ad-
                                 § 107.317; or                                                 ministration, Mike Monroney Aero-
                                    (3) Request a hearing under § 107.319.                     nautical Center, P.O. Box 25082, Okla-
                                    (b) Failure of the respondent to file a                    homa City, OK 73125.
                                 reply as provided in this section con-
                                                                                               [Amdt. 107–11, 48 FR 265l, Jan. 20, 1983, as
                                 stitutes a waiver of the respondent’s                         amended by Amdt. 107–23, 57 FR 45453, Oct. 1,
                                 right to appear and contest the allega-                       1992; Amdt. 107–29, 58 FR 51527, Oct. 1, 1993;
                                 tions and authorizes the Chief Counsel,                       Amdt. 107–38, 61 FR 21100, May 9, 1996; 68 FR
                                 without further notice to the respond-                        52848, Sept. 8, 2003]
                                 ent, to find the facts to be as alleged in
                                 the notice of probable violation and                          § 107.317 Informal response.
                                 issue an order directing compliance or                           (a) In responding to a notice of prob-
                                 assess a civil penalty, or, if proposed in                    able violation under § 107.311, the re-
                                 the notice, both. Failure to request a                        spondent may submit to the official
                                 hearing under paragraph (a)(3) of this                        who issued the notice, written expla-
                                 section constitutes a waiver of the re-                       nations, information, or arguments in
                                 spondent’s right to a hearing.                                response to the allegations, the terms
                                    (c) Upon the request of the respond-                       of a proposed compliance order, or the
                                 ent, the Office of Chief Counsel may,                         amount of the preliminarily assessed
                                 for good cause shown and filed within                         civil penalty.
                                 the 30 days prescribed in the notice of                          (b) The respondent may include in his
                                 probable violation, extend the 30-day                         informal response a request for a con-
                                 response period.                                              ference. Upon the request of the re-
                                                                                               spondent, the conference may be either
                                 § 107.315 Admission of violations.                            in person or by telephone. A request for
                                    (a) In responding to a notice of prob-                     a conference must set forth the issues
                                 able violation issued under § 107.311, the                    the respondent will raise at the con-
                                 respondent may admit the alleged vio-                         ference.
                                 lations and agree to accept the terms                            (c) Upon receipt of a request for a
                                 of a proposed compliance order or to                          conference under paragraph (b) of this
                                 pay the amount of the preliminarily                           section, the Chief Counsel’s Office, in
                                 assessed civil penalty, or, if proposed in                    consultation with the Associate Ad-
                                 the notice, both.                                             ministrator, arranges for a conference
                                    (b) If the respondent agrees to the                        as soon as practicable at a time and
                                 terms of a proposed compliance order,                         place of mutual convenience.
                                 the Chief Counsel issues a final order                           (d) The respondent’s written expla-
                                 prescribing the remedial action to be                         nations, information, and arguments as
                                 taken by the respondent.                                      well as the respondent’s presentation
                                    (c) Payment of a civil penalty, when                       at a conference are considered by the
                                 the amount of the penalty exceeds                             Chief Counsel in reviewing the notice
                                 $10,000, must be made by wire transfer,                       of probable violation. Based upon a re-
                                 through the Federal Reserve Commu-                            view of the proceeding, the Chief Coun-
                                 nications System (Fedwire), to the ac-                        sel may dismiss the notice of probable
                                 count of the U.S. Treasury. Detailed                          violation in whole or in part. If he does

                                                                                          37



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                                 § 107.319                                                               49 CFR Ch. I (10–1–03 Edition)

                                 not dismiss it in whole, he issues an                         ing on the facts, allegations, and pro-
                                 order directing compliance or assessing                       posed sanction presented in the notice
                                 a civil penalty, or, if proposed in the                       of probable violation to which the re-
                                 notice, both.                                                 quest for hearing relates.
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as                  [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 amended by Amdt. 107–23, 56 FR 66157, Dec.                    amended at 48 FR 17094, Apr. 21, 1983; Amdt.
                                 20, 1991; 66 FR 45377, Aug. 28, 2001]                         No. 107–19, 54 FR 22899, May 30, 1989]

                                 § 107.319 Request for a hearing.                              § 107.321 Hearing.
                                    (a) In responding to a notice of prob-                        (a) To the extent practicable, the
                                 able violation under § 107.311, the re-                       hearing is held in the general vicinity
                                 spondent may request a formal admin-                          of the place where the alleged violation
                                 istrative hearing on the record before                        occurred or at a place convenient to
                                 an Administrative Law Judge (ALJ)                             the respondent. Testimony by wit-
                                 obtained by the Office of the Chief                           nesses shall be given under oath and
                                 Counsel.                                                      the hearing shall be recorded verbatim.
                                    (b) A request for a hearing under                             (b) Hearings are conducted in accord-
                                 paragraph (a) of this section must:                           ance with the Federal Rules of Evi-
                                    (1) State the name and address of the                      dence and Federal Rules of Civil Proce-
                                 respondent and of the person submit-                          dure; however, the ALJ may modify
                                 ting the request if different from the                        them as he determines necessary in the
                                 respondent;                                                   interest of a full development of the
                                    (2) State which allegations of viola-                      facts. In addition, the ALJ may:
                                 tions, if any, are admitted; and                                 (1) Administer oaths and affirma-
                                    (3) State generally the issues to be                       tions;
                                 raised by the respondent at the hear-                            (2) Issue subpoenas as provided by
                                 ing. Issues not raised in the request are                     § 105.45;
                                 not barred from presentation at the                              (3) Adopt procedures for the submis-
                                 hearing; and                                                  sion of motions, evidence, and other
                                    (4) Be addressed to the official who                       documents pertinent to the proceeding;
                                 issued the notice.                                               (4) Take or cause depositions to be
                                    (c) After a request for a hearing that                     taken;
                                 complies with the requirements of                                (5) Rule on offers of proof and receive
                                 paragraph (b) of this section, the Chief                      relevant evidence;
                                 Counsel obtains an ALJ to preside over                           (6) Examine witnesses at the hearing;
                                 the hearing and notifies the respondent                          (7) Convene, recess, reconvene, ad-
                                 of this fact. Upon assignment of an                           journ and otherwise regulate the
                                 ALJ, further matters in the proceeding                        course of the hearing;
                                 generally are conducted by and                                   (8) Hold conferences for settlement,
                                 through the ALJ, except that the Chief                        simplification of the issues, or any
                                 Counsel and respondent may com-                               other proper purpose; and
                                 promise or settle the case under                                 (9) Take any other action authorized
                                 § 107.327 of this subpart without order of                    by, or consistent with, the provisions
                                 the ALJ or voluntarily dismiss the                            of this subpart and permitted by law
                                 case under Rule 41(a)(1) of the Federal                       which may expedite the hearing or aid
                                 Rules of Civil Procedure without order                        in the disposition of an issue raised
                                 of the ALJ; in the event of such a com-                       therein.
                                 promise, settlement or dismissal, the                            (c) The official who issued the notice
                                 Chief Counsel expeditiously will notify                       of probable violation, or his representa-
                                 the ALJ thereof.                                              tive, has the burden of proving the
                                    (d) At any time after requesting a                         facts alleged therein.
                                 formal administrative hearing but                                (d) The respondent may appear and
                                 prior to the issuance of a decision and                       be heard on his own behalf or through
                                 final order by the ALJ, the respondent                        counsel of his choice. The respondent
                                 may withdraw such request in writing,                         or his counsel may offer relevant infor-
                                 thereby terminating the jurisdication                         mation including testimony which he
                                 of the ALJ in the case. Such a with-                          believes should be considered in opposi-
                                 drawal constitutes an irrevocable waiv-                       tion to the allegations or which may
                                 er of respondent’s right to such a hear-                      bear on the sanction being sought and

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                                 Research and Special Programs Admin., DOT                                                        § 107.327

                                 conduct such cross-examination as                                (2) State with particularity the find-
                                 may be required for a full disclosure of                      ings in the order that the appealing
                                 the facts.                                                    party challenges, and include all infor-
                                                                                               mation and arguments pertinent there-
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 amended at 67 FR 61011, Sept. 27, 2002]
                                                                                               to.
                                                                                                  (d) If the Administrator, RSPA, af-
                                 § 107.323      ALJ’s decision.                                firms the order in whole or in part, the
                                                                                               respondent must comply with the
                                   (a) After consideration of all matters
                                                                                               terms of the decision within 20 days of
                                 of record in the proceeding, the ALJ
                                                                                               the respondent’s receipt thereof, or
                                 shall issue an order dismissing the no-
                                                                                               within the time prescribed in the order.
                                 tice of probable violation in whole or in
                                                                                               If the respondent does not comply with
                                 part or granting the sanction sought by
                                                                                               the terms of the decision within 20
                                 the Office of Chief Counsel in the no-
                                                                                               days of receipt, or within the time pre-
                                 tice. If the ALJ does not dismiss the
                                                                                               scribed in the order, the case may be
                                 notice of probable violation in whole,
                                                                                               referred to the Attorney General for
                                 he issues an order directing compliance
                                                                                               action to enforce the terms of the deci-
                                 or assessing a civil penalty, or, if pro-
                                                                                               sion.
                                 posed in the notice, both. The order in-
                                 cludes a statement of the findings and                           (e) The filing of an appeal stays the
                                 conclusions, and the reasons therefore,                       effectiveness of an order issued under
                                 on all material issues of fact, law, and                      § 107.317 or § 107.323. However, if the Ad-
                                 discretion.                                                   ministrator, RSPA, determines that it
                                                                                               is in the public interest, he may keep
                                   (b) If, within 20 days of receipt of an
                                                                                               an order directing compliance in force
                                 order issued under paragraph (a) of this
                                                                                               pending appeal.
                                 section, the respondent does not sub-
                                 mit in writing his acceptance of the                          [][Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 terms of an order directing compliance,                       amended at 50 FR 45730, Nov. 1, 1985; Amdt.
                                 or, where appropriate, pay a civil pen-                       107–22, 55 FR 39978, Oct. 1, 1990]
                                 alty, or file an appeal under § 107.325,
                                 the case may be referred to the Attor-                        § 107.327   Compromise and settlement.
                                 ney General with a request that an ac-                          (a) At any time before an order
                                 tion be brought in the appropriate                            issued under § 107.317 or § 107.323 is re-
                                 United States District Court to enforce                       ferred to the Attorney General for en-
                                 the terms of a compliance order or col-                       forcement, the respondent or the Office
                                 lect the civil penalty.                                       of Chief Counsel may propose a com-
                                                                                               promise as follows:
                                 § 107.325      Appeals.                                         (1) In civil penalty cases, the re-
                                   (a) Hearing proceedings. A party ag-                        spondent or Chief Counsel may offer to
                                 grieved by an ALJ’s decision and order                        compromise the amount of the penalty
                                 issued under § 107.323, may file a writ-                      by submitting an offer for a specific
                                 ten appeal in accordance with para-                           amount to the other party. An offer of
                                 graph (c) of this section with the Ad-                        compromise by the respondent shall be
                                 ministrator, Research and Special Pro-                        submitted to the Chief Counsel who
                                 grams Administration (RSPA), 400 Sev-                         may, after consultation with the Asso-
                                 enth Street, SW., Washington, DC                              ciate Administrator, accept or reject
                                 20590–0001.                                                   it.
                                   (b) Non-Hearing proceedings. A re-                            (i) A compromise offer stays the run-
                                 spondent aggrieved by an order issued                         ning of any response period then out-
                                 under § 107.317, may file a written ap-                       standing.
                                 peal in accordance with paragraph (c)                           (ii) If a compromise is agreed to by
                                 of this section with the Administrator,                       the parties, the respondent is notified
                                 RSPA, 400 Seventh Street, SW., Wash-                          in writing. Upon receipt of payment by
                                 ington, DC 20590–0001.                                        Office of Chief Counsel, the respondent
                                   (c) An appeal of an order issued under                      is notified in writing that acceptance
                                 this subpart must:                                            of payment is in full satisfaction of the
                                   (1) Be filed within 20 days of receipt                      civil penalty proposed or assessed, and
                                 of the order by the appealing party;                          Office of Chief Counsel closes the case
                                 and                                                           with prejudice to the respondent.

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                                 § 107.329                                                                 49 CFR Ch. I (10–1–03 Edition)

                                   (iii) If a compromise cannot be                             than $32,500 and not less than $275 for
                                 agreed to, the respondent is notified in                      each violation. (For a violation that
                                 writing and is given 10 days or the                           occurred after January 21, 1997, and be-
                                 amount of time remaining in the then                          fore October 1, 2003, the maximum and
                                 outstanding response period, whichever                        minimum civil penalties are $27,500 and
                                 is longer, to respond to whatever ac-                         $250, respectively.) When the violation
                                 tion was taken by the Office of Chief                         is a continuing one, each day of the
                                 Counsel or the Administrator, RSPA.                           violation constitutes a separate of-
                                   (2) In compliance order cases, the re-                      fense.
                                 spondent may propose a consent agree-                           (b) A person who knowingly violates
                                 ment to the Chief Counsel. If the Chief                       a requirement of the Federal hazardous
                                 Counsel accepts the agreement, he                             material transportation law, an order
                                 issues an order in accordance with its                        issued thereunder, this subchapter,
                                 terms. If the Chief Counsel rejects the                       subchapter C of this chapter, or an ex-
                                 agreement, he directs that the pro-                           emption issued under this subchapter
                                 ceeding continue. An agreement sub-                           applicable to the manufacture, fabrica-
                                 mitted to the Chief Counsel must in-                          tion, marking, maintenance, recondi-
                                 clude:
                                                                                               tioning, repair, or testing of a pack-
                                   (i) A statement of any allegations of
                                                                                               aging or container which is rep-
                                 fact which the respondent challenges;
                                                                                               resented, marked, certified or sold by
                                   (ii) The reasons why the terms of a
                                                                                               that person as being qualified for use in
                                 compliance order or proposed compli-
                                 ance order are or would be too burden-                        the transportation of hazardous mate-
                                 some for the respondent, or why such                          rials in commerce is liable for a civil
                                 terms are not supported by the record                         penalty of not more than $32,500 and
                                 in the case;                                                  not less than $275 for each violation.
                                   (iii) A proposed compliance order                           (For a violation that occurred after
                                 suitable for issuance by the Chief                            January 21, 1997, and before October 1,
                                 Counsel;                                                      2003, the maximum and minimum civil
                                   (iv) An admission of all jurisdictional                     penalties are $27,500 and $250, respec-
                                 facts; and                                                    tively.)
                                   (v) An express waiver of further pro-                       [Amdt. 107–24, 56 FR 8624, Feb. 28, 1991, as
                                 cedural steps and all right to seek judi-                     amended by Amdt. 107–32, 59 FR 49131, Sept.
                                 cial review or otherwise challenge or                         26, 1994; Amdt. 17–40, 62 FR 2971, Jan. 21, 1997;
                                 contest the validity of the order.                            65 FR 58618, Sept. 29, 2000; 68 FR 52848, Sept.
                                   (b) Notwithstanding paragraph (a)(1)                        8, 2003]
                                 of this section, the respondent or Office
                                 of Chief Counsel may propose to settle                        § 107.331   Assessment considerations.
                                 the case. If the Chief Counsel agrees to                        After finding a knowing violation
                                 a settlement, the respondent is notified                      under this subpart, the Office of Chief
                                 and the case is closed without preju-                         Counsel assesses a civil penalty taking
                                 dice to the respondent.                                       the following into account:
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as                    (a) The nature and circumstances of
                                 amended at 50 FR 45730, Nov. 1, 1985; Amdt.                   the violation;
                                 107–24, 56 FR 8621, Feb. 28, 1991; 56 FR 15510,                 (b) The extent and gravity of the vio-
                                 Apr. 17, 1991; Amdt. 107–29, 58 FR 51527, Oct.                lation;
                                 1, 1993; 66 FR 45377, Aug. 28, 2001]
                                                                                                 (c) The degree of the respondent’s
                                 § 107.329 Maximum penalties.                                  culpability;
                                                                                                 (d) The respondent’s prior violations;
                                    (a) A person who knowingly violates
                                 a requirement of the Federal hazardous                          (e) The respondent’s ability to pay;
                                 material transportation law, an order                           (f) The effect on the respondent’s
                                 issued thereunder, this subchapter,                           ability to continue in business; and
                                 subchapter C of this chapter, or an ex-                         (g) Such other matters as justice
                                 emption issued under this subchapter                          may require.
                                 applicable to the transporting of haz-                        [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 ardous materials or the causing of                            amended by Amdt. 107–30, 58 FR 50500, Sept.
                                 them to be transported or shipped is                          27, 1993; Amdt. 107–38, 61 FR 21100, May 9,
                                 liable for a civil penalty of not more                        1996]

                                                                                          40



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                                 Research and Special Programs Admin., DOT                                      Pt. 107, Subpt. D, App. A

                                               CRIMINAL PENALTIES                              the Federal hazardous material trans-
                                                                                               portation law, this subchapter, sub-
                                 § 107.333 Criminal penalties generally.                       chapter C of this chapter, or any ex-
                                    A person who knowingly violates                            emption, or order issued thereunder,
                                 § 171.2(g) or willfully violates a provi-                     for which the Office of Chief Counsel
                                 sion of the Federal hazardous material                        exercises enforcement responsibility,
                                 transportation law or an order or regu-                       the Administrator, RSPA, or his dele-
                                 lation issued thereunder shall be fined                       gate, may request the Attorney Gen-
                                 under title 18, United States Code, or                        eral to bring an action in the appro-
                                 imprisoned for not more than 5 years,                         priate United States District Court for
                                 or both.                                                      such relief as is necessary or appro-
                                                                                               priate, including mandatory or prohibi-
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 amended by Amdt. 107–32, 59 FR 49131, Sept.                   tive injunctive relief, interim equitable
                                 26, 1994]                                                     relief, and punitive damages as pro-
                                                                                               vided by 49 U.S.C. 5122(a).
                                 § 107.335 Referral for prosecution.
                                                                                               [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                    If the Associate Administrator be-                         amended by Amdt. 107–32, 59 FR 49131, Sept.
                                 comes aware of a possible willful viola-                      26, 1994]
                                 tion of the Federal hazardous material
                                 transportation law, this subchapter,                          § 107.339   Imminent hazards.
                                 subchapter C of this chapter, or any ex-                         Whenever it appears to the Office of
                                 emption, or order issued thereunder,                          the Chief Counsel that there is a sub-
                                 for which the Associate Administrator                         stantial likelihood that death, serious
                                 exercises enforcement responsibility, it                      illness, or severe personal injury will
                                 shall report it to the Office of the Chief                    result from the transportation of a par-
                                 Counsel, Research and Special Pro-                            ticular hazardous material or haz-
                                 grams Administration, U.S. Depart-                            ardous materials container, before a
                                 ment of Transportation, Washington,                           compliance order proceeding or other
                                 DC 20590–0001. If appropriate, the Chief                      administrative hearing or formal pro-
                                 Counsel refers the report to the De-                          ceeding to abate the risk of that harm
                                 partment of Justice for criminal pros-                        can be completed, the Administrator,
                                 ecution of the offender.                                      RSPA, or his delegate, may bring an
                                 [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as                  action under 49 U.S.C. 5122(b) in the ap-
                                 amended by Amdt. 107–22, 55 FR 39978, Oct. 1,                 propriate United States District Court
                                 1990; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; 56             for an order suspending or restricting
                                 FR 15510, Apr. 17, 1991; Amdt. 107–32, 59 FR                  the transporation of that hazardous
                                 49131, Sept. 26, 1994; Amdt. 107–35, 60 FR 49108,             material or those containers or for
                                 Sept. 21, 1995; 66 FR 45377, Aug. 28, 2001]                   such other equitable relief as is nec-
                                                                                               essary or appropriate to ameliorate the
                                 § 107.336 Limitation on fines and pen-
                                      alties.                                                  hazard.
                                    If a State or political subdivision or                     [Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as
                                 Indian tribe assesses any fine or pen-                        amended by Amdt. 107–15, 51 FR 34987, Oct. 1,
                                                                                               1986; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994]
                                 alty determined by the Secretary to be
                                 appropriate for a violation concerning                          APPENDIX A TO SUBPART D OF PART
                                 a subject listed in § 107.202(a), no addi-                     107—GUIDELINES FOR CIVIL PENALTIES
                                 tional fine or penalty may be assessed
                                 for such violation by any other author-                         I. This appendix sets forth the guidelines
                                 ity.                                                          used by the Office of Hazardous Materials
                                                                                               Safety (as of October 1, 2003) in making ini-
                                 [Amdt. 107–24, 56 FR 8624, Feb. 28, 1991]                     tial baseline determinations for recom-
                                                                                               mending civil penalties. The first part of
                                                INJUNCTIVE ACTION                              these guidelines is a list of baseline amounts
                                                                                               or ranges for probable violations frequently
                                 § 107.337 Injunctions generally.                              cited in enforcement reports referred for ac-
                                    Whenever it appears to the Office of                       tion. Following the list of violations are gen-
                                 Chief Counsel that a person has en-                           eral guidelines used by OHMS in making ini-
                                                                                               tial penalty determinations in enforcement
                                 gaged, or is engaged, or is about to en-                      cases.
                                 gage in any act or practice consti-
                                 tuting a violation of any provision of                         II. LIST OF FREQUENTLY CITED VIOLATIONS

                                                                                          41



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                                 Pt. 107, Subpt. D, App. A                                                                                  49 CFR Ch. I (10–1–03 Edition)

                                                                               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                             107.608, 107.612 ......                $1,000 + $500 each
                                        registration fee.                                                                                                                            additional year.
                                 B. Training requirements:
                                     1. Failure to provide initial training to hazmat employees (general aware-                             172.702.
                                        ness, 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 training to hazmat employees (general                                 172.702.
                                        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 training (when a security plan is re-                         172.702.
                                        quired).
                                          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 training records .........................................           172.704.
                                           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; failure to adhere to security plan .......                      172.800..
                                           a. No security plan at all; no adherence ................................................        ....................................   $6,000 and up.
                                           b. Incomplete security plan or incomplete adherence (one or more of                              ....................................   $2,000 and up for
                                             three required elements missing).                                                                                                       each element.
                                     2. Failure to update a security plan to reflect changing circumstances ........                        172.802(b) .................           $2,000 and up.
                                     3. Failure to put security plan in writing; failure to make all copies identical                       172.800(b) .................           $2,000 and up.
                                 D. Notification to a foreign shipper:
                                     Failure to provide information of HMR requirements applicable to a ship-                               171.12(a) ...................          $1,500 to $7,500 (cor-
                                       ment of hazardous materials within the United States, to a foreign offer-                                                                     responding to viola-
                                       or or forwarding agent at the place of entry into the U.S.                                                                                    tions by foreign of-
                                                                                                                                                                                     feror or forwarding
                                                                                                                                                                                     agent).
                                 E. Expired Exemption:
                                     Offering or transporting a hazardous material, or otherwise performing a                               171.2(a), (b), (c), Var-               $1,000 + $500 each
                                       function covered by an exemption, after expiration of the exemption.                                   ious.                                  additional year.

                                                                                   Offeror Requirements—All hazardous materials

                                 A. Undeclared Shipment:
                                     Offering for transportation a hazardous material without shipping papers,                              172.200, 172.300,                      $15,000 and up.
                                       package markings, labels, or placards.                                                                 172.400, 172.500.
                                 B. Shipping Papers:
                                     1. Failure to provide a shipping paper for a shipment of hazardous mate-                               172.201 ......................         $3,000 to $6,000.
                                       rials.
                                     2. Failure to follow one or more of the three approved formats for listing                             172.201(a)(1) .............            $1,200.
                                       hazardous materials on a shipping paper.
                                     3. Failure to retain shipping papers for 375 days after a hazardous mate-                              172.201(e) .................           $1,000.
                                       rial (or 3 years for a hazardous waste) is accepted by the initial carrier.
                                     4. Failure to include a proper shipping name in the shipping description or                            172.202 ......................         $800 to $1,600.
                                       using an incorrect proper shipping name.
                                     5. Failure to include a hazard class/division number in the shipping de-                               172.202 ......................         $1,000 to $2,000.
                                       scription.
                                     6. Failure to include an identification number in the shipping description ....                        172.202 ......................         $1,000 to $2,000.
                                     7. Using an incorrect hazard class/identification number: .............................                172.202.
                                          a. that does not affect compatibility requirements ..................................             ....................................   $800.
                                          b. that affects compatibility requirements ...............................................        ....................................   $3,000 to $6,000.
                                     8. Using an incorrect identification number: ..................................................        172.202..
                                          a. that does not change the response information .................................                ....................................   $800.
                                          b. that changes the response information ..............................................           ....................................   $3,000 to $6,000.
                                     9. Failure to include the Packing Group, or using an incorrect Packing                                 172.202 ......................         $1,200.
                                       Group.
                                     10. Using a shipping description that includes additional unauthorized in-                             172.202 ......................         $800.
                                       formation (extra or incorrect words).


                                                                                                                  42



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                                 Research and Special Programs Admin., DOT                                                                                 Pt. 107, Subpt. D, App. A

                                                                      II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                        Violation description                                                        Section or cite                  Baseline assessment

                                     11. Using a shipping description not in required sequence ..........................                      172.202 ......................         $500.
                                     12. Using a shipping description with two or more required elements miss-                                 172.202.
                                       ing or incorrect:.
                                          a. such that the material is misdescribed ...............................................            ....................................   $3,000.
                                          b. such that the material is misclassified ................................................          ....................................   $6,000.
                                     13. Failure to include the total quantity of hazardous material covered by a                              172.202(c) .................           $500.
                                       shipping description.
                                     14. Failure to list an exemption number in association with the shipping                                  172.203(a) .................           $800.
                                       description.
                                     15. Failure to indicate ‘‘Limited Quantity’’ or ‘‘Ltd Qty’’ following the basic                           172.203(b) .................           $500.
                                       shipping description of a material offered for transportation as a limited
                                       quantity.
                                     16. Failure to include ‘‘RQ’’ in the shipping description to identify a material                          172.203(c)(2) .............            $500.
                                       that is a hazardous substance.
                                     17. Failure to include a required technical name in parenthesis for a listed                              172.203(k) .................           $1,000.
                                       generic or ‘‘n.o.s.’’ material.
                                     18. Failure to include the required shipper’s certification on a shipping                                 172.204 ......................         $1,000.
                                       paper.
                                     19. Failure to sign the required shipper’s certification on a shipping paper                              172.204 ......................         $800.
                                 C. Emergency Response Information Requirements:
                                     1. Providing or listing incorrect emergency response information with or on                               172.602.
                                       a shipping paper.
                                          a. No significant difference in response .................................................           ....................................   $800.
                                          b. Significant difference in response ......................................................         ....................................   $3,000 to $6,000.
                                     2. Failure to include an emergency response telephone number on a ship-                                   172.604 ......................         $2,600.
                                       ping paper.
                                     3. Failure to have the emergency response telephone number monitored                                      172.604 ......................         $1,300.
                                       while a hazardous material is in transportation or listing multiple tele-
                                       phone numbers (without specifying the times for each) that are not mon-
                                       itored 24 hours a day.
                                     4. Listing an unauthorized emergency response telephone number on a                                       172.604 ......................         $2,600 to $4,200.
                                       shipping paper.
                                     5. Listing an incorrect or non-working emergency response telephone                                       172.604 ......................         $1,300.
                                       number on a shipping paper.
                                     6. Failure to provide required technical information when the listed emer-                                172.604 ......................         $1,300.
                                       gency response telephone number is contacted.
                                 D. Package Marking Requirements:
                                     1. Failure to mark the proper shipping name on a package or marking an                                    172.301(a) .................           $800 to $1,600.
                                       incorrect shipping name on a package.
                                     2. Failure to mark the identification number on a package ...........................                     172.301(a) .................           $1,000 to $2,000.
                                     3. Marking a package with an incorrect identification number ......................                       172.301(a).
                                          a. that does not change the response information .................................                   ....................................   $800.
                                          b. that changes the response information ..............................................              ....................................   $3,000 to $6,000.
                                     4. Failure to mark the proper shipping name and identification number on                                  172.301(a) .................           $3,000 to $6,000.
                                       a package.
                                     5. Marking a package with an incorrect shipping name and identification                                   172.301(a).
                                       number.
                                          a. that does not change the response information .................................                   ....................................   $1,500 to $3,000.
                                          b. that changes the response information ..............................................              ....................................   $3,000 to $6,000.
                                     6. Failure to include the required technical name(s) in parenthesis for a                                 172.301(c) .................           $1,000.
                                       listed generic or ‘‘n.o.s.’’ entry.
                                     7. Marking a package as containing hazardous material when it contains                                    172.303(a) .................           $800.
                                       no hazardous material.
                                     8. Failure to locate required markings away from other markings that could                                172.303(a)(4) .............            $800.
                                       reduce their effectiveness.
                                     9. Failure to mark a package containing liquid hazardous materials with re-                               172.312 ......................         $2,500 to $3,500.
                                       quired orientation marking.
                                     10. Failure to mark ‘‘RQ’’ on a non-bulk package containing a hazardous                                   172.324(b) .................           $500.
                                       substance.
                                 E. Package Labeling Requirements:
                                     1. Failure to label a package .........................................................................   172.400 ......................         $5,000.
                                     2. Placing a label that represents a hazard other than the hazard pre-                                    172.400 ......................         $5,000.
                                       sented by the hazardous material in the package.
                                     3. Placing a label on a package that does not contain a hazardous mate-                                   172.401(a) .................           $800.
                                       rial.
                                     4. Failure to place a required subsidiary label on a package .......................                      172.402 ......................         $500 to $2,500.
                                     5. Placing a label on a different surface of the package than, or away                                    172.406(a) .................           $800.
                                       from, the proper shipping name.
                                     6. Placing an improper size label on a package ...........................................                172.407(c) .................           $800.
                                     7. Placing a label on a package that does not meet color specification re-                                172.407(d) .................           $600 to $2,500.
                                       quirements (depending on the variance).
                                     8. Failure to provide an appropriate class or division number on a label .....                            172.411 ......................         $2,500.


                                                                                                                     43



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                                 Pt. 107, Subpt. D, App. A                                                                                         49 CFR Ch. I (10–1–03 Edition)

                                                                        II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                          Violation description                                                          Section or cite                  Baseline assessment

                                 F. Placarding Requirements:
                                     Failure to properly placard a freight container or vehicle containing haz-                                    172.504.
                                        ardous 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 transportation in an unauthorized non-                                   Various.
                                        UN standard or nonspecification packaging (includes failure to comply
                                        with the terms of an exemption authorizing use of a nonstandard or non-
                                        specification packaging).
                                           a. Packing Group I (and § 172.504 Table I materials) ...........................                        ....................................   $9,000.
                                           b. Packing Group II .................................................................................   ....................................   $7,000.
                                           c. Packing Group III ................................................................................   ....................................   $5,000.
                                     2. Offering a hazardous material for transportation in a self-certified pack-                                 178.601 & Various.
                                        aging that has not been subjected to design qualification testing:.
                                           a. Packing Group I (and § 172.504 Table I materials) ...........................                        ....................................   $10,800.
                                           b. Packing Group II .................................................................................   ....................................   $8,400.
                                           c. Packing Group III ................................................................................   ....................................   $6,000.
                                     3. Offering a hazardous material for transportation in a packaging that has                                   178.503(a) .................           $3,600.
                                        been successfully tested to an applicable UN standard but is not marked
                                        with the required UN marking.
                                     4. Failure to close a UN standard packaging in accordance with the clo-                                       173.22(a)(4) ...............           $2,500.
                                        sure instructions.
                                     5. Offering a hazardous material for transportation in a packaging that                                       173.24(b).
                                        leaks during conditions normally incident to transportation:
                                           a. Packing Group I (and § 172.504 Table I materials) ...........................                        ....................................   $12,000.
                                           b. Packing Group II .................................................................................   ....................................   $9,000.
                                           c. Packing Group III ................................................................................   ....................................   $6,000.
                                     6. Overfilling or underfilling a package so that the effectiveness is substan-                                173.24(b).
                                        tially reduced:
                                           a. Packing Group I (and § 172.504 Table I materials) ...........................                        ....................................   $9,000.
                                           b. Packing Group II .................................................................................   ....................................   $6,000.
                                           c. Packing Group III ................................................................................   ....................................   $3,000.
                                     7. Offering a hazardous material for transportation after October 1, 1996,                                    171.14.
                                        in a unauthorized non-UN standard packaging marked as manufactured
                                        to a DOT specification:
                                           a. packaging meets DOT specification ...................................................                ....................................   $3,000.
                                           b. packaging does not meet DOT specification .....................................                      ....................................   $5,000 to $9,000.
                                     8. Failure to mark an overpack with a statement that the inside packages                                      173.25(a)(4) ...............           $3,000.
                                        comply with prescribed specifications or standards when specification or
                                        standard packaging is required.
                                     9. Filling an IBC or a portable tank (DOT, UN, or IM) that is out of test and                                 173.32(a), 180.352,
                                        offering hazardous materials for transportation in that IBC or portable                                      180.605.
                                        tank.
                                           a. All testing overdue ..............................................................................   ....................................   $3,500 to $7,000.
                                           b. Only periodic (5 year) test overdue ....................................................             ....................................   $3,500.
                                           c. Only intermediate periodic (2.5 year) tests overdue ..........................                       ....................................   $3,500.
                                     10. Failure to provide the required outage in a portable tank that results in                                 173.32(f)(6) ................          $6,000 to $12,000.
                                        a release of hazardous materials.

                                                                                   Offeror Requirements—Specific hazardous materials

                                 A. Cigarette Lighters:
                                     Offering for transportation an unapproved cigarette lighter, lighter refill, or                               173.21(i) ....................         $7,500.
                                       similar device, equipped with an ignition element and containing fuel.
                                 B. Class 1—Explosives:
                                     1. Failure to mark the package with the EX number for each substance                                          172.320 ......................         $1,200.
                                       contained in the package or, alternatively, indicate the EX number for
                                       each substance in association with the description on the shipping de-
                                       scription.
                                     2. Offering an unapproved explosive for transportation:                                                       ....................................   173.54,
                                          a. Div. 1.3 and 1.4 fireworks meeting the chemistry requirements                                         173.56(b) ...................          $5,000 to $10,000.
                                            (quantity and type) of APA Standard 87–1.
                                          b. All other explosives (including forbidden) ...........................................                ....................................   $10,000 and up.
                                     3. Offering a leaking or damaged package of explosives for transportation                                     173.54(c) ...................          $10,000 and up.
                                     4. Packaging explosives in the same outer packaging with other materials                                      173.61 ........................        $2,500 to $5,000.
                                 C. Class 7—Radioactive Materials:
                                     1. Failure to include required additional entries, or providing incorrect infor-                              172.203(d) .................           $1,000 to $3,000.
                                       mation for these additional entries.
                                     2. Failure to mark the gross mass on the outside of a package of Class 7                                      172.310(a) .................           $800.
                                       material that exceeds 110 pounds.


                                                                                                                        44



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                                 Research and Special Programs Admin., DOT                                                                               Pt. 107, Subpt. D, App. A

                                                                     II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                        Violation description                                                      Section or cite                  Baseline assessment

                                     3. Failure to mark each package in letters at least 13 mm (1⁄2inch) high                                172.310(b) .................           $800.
                                       with the words ‘‘Type A’’ or ‘‘Type B’’ as appropriate.
                                     4. Placing a label on Class 7 material that understates the proper label                                172.403 ......................         $5,000.
                                       category.
                                     5. Placing a label on Class 7 material that fails to contain (or has erro-                              172.403(g) .................           $2,000 to $4,000.
                                       neous) entries for the name of the radionuclide(s), activity, and transport
                                       index.
                                     6. Failure to meet one or more of the general design requirements for a                                 173.410 ......................         $5,000.
                                       package used to ship a Class 7 material.
                                     7. Failure to comply with the industrial packaging (IP) requirements when                               173.411 ......................         $5,000.
                                       offering a Class 7 material for transportation.
                                     8. Failure to provide a tamper-indicating device on a Type A package used                               173.412(a) .................           $2,000.
                                       to ship a Class 7 material.
                                     9. Failure to meet the additional design requirements of a Type A package                               173.412(b)–(i) ............            $5,000.
                                       used to ship a Class 7 material.
                                     10. Failure to meet the performance requirements for a Type A package                                   173.412(j)–(l) .............           $8,400.
                                       used to ship a Class 7 material..
                                     11. Offering a DOT specification 7A packaging without maintaining com-                                  173.415(a), 173.461
                                       plete documentation of tests and an engineering evaluation or compara-
                                       tive data:
                                           a. Tests and evaluation not performed ...................................................         ....................................   $8,400.
                                           b. Complete records not maintained ......................................................         ....................................   $2,000 to $5,000.
                                     12. Offering any Type B, Type B(U), Type B(M) packaging that failed to                                  173.416 ......................         $9,000.
                                       meet the approved DOT, NRC or DOE design, as applicable.
                                     13. Offering a Type B packaging without holding a valid NRC approval cer-                               173.471(a).
                                       tificate:
                                           a. Never having obtained one ................................................................     ....................................   $3,000.
                                           b. Holding an expired certificate .............................................................   ....................................   $1,000.
                                     14. Failure to meet one or more of the special requirements for a package                               173.420 ......................         $10,800.
                                       used to ship uranium hexafluoride.
                                     15. Offering Class 7 material for transportation as a limited quantity without                          173.421(a) .................           $4,000.
                                       meeting the requirements for limited quantity.
                                     16. Offering a multiple-hazard limited quantity Class 7 material without ad-                            173.423(a) .................           $500 to $2,500.
                                       dressing the additional hazard.
                                     17. Offering Class 7 low specific activity (LSA) materials or surface con-                              173.427(a)(1) .............            $6,000.
                                       taminated objects (SCO) with an external dose rate that exceeds an ex-
                                       ternal radiation level of 1 rem/hr at 3 meters from the unshielded mate-
                                       rial.
                                     18. Offering Class 7 LSA materials or SCO as exclusive use without pro-                                 173.427(a)(6) .............            $1,000.
                                       viding specific instructions to the carrier for maintenance of exclusive
                                       use shipment controls.
                                     19. Offering in excess of Type A quantity of a Class 7 material in a Type A                             173.431 ......................         $12,000.
                                       packaging.
                                     20. Offering a package that exceeds the permitted limits for surface radi-                              173.441 ......................         $10,000 and up.
                                       ation or transport index.
                                     21. Offering a package without determining the level of removable external                              173.443 ......................         $5,000 and up.
                                       contamination, or that exceeds the limit for removable external contami-
                                       nation.
                                     22. Storing packages of radioactive material in a group with a total trans-                             173.447(a) .................           $5,000 and up.
                                       port index more than 50.
                                     23. Offering for transportation or transporting aboard a passenger aircraft                             173.448(e) .................           $5,000 and up.
                                       any single package or overpack of Class 7 material with a transport
                                       index greater than 3.0.
                                     24. Exporting a Type B, Type B(U), Type B(M), or fissile package without                                173.471(d) .................           $3,000.
                                       obtaining a U.S. Competent Authority Certificate or, after obtaining a
                                       U.S. Competent Authority Certificate, failing to submit a copy to the na-
                                       tional competent authority of each country into or through which the
                                       package is transported.
                                     25. Offering special form radioactive materials without maintaining a com-                              173.476(a), (b) ...........            $2,500.
                                       plete safety analysis or Certificate of Competent Authority.
                                 D. Class 2—Compressed Gases in Cylinders:
                                     1. Filling and offering a cylinder with compressed gas when the cylinder is                             173.301(a)(6) .............            $4,200 to $10,400.
                                       out of test.
                                     2. Failure to check each day the pressure of a cylinder charged with                                    173.303(d) .................           $5,000.
                                       acetylene that is representative of that day’s compression, after the cyl-
                                       inder has cooled to a settled temperature, or failure to keep a record of
                                       this test for 30 days.
                                     3. Offering a limited quantity of a compressed gas in a metal container for                             173.306(a)(3), (h) ......              $1,500 to $6,000.
                                       the purpose of propelling a nonpoisonous material and failure to heat
                                       the cylinder until the pressure is equivalent to the equilibrium pressure at
                                       130 °F, without evidence of leakage, distortion, or other defect.



                                                                                                                   45



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                                 Pt. 107, Subpt. D, App. A                                                                                          49 CFR Ch. I (10–1–03 Edition)

                                                                        II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                          Violation description                                                           Section or cite                  Baseline assessment

                                                                                 Manufacturing, Reconditioning, Retesting Requirements

                                 A. Third-Party Packaging Certifiers (General):
                                     Issuing a certification that directs the packaging manufacturer to improp-                                     171.2(e), 178.2(b),                    $500 per item.
                                        erly mark a packaging (e.g., steel drum to be marked UN 4G).                                                  178.3(a),
                                                                                                                                                      178.503(a).
                                 B. Packaging Manufacturers (General):
                                      1. Failure of a manufacturer or distributor to notify each person to whom                                     178.2(c) .....................         $2,500.
                                        the packaging is transferred of all the requirements not met at the time
                                        of transfer, including closure instructions.
                                      2. Failure to insure a packaging certified as meeting the UN standard is                                      178.601(b).
                                        capable of passing the required performance testing.
                                           a. Packing Group I (and § 172.504 Table 1 materials) ..........................                          ....................................   $10,800.
                                           b. Packing Group II .................................................................................    ....................................   $8,400.
                                           c. Packing Group III ................................................................................    ....................................   $6,000.
                                      3. Certifying a packaging as meeting a UN standard when design qualifica-                                     178.601(d).
                                        tion testing was not performed.
                                           a. Packing Group I (and § 172.504 table 1 materials) ...........................                         ....................................   $10,800.
                                           b. Packing Group II .................................................................................    ....................................   $8,400.
                                           c. Packing Group III ................................................................................    ....................................   $6,000.
                                      4. Failure to conduct periodic retesting on UN standard packaging (de-                                        178.601(e) .................           $2,000 to $10,800.
                                        pending on length of time and Packing Group).
                                      5. Failure to properly conduct testing for UN standard packaging (e.g.,
                                        testing with less weight than marked on packaging; drop testing from
                                        lesser height than required; failing to condition fiberboard boxes before
                                        design test):.
                                           a. Design qualification testing .................................................................        178.601(d) .................           $2,000 to $10,800.
                                           b. Periodic retesting ................................................................................   178.601(e) .................           $500 to $10,800.
                                      6. Marking, or causing the marking of, a packaging with the symbol of a                                       178.2(b), 178.3(a),                    $7,200.
                                        manufacturer or packaging certifier other than the company that actually                                      178.503(a)(8).
                                        manufactured or certified the packaging.
                                      7. Failure to maintain testing records ............................................................           178.601(l).
                                           a. Design qualification testing .................................................................        ....................................   $1,000 to $5,000.
                                           b. Periodic retesting ................................................................................   ....................................   $500 to $2,000.
                                      8. Improper marking of UN certification .........................................................             178.503 ......................         $500 per item.
                                      9. Manufacturing DOT specification packaging after October 1, 1994 that is                                    171.14.
                                        not marked as meeting a UN performance standard.
                                           a. If packaging does meet DOT specification ........................................                     ....................................   $3,000.
                                           b. If packaging does not meet DOT specification ..................................                       ....................................   $6,000 to $10,800.
                                 C. Drum Manufacturers & Reconditioners:
                                      1. Failure to properly conduct production leakproofness test on a new or                                      178.604(b), (d),
                                        reconditioned drum.                                                                                            173.28(b)(2)(i).
                                           a. Improper testing ..................................................................................   ....................................   $2,000.
                                           b. No testing performed ..........................................................................       ....................................   $3,000 to $5,000.
                                      2. Marking an incorrect registration number on a reconditioned drum .........                                 173.28(b)(2)(ii).
                                           a. Incorrect number .................................................................................    ....................................   $800.
                                           b. Unauthorized use of another reconditioner’s number ........................                           ....................................   $7,200.
                                      3. Representing, marking, or certifying a drum as a reconditioned UN                                          173.28(c), (d) .............           $6,000 to $10,800.
                                        standard packaging when the drum does not meet a UN standard.
                                      4. Representing, marking, or certifying a drum as altered from one UN                                         173.28(d) ...................          $500.
                                        standard to another, when the drum has not actually been altered.
                                 D. IBC and Portable Tank Requalification:
                                      1. Failure to properly mark an IBC or portable tank with the most current                                     180.352(e),                            $500 per item.
                                        retest and/or inspection information.                                                                         178.703(b),
                                                                                                                                                      180.605(k).
                                     2. Failure to keep complete and accurate records of IBC or portable tank                                       180.352(f), 180.605(l).
                                        retest and reinspection.
                                          a. No records kept ..................................................................................     ....................................   $4,000.
                                          b. Incomplete or inaccurate records .......................................................               ....................................   $1,000 to $3,000.
                                     3. Failure to make reinspection and retest records available to a DOT rep-                                     180.352(f), 49 U.S.C.                  $1,000.
                                        resentative upon request.                                                                                      5121(b)(2).
                                 E. Cylinder Manufacturers & Rebuilders:
                                     1. Manufacturing, representing, marking, certifying, or selling a DOT high-                                    Various ......................         $7,500 to $15,000.
                                        pressure cylinder that was not inspected and verified by an approved
                                        independent inspection agency.
                                     2. Failure to have a registration number or failure to mark the registration                                   Various ......................         $800.
                                        number on the cylinder.
                                     3. Marking another company’s number on a cylinder ...................................                          Various ......................         $7,200.
                                     4. Failure to mark the date of manufacture or lot number on a DOT–39 cyl-                                      178.65(i) ....................         $3,000.
                                        inder.


                                                                                                                         46



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                                 Research and Special Programs Admin., DOT                                                                                       Pt. 107, Subpt. D, App. A

                                                                        II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                           Violation description                                                           Section or cite                  Baseline assessment

                                     5. Failure to have a chemical analysis performed in the U.S. for a material                                     Various ......................         $5,000.
                                        manufactured outside the U.S./failure to obtain a chemical analysis from
                                        the foreign manufacturer.
                                     6. Failure to meet wall thickness requirements .............................................                    Various       ......................   $7,500    to   $15,000.
                                     7. Failure to heat treat cylinders prior to testing ............................................                Various       ......................   $5,000    to   $15,000.
                                     8. Failure to conduct a complete visual internal examination .......................                            Various       ......................   $2,500    to   $6,200.
                                     9. Failure to conduct a hydrostatic test, or conducting a hydrostatic test                                      Various       ......................   $2,500    to   $6,200.
                                        with inaccurate test equipment.
                                     10. Failure to conduct a flattening test ..........................................................             Various ......................         $7,500 to $15,000.
                                     11. Failure to conduct a burst test on a DOT–39 cylinder ............................                           178.65(f)(2) ................          $5,000 to $15,000.
                                     12. Failure to have inspections and verifications performed by an inspector                                     Various ......................         $7,500 to $15,000.
                                     13. Failure to maintain required inspector’s reports ......................................                     Various.
                                           a. No reports at all ..................................................................................   ....................................   $5,000.
                                           b. Incomplete or inaccurate reports ........................................................              ....................................   $1,000 to $4,000.
                                     14. Representing a DOT–4 series cylinder as repaired or rebuilt to the re-                                      180.211(a) .................           $6,000 to $10,800.
                                        quirements of the HMR without being authorized by the Associate Ad-
                                        ministrator.
                                 F. Cylinder Requalification:
                                     1. Failure to remark as DOT 3AL an aluminum cylinder manufactured                                               173.23(c) ...................          $800.
                                        under a former exemption.
                                     2. Certifying or marking as retested a nonspecification cylinder ...................                            180.205(a) .................           $800.
                                     3. Failure to have retester’s identification number (RIN) ...............................                       180.205(b) .................           $4,000.
                                     4. Failure to have current authority due to failure to renew a retester’s                                       180.205(b) .................           $2,000.
                                        identification number (RIN).
                                     5. Failure to have a retester’s identification number and marking another                                       180.205(b) .................           $7,200.
                                        RIN on a cylinder.
                                     6. Marking a RIN before successfully completing a hydrostatic retest .........                                  180.205(b) .................           $800.
                                     7. Representing, marking, or certifying a cylinder as meeting the require-                                      171.2(c), (e),                         $2,000 to $6,000.
                                        ments of an exemption when the cylinder was not maintained or re-                                              178.205(c), Applica-
                                        tested in accordance with the exemption.                                                                       ble Exemption.
                                     8. Failure to conduct a complete visual external and internal examination ..                                    180.205(f) ..................          $2,100 to $5,200.
                                     9. Failure to conduct visual inspection or hydrostatic retest .........................                         180.205(f) & (g) .........             $4,200 to $10,400.
                                     10. Performing hydrostatic retesting without confirming the accuracy of the                                     180.205(g)(3) .............            $2,100 to $5,200.
                                        test equipment.
                                     11. Failure to hold hydrostatic test pressure for 30 seconds or sufficiently                                    180.205(g)(5) .............            $3,100.
                                        longer to allow for complete expansion.
                                     12. Failure to perform a second retest, after equipment failure, at a pres-                                     180.205(g)(5) .............            $3,100.
                                        sure increased by the greater of 10% or 100 psi (includes exceeding
                                        90% of test pressure prior to conducting a retest).
                                     13. Failure to condemn a cylinder when required (e.g., permanent expan-                                         180.205(i) ..................          $6,000 to $10,800.
                                        sion of 10% [5% for certain exemption cylinders], internal or external
                                        corrosion, denting, bulging, evidence of rough usage).
                                     14. Failure to properly mark a condemned cylinder or render it incapable                                        180.205(i)(2) ..............           $800.
                                        of holding pressure.
                                     15. Failure to notify the cylinder owner in writing when a cylinder has been                                    180.205(i)(2) ..............           $1,000.
                                        condemned.
                                     16. Failure to perform hydrostatic retesting at the minimum specified test                                      180.209(a)(1) .............            $2,100 to $5,200.
                                        pressure.
                                     17. Marking a star on a cylinder that does not qualify for that mark ............                               180.209(b) .................           $2,000 to $4,000.
                                     18. Marking a ‘‘+’’ sign on a cylinder without determining the average or                                       173.302a(b) ...............            $2,000 to $4,000.
                                        minimum wall stress by calculation or reference to CGA Pamphlet C–5.
                                     19. Marking a cylinder in or on the sidewall when not permitted by the ap-                                      180.213(b) .................           $6,000 to $10,800.
                                        plicable specification.
                                     20. Failure to maintain legible markings on a cylinder ..................................                       180.213(b)(1) .............            $800.
                                     21. Marking a DOT 3HT cylinder with a steel stamp other than a low-                                             180.213(c)(2) .............            $6,000 to $10,800.
                                        stress steel stamp.
                                     22. Improper marking of the RIN or retest date on a cylinder ......................                             180.213(d) .................           $800.
                                     23. Marking an FRP cylinder with steel stamps in the FRP area of the cyl-                                       Applicable Exemption                   $6,000 to $10,800.
                                        inder such that the integrity of the cylinder is compromised.
                                     24. Failure to maintain current copies of 49 CFR, DOT exemptions, and                                           180.215(a) .................           $600 to $1,200.
                                        CGA Pamphlets applicable to inspection, retesting, and marking activi-
                                        ties.
                                     25. Failure to keep complete and accurate records of cylinder reinspection                                      180.215(b).
                                        and retest.
                                           a. No records kept ..................................................................................     ....................................   $4,000.
                                           b. Incomplete or inaccurate records .......................................................               ....................................   $1,000 to $3,000.
                                     26. Failure to report in writing a change in name, address, ownership, test                                     171.2(c) & (e), Ap-                    $600 to $1,200.
                                        equipment, management, or retester personnel.                                                                   proval Letter.

                                                                                                            Carrier Requirements

                                 A. Incident Notification:


                                                                                                                          47



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                                 Pt. 107, Subpt. D, App. A                                                                                          49 CFR Ch. I (10–1–03 Edition)

                                                                        II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued
                                                                          Violation description                                                           Section or cite                  Baseline assessment

                                     1. Failure to give immediate notification of a reportable hazardous mate-                                      171.15 ........................        $3,000.
                                       rials incident.
                                     2. Failure to file a written hazardous material incident report within 30 days                                 171.16 ........................        $500 to $2,500.
                                       following an unintentional release of hazardous materials in transpor-
                                       tation (or other reportable incident).
                                 B. Shipping Papers:
                                     Failure to retain shipping papers for 375 days after a hazardous material                                      174.24(b),                             $1,000.
                                       (or 3 years for a hazardous waste) is accepted by the initial carrier.                                         175.30(a)(2),
                                                                                                                                                      176.24(b),
                                                                                                                                                      177.817(f).
                                 C. Stowage/transportation Requirements:
                                     1. Transporting packages of hazardous material that have not been se-                                          Various ......................         $3,000.
                                       cured against movement.
                                     2. Failure to properly segregate hazardous materials ...................................                       Various ......................         $7,500 and up.
                                     3. Transporting explosives in a motor vehicle containing metal or other arti-                                  177.835(i) ..................          $5,200.
                                       cles or materials likely to damage the explosives or any package in
                                       which they are contained, without segregating in different parts of the
                                       load or securing them in place in or on the motor vehicle and separated
                                       by bulkheads or other suitable means to prevent damage.
                                     4. Transporting railway track torpedoes outside of flagging kits, in violation                                 171.2(b) & (e) ............            $7,000.
                                       of DOT–E 7991.
                                     5. Transporting Class 7 (radioactive) material having a total transport index                                  177.842(a) .................           $5,000 and up.
                                       greater than 50.
                                     6. Transporting Class 7 (radioactive) material without maintaining the re-                                     177.842(b) .................           $5,000 and up.
                                       quired separation distance.
                                     7. Failure to comply with requirements of an exemption authorizing the                                         171.2(b) & (e).
                                       transportation of Class 7 (radioactive) material having a total transpor-
                                       tation index of 50.
                                          a. Failure to have the required radiation survey record .........................                         ....................................   $5,000.
                                          b. Failure to have other required documents .........................................                     ....................................   $500 each.
                                          c. Other violations ...................................................................................   ....................................   $5,000 and up.



                                   III. CONSIDERATION OF STATUTORY CRITERIA                                                         IV. MISCELLANEOUS FACTORS AFFECTING
                                                                                                                                              PENALTY AMOUNTS
                                   A. These guidelines are used by the Office
                                 of Hazardous Materials Safety (OHMS) in                                                                                A. Corrective Action
                                 setting initial proposed penalties for hazmat
                                 violations. They indicate baseline amounts                                                     1. A proposed penalty is mitigated for doc-
                                 or ranges for probable violations frequently                                                 umented corrective action of alleged viola-
                                 cited in enforcement reports and set forth                                                   tions taken by a respondent. Corrective ac-
                                 general OHMS policy for considering statu-                                                   tion may occur: (1) After an inspection and
                                                                                                                              before a Notice of Probable Violation
                                 tory criteria.
                                                                                                                              (NOPV) is issued; (2) on receipt of an NOPV;
                                   B. The initial baseline determination par-
                                                                                                                              or (3) after receipt of an NOPV (possibly
                                 tially considers the nature, extent, cir-
                                                                                                                              after it is solicited by an RSPA attorney). In
                                 cumstances, and gravity of the alleged viola-                                                general, corrective action may reduce a pen-
                                 tion. That determination then is adjusted to                                                 alty up to 25%. Mitigation may be taken into
                                 consider all other evidence concerning the                                                   account in the referral memo or may be rec-
                                 nature, extent, circumstances, and gravity of                                                ommended prior to issuance of an Order by
                                 the alleged violation; degree of culpability;                                                RSPA’s Chief Counsel.
                                 history of prior violations; ability to pay; ef-                                               2. The two primary factors in determining
                                 fect of the penalty on ability to continue to                                                the penalty reduction are extent and timing
                                 do business; and such other matters as jus-                                                  of the corrective action. In other words,
                                 tice may require (a major component of                                                       mitigation will be determined on the basis of
                                 which is corrective action taken by a re-                                                    how much corrective action was taken and
                                 spondent to prevent a recurrence of similar                                                  when it was taken. Systemic action to pre-
                                 violations). In making a penalty rec-                                                        vent future violations is given greater con-
                                 ommendation, the baseline or range may be                                                    sideration than action simply to remedy vio-
                                 increased or decreased on the basis of evi-                                                  lations identified during the inspection.
                                 dence pertaining to these factors.                                                             3. Mitigation is applied to individual viola-
                                   C. The following miscellaneous factors are                                                 tions. Thus, in a case with two violations, if
                                 used to implement one or more of the statu-                                                  corrective action for the first violation is
                                 tory assessment criteria.                                                                    more extensive than for the second, the pen-
                                                                                                                              alty for the first will be mitigated more than
                                                                                                                              that for the second.

                                                                                                                         48



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                                 Research and Special Programs Admin., DOT                                      Pt. 107, Subpt. D, App. A
                                            B. Respondents That Re-Ship                        large penalty, and may justify reduction of
                                   A shipper that reships materials received                   the penalty or an installment payment plan.
                                 from another company, in the same pack-                       A small amount of cash on hand representing
                                 aging and without opening or altering the                     limited liquidity, even with substantial
                                 package, independently is responsible for en-                 other current assets (such as accounts re-
                                 suring that the shipment complies with Fed-                   ceivable or inventory), may warrant a short-
                                 eral hazmat law, and independently may be                     term payment plan. Respondent’s income
                                 subject to enforcement action if the package                  statement also will be reviewed to determine
                                 does not comply. Nevertheless, the reshipper                  whether a payment plan is appropriate.
                                 is considered to have a lesser level of respon-                 3. Many companies are able to continue in
                                 sibility for compliance in those respects in                  business for extended periods of time with a
                                 which it reasonably relies on the compliance                  small or negative net worth, and many re-
                                 of the package as received. In most cases of                  spondents have paid substantial civil pen-
                                 this type, OHMS will discount the applicable                  alties in installments even though net worth
                                 baseline standard by about 25%. The specific
                                                                                               was negative. For this reason, negative net
                                 knowledge and expertise of all parties must
                                                                                               worth alone does not always warrant reduc-
                                 be considered in discounting for reliance on
                                 a prior shipper. This discount is applied be-                 tion of a proposed penalty or even, in the ab-
                                 fore any consideration of mitigation based                    sence of factors discussed above, a payment
                                 on corrective action.                                         plan.
                                                                                                 4. In general, an installment payment plan
                                     C. Penalty Increases for Multiple Counts                  may be justified where reduction of a pro-
                                   Under the Federal hazmat law, 49 U.S.C.                     posed penalty is not, but the appropriateness
                                 5213(a), each violation of the HMR and each                   of either (or both) will depend on the cir-
                                 day of a continuing violation (except for vio-                cumstances of the case. The length of a pay-
                                 lations pertaining to packaging manufacture                   ment plan should be as short as possible, but
                                 or qualification) is subject to a civil penalty               the plan may consider seasonal fluctuations
                                 of up to $32,500 ($27,500 for a violation occur-              in a company’s income if the company’s
                                 ring after January 21, 1997, and before Octo-                 business is seasonal (e.g., swimming pool
                                 ber 1, 2003). Absent aggravating factors,                     chemical sales, fireworks sales) or if the
                                 OHMS, in its exercise of discretion, ordi-                    company has documented specific reasons
                                 narily will apply a single penalty for mul-                   for current non-liquidity.
                                 tiple counts or days of violation. In a num-                    5. Evidence of financial condition is used
                                 ber of cases, particularly those involving
                                                                                               only to decrease a penalty, and not to in-
                                 shippers, an inspector may cite two or more
                                                                                               crease it.
                                 similar packaging violations for different
                                 hazardous materials. For example, the in-                        E. Penalty Increases for Prior Violations
                                 spector may cite the same marking violation
                                 for two or more packages. OHMS usually will                     The baseline penalty presumes an absence
                                 consider those additional violations as                       of prior violations. If prior violations exist,
                                 counts of the same violation and will not                     generally they will serve to increase a pro-
                                 recommend multiples of the same baseline                      posed penalty. The general standards for in-
                                 penalty. Rather, OHMS usually will rec-                       creasing a baseline proposed penalty on the
                                 ommend the baseline penalty for a single                      basis of prior violations are as follows:
                                 violation, increased by 25% for each addi-                      1. For each prior civil or criminal enforce-
                                 tional violation.
                                                                                               ment case—25% increase over the pre-miti-
                                             D. Financial Considerations                       gation recommended penalty.
                                                                                                 2. For each prior ticket—10% increase over
                                   1. Mitigation is appropriate when the base-
                                                                                               the pre-mitigation recommended penalty.
                                 line penalty would (1) exceed an amount that
                                                                                                 3. A baseline proposed penalty will not be
                                 the respondent is able to pay, or (2) have an
                                 adverse effect on the respondent’s ability to                 increased more than 100% on the basis of
                                 continue in business. These criteria relate to                prior violations.
                                 a respondent’s entire business, and not just                    4. A case or ticket of prior violations initi-
                                 the product line or part of its operations in-                ated in a calendar year more than six years
                                 volved in the violation(s). Beyond the overall                before the calendar year in which the cur-
                                 financial size of the respondent’s business,                  rent case is initiated normally will not be
                                 the relevant items of information on a re-                    considered in determining a proposed pen-
                                 spondent’s balance sheet include the current                  alty for the current violation(s).
                                 ratio (current assets to current liabilities),
                                 the nature of current assets, and net worth                       F. Penalty Increases for Use of Expired
                                 (total assets minus total liabilities).                                        Exemptions
                                   2. These figures are considered on a case-
                                                                                                 Adjustments to the base line figures for
                                 by-case basis. In general, however, a current
                                 ratio close to or below 1.0 means that the                    use of expired exemptions can be made de-
                                 company may have difficulty in paying a                       pending on how much material has been


                                                                                          49



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                                 § 107.401                                                               49 CFR Ch. I (10–1–03 Edition)
                                 shipped during the period between the expi-                   correct by the applicant or, if the ap-
                                 ration date and the renewal date. If the com-                 plicant is an organization, by an au-
                                 pany previously has been found to have oper-                  thorized officer or official representa-
                                 ated under an expired exemption, the pen-
                                 alty is normally doubled. If the company has                  tive of the organization. Any false
                                 been previously cited for other violations,                   statement or representation, or the
                                 the penalty generally will be increased by                    knowing and willful concealment of a
                                 about 25%.                                                    material fact, may subject the appli-
                                 [Amdt. 107–33, 60 FR 12141, Mar. 6, 1995, as                  cant to prosecution under the provi-
                                 amended by Amdt. 107–40, 62 FR 2972, 2977,                    sions of 18 U.S.C. 1001, result in the de-
                                 Jan. 21, 1997; 62 FR 51556, Oct. 1, 1997; 65 FR               nial or termination of a designation.
                                 58618, Sept. 29, 2000; 66 FR 45180, Aug. 28, 2001;              (b) Each application for designation
                                 68 FR 52848, 52855, Sept. 8, 2003]                            must be in English and include the fol-
                                                                                               lowing information:
                                 Subpart E—Designation of Ap-                                    (1) Name and address of the appli-
                                    proval   and    Certification                              cant, including place of incorporation
                                    Agencies                                                   if a corporation. In addition, if the ap-
                                                                                               plicant is not a resident of the United
                                 § 107.401 Purpose and scope.                                  States, the name and address of a per-
                                    (a) This subpart establishes proce-                        manent resident of the United States
                                 dures for the designation of agencies to                      designated in accordance with § 105.40
                                 issue approval certificates and certifi-                      to serve as agent for service of process.
                                 cations for types of packagings de-                             (2) If the applicant’s principal place
                                 signed, manufactured, tested, or main-                        of business is in a country other than
                                 tained in conformance with the re-                            the United States, a copy of the des-
                                 quirements of this subchapter, sub-                           ignation from the Competent Author-
                                 chapter C of this chapter, and stand-                         ity of that country delegating to the
                                 ards set forth in the United Nations                          applicant an approval or designated
                                 (U.N.) Recommendations (Transport of                          agency authority for the type of pack-
                                 Dangerous Goods). Except for certifi-                         aging for which a DOT designation is
                                 cations of compliance with U.N. pack-                         sought, and a statement that the Com-
                                 aging standards, this subpart does not                        petent Authority also delegates similar
                                 apply unless made applicable by a rule                        authority to U.S. Citizens or organiza-
                                 in subchapter C of this chapter.                              tions having designations under this
                                    (b) The Associate Administrator may                        subpart from the RSPA.
                                 issue approval certificates and certifi-                        (3) A listing, by DOT specification (or
                                 cations addressed in paragraph (a) of                         exemption) number, or U.N. designa-
                                 this section.                                                 tion, of the types of packagings for
                                 [Amdt. 107–31, 50 FR 10062, Mar. 13, 1985, as                 which approval authority is sought.
                                 amended by Amdt. 107–23, 56 FR 66157, Dec.                      (4) A personnel qualifications plan
                                 20, 1991; 66 FR 45377, Aug. 28, 2001]                         listing the qualifications that the ap-
                                 § 107.402 Application for designation                         plicant will require of each person to
                                      as an approval or certification                          be used in the performance of each
                                      agency.                                                  packaging approval or certification
                                                                                               function. As a minimum, these quali-
                                    (a) Any organization or person seek-
                                                                                               fications must include:
                                 ing designation as an approval or cer-
                                 tification agency shall apply in writing                        (i) The ability to review and evaluate
                                 to the Associate Administrator for                            design drawings, design and stress cal-
                                 Hazardous Materials Safety (DHM–32),                          culations;
                                 Department of Transportation, 400 Sev-                          (ii) A knowledge of the applicable
                                 enth Street, SW., Washington DC 20590–                        regulations of subchapter C of this
                                 0001. Alternatively, the application                          chapter and, when applicable, U.N.
                                 with any attached supporting docu-                            standards; and
                                 mentation in an appropriate format                              (iii) The ability to conduct or mon-
                                 may be submitted by facsimile (fax) to:                       itor and evaluate test procedures and
                                 (202) 366–3753 or (202) 366–3308 or by elec-                  results; and
                                 tronic        mail        (e-mail)       to:                    (iv) The ability to review and evalu-
                                 Approvals@rspa.dot.gov. Each applica-                         ate the qualifications of materials and
                                 tion must be signed and certified to be                       fabrication procedures.

                                                                                          50



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                                 Research and Special Programs Admin., DOT                                                        § 107.405

                                   (5) A statement that the applicant                          § 107.404   Conditions of designation.
                                 will perform its functions independent
                                                                                                 (a) Each designation made under this
                                 of the manufacturers and owners of the                        subpart contains the following condi-
                                 packagings concerned.                                         tions:
                                   (6) A statement that the applicant                            (1) The designated approval or cer-
                                 will allow the Associate Administrator                        tification agency may use only testing
                                 or his representative to inspect its                          equipment that it has determined,
                                 records and facilities in so far as they                      through personal inspection, to be suit-
                                 relate to the approval or certification                       able for the purpose.
                                 of specification packagings and shall                           (2) Each approval certificate and cer-
                                 cooperate in the conduct of such in-                          tification issued by the designated ap-
                                 spections.                                                    proval agency must contain the name
                                   (c) The applicant shall furnish any                         and identification code of the approval
                                 additional information relevant to the                        agency.
                                 applicant’s qualifications, if requested                        (3) Each approval certificate and cer-
                                 by the Associate Administrator.                               tification must be in a format accept-
                                                                                               able to the Associate Administrator.
                                 [Amdt. 107–13, 50 FR 10062, Mar. 13, 1985; 50
                                 FR 16089, Apr. 24, 1985, as amended by Amdt.                    (b) The designated approval agency
                                 107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–23,              shall notify the Associate Adminis-
                                 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28,             trator within 20 days after the date
                                 2001; 67 FR 61011, Sept. 27, 2002]                            there is any change in the information
                                                                                               submitted under § 107.402.
                                 § 107.403 Designation              of     approval              (c) The designated approval agency
                                     agencies.                                                 shall comply with all of the terms and
                                   (a) If the Associate Administrator de-                      conditions stated in its letter of des-
                                 termines that an application contains                         ignation under the subpart.
                                 all the required information, the appli-                        (d) Nothing in this part relieves a
                                 cant is sent a letter of designation and                      manufacturer or owner of a packaging
                                 assigned an identification code.                              of responsibility for compliance with
                                                                                               any of the applicable requirements of
                                   (b) If the Associate Administrator de-
                                                                                               this title.
                                 termines that an application does not
                                 contain all the required information,                         [Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as
                                 the application is denied and the appli-                      amended by Amdt. 107–23, 56 FR 66157, Dec.
                                                                                               20, 1991; 66 FR 45377, Aug. 28, 2001]
                                 cant is sent a written notice con-
                                 taining all the reasons for the denial.                       § 107.405   Termination of designation.
                                   (c) Within 30 days of an initial denial
                                 of an application under paragraph (b)                            (a) Any designation issued under
                                 of this section, the applicant may file                       § 107.403 of this subchapter may be sus-
                                 an amended application. If after con-                         pended or terminated if the Associate
                                                                                               Administrator determines that:
                                 sidering the amended application, the
                                 Associate Administrator determines                               (1) The application for designation
                                                                                               contained a misrepresentation, or the
                                 that it should be denied, he notifies the
                                                                                               applicant willfully concealed a mate-
                                 applicant, and the denial constitutes
                                                                                               rial fact.
                                 the final action of the Associate Ad-
                                                                                                  (2) The approval agency failed to
                                 ministrator on the application. Within
                                                                                               comply with a term or condition stated
                                 60 days of receipt of the final denial the                    in the agency’s letter of designation.
                                 applicant may appeal the denial to the                           (3) The Competent Authority of an
                                 Administrator, RSPA, setting forth in                         approval agency of a country outside
                                 writing where the Associate Adminis-                          the United States has failed to initiate,
                                 trator for Hazardous Materials Safety                         maintain or recognize a qualified U.S.
                                 erred in this determination.                                  approval agency.
                                 [Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as                    (b) Before a designation is suspended
                                 amended by Amdt. 107–23, 56 FR 66157, Dec.                    or terminated, the Associate Adminis-
                                 20, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26,                trator shall give to the approval agen-
                                 1994; 66 FR 45377, Aug. 28, 2001]                             cy:


                                                                                          51



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                                 § 107.501                                                                 49 CFR Ch. I (10–1–03 Edition)

                                   (1) Written notice of the facts or con-                     sign Certifying Engineer, Registered In-
                                 duct believed to warrant suspension or                        spector, and Person are defined in § 171.8
                                 termination of the designation.                               of this chapter.
                                   (2) Sixty days in which to show in                            (3) The terms cargo tank wall and
                                 writing why the designation should not                        manufacturer are defined in § 178.320(a),
                                 be suspended or terminated.                                   and repair is defined in § 180.403 of this
                                 [Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as                 chapter.
                                 amended by Amdt. 107–23, 56 FR 66157, Dec.                      (b) No person may engage in the
                                 20, 1991; 66 FR 45377, Aug. 28, 2001]                         manufacture, assembly, certification,
                                                                                               inspection or repair of a cargo tank or
                                 Subpart F—Registration of Cargo                               cargo tank motor vehicle manufac-
                                    Tank and Cargo Tank Motor                                  tured under the terms of a DOT speci-
                                    Vehicle Manufacturers, As-                                 fication under subchapter C of this
                                    semblers, Repairers, Inspec-                               chapter or an exemption issued under
                                    tors, Testers, and Design Certi-                           this part unless the person is registered
                                                                                               with the Department in accordance
                                    fying Engineers                                            with the provisions of this subpart. A
                                 § 107.501 Scope.                                              person employed as an inspector or de-
                                                                                               sign certifying engineer is considered
                                    (a) This subpart establishes a reg-
                                                                                               to be registered if the person’s em-
                                 istration procedure for persons who are
                                                                                               ployer is registered.
                                 engaged in the manufacture, assembly,
                                 inspection and testing, certification, or                       (c) A person who performs functions
                                 repair of a cargo tank or a cargo tank                        which are subject to the provisions of
                                 motor vehicle manufactured in accord-                         this subpart may perform only those
                                 ance with a DOT specification under                           functions which have been identified to
                                 subchapter C of this chapter or under                         the Department in accordance with the
                                 terms of an exemption issued under                            procedures of this subpart.
                                 this part.                                                      (d) Registration statements must be
                                    (b) Persons engaged in continuing                          in English, contain all of the informa-
                                 qualification and maintenance of cargo                        tion required by this subpart, and be
                                 tanks and cargo tank motor vehicles                           submitted to: FMCSA Hazardous Mate-
                                 must be familiar with the requirements                        rials Division—MC-ECH, Room 8310, 400
                                 set forth in part 180, subpart E, of this                     7th Street SW, Washington, DC 20590.
                                 chapter.                                                        (e) Upon determination that a reg-
                                 [Amdt. 107–20, 55 FR 37047, Sept. 7, 1990]
                                                                                               istration statement contains all the in-
                                                                                               formation required by this subpart, the
                                 § 107.502 General registration require-                       Department will send the registrant a
                                       ments.                                                  letter confirming receipt of the reg-
                                    (a) Definitions: For purposes of this                      istration application and assigning a
                                 subpart—                                                      registration number to that person. A
                                    (1) Assembly means the performance                         separate registration number will be
                                 of any of the following functions when                        assigned for each cargo tank manufac-
                                 the function does not involve welding                         turing, assembly, repair facility or
                                 on the cargo tank wall:                                       other place of business identified by
                                    (i) The mounting of one or more                            the registrant.
                                 tanks or cargo tanks on a motor vehi-                         [Amdt. 107–20, 54 FR 25003, June 12, 1989; 55
                                 cle or to a motor vehicle suspension                          FR 37047, Sept. 7, 1990, as amended by Amdt.
                                 component;                                                    107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–23,
                                    (ii) The installation of equipment or                      56 FR 66157, Dec. 20, 1991; Amdt. 107–28, 58 FR
                                 components necessary to meet the                              46873, Sept. 3, 1993; Amdt. 107–39, 61 FR 51337,
                                 specification requirements prior to the                       Oct. 1, 1996; 67 FR 61011, Sept. 27, 2002; 68 FR
                                                                                               19273, Apr. 18, 2003]
                                 certification of the cargo tank motor
                                 vehicle; or
                                                                                               § 107.503   Registration statement.
                                    (iii) The installation of linings, coat-
                                 ings, or other materials to the inside of                       (a) Each registration statement must
                                 a cargo tank wall.                                            be in English and contain the following
                                    (2) The terms Authorized Inspector,                        information:
                                 Cargo tank, Cargo tank motor vehicle, De-                       (1) Name;

                                                                                          52



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                                 Research and Special Programs Admin., DOT                                                          § 107.504

                                    (2) Street address, mailing address                          (8) If the registrant is not a resident
                                 and telephone number for each facility                        of the United States, the name and ad-
                                 or place of business;                                         dress of a permanent resident of the
                                    (3) A statement indicating whether                         United States designated in accordance
                                 the facility uses mobile testing/inspec-                      with § 105.40 to serve as agent for serv-
                                 tion equipment to perform inspections,                        ice of process.
                                 tests, or repairs at a location other                           (b) In addition to the information re-
                                 than the address listed in paragraph                          quired under paragraph (a) of this sec-
                                 (a)(2) of this section.                                       tion, each person who manufactures a
                                    (4) A statement signed by the person                       cargo tank or cargo tank motor vehicle
                                 responsible for compliance with the ap-                       must submit a copy of the manufactur-
                                 plicable requirements of this chapter,                        er’s current ASME Certificate of Au-
                                 certifying knowledge of those require-                        thorization for the use of the ASME
                                 ments and that each employee who is a                         ‘‘U’’ stamp.
                                 Registered Inspector or Design Certi-                           (c) In addition to the information re-
                                 fying Engineer meets the minimum                              quired under paragraph (a) of this sec-
                                 qualification requirements set forth in                       tion, each person who repairs a cargo
                                 § 171.8 of this chapter for ‘‘Registered                      tank or cargo tank motor vehicle must
                                 Inspector’’ or ‘‘Design Certifying Engi-                      submit a copy of the repair facility’s
                                 neer’’. The following language may be                         current National Board Certificate of
                                 used.                                                         Authorization for the use of the ‘‘R’’
                                                                                               stamp or ASME Certificate of Author-
                                   I certify that all Registered Inspectors and
                                 Design Certifying Engineers used in perform-                  ization for the use of the ASME ‘‘U’’
                                 ance of the prescribed functions meet the                     stamp. Any person who repairs MC-se-
                                 minimum qualification requirements set                        ries cargo tanks which are not certified
                                 forth in 49 CFR 171.8, that I am the person                   to the ASME Code must submit a copy
                                 responsible for ensuring compliance with the                  of the National Board or ASME Certifi-
                                 applicable requirements of this chapter, and                  cate of Authorization to RSPA before
                                 that I have knowledge of the requirements                     June 30, 1992.
                                 applicable to the functions to be performed.
                                                                                               [Amdt. 107–20, 54 FR 25003, June 12, 1989; 55
                                   (5) A description of the specific func-                     FR 37047, Sept. 7, 1990; 57 FR 365, Jan. 6, 1992;
                                 tions to be performed on cargo tanks or                       Amdt. 107–32, 59 FR 49131, Sept. 26, 1994;
                                 cargo tank motor vehicles, e.g.:                              Amdt. 107–39, 61 FR 51337, Oct. 1, 1996; 63 FR
                                   (i) Manufacture,                                            52846, Oct. 1, 1998; 68 FR 19273, Apr. 18, 2003]
                                   (ii) Assembly,
                                   (iii) Inspection and testing (specify                       § 107.504 Period of registration, up-
                                 type, e.g., external or internal visual                            dates, and record retention.
                                 inspection, lining inspection, hydro-                            (a) Registration will be for a max-
                                 static pressure test, leakage test,                           imum of six years from the date of the
                                 thickness test),                                              original registration.
                                   (iv) Certification,                                            (b) Any correspondence with the De-
                                   (v) Repair, or                                              partment must contain the registrant’s
                                   (vi) Equipment manufacture;                                 name and registration number.
                                   (6) An identification of the types of                          (c) A registration must be renewed
                                 DOT specification and exemption cargo                         every six years or within thirty days of
                                 tanks or cargo tank motor vehicles                            reissuance of an ASME or National
                                 which the registrant intends to manu-                         Board Certification, whichever occurs
                                 facture, assemble, repair, inspect, test                      first, by submitting an up-to-date reg-
                                 or certify;                                                   istration statement containing the in-
                                   (7) A statement indicating whether                          formation prescribed by § 107.503. Any
                                 the registrant employs Registered In-                         person initially registered under the
                                 spectors or Design Certifying Engi-                           provisions of § 107.502 and who is in
                                 neers to conduct certification, inspec-                       good standing is eligible for renewal.
                                 tion or testing functions addressed by                           (d) A registrant shall provide written
                                 this subpart. If the registrant engages                       notification to the Department within
                                 a person who is not an employee of the                        thirty days of any of the following oc-
                                 registrant to perform these functions,                        currences:
                                 provide the name, address and registra-                          (1) Any change in the registration in-
                                 tion number of that person; and                               formation submitted under § 107.503;

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                                 § 107.601                                                                 49 CFR Ch. I (10–1–03 Edition)

                                   (2) Replacement of the person respon-                       for ‘‘hazard zone A,’’ as specified in
                                 sible for compliance with the require-                        §§ 173.116(a) or 173.133(a) of this chap-
                                 ments in § 107.503(a)(3). If this occurs,                     ter);
                                 the registrant shall resubmit the re-                            (4) A shipment of a quantity of haz-
                                 quired certification;                                         ardous materials in a bulk packaging
                                   (3) Loss of ASME or National Board                          (see § 171.8 of this chapter) having a ca-
                                 Certificate of Authorization; or                              pacity equal to or greater than 13,248 L
                                   (4) A change in function; such as,                          (3,500 gallons) for liquids or gases or
                                 from assembly to manufacture, an ad-                          more than 13.24 cubic meters (468 cubic
                                 dition of a function, or a change to the                      feet) for solids;
                                 types of inspections, tests or certifi-                          (5) A shipment in other than a bulk
                                 cations of cargo tanks or cargo tank                          packaging of 2,268 kg (5,000 pounds)
                                 motor vehicles.                                               gross weight or more of one class of
                                   (e) Each registrant shall maintain a                        hazardous       materials     for   which
                                 current copy of the registration infor-                       placarding of a vehicle, rail car, or
                                 mation submitted to the Department                            freight container is required for that
                                 and a current copy of the registration                        class, under the provisions of subpart F
                                 number identification received from                           of part 172 of this chapter; or
                                 the Department at the location identi-                           (6) Except as provided in paragraph
                                 fied in § 107.503(a)(2) during such time                      (b) of this section, a quantity of haz-
                                 the person is registered with the De-                         ardous       material    that     requires
                                 partment and for two years thereafter.                        placarding, under provisions of subpart
                                   (f) The issuance of a registration                          F of part 172 of this chapter.
                                 number under this subpart is not an ap-                          (b) Paragraph (a)(6) of this section
                                 proval or endorsement by the Depart-                          does not apply to those activities of a
                                 ment of the qualifications of any per-                        farmer, as defined in § 171.8 of this
                                 son to perform the specified functions.                       chapter, that are in direct support of
                                 [Amdt. 107–20, 54 FR 25003, June 12, 1989; 55                 the farmer’s farming operations.
                                 FR 37048, Sept. 7, 1990, as amended by Amdt.                     (c) In this subpart, the term ‘‘ship-
                                 107–20, 56 FR 27875, June 17, 1991; Amdt. 107–                ment’’ means the offering or loading of
                                 37, 61 FR 18931, Apr. 29, 1996]                               hazardous material at one loading fa-
                                                                                               cility using one transport vehicle, or
                                 Subpart G—Registration of Persons                             the transport of that transport vehicle.
                                    Who Offer or Transport Haz-                                [65 FR 7309, Feb. 14, 2000, as amended at 67
                                    ardous Materials                                           FR 61011, Sept. 27, 2002]

                                                                                               § 107.606   Exceptions.
                                    SOURCE: Amdt. No. 107–26, 57 FR 30630, July
                                 9, 1992, unless otherwise noted.                                (a) The following are excepted from
                                                                                               the requirements of this subpart:
                                 § 107.601      Applicability.                                   (1) An agency of the Federal govern-
                                   (a) The registration and fee require-                       ment.
                                 ments of this subpart apply to any per-                         (2) A State agency.
                                 son who offers for transportation, or                           (3) An agency of a political subdivi-
                                 transports, in foreign, interstate or                         sion of a State.
                                 intrastate commerce—                                            (4) An employee of any of those agen-
                                   (1) A highway route-controlled quan-                        cies in paragraphs (a)(1) through (a)(3)
                                 tity of a Class 7 (radioactive) material,                     of this section with respect to the em-
                                 as defined in § 173.403 of this chapter;                      ployee’s official duties.
                                   (2) More than 25 kg (55 pounds) of a                          (5) A hazmat employee (including, for
                                 Division 1.1, 1.2, or 1.3 (explosive) mate-                   purposes of this subpart, the owner-op-
                                 rial (see § 173.50 of this chapter) in a                      erator of a motor vehicle that trans-
                                 motor vehicle, rail car or freight con-                       ports in commerce hazardous mate-
                                 tainer;                                                       rials, if that vehicle at the time of
                                   (3) More than one L (1.06 quarts) per                       those activities, is leased to a reg-
                                 package of a material extremely toxic                         istered motor carrier under a 30-day or
                                 by inhalation (i.e., ‘‘material poisonous                     longer lease as prescribed in 49 CFR
                                 by inhalation,’’ as defined in § 171.8 of                     part 376 or an equivalent contractual
                                 this chapter, that meets the criteria                         agreement).

                                                                                          54



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                                 Research and Special Programs Admin., DOT                                                          § 107.612

                                   (6) A person domiciled outside the                          ting an amended registration state-
                                 United States, who offers solely from a                       ment not later than 30 days after the
                                 location outside the United States,                           change.
                                 hazardous materials for transportation                          (d) Copies of DOT Form F 5800.2 and
                                 in commerce, provided that the country                        instructions for its completion may be
                                 of which such a person is a domiciliary                       obtained from the Hazardous Materials
                                 does not require persons domiciled in                         Registration Program, DHM–60, U.S.
                                 the United States, who solely offer haz-                      Department of Transportation, Wash-
                                 ardous materials for transportation to                        ington, DC 20590–0001, by calling 617–
                                 the foreign country from places in the                        494–2545 or 202–366–4109, or via the Inter-
                                 United States, to file a registration                         net at http://hazmat.dot.gov.
                                 statement or to pay a registration fee.                         (e) If the registrant is not a resident
                                   (b) Upon making a determination                             of the United States, the registrant
                                 that persons domiciled in the United                          must attach to the registration state-
                                 States, who offer hazardous materials                         ment the name and address of a perma-
                                 for transportation to a foreign country                       nent resident of the United States, des-
                                 solely from places in the United States,                      ignated in accordance with § 105.40, to
                                 must file registration statements or                          serve as agent for service of process.
                                 pay fees to that foreign country, the
                                                                                               [Amdt. No. 107–26, 57 FR 30630, July 9, 1992, as
                                 U.S. Competent Authority will provide
                                                                                               amended by Amdt. 107–31, 59 FR 32932, June
                                 notice of such determination directly                         27, 1994; 65 FR 7309, Feb. 14, 2000; 67 FR 61011,
                                 to the Competent Authority of that                            Sept. 27, 2002]
                                 foreign country and by publication in
                                 the FEDERAL REGISTER. Persons who                             § 107.612 Amount of fee.
                                 offer hazardous materials for transpor-                          (a) Registration year 1999–2000 and ear-
                                 tation to the United States from that                         lier. For all registration years through
                                 foreign country must file a registration                      1999–2000, each person subject to the re-
                                 statement and pay the required fee no                         quirements of § 107.601(a)(1)–(5) of this
                                 later than 60 days following publica-                         subpart must pay an annual fee of $300
                                 tion of the determination in the FED-                         (which includes a $50 processing fee).
                                 ERAL REGISTER.                                                   (b) Registration years 2000–2001, 2001–
                                 [Amdt 107–34, 60 FR 27233, May 23, 1995, as                   2002 and 2002–2003. For the registration
                                 amended at 63 FR 52847, Oct. 1, 1998]                         years 2000–2001, 2001–2002, and 2002–2003,
                                                                                               each person subject to the require-
                                 § 107.608 General registration require-                       ments of this subpart must pay an an-
                                      ments.                                                   nual fee as follows:
                                    (a) Except as provided in § 107.616(d),                       (1) Small business. Each person that
                                 each person subject to this subpart                           qualifies as a small business under cri-
                                 must submit a complete and accurate                           teria specified in 13 CFR part 121 appli-
                                 registration statement on DOT Form F                          cable to the North American Industry
                                 5800.2 not later than June 30 for each                        Classification System (NAICS) code
                                 registration year, or in time to comply                       that describes that person’s primary
                                 with paragraph (b) of this section,                           commercial activity must pay an an-
                                 whichever is later. Each registration                         nual fee of $275 and the processing fee
                                 year begins on July 1 and ends on June                        required by paragraph (b)(3) of this sec-
                                 30 of the following year.                                     tion.
                                    (b) No person required to file a reg-                         (2) Other than a small business. Each
                                 istration statement may transport a                           person that does not meet criteria
                                 hazardous material or cause a haz-                            specified in paragraph (b)(1) of this sec-
                                 ardous material to be transported or                          tion must pay an annual fee of $1,975
                                 shipped, unless such person has on file,                      and the processing fee required by
                                 in accordance with § 107.620, a current                       paragraph (b)(3) of this section.
                                 Certificate of Registration in accord-                           (3) Processing fee. The processing fee
                                 ance with the requirements of this sub-                       is $25 for each registration statement
                                 part.                                                         filed. A single statement may be filed
                                    (c) A registrant whose name or prin-                       for one, two, or three registration
                                 cipal place of business has changed dur-                      years as provided in § 107.616(c).
                                 ing the year of registration must no-                            (c) Registration years 2003–2004, 2004–
                                 tify RSPA of that change by submit-                           2005 and 2005–2006. For registration

                                                                                          55



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                                 § 107.616                                                               49 CFR Ch. I (10–1–03 Edition)

                                 years 2003–2004, 2004–2005, and 2005–2006,                    must pay an annual registration fee of
                                 each person subject to the require-                           $975 and the processing fee required by
                                 ments of this subpart must pay an an-                         paragraph (d)(4) of this section.
                                 nual registration fee as follows:                                (4) Processing fee. The processing fee
                                    (1) Small business. Each person that                       is $25 for each registration statement
                                 qualifies as a small business, under cri-                     filed. A single statement may be filed
                                 teria specified in 13 CFR part 121 appli-                     for one, two, or three registration
                                 cable to the North American Industry                          years as provided in § 107.616(c).
                                 Classification System (NAICS) code                            [65 FR 7309, Feb. 14, 2000, as amended at 67
                                 that describes that person’s primary                          FR 58345, Sept. 16, 2002; 68 FR 1345, Jan. 9,
                                 commercial activity, must pay an an-                          2003]
                                 nual registration fee of $125 and the
                                 processing fee required by paragraph                          § 107.616 Payment procedures.
                                 (c)(4) of this section.                                          (a) Except as provided in paragraph
                                    (2) Not-for-profit organization. Each                      (d) of this section, each person subject
                                 not-for-profit organization must pay an                       to the requirements of this subpart
                                 annual registration fee of $125 and the                       must mail the registration statement
                                 processing fee required by paragraph                          and payment in full to the U.S. Depart-
                                 (c)(4) of this section. A not-for-profit                      ment of Transportation, Hazardous Ma-
                                 organization is an organization exempt                        terials Registration, P.O. Box 740188,
                                 from taxation under 26 U.S.C. 501(a).                         Atlanta, Georgia 30374–0188, or submit
                                    (3) Other than a small business or not-                    the statement and payment electroni-
                                 for-profit organization. Each person that                     cally through the Department’s e-Com-
                                 does not meet the criteria specified in                       merce Internet site. Access to this
                                 paragraph (c)(1) or (c)(2) of this section                    service     is   provided     at    http://
                                 must pay an annual registration fee of                        hazmat.dot.gov/register.htm. A registrant
                                 $275 and the processing fee required by                       required to file an amended registra-
                                 paragraph (c)(4) of this section.                             tion statement under § 107.608(c) must
                                    (4) Processing fee. The processing fee                     mail it to the same address or submit
                                 is $25 for each registration statement                        it through the same Internet site.
                                 filed. A single statement may be filed                           (b) Payment must be made by cer-
                                 for one, two, or three registration                           tified check, cashier’s check, personal
                                 years as provided in § 107.616(c).                            check, or money order in U.S. funds
                                    (d) Registration years 2006–2007 and fol-                  and drawn on a U.S. bank, payable to
                                 lowing. For each registration year be-                        the U.S. Department of Transportation
                                 ginning with 2006–2007, each person sub-                      and identified as payment for the
                                 ject to the requirements of this subpart                      ‘‘Hazmat Registration Fee,’’ or by com-
                                 must pay an annual fee as follows:                            pleting an authorization for payment
                                    (1) Small business. Each person that                       by credit card or other electronic
                                 qualifies as a small business, under cri-                     means of payment acceptable to the
                                 teria specified in 13 CFR part 121 appli-                     Department on the registration state-
                                 cable to the North American Industry                          ment or as part of an Internet registra-
                                 Classification System (NAICS) code                            tion as provided in paragraph (a) of
                                 that describes that person’s primary                          this section.
                                 commercial activity, must pay an an-                             (c) Payment must correspond to the
                                 nual registration fee of $250 and the                         total fees properly calculated in the
                                 processing fee required by paragraph                          ‘‘Amount Due’’ block of the DOT form
                                 (d)(4) of this section.                                       F 5800.2. A person may elect to register
                                    (2) Not-for-profit organization. Each                      and pay the required fees for up to
                                 not-for-profit organization must pay an                       three registration years by filing one
                                 annual registration fee of $250 and the                       complete and accurate registration
                                 processing fee required by paragraph                          statement.
                                 (d)(4) of this section. A not-for-profit                         (d) A person may obtain a temporary
                                 organization is an organization exempt                        registration number, valid for 45 days
                                 from taxation under 26 U.S.C. 501(a).                         from the date of issuance, through an
                                    (3) Other than a small business or not-                    expedited registration process as fol-
                                 for-profit organization. Each person that                     lows:
                                 does not meet the criteria specified in                          (1) Contact RSPA by telephone (800–
                                 paragraph (d)(1) or (d)(2) of this section                    942–6990 or 617–494–2545) and provide

                                                                                          56



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                                 Research and Special Programs Admin., DOT                                                         § 107.701

                                 name, principal place of business, and                          (1) A copy of the registration state-
                                 credit card payment information;                              ment filed with RSPA; and
                                    (2) Pay a registration and processing                        (2) The Certificate of Registration
                                 fee as follows:                                               issued to the registrant by RSPA.
                                    (i) For registration year 2002–2003,                         (b) After January 1, 1993, each motor
                                 pay a registration fee of $275, a proc-                       carrier subject to the requirements of
                                 essing fee of $25, and an expedited han-                      this subpart must carry a copy of its
                                 dling fee of $50. The total fee is $350.                      current Certificate of Registration
                                 Persons who do not meet the criteria                          issued by RSPA or another document
                                 for a small business, as specified in                         bearing the registration number identi-
                                 § 107.612(b)(1), must enclose an addi-                        fied as the ‘‘U.S. DOT Hazmat Reg.
                                 tional registration fee payment of                            No.’’ on board each truck and truck
                                 $1,700 with the expedited follow-up ma-                       tractor (not including trailers and
                                 terial, for a total of $2,050 (registration                   semi-trailers) used to transport haz-
                                 fee—$1,975; processing fee—$25; expe-                         ardous materials subject to the re-
                                 dited handling fee—$50);                                      quirements of this subpart. The Certifi-
                                    (ii) For registration years 2003–2004,                     cate of Registration or document bear-
                                 2004–2005, and 2005–2006, pay a registra-                     ing the registration number must be
                                 tion fee of $125, a processing fee of $25,                    made available, upon request, to en-
                                 and an expedited handling fee of $50.                         forcement personnel.
                                 The total fee is $200. Persons who do                           (c) In addition to the requirements of
                                 not meet the criteria for a small busi-                       paragraph (a) of this section, after Jan-
                                 ness or are not a not-for-profit organi-                      uary 1, 1995, each person who trans-
                                 zation, as specified in § 107.612(c), must                    ports by vessel a hazardous material
                                 enclose an additional registration fee                        subject to the requirements of this sub-
                                 payment of $150 with the expedited fol-                       part must carry on board the vessel a
                                 low-up material, for a total of $350 (reg-                    copy of its current Certificate of Reg-
                                 istration fee—$275; processing fee—$25;                       istration or another document bearing
                                 expedited handling fee—$50); and                              the current registration number identi-
                                    (iii) For registration years beginning                     fied as the ‘‘U.S. DOT Hazmat Reg.
                                 with 2006–2007, pay a registration fee of                     No.’’
                                 $250, a processing fee of $25, and an ex-                       (d) Each person subject to this sub-
                                 pedited handling fee of $50. The total                        part must furnish its Certificate of
                                 fee is $325. Persons who do not meet                          Registration (or a copy thereof) and all
                                 the criteria for a small business or are                      other records and information per-
                                 not a not-for-profit organization, as                         taining to the information contained in
                                 specified in § 107.612(d), must enclose an                    the registration statement to an au-
                                 additional registration fee payment of                        thorized representative or special
                                 $725 with the expedited follow-up mate-                       agent of DOT upon request.
                                 rial, for a total of $1,050 (registration                     [Amdt. No. 107–26, 57 FR 30630, July 9, 1992, as
                                 fee—$975; processing fee—$25; expedited                       amended at 57 FR 37902, August 21, 1992;
                                 handling fee—$50); and                                        Amdt. 107–26, 58 FR 12545, Mar. 5, 1993; Amdt.
                                    (3) Submit a completed registration                        107–31, 59 FR 32932, June 27, 1994]
                                 statement and proof of payment to
                                 RSPA before the expiration date of the                              Subpart H—Approvals,
                                 temporary registration number.                                   Registrations and Submissions
                                 [Amdt. 107–26, 57 FR 30630, July 9, 1992, as
                                 amended by Amdt. 107–26, 58 FR 12545, Mar. 5,                   SOURCE: Amdt. 107–38, 61 FR 21100, May 9,
                                 1993; 65 FR 7310, Feb. 14, 2000; 67 FR 58345,                 1996, unless otherwise noted.
                                 Sept. 16, 2002; 68 FR 1346, Jan. 9, 2003]
                                                                                               § 107.701 Purpose and scope.
                                 § 107.620 Recordkeeping requirements.                            (a) This subpart prescribes proce-
                                    (a) Each person subject to the re-                         dures for the issuance, modification
                                 quirements of this subpart, or its agent                      and termination of approvals, and the
                                 designated under § 107.608(e), must                           submission of registrations and re-
                                 maintain at its principal place of busi-                      ports, as required by this chapter.
                                 ness for a period of three years from                            (b) The procedures of this subpart are
                                 the date of issuance of each Certificate                      in addition to any requirements in sub-
                                 of Registration:                                              chapter C of this chapter applicable to

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                                 § 107.705                                                               49 CFR Ch. I (10–1–03 Edition)

                                 a specific approval, registration or re-                      nent information or otherwise does not
                                 port. If compliance with both a specific                      comply with applicable requirements.
                                 requirement of subchapter C of this                              (b) In addition to the provisions in
                                 chapter and a procedure of this subpart                       paragraph (a) for an approval, an appli-
                                 is not possible, the specific require-                        cation for an approval, or an applica-
                                 ment applies.                                                 tion for modification or renewal of an
                                   (c) Registration under subpart F or G                       approval, the applicant must provide—
                                 of this part is not subject to the proce-                        (1) A description of the activity for
                                 dures of this subpart.                                        which the approval is required;
                                 [Amdt. 107–38, 61 FR 21100, May 9, 1996; Amdt.                   (2) The proposed duration of the ap-
                                 107–38, 61 FR 27948, June 3, 1996]                            proval;
                                 § 107.705 Registrations, reports, and                            (3) The transport mode or modes af-
                                      applications for approval.                               fected, as applicable;
                                                                                                  (4) Any additional information speci-
                                    (a) A person filing a registration, re-
                                                                                               fied in the section containing the ap-
                                 port, or application for an approval, or
                                                                                               proval; and
                                 a renewal or modification of an ap-
                                 proval subject to the provisions of this                         (5) For an approval which provides
                                 subpart must—                                                 exceptions from regulatory require-
                                    (1) File the registration, report, or                      ments or prohibitions—
                                 application with the Associate Admin-                            (i) Identification of any increased
                                 istrator for Hazardous Materials Safety                       risk to safety or property that may re-
                                 (Attention: Approvals, DHM–32), Re-                           sult if the approval is granted, and
                                 search and Special Programs Adminis-                          specification of the measures that the
                                 tration, U.S. Department of Transpor-                         applicant considers necessary or appro-
                                 tation, 400 7th Street, SW., Wash-                            priate to address that risk; and
                                 ington, DC 20590–0001. Alternatively,                            (ii) Substantiation, with applicable
                                 the document with any attached sup-                           analyses or evaluations, if appropriate,
                                 porting documentation in an appro-                            demonstrating that the proposed activ-
                                 priate format may be filed by facsimile                       ity will achieve a level of safety that is
                                 (fax) to: (202) 366–3753 or (202) 366–3308 or                 at least equal to that required by the
                                 by     electronic    mail     (e-mail)    to:                 regulation.
                                 Approvals@rspa.dot.gov.                                          (c) For an approval with an expira-
                                    (2) Identify the section of the chapter                    tion date, each application for renewal
                                 under which the registration, report, or                      or modification must be filed in the
                                 application is made;                                          same manner as an original applica-
                                    (3) If a report is required by an ap-                      tion. If a complete and conforming re-
                                 proval, a registration or an exemption,                       newal application is filed at least 60
                                 identify the approval, registration or                        days before the expiration date of an
                                 exemption number;                                             approval, the Associate Administrator,
                                    (4) Provide the name, street and                           on written request from the applicant,
                                 mailing addresses, e-mail address op-                         will issue a written extension to permit
                                 tional, and telephone number of the                           operation under the terms of the ex-
                                 person on whose behalf the registra-                          pired approval until a final decision on
                                 tion, report, or application is made                          the application for renewal has been
                                 and, if different, the person making the                      made. Operation under an expired ap-
                                 filing;                                                       proval is prohibited absent a written
                                    (5) If the person on whose behalf the
                                                                                               extension. This paragraph does not
                                 filing is made is not a resident of the
                                                                                               limit the authority of the Associate
                                 United States, provide a designation of
                                                                                               Administrator to modify, suspend or
                                 agent for service in accordance with
                                                                                               terminate an approval under § 107.713.
                                 § 105.40;
                                    (6) Provide a description of the activ-                       (d) To request confidential treatment
                                 ity for which the registration or report                      for information contained in the appli-
                                 is required; and                                              cation, the applicant shall comply with
                                    (7) Provide additional information as                      § 105.30(a).
                                 requested by the Associate Adminis-                           [Amdt. 107–38, 61 FR 21100, May 9, 1996, as
                                 trator, if the Associate Administrator                        amended at 65 FR 50457, Aug. 18, 2000; 67 FR
                                 determines that a filing lacks perti-                         61011, Sept. 27, 2002]

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                                 Research and Special Programs Admin., DOT                                                        § 107.713

                                 § 107.709 Processing of an application                        mation in the application, prior com-
                                       for approval, including an applica-                     pliance history of the applicant, and
                                       tion for renewal or modification.                       other information available to the As-
                                    (a) No public hearing or other formal                      sociate Administrator.
                                 proceeding is required under this sub-                          (e) Unless otherwise specified in this
                                 part before the disposition of an appli-                      chapter or by the Associate Adminis-
                                 cation.                                                       trator, an approval in which a term is
                                    (b) At any time during the processing                      not specified does not expire.
                                 of an application, the Associate Admin-                         (f) The Associate Administrator noti-
                                 istrator may request additional infor-                        fies the applicant in writing of the de-
                                 mation from the applicant. If the appli-                      cision on the application. A denial con-
                                 cant does not respond to a written re-                        tains a brief statement of reasons.
                                 quest for additional information within                       § 107.711 Withdrawal.
                                 30 days of the date the request was re-
                                 ceived, the application may be deemed                            An application may be withdrawn at
                                 incomplete and denied. However, if the                        any time before a decision to grant or
                                 applicant responds in writing within                          deny it is made. Withdrawal of an ap-
                                 the 30-day period requesting an addi-                         plication does not authorize the re-
                                 tional 30 days within which it will                           moval of any related records from the
                                 gather the requested information, the                         RSPA dockets or files. Applications
                                 Associate Administrator may grant the                         that are eligible for confidential treat-
                                 30-day extension.                                             ment under § 105.30 will remain con-
                                    (c) The Associate Administrator may                        fidential after the application is with-
                                 grant or deny an application, in whole                        drawn. The duration of this confiden-
                                 or in part. At the Associate Adminis-                         tial treatment for trade secrets and
                                 trator’s discretion, an application may                       commercial or financial information is
                                 be granted subject to provisions that                         indefinite, unless the party requesting
                                 are appropriate to protect health, safe-                      the confidential treatment of the ma-
                                 ty and property. The Associate Admin-                         terials notifies the Associate Adminis-
                                 istrator may impose additional provi-                         trator that the confidential treatment
                                 sions not specified in the application,                       is no longer required.
                                 or delete conditions in the application                       [Amdt. 107–38, 61 FR 21100, May 9, 1996, as
                                 which are unnecessary.                                        amended at 67 FR 61011, Sept. 27, 2002]
                                    (d) The Associate Administrator may
                                 grant an application on finding that—                         § 107.713 Approval modification, sus-
                                    (1) The application complies with                               pension or termination.
                                 this subpart;                                                    (a) The Associate Administrator may
                                    (2) The application demonstrates                           modify an approval on finding that—
                                 that the proposed activity will achieve                          (1) Modification is necessary to con-
                                 a level of safety that—                                       form an existing approval to relevant
                                    (i) Is at least equal to that required                     statutes and regulations as they may
                                 by the regulation, or                                         be amended from time to time; or
                                    (ii) If the regulations do not establish                      (2) Modification is required by
                                 a level of safety, is consistent with the                     changed circumstances to enable the
                                 public interest and adequately will pro-                      approval to continue to meet the
                                 tect against the risks to life and prop-                      standards of § 107.709(d).
                                 erty inherent in the transportation of                           (b) The Associate Administrator may
                                 hazardous materials in commerce;                              modify, suspend or terminate an ap-
                                    (3) The application states all mate-                       proval, as appropriate, on finding
                                 rial facts, and contains no materially                        that—
                                 false or materially misleading state-                            (1) Because of a change in cir-
                                 ment;                                                         cumstances, the approval no longer is
                                    (4) The applicant meets the qualifica-                     needed or no longer would be granted if
                                 tions required by applicable regula-                          applied for;
                                 tions; and                                                       (2) The application contained inac-
                                    (5) The applicant is fit to conduct the                    curate or incomplete information, and
                                 activity authorized by the approval, or                       the approval would not have been
                                 renewal or modification of approval.                          granted had the application been accu-
                                 This assessment may be based on infor-                        rate and complete;

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                                 § 107.715                                                               49 CFR Ch. I (10–1–03 Edition)

                                   (3) The application contained delib-                        § 107.717 Appeal.
                                 erately inaccurate or incomplete infor-                          (a) A person who requested reconsid-
                                 mation; or                                                    eration under § 107.715 may appeal to
                                   (4) The holder knowingly has violated                       the Administrator the Associate Ad-
                                 the terms of the approval or an appli-                        ministrator’s decision on the request.
                                 cable requirement of this chapter in a                        The appeal must:
                                 manner demonstrating lack of fitness                             (1) Be in writing and filed within 30
                                 to conduct the activity for which the                         days of receipt of the Associate Admin-
                                 approval is required.                                         istrator’s decision on reconsideration;
                                   (c) Except as provided in paragraph                            (2) State in detail any alleged errors
                                 (d) of this section, before an approval is                    of fact and law;
                                 modified, suspended or terminated, the                           (3) Enclose any additional informa-
                                 Associate Administrator notifies the                          tion needed to support the appeal; and
                                 holder in writing of the proposed ac-                            (4) State in detail the modification of
                                 tion and the reasons for it, and pro-                         the final decision sought.
                                 vides an opportunity to show cause                               (b) The Administrator, if necessary
                                 why the proposed action should not be                         to avoid a risk of significant harm to
                                 taken.                                                        persons or property, may declare the
                                   (1) The holder may file a written re-                       Associate Administrator’s action effec-
                                 sponse with the Associate Adminis-                            tive pending a decision on appeal.
                                 trator within 30 days of receipt of no-                          (c) The Administrator grants or de-
                                 tice of the proposed action.                                  nies, in whole or in part, the relief re-
                                   (2) After considering the holder’s or                       quested and informs the appellant in
                                 party’s written response, or after 30                         writing of the decision on appeal. The
                                 days have passed without response                             Administrator’s decision on appeal is
                                 since receipt of the notice, the Asso-                        the final administrative action.
                                 ciate Administrator notifies the holder
                                 in writing of the final decision with a                       Subpart I—Approval of Inde-
                                 brief statement of reasons.
                                   (d) The Associate Administrator, if
                                                                                                  pendent Inspection Agencies,
                                 necessary to avoid a risk of significant                         Cylinder    Requalifiers, and
                                 harm to persons or property, may in                              Non-domestic          Chemical
                                 the notification declare the proposed                            Analyses and Tests of DOT
                                 action immediately effective.                                    Specification Cylinders
                                 § 107.715 Reconsideration.                                      SOURCE: 67 FR 51639, Aug. 8, 2002, unless
                                    (a) An applicant or a holder may re-                       otherwise noted.
                                 quest that the Associate Administrator
                                 reconsider a decision under § 107.709(f)                      § 107.801 Purpose and scope.
                                 or § 107.713(c). The request must:                               (a) This subpart prescribes proce-
                                    (1) Be in writing and filed within 20                      dures for—
                                 days of receipt of the decision;                                 (1) A person who seeks approval to be
                                    (2) State in detail any alleged errors                     an independent inspection agency to
                                 of fact and law;                                              perform     cylinder   inspections   and
                                    (3) Enclose any additional informa-                        verifications required by parts 178 and
                                 tion needed to support the request to                         180 of this chapter;
                                 reconsider; and                                                  (2) A person who seeks approval to
                                    (4) State in detail the modification of                    engage in the requalification (e.g., in-
                                 the final decision sought.                                    spection, testing, or certification), re-
                                    (b) The Associate Administrator con-                       building, or repair of a cylinder manu-
                                 siders newly submitted information on                         factured in accordance with a DOT
                                 a showing that the information could                          specification under subchapter C of
                                 not reasonably have been submitted                            this chapter or under the terms of an
                                 during application processing.                                exemption issued under this part;
                                    (c) The Associate Administrator                               (3) A person who seeks approval to
                                 grants or denies, in whole or in part,                        perform the manufacturing chemical
                                 the relief requested and informs the re-                      analyses and tests of DOT specification
                                 questing person in writing of the deci-                       or exemption cylinders outside the
                                 sion.                                                         United States.

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                                 Research and Special Programs Admin., DOT                                                        § 107.805

                                   (b) No person may engage in a func-                         ship interest in each subsidiary or divi-
                                 tion identified in paragraph (a) of this                      sion of the applicant.
                                 section unless approved by the Asso-                            (5) Name of each individual whom the
                                 ciate Administrator in accordance with                        applicant proposes to employ as an in-
                                 the provisions of this subpart. Each                          spector and who will be responsible for
                                 person must comply with the applica-                          certifying inspection and test results,
                                 ble requirements in this subpart. In ad-                      and a statement of that person’s quali-
                                 dition, the procedural requirements in                        fications.
                                 subpart H of this part apply to the fil-                        (6) An identification or qualification
                                 ing, processing, and termination of an                        number assigned to each inspector who
                                 approval issued under this subpart.                           is supervised by a certifying inspector
                                 § 107.803 Approval of independent in-                         identified in paragraph (c)(3) of this
                                     spection agency.                                          section.
                                                                                                 (7) A statement that the applicant
                                    (a) General. Prior to performing cyl-
                                                                                               will perform its functions independent
                                 inder inspections and verifications re-
                                                                                               of the manufacturers and owners of the
                                 quired by parts 178 and 180 of this chap-
                                                                                               cylinders.
                                 ter, a person must apply to the Asso-
                                 ciate Administrator for an approval as                          (8) The signature of the person certi-
                                 an independent inspection agency. A                           fying the approval application and the
                                 person approved as an independent in-                         date on which it was signed.
                                 spection agency is not an RSPA agent                            (d) Facility inspection. Upon the re-
                                 or representative.                                            quest of the Associate Administrator,
                                    (b) Criteria. No applicant for approval                    the applicant must allow the Associate
                                 as an independent inspection agency                           Administrator or the Associate Admin-
                                 may be engaged in the manufacture of                          istrator’s designee to inspect the appli-
                                 cylinders for use in the transportation                       cant’s facilities and records. The per-
                                 of hazardous materials, or be directly                        son seeking approval must bear the
                                 or indirectly controlled by, or have a                        cost of the inspection.
                                 financial involvement with, any entity                          (e) After approval, the Associate Ad-
                                 that manufactures cylinders for use in                        ministrator may authorize, upon re-
                                 the transportation of hazardous mate-                         quest, the independent inspection agen-
                                 rials, except for providing services as                       cy to perform other inspections and
                                 an independent inspector.                                     functions for which the Associate Ad-
                                    (c) Application information. Each ap-                      ministrator finds the applicant to be
                                 plicant must submit an application in                         qualified. Such additional authoriza-
                                 conformance with § 107.705 containing                         tions will be noted on each inspection
                                 the      information      prescribed    in                    agency’s approval documents.
                                 § 107.705(a). In addition, the application
                                 must contain the following informa-                           [67 FR 51639, Aug. 8, 2002, as amended at 68
                                 tion:                                                         FR 24659, May 8, 2003]
                                    (1) Name and address of each facility
                                                                                               § 107.805 Approval of cylinder requali-
                                 where tests and inspections are to be                             fiers.
                                 performed.
                                    (2) Detailed description of the inspec-                      (a) General. A person must meet the
                                 tion and testing facilities to be used by                     requirements of this section to be ap-
                                 the applicant.                                                proved to inspect, test, certify, repair,
                                    (3) Detailed description of the appli-                     or rebuild a cylinder in accordance
                                 cant’s qualifications and ability to per-                     with a DOT specification under subpart
                                 form the inspections and to verify the                        C of part 178 or subpart C of part 180 of
                                 inspections required by part 178 of this                      this chapter or under the terms of an
                                 chapter or under the terms of an ex-                          exemption issued under this part.
                                 emption issued under this part.                                 (b) Independent Inspection Agency Re-
                                    (4) Name, address, and principal busi-                     view. Each applicant must arrange for
                                 ness activity of each person having any                       an independent inspection agency, ap-
                                 direct or indirect ownership interest in                      proved by the Associate Administrator
                                 the applicant greater than three per-                         pursuant to this subpart, to perform a
                                 cent and any direct or indirect owner-

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                                 § 107.807                                                               49 CFR Ch. I (10–1–03 Edition)

                                 review of its inspection or requalifica-                      an application that, in addition to the
                                 tion operation. The person seeking ap-                        information prescribed in § 107.705(a),
                                 proval must bear the cost of the inspec-                      identifies the DOT specification/exemp-
                                 tion. A list of approved independent in-                      tion cylinders to be inspected; certifies
                                 spection agencies is available from the                       the requalifier will operate in compli-
                                 Associate Administrator at the address                        ance with the applicable requirements
                                 listed in § 107.705. Assistance in obtain-                    of subchapter C of this chapter; cer-
                                 ing an approval is available from the                         tifies the persons performing inspec-
                                 same address.                                                 tions have been trained and have the
                                    (c) Application for approval. If the in-                   information contained in each applica-
                                 spection performed by an independent                          ble CGA pamphlet incorporated by ref-
                                 inspection agency is completed with                           erence in § 171.7 of this chapter applica-
                                 satisfactory results, the applicant                           ble to the requalifiers’ activities; and
                                 must submit a letter of recommenda-                           includes the signature of the person
                                 tion from the independent inspection                          making the certification and the date
                                 agency, an inspection report, and an                          on which it was signed. Each person
                                 application containing the information                        must comply with the applicable re-
                                 prescribed in § 107.705(a). In addition,                      quirements in this subpart. In addition,
                                 the application must contain—                                 the procedural requirements in subpart
                                    (1) The name of the facility manager;                      H of this part apply to the filing, proc-
                                    (2) The DOT specification/exemption                        essing and termination of an approval
                                 cylinders that will be inspected, tested,                     issued under this subpart. After May
                                 repaired, or rebuilt at the facility;                         31, 2004, no person may requalify a DOT
                                    (3) A certification that the facility                      specification/exemption cylinder in ac-
                                 will operate in compliance with the ap-                       cordance with § 180.209(g) of this chap-
                                 plicable requirements of subchapter C                         ter unless that person has been issued a
                                 of this chapter; and                                          RIN as provided in paragraph (d) of this
                                    (4) The signature of the person mak-                       section.
                                 ing the certification and the date on                           (g) Each holder of a current RIN shall
                                 which it was signed.                                          report in writing any change in its
                                    (d) Issuance of requalifier identification                 name, address, ownership, testing
                                 number (RIN). The Associate Adminis-                          equipment, or management or per-
                                 trator issues a RIN as evidence of ap-                        sonnel performing any function under
                                 proval to requalify DOT specification/                        this section, to the Associate Adminis-
                                 exemption cylinders if it is determined,                      trator (DHM–32) within 20 days of the
                                 based on the applicant’s submission                           change.
                                 and other available information, that                         [67 FR 51639, Aug. 8, 2002, as amended at 68
                                 the applicant’s qualifications and,                           FR 24659, May 8, 2003; 68 FR 55544, Sept. 26,
                                 when applicable, facility are adequate                        2003]
                                 to perform the requested functions in
                                 accordance with the criteria prescribed                       § 107.807 Approval of non-domestic
                                 in subpart C of Part 180 of this chapter.                          chemical analyses and tests.
                                    (e) Expiration of RIN. Unless other-                          (a) General. A person who seeks to
                                 wise provided in the issuance letter, an                      manufacture DOT specification or ex-
                                 approval expires five years from the                          emption cylinders outside the United
                                 date of issuance, provided the appli-                         States must seek an approval from the
                                 cant’s facility and qualifications are                        Associate Administrator to perform
                                 maintained at or above the level ob-                          the chemical analyses and tests of
                                 served at the time of inspection by the                       those cylinders outside the United
                                 independent inspection agency, or at                          States.
                                 the date of the certification in the ap-                         (b) Application for approval. Each ap-
                                 plication for approval for requalifiers                       plicant must submit an application
                                 only performing inspections made                              containing the information prescribed
                                 under § 180.209(g) of this chapter.                           in § 107.705(a). In addition, the applica-
                                    (f) Exceptions. Notwithstanding the                        tion must contain—
                                 requirements in paragraphs (b) and (c)                           (1) The name, address, and a descrip-
                                 of this section, a person who only per-                       tion of each facility at which cylinders
                                 forms inspections in accordance with                          are to be manufactured and chemical
                                 § 180.209(g) of this chapter may submit                       analyses and tests are to be performed;

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                                 Research and Special Programs Admin., DOT                                                                § 110.20

                                   (2) Complete details concerning the                         § 110.1    Purpose.
                                 dimensions, materials of construction,
                                                                                                 This part sets forth procedures for re-
                                 wall thickness, water capacity, shape,                        imbursable grants for public sector
                                 type of joints, location and size of                          planning and training in support of the
                                 openings and other pertinent physical                         emergency planning and training ef-
                                 characteristics of each specification or                      forts of States, Indian tribes, and local
                                 exemption cylinder for which approval                         communities to deal with hazardous
                                 is being requested, including calcula-                        materials emergencies, particularly
                                 tions for cylinder wall stress and wall                       those involving transportation. These
                                 thickness, which may be shown on a                            grants will enhance the implementa-
                                 drawing or on separate sheets attached                        tion of the Emergency Planning and
                                 to a descriptive drawing;                                     Community Right-to-Know Act of 1986
                                   (3) The name of the independent in-                         (42 U.S.C. 11001).
                                 spection agency to be used; and
                                   (4) The signature of the person mak-                        § 110.5    Scope.
                                 ing the certification and the date on                           (a) This part applies to States and In-
                                 which it was signed.                                          dian tribes and contains the program
                                   (c) Facility inspections. Upon the re-                      requirements for public sector training
                                 quest of the Associate Administrator,                         and planning grants to support haz-
                                 the applicant must allow the Associate                        ardous materials emergency planning
                                 Administrator or the Associate Admin-                         and training efforts.
                                 istrator’s designee to inspect the appli-                       (b) The requirements contained in 49
                                 cant’s cylinder manufacturing and                             CFR part 18, ‘‘Uniform Administrative
                                 testing facilities and records, and must                      Requirements for Grants and Coopera-
                                 provide such materials and cylinders                          tive Agreements to State and Local
                                 for analyses and tests as the Associate                       Governments’’, apply to grants issued
                                 Administrator may specify. The appli-                         under this part.
                                 cant or holder must bear the cost of                            (c) Copies of standard forms and OMB
                                 the initial and subsequent inspections,                       circulars referenced in this part are
                                 analyses, and tests.                                          available from the HMTUSA Grants
                                                                                               Manager, Research and Special Pro-
                                 PART 110—HAZARDOUS MATERIALS                                  grams Administration, U.S. Depart-
                                   PUBLIC SECTOR TRAINING AND                                  ment of Transportation, 400 Seventh
                                   PLANNING GRANTS                                             Street, SW., Washington DC 20590–0001.

                                                                                               § 110.7 Control Number under the Pa-
                                 Sec.
                                                                                                   perwork Reduction Act.
                                 110.1 Purpose.
                                 110.5 Scope.                                                    The Office of Management and Budg-
                                 110.7 Control Number under the Paperwork                      et control number assigned to collec-
                                     Reduction Act.                                            tion of information in §§ 110.30, 110.70,
                                 110.10 Eligibility.                                           110.80, and 110.90 is 2137–0586.
                                 110.20 Definitions.
                                 110.30 Grant application.                                     § 110.10    Eligibility.
                                 110.40 Activities eligible for funding.                         This part applies to States and In-
                                 110.50 Disbursement of Federal funds.                         dian tribes. States may apply for plan-
                                 110.60 Cost sharing for planning and train-                   ning and training grants. Federally-
                                     ing.                                                      recognized Indian tribes may apply for
                                 110.70 Financial administration.                              training grants.
                                 110.80 Procurement.
                                 110.90 Grant     monitoring,     reports, and                 § 110.20    Definitions.
                                     records retention.
                                 110.100 Enforcement.                                            Unless defined in this part, all terms
                                 110.110 After-grant requirements.                             defined in 49 U.S.C. 5102 are used in
                                 110.120 Deviation from this part.                             their statutory meaning and all terms
                                 110.130 Disputes.                                             defined in 49 CFR part 18 and OMB Cir-
                                                                                               cular A–102, with respect to adminis-
                                   AUTHORITY: 49 U.S.C. 5101–5127; 49 CFR 1.53.                trative requirements for grants, are
                                   SOURCE: Amdt. 110–1, 57 FR 43067, Sept. 17,                 used as defined therein. Other terms
                                 1992, unless otherwise noted.                                 used in this part are defined as follows:

                                                                                          63



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