49 C.F.R. PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES


Title 49 - Transportation


Title 49: Transportation

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PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES

Section Contents

Subpart A—Definitions

§ 107.1   Definitions.

Subpart B—Special permits

§ 107.101   Purpose and scope.
§ 107.105   Application for special permit.
§ 107.107   Application for party status.
§ 107.109   Application for renewal.
§ 107.111   Withdrawal.
§ 107.113   Application processing and evaluation.
§ 107.117   Emergency processing.
§ 107.121   Modification, suspension or termination of special permit or grant of party status.
§ 107.123   Reconsideration.
§ 107.125   Appeal.
§ 107.127   Availability of documents for public inspection.

Subpart C—Preemption

§ 107.201   Purpose and scope.
§ 107.202   Standards for determining preemption.

Preemption Determinations

§ 107.203   Application.
§ 107.205   Notice.
§ 107.207   Processing.
§ 107.209   Determination.
§ 107.211   Petition for reconsideration.
§ 107.213   Judicial review.

Waiver of Preemption Determinations

§ 107.215   Application.
§ 107.217   Notice.
§ 107.219   Processing.
§ 107.221   Determination.
§ 107.223   Petition for reconsideration.
§ 107.227   Judicial review.

Subpart D—Enforcement

§ 107.301   Delegated authority for enforcement.
§ 107.303   Purpose and scope.
§ 107.305   Investigations.

Compliance Orders and Civil Penalties

§ 107.307   General.
§ 107.309   Warning letters.
§ 107.310   Ticketing.
§ 107.311   Notice of probable violation.
§ 107.313   Reply.
§ 107.315   Admission of violations.
§ 107.317   Informal response.
§ 107.319   Request for a hearing.
§ 107.321   Hearing.
§ 107.323   ALJ's decision.
§ 107.325   Appeals.
§ 107.327   Compromise and settlement.
§ 107.329   Maximum penalties.
§ 107.331   Assessment considerations.

Criminal Penalties

§ 107.333   Criminal penalties generally.
§ 107.335   Referral for prosecution.
§ 107.336   Limitation on fines and penalties.

Injunctive Action

§ 107.337   Injunctions generally.
§ 107.339   Imminent hazards.
Appendix A to Subpart D of Part 107—Guidelines for Civil Penalties

Subpart E—Designation of Approval and Certification Agencies

§ 107.401   Purpose and scope.
§ 107.402   Application for designation as an approval or certification agency.
§ 107.403   Designation of approval agencies.
§ 107.404   Conditions of designation.
§ 107.405   Termination of designation.

Subpart F—Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design Certifying Engineers

§ 107.501   Scope.
§ 107.502   General registration requirements.
§ 107.503   Registration statement.
§ 107.504   Period of registration, updates, and record retention.

Subpart G—Registration of Persons Who Offer or Transport Hazardous Materials

§ 107.601   Applicability.
§ 107.606   Exceptions.
§ 107.608   General registration requirements.
§ 107.612   Amount of fee.
§ 107.616   Payment procedures.
§ 107.620   Recordkeeping requirements.

Subpart H—Approvals, Registrations and Submissions

§ 107.701   Purpose and scope.
§ 107.705   Registrations, reports, and applications for approval.
§ 107.709   Processing of an application for approval, including an application for renewal or modification.
§ 107.711   Withdrawal.
§ 107.713   Approval modification, suspension or termination.
§ 107.715   Reconsideration.
§ 107.717   Appeal.

Subpart I—Approval of Independent Inspection Agencies, Cylinder Requalifiers, and Non-domestic Chemical Analyses and Tests of DOT Specification Cylinders

§ 107.801   Purpose and scope.
§ 107.803   Approval of independent inspection agency.
§ 107.805   Approval of cylinder requalifiers.
§ 107.807   Approval of non-domestic chemical analyses and tests.
§ 107.809   xxx


Authority:  49 U.S.C. 5101–5127, 44701; Pub. L. 101–410 section 4 (28 U.S.C. 2461 note); Pub. L. 104–121 sections 212–213; Pub. L. 104–134 section 31001; 49 CFR 1.45, 1.53.

Editorial Note:  Nomenclature changes to part 107 appear at 67 FR 61011, Sept. 27, 2002, 70 FR 56089, Sept. 23, 2005, and 70 FR 73159, Dec. 9, 2005.

Subpart A—Definitions
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§ 107.1   Definitions.
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All terms defined in 49 U.S.C. 5102 are used in their statutory meaning. Other terms used in this part are defined as follows:

Acting knowingly means acting or failing to act while

(1) Having actual knowledge of the facts giving rise to the violation, or

(2) Having the knowledge that a reasonable person acting in the same circumstances and exercising due care would have had.

Administrator means the Administrator, Pipeline and Hazardous Materials Safety Administration or his or her delegate.

Applicant means the person in whose name a special permit, approval, registration, a renewed or modified special permit or approval, or party status to a special permit is requested to be issued.

Application means a request under subpart B of this part for a special permit, a renewal or modification of a special permit, party status to a special permit, or a request under subpart H of this part for an approval, or renewal or modification of an approval.

Approval means written consent, including a competent authority approval, from the Associate Administrator or other designated Department official, to perform a function that requires prior consent under subchapter C of this chapter (49 CFR parts 171 through 180).

Approval Agency means an organization or a person designated by the PHMSA to certify packagings as having been designed, manufactured, tested, modified, marked or maintained in compliance with applicable DOT regulations.

Associate Administrator means the Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.

Competent Authority means a national agency that is responsible, under its national law, for the control or regulation of some aspect of hazardous materials (dangerous goods) transportation. Another term for Competent Authority is “Appropriate authority,” which is used in the International Civil Aviation Organization's (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air. The Associate Administrator is the United States Competent Authority for purposes of this part 107.

Competent Authority Approval means an approval by the competent authority that is required under an international standard (for example, the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code). Any of the following may be considered a competent authority approval if it satisfies the requirement of an international standard:

(1) A specific regulation in subchapter A or C of this chapter.

(2) A special permit or approval issued under subchapter A or C of this chapter.

(3) A separate document issued to one or more persons by the Associate Administrator.

DOT or Department means U.S. Department of Transportation.

Federal hazardous material transportation law means 49 U.S.C. 5101 et seq.

Filed means received by the appropriate PHMSA or other designated office within the time specified in a regulation or rulemaking document.

Holder means the person in whose name a special permit or approval has been issued.

Imminent Hazard means the existence of a condition which presents a substantial likelihood that death, serious illness, severe personal injury, or substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion of an administrative hearing or other formal proceeding initiated to abate the risks of those effects.

Incident means an event resulting in the unintended and unanticipated release of a hazardous material or an event meeting incident reporting requirements in §171.15 or §171.16 of this chapter.

Indian Tribe has the same meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

Investigation includes investigations authorized under 49 U.S.C. 5121 and inspections authorized under 49 U.S.C. 5118 and 5121.

Manufacturing special permit means a special permit from compliance with specified requirements that otherwise must be met before representing, marking, certifying (including requalifying, inspecting, and testing), selling or offering a packaging or container as meeting the requirements of subchapter C of this chapter governing its use in the transportation in commerce of a hazardous material. A manufacturing special permit is a special permit issued to a manufacturer of packagings who does not offer for transportation or transport hazardous materials in packagings subject to the special permit.

Party means a person, other than a holder, authorized to act under the terms of a special permit.

Person means an individual, firm, copartnership, corporation, company, association, or joint-stock association (including any trustee, receiver, assignee, or similar representative); or a government or Indian tribe (or an agency or instrumentality of any government or Indian tribe) that transports a hazardous material to further a commercial enterprise or offers a hazardous material for transportation in commerce. Person does not include the following:

(1) The United States Postal Service.

(2) Any agency or instrumentality of the Federal government, for the purposes of 49 U.S.C. 5123 (civil penalties) and 5124 (criminal penalties.)

(3) Any government or Indian tribe (or an agency or instrumentality of any government or Indian tribe) that transports hazardous material for a governmental purpose.

Registration means a written acknowledgment from the Associate Administrator that a registrant is authorized to perform a function for which registration is required under subchapter C of this chapter (e.g., registration in accordance with 49 CFR 178.503 regarding marking of packagings). For purposes of subparts A through E, “registration” does not include registration under subpart F or G of this part.

Report means information, other than an application, registration or part thereof, required to be submitted to the Associate Administrator pursuant to this subchapter, subchapter B or subchapter C of this chapter.

Respondent means a person upon whom the PHMSA has served a notice of probable violation.

Special permit means a document issued by the Associate Administrator under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). The terms “special permit” and “exemption” have the same meaning for purposes of subchapter A or C of this chapter or other regulations issued under 49 U.S.C. 5101 through 5127. An exemption issued prior to October 1, 2005 remains valid until it is past its expiration date, terminated by the Associate Administrator, or is issued as a special permit, whichever occurs first.

State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the Virgin Islands, American Samoa, Guam, or any other territory or possession of the United States designated by the Secretary.

Transports or transportation means the movement of property and loading, unloading, or storage incidental to the movement.

[Amdt. 107–3, 41 FR 38170, Sept. 9, 1976]

Editorial Note:  For Federal Register citations affecting §107.1, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.

Subpart B—Special permits
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Source:  Amdt. 107–38, 61 FR 21095, May 9, 1996, unless otherwise noted.

§ 107.101   Purpose and scope.
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This subpart prescribes procedures for the issuance, modification and termination of special permits from requirements of this subchapter, subchapter C of this chapter, or regulations issued under chapter 51 of 49 U.S.C.

§ 107.105   Application for special permit.
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(a) General. Each application for an exemption or modification of an exemption must be written in English and must—

(1) Be submitted for timely consideration, at least 120 days before the requested effective date, in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366–3753 or (202) 366–3308 or by electronic mail (e-mail) to: [email protected];

(2) State the name, street and mailing addresses, e-mail address optional, and telephone number of the applicant; if the applicant is not an individual, state the name, street and mailing addresses, e-mail address optional, and telephone number of an individual designated as an agent of the applicant for all purposes related to the application;

(3) If the applicant is not a resident of the United States, a designation of agent for service in accordance with §105.40 of this part; and

(4) For a manufacturing special permit, a statement of the name and street address of each facility where manufacturing under the special permit will occur.

(b) Confidential treatment. To request confidential treatment for information contained in the application, the applicant shall comply with §105.30(a).

(c) Description of special permit proposal. The application must include the following information that is relevant to the special permit proposal:

(1) A citation of the specific regulation from which the applicant seeks relief;

(2) Specification of the proposed mode or modes of transportation;

(3) A detailed description of the proposed special permit (e.g., alternative packaging, test, procedure or activity) including, as appropriate, written descriptions, drawings, flow charts, plans and other supporting documents;

(4) A specification of the proposed duration or schedule of events for which the special permit is sought;

(5) A statement outlining the applicant's basis for seeking relief from compliance with the specified regulations and, if the special permit is requested for a fixed period, a description of how compliance will be achieved at the end of that period;

(6) If the applicant seeks emergency processing specified in §107.117, a statement of supporting facts and reasons;

(7) Identification and description of the hazardous materials planned for transportation under the special permit;

(8) Description of each packaging, including specification or special permit number, as applicable, to be used in conjunction with the requested special permit;

(9) For alternative packagings, documentation of quality assurance controls, package design, manufacture, performance test criteria, in-service performance and service-life limitations.

(10) When a Class 1 material is forbidden for transportation by aircraft except under a special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an applicant for a special permit to transport such Class 1 material on passenger-carrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material.

(d) Justification of special permit proposal. The application must demonstrate that a special permit achieves a level of safety at least equal to that required by regulation, or if a required safety level does not exist, is consistent with the public interest. At a minimum, the application must provide the following:

(1) Information describing all relevant shipping and incident experience of which the applicant is aware that relates to the application;

(2) A statement identifying any increased risk to safety or property that may result if the special permit is granted, and a description of the measures to be taken to address that risk; and

(3) Either:

(i) Substantiation, with applicable analyses, data or test results, that the proposed alternative will achieve a level of safety that is at least equal to that required by the regulation from which the special permit is sought; or

(ii) If the regulations do not establish a level of safety, an analysis that identifies each hazard, potential failure mode and the probability of its occurrence, and how the risks associated with each hazard and failure mode are controlled for the duration of an activity or life-cycle of a packaging.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 62 FR 51556, Oct. 1, 1997; 65 FR 50457, Aug. 18, 2000; 65 FR 58618, Sept. 29, 2000; 67 FR 61010, 61011, Sept. 27, 2002; 68 FR 23841, May 5, 2003; 69 FR 6198, Feb. 10, 2004; 70 FR 56089, Sept. 23, 2005; 70 FR 73160, Dec. 9, 2005]

§ 107.107   Application for party status.
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(a) Any person eligible to apply for a special permit may apply to be made party to an application or an existing special permit, other than a manufacturing special permit.

(b) Each application filed under this section must—

(1) Be submitted in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366–3753 or (202) 366–3308 or by electronic mail (e-mail) to: [email protected];

(2) Identify by number the special permit application or special permit to which the applicant seeks to become a party;

(3) State the name, street and mailing addresses, e-mail address (optional), and telephone number of the applicant; if the applicant is not an individual, state the name, street and mailing addresses, e-mail address (optional), and telephone number of an individual designated as the applicant's agent for all purposes related to the application;

(4) If the applicant is not a resident of the United States, provide a designation of agent for service in accordance with §105.40 of this subchapter; and

(5) For a Class 1 material that is forbidden for transportation by aircraft except under a special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an applicant for party status to a special permit to transport such Class 1 material on passenger-carrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material.

(c) The Associate Administrator grants or denies an application for party status in the manner specified in §107.113(e) and (f) of this subpart.

(d) A party to a special permit is subject to all terms of that special permit, including the expiration date. If a party to a special permit wishes to renew party status, the special permit renewal procedures set forth in §107.109 apply.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 65 FR 50457, Aug. 18, 2000; 67 FR 61010, 61011, Sept. 27, 2002; 69 FR 6198, Feb. 10, 2004; 70 FR 56090, Sept. 23, 2005; 70 FR 73160, Dec. 9, 2005]

§ 107.109   Application for renewal.
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(a) Each application for renewal of an exemption or special permit or party status to an exemption or special permit must:

(1) Be submitted in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366–3753 or (202) 366–3308 or by electronic mail (e-mail) to: [email protected];

(2) Identify by number the exemption or special permit for which renewal is requested;

(3) State the name, street and mailing addresses, e-mail address optional, and telephone number of the applicant; if the applicant is not an individual, state the name, street and mailing addresses, e-mail address optional, and telephone number of an individual designated as an agent of the applicant for all purposes related to the application;

(4) Include either a certification by the applicant that the original application, as it may have been updated by any application for renewal, remains accurate and complete; or include an amendment to the previously submitted application as is necessary to update and assure the accuracy and completeness of the application, with certification by the applicant that the application as amended is accurate and complete; and

(5) Include a statement describing all relevant shipping and incident experience of which the applicant is aware in connection with the exemption or special permit since its issuance or most recent renewal. If the applicant is aware of no incidents, the applicant shall so certify. When known to the applicant, the statement should indicate the approximate number of shipments made or packages shipped, as the case may be, and number of shipments or packages involved in any loss of contents, including loss by venting other than as authorized in subchapter C.

(6) When a Class 1 material is forbidden for transportation by aircraft, except under an exemption or special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an application to renew an exemption or special permit to transport such Class 1 material on passenger-carrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material.

(b) If at least 60 days before an existing exemption or special permit expires the holder files an application for renewal that is complete and conforms to the requirements of this section, the exemption will not expire until final administrative action on the application for renewal has been taken.

[70 FR 73160, Dec. 9, 2005]

§ 107.111   Withdrawal.
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An application may be withdrawn at any time before a decision to grant or deny it is made. Withdrawal of an application does not authorize the removal of any related records from the PHMSA dockets or files. Applications that are eligible for confidential treatment under §105.30 will remain confidential after the application is withdrawn. The duration of this confidential treatment for trade secrets and commercial or financial information is indefinite, unless the party requesting the confidential treatment of the materials notifies the Associate Administrator that the confidential treatment is no longer required.

§ 107.113   Application processing and evaluation.
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(a) The Associate Administrator reviews an application for special permit, modification of special permit, party to special permit, or renewal of an exemption or special permit to determine if it is complete and conforms with the requirements of this subpart. This determination will be made within 30 days of receipt of the application for special permit, modification of special permit, or party to special permit, and within 15 days of receipt of an application for renewal of an exemption or special permit. If an application is determined to be incomplete, the applicant is informed of the reasons.

(b) An application, that is not a renewal, party to, or emergency special permit application, and is determined to be complete is docketed. Notice of the application is published in the Federal Register, and an opportunity for public comment is provided. All comments received during the comment period are considered before final action is taken on the application.

(c) No public hearing or other formal proceeding is required under this subpart before the disposition of an application. Unless emergency processing under §107.117 is requested and granted, applications are usually processed in the order in which they are filed.

(d) During the processing and evaluation of an application, the Associate Administrator may request additional information from the applicant. If the applicant does not respond to a written request for additional information within 30 days of the date the request was received, the application may be deemed incomplete and denied. However, if the applicant responds in writing within the 30-day period requesting an additional 30 days within which it will gather the requested information, the Associate Administrator may grant the 30-day extension.

(e) The Associate Administrator may grant or deny an application, in whole or in part. In the Associate Administrator's discretion, an application may be granted subject to provisions that are appropriate to protect health, safety or property. The Associate Administrator may impose additional provisions not specified in the application or remove conditions in the application that are unnecessary.

(f) The Associate Administrator may grant an application on finding that—

(1) The application complies with this subpart;

(2) The application demonstrates that the proposed alternative will achieve a level of safety that:

(i) Is at least equal to that required by the regulation from which the special permit is sought, or

(ii) If the regulations do not establish a level of safety, is consistent with the public interest and adequately will protect against the risks to life and property inherent in the transportation of hazardous materials in commerce;

(3) The application states all material facts, and contains no materially false or materially misleading statement;

(4) The applicant meets the qualifications required by applicable regulations; and

(5) The applicant is fit to conduct the activity authorized by the exemption or special permit. This assessment may be based on information in the application, prior compliance history of the applicant, and other information available to the Associate Administrator.

(g) An applicant is notified in writing whether the application is granted or denied. A denial contains a brief statement of reasons.

(h) The initial exemption or special permit terminates according to its terms or, if not otherwise specified, 24 months from the date of issuance. A subsequent renewal of a special permit terminates according to its terms or, if not otherwise specified, 48 months after the date of issuance. A grant of party status to an exemption or special permit, unless otherwise stated, terminates on the date that the exemption or special permit expires.

(i) The Associate Administrator, on determining that an application concerns a matter of general applicability and future effect and should be the subject of rulemaking, may initiate rulemaking under part 106 of this chapter in addition to or instead of acting on the application.

(j) The Associate Administrator publishes in the Federal Register a list of all special permit grants, denials, and modifications and all special permit applications withdrawn under this section.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 67 FR 61011, Sept. 27, 2002; 70 FR 73161, Dec. 9, 2005]

§ 107.117   Emergency processing.
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(a) An application is granted emergency processing if the Associate Administrator, on the basis of the application and any inquiry undertaken, finds that—

(1) Emergency processing is necessary to prevent significant injury to persons or property (other than the hazardous material to be transported) that could not be prevented if the application were processed on a routine basis; or

(2) Emergency processing is necessary for immediate national security purposes or to prevent significant economic loss that could not be prevented if the application were processed on a routine basis.

(b) Where the significant economic loss is to the applicant, or to a party in a contractual relationship to the applicant with respect to the activity to be undertaken, the Associate Administrator may deny emergency processing if timely application could have been made.

(c) A request for emergency processing on the basis of potential economic loss must reasonably describe and estimate the potential loss.

(d) An application submitted under this section must conform to §107.105 to the extent that the receiving Department official deems necessary to process the application. An application on an emergency basis must be submitted to the Department modal contact official for the initial mode of transportation to be utilized, as follows:

(1) Certificate-Holding Aircraft: The Federal Aviation Administration Civil Aviation Security Office that serves the place where the flight will originate or that is responsible for the aircraft operator's overall aviation security program. The nearest Civil Aviation Security Office may be located by calling the FAA Duty Officer, 202–267–3333 (any hour).

(2) Noncertificate-Holding Aircraft (Those Which Operate Under 14 CFR Part 91): The Federal Aviation Administration Civil Aviation Security Office that serves the place where the flight will originate. The nearest Civil Aviation Security Office may be located by calling the FAA Duty Officer, 202–267–3333 (any hour).

(3) Motor Vehicle Transportation: Chief, Hazardous Materials Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, Washington, DC 20590–0001, 202–366–6121 (day); 1–800–424–8802 (night).

(4) Rail Transportation: Staff Director, Hazardous Materials Division, Office of Safety Assurance and Compliance, Federal Railroad Administration, U.S. Department of Transportation, Washington, DC 20590–0001, 202–493–6248 or 202–493–6244 (day); 1–800–424–8802 (night).

(5) Water Transportation: Chief, Hazardous Materials Standards Division, Office of Operating and Environmental Standards, U.S. Coast Guard, U.S. Department of Homeland Security, Washington, DC 20593–0001; (202) 267–1217 (day); 1–800–424–8802 (night).

(e) On receipt of all information necessary to process the application, the receiving Department official transmits to the Associate Administrator, by the most rapid available means of communication, an evaluation as to whether an emergency exists under §107.117(a) and, if appropriate, recommendations as to the conditions to be included in the special permit. If the Associate Administrator determines that an emergency exists under §107.117(a) and that, with reference to the criteria of §107.113(f), granting of the application is in the public interest, the Associate Administrator grants the application subject to such terms as necessary and immediately notifies the applicant. If the Associate Administrator determines that an emergency does not exist or that granting of the application is not in the public interest, the applicant immediately is so notified.

(f) A determination that an emergency does not exist is not subject to reconsideration under §107.123 of this part.

(g) Within 90 days following issuance of an emergency special permit, the Associate Administrator will publish, in the Federal Register, a notice of issuance with a statement of the basis for the finding of emergency and the scope and duration of the special permit.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 62 FR 51556, Oct. 1, 1997; 64 FR 51914, Sept. 27, 1999; 65 FR 58618, Sept. 29, 2000; 66 FR 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002; 70 FR 56090, Sept. 23, 2005]

§ 107.121   Modification, suspension or termination of special permit or grant of party status.
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(a) The Associate Administrator may modify an exemption, a special permit, or grant of party status on finding that:

(1) Modification is necessary so that the exemption or special permit reflects current statutes and regulations; or

(2) Modification is required by changed circumstances to meet the standards of §107.113(f).

(b) The Associate Administrator may modify, suspend or terminate an exemption or special permit or grant of party status, as appropriate, on finding that:

(1) Because of a change in circumstances, the exemption, special permit, or party status no longer is needed or no longer would be granted if applied for;

(2) The application contained inaccurate or incomplete information, and the exemption, special permit, or party status would not have been granted had the application been accurate and complete;

(3) The application contained deliberately inaccurate or incomplete information; or

(4) The holder or party knowingly has violated the terms of the exemption, special permit or an applicable requirement of this chapter, in a manner demonstrating the holder or party is not fit to conduct the activity authorized by the exemption or special permit.

(c) Except as provided in paragraph (d) of this section, before an exemption, special permit, or grant of party status is modified, suspended or terminated, the Associate Administrator notifies the holder or party in writing of the proposed action and the reasons for it, and provides an opportunity to show cause why the proposed action should not be taken.

(1) The holder or party may file a written response that shows cause why the proposed action should not be taken within 30 days of receipt of notice of the proposed action.

(2) After considering the holder's or party's written response, or after 30 days have passed without response since receipt of the notice, the Associate Administrator notifies the holder or party in writing of the final decision with a brief statement of reasons.

(d) The Associate Administrator, if necessary to avoid a risk of significant harm to persons or property, may in the notification declare the proposed action immediately effective.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 70 FR 73161, Dec. 9, 2005]

§ 107.123   Reconsideration.
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(a) An applicant for special permit, a special permit holder, or an applicant for party status to an exemption or special permit may request that the Associate Administrator reconsider a decision under §107.113(g), §107.117(e) or §107.121(c) of this part. The request must—

(1) Be in writing and filed within 20 days of receipt of the decision;

(2) State in detail any alleged errors of fact and law;

(3) Enclose any additional information needed to support the request to reconsider; and

(4) State in detail the modification of the final decision sought.

(b) The Associate Administrator grants or denies, in whole or in part, the relief requested and informs the requesting person in writing of the decision. If necessary to avoid a risk of significant harm to persons or property, the Associate Administrator may, in the notification, declare the action immediately effective.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 70 FR 73161, Dec. 9, 2005]

§ 107.125   Appeal.
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(a) A person who requested reconsideration under §107.123 and is denied the relief requested may appeal to the Administrator. The appeal must—

(1) Be in writing and filed within 30 days of receipt of the Associate Administrator's decision on reconsideration;

(2) State in detail any alleged errors of fact and law;

(3) Enclose any additional information needed to support the appeal; and

(4) State in detail the modification of the final decision sought.

(b) The Administrator, if necessary to avoid a risk of significant harm to persons or property, may declare the Associate Administrator's action effective pending a decision on appeal.

(c) The Administrator grants or denies, in whole or in part, the relief requested and informs the appellant in writing of the decision. The Administrator's decision is the final administrative action.

§ 107.127   Availability of documents for public inspection.
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(a) Documents related to an application under this subpart, including the application itself, are available for public inspection, except as specified in paragraph (b) of this section, at the Office of the Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, Office of Hazardous Materials Special Permits and Approvals, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001, Room 8102. Office hours are 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays when the office is closed. Copies of available documents may be obtained as provided in part 7 of this title. Documents numbered 11832 and above may also be viewed at the website address http://dms.dot.gov.

(b) Documents available for inspection do not include materials determined to be withheld from public disclosure under §105.30 and in accordance with the applicable provisions of section 552(b) of title 5, United States Code, and part 7 of this title.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, as amended at 65 FR 58618, Sept. 29, 2000; 66 FR 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002; 70 FR 73162, Dec. 9, 2005]

Subpart C—Preemption
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§ 107.201   Purpose and scope.
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(a) This subpart prescribes procedures by which:

(1) Any person, including a State, political subdivision, or Indian tribe, directly affected by a requirement of a State, political subdivision, or Indian tribe, may apply for a determination as to whether that requirement is preempted under 49 U.S.C. 5125.

(2) A State, political subdivision, or Indian tribe may apply for a waiver of preemption with respect to any requirement that the State, political subdivision, or Indian tribe acknowledges to be preempted by 49 U.S.C. 5125, or that has been determined by a court of competent jurisdiction to be so preempted.

(b) For purposes of this subpart “political subdivision” includes a municipality; a public agency or other instrumentality of one or more States, municipalities, or other political subdivisions of a State; or a public corporation, board, or commission established under the laws of one or more States.

(c) [Reserved]

(d) An application for a preemption determination that includes an application for a waiver of preemption will be treated and processed solely as an application for a preemption determination.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107–24, 56 FR 8622, Feb. 28, 1991; Amdt. 107–25, 57 FR 20428, May 13, 1992; Amdt. 107–32, 59 FR 49130, Sept. 26, 1994; Amdt. 107–35, 60 FR 49108, Sept. 21, 1995; Amdt. 107–38, 61 FR 21098, May 9, 1996; 68 FR 52846, Sept. 8, 2003; 71 FR 30067, May 25, 2006]

§ 107.202   Standards for determining preemption.
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(a) Except as provided in §107.221 and unless otherwise authorized by Federal law, any requirement of a State or political subdivision thereof or an Indian tribe that concerns one of the following subjects and that is not substantively the same as any provision of the Federal hazardous materials transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security that concerns that subject, is preempted:

(1) The designation, description, and classification of hazardous material.

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material.

(3) The preparation, execution, and use of shipping documents pertaining to hazardous material and requirements related to the number, content, and placement of those documents.

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material.

(5) The design, manufacturing, fabrication, marking, maintenance, reconditioning, repairing, or testing of a packaging or a container which is represented, marked, certified, or sold as qualified for use in the transportation of hazardous material.

(b) Except as provided in §107.221 and unless otherwise authorized by Federal law, any requirement of a State or political subdivision or Indian tribe is preempted if—

(1) It is not possible to comply with a requirement of the State, political subdivision, or Indian tribe and a requirement under the Federal hazardous material transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security;

(2) The requirement of the State, political subdivision, or Indian tribe, as applied or enforced, is an obstacle to accomplishing and carrying out the Federal hazardous material transportation law, a regulation issued under the Federal hazardous material transportation law, or a hazardous material transportation security regulation or directive issued by the Secretary of Homeland Security.

(3) It is preempted under 49 U.S.C. 5125 (c).

(c) A State, political subdivision, or Indian tribe may impose a fee related to transporting hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including enforcement and planning, developing and maintaining a capability for emergency response.

(d) For purposes of this section, “substantively the same” means that the non-Federal requirement conforms in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted.

[Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, as amended by Amdt. 107–25, 57 FR 20428, May 13, 1992; Amdt. 107–29, 58 FR 51527, Oct. 1, 1993; Amdt. 107–32, 59 FR 49130, Sept. 26, 1994; Amdt. 107–38, 61 FR 21098, May 9, 1996; Amdt. 107–39, 61 FR 51337, Oct. 1, 1996; 68 FR 52847, Sept. 8, 2003]

Preemption Determinations
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§ 107.203   Application.
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(a) With the exception of highway routing matters covered under 49 U.S.C. 5125(c), any person, including a State or political subdivision thereof or an Indian tribe, directly affected by any requirement of a State or political subdivision thereof or an Indian tribe, may apply to the Chief Counsel for a determination as to whether that requirement is preempted by §107.202(a), (b), or (c).

(b) Each application filed under this section for a determination must:

(1) Be submitted to the Chief Counsel:

(i) By mail addressed to the Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Suite 8417, Washington, DC 20590–0001;

(ii) By facsimile to 202–366–7041; or

(iii) Electronically to the Chief Counsel at [email protected].

(2) Set forth the text of the State or political subdivision or Indian tribe requirement for which the determination is sought;

(3) Specify each requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security with which the applicant seeks the State or political subdivision or Indian tribe requirement to be compared;

(4) Explain why the applicant believes the State or political subdivision or Indian tribe requirement should or should not be preempted under the standards of §107.202; and

(5) State how the applicant is affected by the State or political subdivision or Indian tribe requirement.

(c) The filing of an application for a determination under this section does not constitute grounds for noncompliance with any requirement of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security.

(d) Once the Chief Counsel has published notice in the Federal Register of an application received under paragraph (a) of this section, no applicant for such determination may seek relief with respect to the same or substantially the same issue in any court until final action has been taken on the application or until 180 days after filing of the application, whichever occurs first. Nothing in §107.203(a) prohibits a State or political subdivision thereof or Indian tribe, or any other person directly affected by any requirement of a State or political subdivision thereof or Indian tribe, from seeking a determination of preemption in any court of competent jurisdiction in lieu of applying to the Chief Counsel under paragraph (a) of this section.

[Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, as amended by Amdt. 107–25, 57 FR 20428, May 13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–38, 61 FR 21098, May 9, 1996; 68 FR 52847, Sept. 8, 2003; 71 FR 30067, May 25, 2006]

§ 107.205   Notice.
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(a) If the applicant is other than a State, political subdivision, or Indian tribe, the applicant shall mail a copy of the application to the State, political subdivision, or Indian tribe concerned accompanied by a statement that the State, political subdivision, or Indian tribe may submit comments regarding the application to the Chief Counsel. The application filed with the Chief Counsel must include a certification that the applicant has complied with this paragraph and must include the names and addresses of each State, political subdivision, or Indian tribe official to whom a copy of the application was sent.

(b) The Chief Counsel will publish notice of, including an opportunity to comment on, an application in the Federal Register and may notify in writing any person readily identifiable as affected by the outcome of the determination.

(c) Each person submitting written comments to the Chief Counsel with respect to an application filed under this section must send a copy of the comments to the applicant and certify to the Chief Counsel that he or she has complied with this requirement. The Chief Counsel may notify other persons participating in the proceeding of the comments and provide an opportunity for those other persons to respond. Late-filed comments are considered so far as practicable.

[Amdt. 107–38, 61 FR 21098, May 9, 1996, as amended at 71 FR 30067, May 25, 2006]

§ 107.207   Processing.
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(a) The Chief Counsel may initiate an investigation of any statement in an application and utilize in his or her evaluation any relevant facts obtained by that investigation. The Chief Counsel may solicit and accept submissions from third persons relevant to an application and will provide the applicant an opportunity to respond to all third person submissions. In evaluating an application, the Chief Counsel may consider any other source of information. The Chief Counsel on his or her own initiative may convene a hearing or conference, if he or she considers that a hearing or conference will advance his or her evaluation of the application.

(b) The Chief Counsel may dismiss the application without prejudice if:

(1) He or she determines that there is insufficient information upon which to base a determination; or

(2) He or she requests additional information from the applicant and it is not submitted.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107–24, 56 FR 8621, 8622, Feb. 28, 1991; Amdt. 107–38, 61 FR 21098, May 9, 1996; 71 FR 30067, May 25, 2006]

§ 107.209   Determination.
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(a) Upon consideration of the application and other relevant information received, the Chief Counsel issues a determination.

(b) The determination includes a written statement setting forth the relevant facts and the legal basis for the determination, and provides that any person aggrieved thereby may file a petition for reconsideration with the Chief Counsel.

(c) The Chief Counsel provides a copy of the determination to the applicant and to any other person who substantially participated in the proceeding or requested in comments to the docket to be notified of the determination. A copy of each determination is placed on file in the public docket. The Chief Counsel will publish the determination or notice of the determination in the Federal Register, at which time the determination becomes a final agency action.

(d) A determination issued under this section constitutes an administrative determination as to whether a particular requirement of a State or political subdivision or Indian tribe is preempted under the Federal hazardous materials transportation law. The fact that a determination has not been issued under this section with respect to a particular requirement of a State or political subdivision or Indian tribe carries no implication as to whether the requirement is preempted under the Federal hazardous materials transportation law.

[Amdt. 107–24, 56 FR 8623, Feb. 28, 1991, as amended by Amdt. 107–25, 57 FR 20428, May 13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–38, 61 FR 21098, May 9, 1996; 68 FR 52847, Sept. 8, 2003; 71 FR 30067, May 25, 2006]

§ 107.211   Petition for reconsideration.
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(a) Any person aggrieved by a determination issued under §107.209 may file a petition for reconsideration. The petition must be filed with the Chief Counsel, in the same manner specified for filing an application in §107.203(b), within 20 days of publication of the determination in the Federal Register.

(b) The petition must contain a concise statement of the basis for seeking review, including any specific factual or legal error alleged. If the petition requests consideration of information that was not previously made available to the Chief Counsel, the petition must include the reasons why such information was not previously made available.

(c) The petitioner shall mail a copy of the petition to each person who participated, either as an applicant or commenter, in the preemption determination proceeding, accompanied by a statement that the person may submit comments concerning the petition to the Chief Counsel within 20 days. The petition filed with the Chief Counsel must contain a certification that the petitioner has complied with this paragraph and include the names and addresses of all persons to whom a copy of the petition was sent. Late-filed comments are considered so far as practicable.

(d) The Chief Counsel will publish the decision on the petition for reconsideration or notice of the decision in the Federal Register, at which time the decision on the petition for reconsideration becomes a final agency action.

[Amdt. 107–25, 57 FR 20428, May 13, 1992, as amended by Amdt. 107–38, 61 FR 21099, May 9, 1996; 71 FR 30067, May 25, 2006]

§ 107.213   Judicial review.
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A party to a proceeding under §107.203(a) may seek review of a determination of the Chief Counsel by filing a petition, within 60 days after the determination becomes final, in the United States Court of Appeals for the District of Columbia or in the Court of Appeals for the United States for the circuit in which the person resides or has its principal place of business.

[71 FR 30068, May 25, 2006]

Waiver of Preemption Determinations
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§ 107.215   Application.
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(a) With the exception of requirements preempted under 49 U.S.C. 5125(c), a State or political subdivision thereof, or Indian tribe may apply to the Chief Counsel for a waiver of preemption with respect to any requirement that the State or political subdivision thereof or Indian tribe acknowledges to be preempted under the Federal hazardous materials transportation law, or that has been determined by a court of competent jurisdiction to be so preempted. The Chief Counsel may waive preemption with respect to such requirement upon a determination that such requirement—

(1) Affords an equal or greater level of protection to the public than is afforded by the requirements of the Federal hazardous material transportation law or the regulations issued thereunder, and

(2) Does not unreasonably burden commerce.

(b) Each application filed under this section for a waiver of preemption determination must:

(1) Be submitted to the Chief Counsel:

(i) By mail addressed to the Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Suite 8417, Washington, DC 20590–0001;

(ii) By facsimile to 202–366–7041; or

(iii) Electronically to the Chief Counsel at [email protected].

(2) Set forth the text of the State or political subdivision requirement for which the determination is being sought;

(3) Include a copy of any court order and any ruling issued under §107.209 having a bearing on the application;

(4) Contain an express acknowledgment by the applicant that the State, political subdivision, or Indian tribe requirement is preempted under Federal hazardous materials transportation law, unless it has been so determined by a court of competent jurisdiction or in a determination issued under §107.209;

(5) Specify each requirement of the Federal hazardous materials transportation law that preempts the State, political subdivision, or Indian tribe requirement;

(6) State why the applicant believes the State, political subdivision or Indian tribe requirements affords an equal or greater level of protection to the public than is afforded by the requirements of the Federal hazardous material transportation law or the regulations issued thereunder;

(7) State why the applicant believes the State, political subdivision or Indian tribe requirement does not unreasonably burden commerce; and

(8) Specify what steps the State, political subdivision or Indian tribe is taking to administer and enforce effectively its inconsistent requirement.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–24, 56 FR 8621, 8623, Feb. 28, 1991; 56 FR 15510, Apr. 17, 1991; Amdt. 107–23, 56 FR 66156, Dec. 20, 1991; Amdt. 107–25, 57 FR 20428, May 13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–38, 61 FR 21099, May 9, 1996; 68 FR 52847, Sept. 8, 2003; 71 FR 30068, May 25, 2006]

§ 107.217   Notice.
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(a) The applicant shall mail a copy of the application and any subsequent amendments or other documents relating to the application to each person who is reasonably ascertainable by the applicant as a person who will be affected by the determination sought. The copy of the application must be accompanied by a statement that the person may submit comments regarding the application within 45 days. The application must include a certification that the application has complied with this paragraph and must include the names and addresses of each person to whom the application was sent.

(b) Notwithstanding the provisions of paragraph (a) of this section, if the State or political subdivision determines that compliance with paragraph (a) of this section would be impracticable, the applicant shall:

(1) Comply with the requirements of paragraph (a) of this section with regard to those persons whom it is reasonable and practicable to notify; and

(2) Include with the application a description of the persons or class or classes of persons to whom notice was not sent.

(c) The Chief Counsel may require the applicant to provide notice in addition to that required by paragraphs (a) and (b) of this section, or may determine that the notice required by paragraph (a) of the section is not impracticable, or that notice should be published in the Federal Register. Late-filed comments are considered so far as practicable.

(d) The Chief Counsel may notify any other persons who may be affected by the outcome of a determination on the application.

(e) Any person submitting written comments with respect to an application filed under this section shall send a copy of the comments to the applicant. The person shall certify that he has complied with the requirements of this paragraph. The Chief Counsel may notify other persons participating in the proceeding of the comments and provide an opportunity for those other persons to respond.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; Amdt. 107–25, 57 FR 20429, May 13, 1992; Amdt. 107–38, 61 FR 21099, May 9, 1996; 71 FR 30068, May 25, 2006]

§ 107.219   Processing.
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(a) The Chief Counsel may initiate an investigation of any statement in an application and utilize in his or her evaluation any relevant facts obtained by that investigation. The Chief Counsel may solicit and accept submissions from third persons relevant to an application and will provide the applicant an opportunity to respond to all third person submissions. In evaluating an application, the Chief Counsel on his or her own initiative may convene a hearing or conference, if he or she considers that a hearing or conference will advance his or her evaluation of the application.

(b) The Chief Counsel may dismiss the application without prejudice if:

(1) He or she determines that there is insufficient information upon which to base a determination;

(2) Upon his or her request, additional information is not submitted by the applicant; or

(3) The applicant fails to provide the notice required by §107.217.

(c) The Chief Counsel will only consider an application for waiver of preemption determination if—

(1) The applicant State or political subdivision thereof or Indian tribe expressly acknowledges in its application that the State or political subdivision or Indian tribe requirement for which the determination is sought is inconsistent with the requirements of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security.

(2) The State or political subdivision thereof or Indian tribe requirement has been determined by a court of competent jurisdiction or in a ruling issued under §107.209 to be inconsistent with the requirements of the Federal hazardous materials transportation law, regulations issued under the Federal hazardous material transportation law, or hazardous material transportation security regulations or directives issued by the Secretary of Homeland Security.

(d) When the Chief Counsel has received all substantive information it considers necessary to process an application for a waiver of preemption determination, it serves notice of that fact upon the applicant and all other persons who received notice of the proceeding pursuant to §107.217.

(e) To the extent possible, each application for a waiver of preemption determination will be acted upon in a manner consistent with the disposition of previous applications for waiver of preemption determinations.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, as amended by Amdt. 107–24, 56 FR 8621, 8623, Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–38, 61 FR 21099, May 9, 1996; 65 FR 58618, Sept. 29, 2000; 68 FR 52847, Sept. 8, 2003; 69 FR 54044, Sept. 7, 2004; 71 FR 30068, May 25, 2006]

§ 107.221   Determination.
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(a) After considering the application and other relevant information received or obtained during the proceeding, the Chief Counsel issues a determination.

(b) The Chief Counsel may issue a waiver of preemption only on finding that the requirement of the State or political subdivision thereof or Indian tribe affords the public a level of safety at least equal to that afforded by the requirements of the Federal hazardous material transportation law or the regulations issued thereunder and does not unreasonably burden commerce. In determining if the requirement of the State or political subdivision thereof or Indian tribe unreasonably burdens commerce, the Chief Counsel considers:

(1) The extent to which increased costs and impairment of efficiency result from the requirement of the State or political subdivision thereof or Indian tribe.

(2) Whether the requirement of the State or political subdivision thereof or Indian tribe has a rational basis.

(3) Whether the requirement of the State or political subdivision thereof or Indian tribe achieves its stated purpose.

(4) Whether there is need for uniformity with regard to the subject concerned and if so, whether the requirement of the State or political subdivision thereof or Indian tribe competes or conflicts with those of other States or political subdivisions thereof or Indian tribes.

(c) The determination includes a written statement setting forth relevant facts and legal bases and providing that any person aggrieved by the determination may file a petition for reconsideration with the Chief Counsel.

(d) The Chief Counsel provides a copy of the determination to the applicant and to any other person who substantially participated in the proceeding or requested in comments to the docket to be notified of the determination. A copy of the determination is placed on file in the public docket. The Chief Counsel will publish the determination or notice of the determination in the Federal Register, at which time the determination becomes a final agency action.

(e) A determination under this section constitutes an administrative finding of whether a particular requirement of a State or political subdivision thereof or Indian tribe is preempted under the Federal hazardous materials transportation law, or whether preemption is waived.

[Amdt. 107–38, 61 FR 21099, May 9, 1996, as amended at 68 FR 52848, Sept. 8, 2003; 71 FR 30068, May 25, 2006]

§ 107.223   Petition for reconsideration.
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(a) Any person aggrieved by a determination under §107.221 may file a petition for reconsideration. The petition must be filed with the Chief Counsel, in the same manner specified for filing an application in §107.215(b), within 20 days of publication of the determination in the Federal Register.

(b) The petition must contain a concise statement of the basis for seeking review, including any specific factual or legal error alleged. If the petition requests consideration of information that was not previously made available to the Chief Counsel, the petition must include the reasons why such information was not previously made available.

(c) The petitioner shall mail a copy of the petition to each person who participated, either as an applicant or commenter, in the waiver of preemption proceeding, accompanied by a statement that the person may submit comments concerning the petition to the Chief Counsel within 20 days. The petition filed with the Chief Counsel must contain a certification that the petitioner has complied with this paragraph and include the names and addresses of all persons to whom a copy of the petition was sent. Late-filed comments are considered so far as practicable.

(d) The Chief Counsel will publish the decision on the petition for reconsideration or notice of the decision in the Federal Register, at which time the decision on the petition for reconsideration becomes a final agency action.

[Amdt. 107–25, 57 FR 20429, May 13, 1992, as amended by Amdt. 107–38, 61 FR 21099, May 9, 1996; 71 FR 30068, May 25, 2006]

§ 107.227   Judicial review.
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A party to a proceeding under §107.215(a) may seek review of a determination of the Chief Counsel by filing a petition, within 60 days after the determination becomes final, in the United States Court of Appeals for the District of Columbia or in the Court of Appeals for the United States for the circuit in which the person resides or has its principal place of business.

[71 FR 30068, May 25, 2006]

Subpart D—Enforcement
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Source:  Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, unless otherwise noted.

§ 107.301   Delegated authority for enforcement.
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Under redelegation from the Administrator, Pipeline and Hazardous Materials Safety Administration, the Associate Administrator for Hazardous Materials Safety and the Office of the Chief Counsel exercise their authority for enforcement of the Federal hazardous material transportation law, this subchapter, and subchapter C of this subchapter, in accordance with §1.53 of this title.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994]

§ 107.303   Purpose and scope.
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This subchapter describes the various enforcement authorities exercised by the Associate Administrator for Hazardous Materials Safety and the Office of Chief Counsel and the associated sanctions and prescribes the procedures governing the exercise of those authorities and the imposition of those sanctions.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–15, 51 FR 34986, Oct. 1, 1986; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991]

§ 107.305   Investigations.
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(a) General. In accordance with its delegated authority under part 1 of this title, the Associate Administrator may initiate investigations relating to compliance by any person with any provisions of this subchapter or subchapter C of this chapter, or any special permit, approval, or order issued thereunder, or any court decree relating thereto. The Associate Administrator encourages voluntary production of documents in accordance with and subject to §105.45, and hearings may be conducted, and depositions taken pursuant to 49 U.S.C. 5121(a). The Associate Administrator may conduct investigative conferences and hearings in the course of any investigation.

(b) Investigations and Inspections. Investigations under 49 U.S.C. 5121(a) are conducted by personnel duly authorized for that purpose by the Associate Administrator. Inspections under 49 U.S.C. 5121(c) are conducted by Hazardous Materials Enforcement Specialists, also known as “hazmat inspectors” or “inspectors,” whom the Associate Administrator has designated for that purpose.

(1) An inspector will, on request, present his or her credentials for examination, but the credentials may not be reproduced.

(2) An inspector may administer oaths and receive affirmations in any matter under investigation by the Associate Administrator.

(3) An inspector may gather information by reasonable means including, but not limited to, interviews, statements, photocopying, photography, and video- and audio-recording.

(4) With concurrence of the Director, Office of Hazardous Materials Enforcement, Pipeline and Hazardous Materials Safety Administration, an inspector may issue a subpoena for the production of documentary or other tangible evidence if, on the basis of information available to the inspector, the documents and evidence materially will advance a determination of compliance with this subchapter or subchapter C. Service of a subpoena shall be in accordance with §105.50. A person to whom a subpoena is directed may seek review of the subpoena by applying to the Office of Chief Counsel in accordance with §105.55(a). A subpoena issued under this paragraph may be enforced in accordance with §105.55(b).

(c) Notification. Any person who is the subject of an Associate Administrator investigation and who is requested to furnish information or documentary evidence is notified as to the general purpose for which the information or evidence is sought.

(d) Termination. When the facts disclosed by an investigation indicate that further action is unnecessary or unwarranted at that time, the person being investigated is notified and the investigative file is closed without prejudice to further investigation by the Associate Administrator.

(e) Confidentiality. Information received in an investigation under this section, including the identity of the person investigated and any other person who provides information during the investigation, shall remain confidential under the investigatory file exception, or other appropriate exception, to the public disclosure requirements of 5 U.S.C. 552.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–38, 61 FR 21099, May 9, 1996; 66 FR 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002]

Compliance Orders and Civil Penalties
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§ 107.307   General.
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(a) When the Associate Administrator and the Office of Chief Counsel have reason to believe that a person is knowingly engaging or has knowingly engaged in conduct which is a violation of the Federal hazardous material transportation law or any provision of this subchapter or subchapter C of this chapter, or any exemption, special permit, or order issued thereunder, for which the Associate Administrator or the Office of Chief Counsel exercise enforcement authority, they may—

(1) Issue a warning letter, as provided in §107.309;

(2) Initiate proceedings to assess a civil penalty, as provided in either §§107.310 or 107.311;

(3) Issue an order directing compliance, regardless of whether a warning letter has been issued or a civil penalty assessed; and

(4) Seek any other remedy available under the Federal hazardous material transportation law.

(b) In the case of a proceeding initiated for failure to comply with an exemption or special permit, the allegation of a violation of a term or condition thereof is considered by the Associate Administrator and the Office of Chief Counsel to constitute an allegation that the special permit holder or party to the special permit is failing, or has failed to comply with the underlying regulations from which relief was granted by the special permit.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–36, 61 FR 7183, Feb. 26, 1996; 66 FR 45377, Aug. 28, 2001; 70 FR 73162, Dec. 9, 2005]

§ 107.309   Warning letters.
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(a) The Associate Administrator may issue a warning letter to any person whom the Associate Administrator believes to have committed a probable violation of the Federal hazardous material transportation law or any provision of this subchapter, subchapter C of this chapter, or any special permit issued thereunder.

(b) A warning letter issued under this section includes:

(1) A statement of the facts upon which the Associate Administrator bases its determination that the person has committed a probable violation;

(2) A statement that the recurrence of the probable violations cited may subject the person to enforcement action; and

(3) An opportunity to respond to the warning letter by submitting pertinent information or explanations concerning the probable violations cited therein.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–15, 51 FR 34986, Oct. 1, 1986; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–36, 61 FR 7183, Feb. 26, 1996; 66 FR 45377, Aug. 28, 2001]

§ 107.310   Ticketing.
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(a) For an alleged violation that does not have a direct or substantial impact on safety, the Associate Administrator may issue a ticket.

(b) The Associate Administrator issues a ticket by mailing it by certified or registered mail to the person alleged to have committed the violation. The ticket includes:

(1) A statement of the facts on which the Associate Administrator bases the conclusion that the person has committed the alleged violation;

(2) The maximum penalty provided for by statute, the proposed full penalty determined according to PHMSA's civil penalty guidelines and the statutory criteria for penalty assessment, and the ticket penalty amount; and

(3) A statement that within 45 days of receipt of the ticket, the person must pay the penalty in accordance with paragraph (d) of this section, make an informal response under §107.317, or request a formal administrative hearing under §107.319.

(c) If the person makes an informal response or requests a formal administrative hearing, the Associate Administrator forwards the inspection report, ticket and response to the Office of the Chief Counsel for processing under §§107.307–107.339, except that the Office of the Chief Counsel will not issue a Notice of Probable Violation under §107.311. The Office of the Chief Counsel may impose a civil penalty that does not exceed the proposed full penalty set forth in the ticket.

(d) Payment of the ticket penalty amount must be made in accordance with the instructions on the ticket.

(e) If within 45 days of receiving the ticket the person does not pay the ticket amount, make an informal response, or request a formal administrative hearing, the person has waived the right to make an informal response or request a hearing, has admitted the violation and owes the ticket penalty amount to PHMSA.

[Amdt. 107–36, 61 FR 7183, Feb. 26, 1996, as amended at 66 FR 45377, Aug. 28, 2001]

§ 107.311   Notice of probable violation.
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(a) The Office of Chief Counsel may serve a notice of probable violation on a person alleging the violation of one or more provisions of the Federal hazardous material transportation law or any provision of this subchapter or subchapter C of this chapter, or any special permit, or order issued thereunder.

(b) A notice of probable violation issued under this section includes the following information:

(1) A citation of the provisions of the Federal hazardous material transportation law, an order issued thereunder, this subchapter, subchapter C of this chapter, or the terms of any special permit issued thereunder which the Office of Chief Counsel believes the respondent is violating or has violated.

(2) A statement of the factual allegations upon which the demand for remedial action, a civil penalty, or both, is based.

(3) A statement of the respondent's right to present written or oral explanations, information, and arguments in answer to the allegations and in mitigation of the sanction sought in the notice of probable violation.

(4) A statement of the respondent's right to request a hearing and the procedures for requesting a hearing.

(5) In addition, in the case of a notice of probable violation proposing a compliance order, a statement of the proposed actions to be taken by the respondent to achieve compliance.

(6) In addition, in the case of a notice of probable violation proposing a civil penalty:

(i) A statement of the maximum civil penalty for which the respondent may be liable;

(ii) The amount of the preliminary civil penalty being sought by the Office of Chief Counsel, constitutes the maximum amount the Chief Counsel may seek throughout the proceeding; and

(iii) A description of the manner in which the respondent makes payment of any money due the United States as a result of the proceeding.

(c) The Office of Chief Counsel may amend a notice of probable violation at any time before issuance of a compliance order or an order assessing a civil penalty. If the Office of Chief Counsel alleges any new material facts or seeks new or additional remedial action or an increase in the amount of the proposed civil penalty, it issues a new notice of probable violation under this section.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended at 50 FR 45730, Nov. 1, 1985; Amdt. 107–24, 56 FR 8624, Feb. 28, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–35, 60 FR 49108, Sept. 21, 1995; Amdt. 107–36, 61 FR 7184, Feb. 26, 1996]

§ 107.313   Reply.
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(a) Within 30 days of receipt of a notice of probable violation, the respondent must either:

(1) Admit the violation under §107.315;

(2) Make an informal response under §107.317; or

(3) Request a hearing under §107.319.

(b) Failure of the respondent to file a reply as provided in this section constitutes a waiver of the respondent's right to appear and contest the allegations and authorizes the Chief Counsel, without further notice to the respondent, to find the facts to be as alleged in the notice of probable violation and issue an order directing compliance or assess a civil penalty, or, if proposed in the notice, both. Failure to request a hearing under paragraph (a)(3) of this section constitutes a waiver of the respondent's right to a hearing.

(c) Upon the request of the respondent, the Office of Chief Counsel may, for good cause shown and filed within the 30 days prescribed in the notice of probable violation, extend the 30-day response period.

§ 107.315   Admission of violations.
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(a) In responding to a notice of probable violation issued under §107.311, the respondent may admit the alleged violations and agree to accept the terms of a proposed compliance order or to pay the amount of the preliminarily assessed civil penalty, or, if proposed in the notice, both.

(b) If the respondent agrees to the terms of a proposed compliance order, the Chief Counsel issues a final order prescribing the remedial action to be taken by the respondent.

(c) Payment of a civil penalty, when the amount of the penalty exceeds $10,000, must be made by wire transfer, through the Federal Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed instructions on making payments by wire transfer may be obtained from the Financial Operations Division (AMZ–120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125.

(d) Payment of a civil penalty, when the amount of the penalty is $10,000 or less, must be made either by wire transfer, as set forth in paragraph (c) of this section, or certified check or money order payable to “U.S. Department of Transportation” and submitted to the Financial Operations Division (AMZ–120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73125.

[Amdt. 107–11, 48 FR 265l, Jan. 20, 1983, as amended by Amdt. 107–23, 57 FR 45453, Oct. 1, 1992; Amdt. 107–29, 58 FR 51527, Oct. 1, 1993; Amdt. 107–38, 61 FR 21100, May 9, 1996; 68 FR 52848, Sept. 8, 2003]

§ 107.317   Informal response.
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(a) In responding to a notice of probable violation under §107.311, the respondent may submit to the official who issued the notice, written explanations, information, or arguments in response to the allegations, the terms of a proposed compliance order, or the amount of the preliminarily assessed civil penalty.

(b) The respondent may include in his informal response a request for a conference. Upon the request of the respondent, the conference may be either in person or by telephone. A request for a conference must set forth the issues the respondent will raise at the conference.

(c) Upon receipt of a request for a conference under paragraph (b) of this section, the Chief Counsel's Office, in consultation with the Associate Administrator, arranges for a conference as soon as practicable at a time and place of mutual convenience.

(d) The respondent's written explanations, information, and arguments as well as the respondent's presentation at a conference are considered by the Chief Counsel in reviewing the notice of probable violation. Based upon a review of the proceeding, the Chief Counsel may dismiss the notice of probable violation in whole or in part. If he does not dismiss it in whole, he issues an order directing compliance or assessing a civil penalty, or, if proposed in the notice, both.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28, 2001]

§ 107.319   Request for a hearing.
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(a) In responding to a notice of probable violation under §107.311, the respondent may request a formal administrative hearing on the record before an Administrative Law Judge (ALJ) obtained by the Office of the Chief Counsel.

(b) A request for a hearing under paragraph (a) of this section must:

(1) State the name and address of the respondent and of the person submitting the request if different from the respondent;

(2) State which allegations of violations, if any, are admitted; and

(3) State generally the issues to be raised by the respondent at the hearing. Issues not raised in the request are not barred from presentation at the hearing; and

(4) Be addressed to the official who issued the notice.

(c) After a request for a hearing that complies with the requirements of paragraph (b) of this section, the Chief Counsel obtains an ALJ to preside over the hearing and notifies the respondent of this fact. Upon assignment of an ALJ, further matters in the proceeding generally are conducted by and through the ALJ, except that the Chief Counsel and respondent may compromise or settle the case under §107.327 of this subpart without order of the ALJ or voluntarily dismiss the case under Rule 41(a)(1) of the Federal Rules of Civil Procedure without order of the ALJ; in the event of such a compromise, settlement or dismissal, the Chief Counsel expeditiously will notify the ALJ thereof.

(d) At any time after requesting a formal administrative hearing but prior to the issuance of a decision and final order by the ALJ, the respondent may withdraw such request in writing, thereby terminating the jurisdication of the ALJ in the case. Such a withdrawal constitutes an irrevocable waiver of respondent's right to such a hearing on the facts, allegations, and proposed sanction presented in the notice of probable violation to which the request for hearing relates.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended at 48 FR 17094, Apr. 21, 1983; Amdt. No. 107–19, 54 FR 22899, May 30, 1989]

§ 107.321   Hearing.
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(a) To the extent practicable, the hearing is held in the general vicinity of the place where the alleged violation occurred or at a place convenient to the respondent. Testimony by witnesses shall be given under oath and the hearing shall be recorded verbatim.

(b) Hearings are conducted in accordance with the Federal Rules of Evidence and Federal Rules of Civil Procedure; however, the ALJ may modify them as he determines necessary in the interest of a full development of the facts. In addition, the ALJ may:

(1) Administer oaths and affirmations;

(2) Issue subpoenas as provided by §105.45;

(3) Adopt procedures for the submission of motions, evidence, and other documents pertinent to the proceeding;

(4) Take or cause depositions to be taken;

(5) Rule on offers of proof and receive relevant evidence;

(6) Examine witnesses at the hearing;

(7) Convene, recess, reconvene, adjourn and otherwise regulate the course of the hearing;

(8) Hold conferences for settlement, simplification of the issues, or any other proper purpose; and

(9) Take any other action authorized by, or consistent with, the provisions of this subpart and permitted by law which may expedite the hearing or aid in the disposition of an issue raised therein.

(c) The official who issued the notice of probable violation, or his representative, has the burden of proving the facts alleged therein.

(d) The respondent may appear and be heard on his own behalf or through counsel of his choice. The respondent or his counsel may offer relevant information including testimony which he believes should be considered in opposition to the allegations or which may bear on the sanction being sought and conduct such cross-examination as may be required for a full disclosure of the facts.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended at 67 FR 61011, Sept. 27, 2002]

§ 107.323   ALJ's decision.
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(a) After consideration of all matters of record in the proceeding, the ALJ shall issue an order dismissing the notice of probable violation in whole or in part or granting the sanction sought by the Office of Chief Counsel in the notice. If the ALJ does not dismiss the notice of probable violation in whole, he issues an order directing compliance or assessing a civil penalty, or, if proposed in the notice, both. The order includes a statement of the findings and conclusions, and the reasons therefore, on all material issues of fact, law, and discretion.

(b) If, within 20 days of receipt of an order issued under paragraph (a) of this section, the respondent does not submit in writing his acceptance of the terms of an order directing compliance, or, where appropriate, pay a civil penalty, or file an appeal under §107.325, the case may be referred to the Attorney General with a request that an action be brought in the appropriate United States District Court to enforce the terms of a compliance order or collect the civil penalty.

§ 107.325   Appeals.
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(a) Hearing proceedings. A party aggrieved by an ALJ's decision and order issued under §107.323, may file a written appeal in accordance with paragraph (c) of this section with the Administrator, Office of the Administrator, Pipeline and Hazardous Materials Safety Administration, 400 Seventh Street, SW., Washington, DC 20590–0001.

(b) Non-Hearing proceedings. A respondent aggrieved by an order issued under §107.317, may file a written appeal in accordance with paragraph (c) of this section with the Administrator, Office of the Administrator, Pipeline and Hazardous Materials Safety Administration, 400 Seventh Street, SW., Washington, DC 20590–0001.

(c) An appeal of an order issued under this subpart must:

(1) Be filed within 20 days of receipt of the order by the appealing party; and

(2) State with particularity the findings in the order that the appealing party challenges, and include all information and arguments pertinent thereto.

(d) If the Administrator, PHMSA, affirms the order in whole or in part, the respondent must comply with the terms of the decision within 20 days of the respondent's receipt thereof, or within the time prescribed in the order. If the respondent does not comply with the terms of the decision within 20 days of receipt, or within the time prescribed in the order, the case may be referred to the Attorney General for action to enforce the terms of the decision.

(e) The filing of an appeal stays the effectiveness of an order issued under §107.317 or §107.323. However, if the Administrator, PHMSA, determines that it is in the public interest, he may keep an order directing compliance in force pending appeal.

[70 FR 56090, Sept. 23, 2005]

§ 107.327   Compromise and settlement.
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(a) At any time before an order issued under §107.317 or §107.323 is referred to the Attorney General for enforcement, the respondent or the Office of Chief Counsel may propose a compromise as follows:

(1) In civil penalty cases, the respondent or Chief Counsel may offer to compromise the amount of the penalty by submitting an offer for a specific amount to the other party. An offer of compromise by the respondent shall be submitted to the Chief Counsel who may, after consultation with the Associate Administrator, accept or reject it.

(i) A compromise offer stays the running of any response period then outstanding.

(ii) If a compromise is agreed to by the parties, the respondent is notified in writing. Upon receipt of payment by Office of Chief Counsel, the respondent is notified in writing that acceptance of payment is in full satisfaction of the civil penalty proposed or assessed, and Office of Chief Counsel closes the case with prejudice to the respondent.

(iii) If a compromise cannot be agreed to, the respondent is notified in writing and is given 10 days or the amount of time remaining in the then outstanding response period, whichever is longer, to respond to whatever action was taken by the Office of Chief Counsel or the Administrator, PHMSA.

(2) In compliance order cases, the respondent may propose a consent agreement to the Chief Counsel. If the Chief Counsel accepts the agreement, he issues an order in accordance with its terms. If the Chief Counsel rejects the agreement, he directs that the proceeding continue. An agreement submitted to the Chief Counsel must include:

(i) A statement of any allegations of fact which the respondent challenges;

(ii) The reasons why the terms of a compliance order or proposed compliance order are or would be too burdensome for the respondent, or why such terms are not supported by the record in the case;

(iii) A proposed compliance order suitable for issuance by the Chief Counsel;

(iv) An admission of all jurisdictional facts; and

(v) An express waiver of further procedural steps and all right to seek judicial review or otherwise challenge or contest the validity of the order.

(b) Notwithstanding paragraph (a)(1) of this section, the respondent or Office of Chief Counsel may propose to settle the case. If the Chief Counsel agrees to a settlement, the respondent is notified and the case is closed without prejudice to the respondent.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended at 50 FR 45730, Nov. 1, 1985; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; 56 FR 15510, Apr. 17, 1991; Amdt. 107–29, 58 FR 51527, Oct. 1, 1993; 66 FR 45377, Aug. 28, 2001]

§ 107.329   Maximum penalties.
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(a) A person who knowingly violates a requirement of the Federal hazardous material transportation law, an order issued thereunder, this subchapter, subchapter C of this chapter, or a special permit or approval issued under this subchapter applicable to the transportation of hazardous materials or the causing of them to be transported or shipped is liable for a civil penalty of not more than $50,000 and not less than $250 for each violation, except the maximum civil penalty is $100,000 if the violation results in death, serious illness or severe injury to any person or substantial destruction of property, and a minimum $450 civil penalty applies to a violation relating to training. When the violation is a continuing one, each day of the violation constitutes a separate offense.

(b) A person who knowingly violates a requirement of the Federal hazardous material transportation law, an order issued thereunder, this subchapter, subchapter C of this chapter, or a special permit or approval issued under this subchapter applicable to the design, manufacture, fabrication, inspection, marking, maintenance, reconditioning, repair or testing of a package, container, or packaging component which is represented, marked, certified, or sold by that person as qualified for use in the transportation of hazardous materials in commerce is liable for a civil penalty of not more than $50,000 and not less than $250 for each violation, except the maximum civil penalty is $100,000 if the violation results in death, serious illness or severe injury to any person or substantial destruction of property, and a minimum $450 civil penalty applies to a violation relating to training.

[71 FR 8487, Feb. 17, 2006]

§ 107.331   Assessment considerations.
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After finding a knowing violation under this subpart, the Office of Chief Counsel assesses a civil penalty taking the following into account:

(a) The nature and circumstances of the violation;

(b) The extent and gravity of the violation;

(c) The degree of the respondent's culpability;

(d) The respondent's prior violations;

(e) The respondent's ability to pay;

(f) The effect on the respondent's ability to continue in business; and

(g) Such other matters as justice may require.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–30, 58 FR 50500, Sept. 27, 1993; Amdt. 107–38, 61 FR 21100, May 9, 1996]

Criminal Penalties
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§ 107.333   Criminal penalties generally.
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A person who knowingly violates §171.2(l) of this title or willfully or recklessly violates a requirement of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued thereunder shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both, except the maximum amount of imprisonment shall be 10 years in any case in which the violation involves the release of a hazardous material which results in death or bodily injury to any person.

[71 FR 8487, Feb. 17, 2006]

§ 107.335   Referral for prosecution.
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If the Associate Administrator becomes aware of a possible willful violation of the Federal hazardous material transportation law, this subchapter, subchapter C of this chapter, or any special permit, or order issued thereunder, for which the Associate Administrator exercises enforcement responsibility, it shall report it to the Office of the Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590–0001. If appropriate, the Chief Counsel refers the report to the Department of Justice for criminal prosecution of the offender.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; 56 FR 15510, Apr. 17, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–35, 60 FR 49108, Sept. 21, 1995; 66 FR 45377, Aug. 28, 2001]

§ 107.336   Limitation on fines and penalties.
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If a State or political subdivision or Indian tribe assesses any fine or penalty determined by the Secretary to be appropriate for a violation concerning a subject listed in §107.202(a), no additional fine or penalty may be assessed for such violation by any other authority.

[Amdt. 107–24, 56 FR 8624, Feb. 28, 1991]

Injunctive Action
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§ 107.337   Injunctions generally.
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Whenever it appears to the Office of Chief Counsel that a person has engaged, or is engaged, or is about to engage in any act or practice constituting a violation of any provision of the Federal hazardous material transportation law, this subchapter, subchapter C of this chapter, or any special permit, or order issued thereunder, for which the Office of Chief Counsel exercises enforcement responsibility, the Administrator, PHMSA, or his delegate, may request the Attorney General to bring an action in the appropriate United States District Court for such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, interim equitable relief, and punitive damages as provided by 49 U.S.C. 5122(a).

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–32, 59 FR 49131, Sept. 26, 1994]

§ 107.339   Imminent hazards.
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Whenever it appears to the Office of the Chief Counsel that there is a substantial likelihood that death, serious illness, or severe personal injury will result from the transportation of a particular hazardous material or hazardous materials container, before a compliance order proceeding or other administrative hearing or formal proceeding to abate the risk of that harm can be completed, the Administrator, PHMSA, or his delegate, may bring an action under 49 U.S.C. 5122(b) in the appropriate United States District Court for an order suspending or restricting the transporation of that hazardous material or those containers or for such other equitable relief as is necessary or appropriate to ameliorate the hazard.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, as amended by Amdt. 107–15, 51 FR 34987, Oct. 1, 1986; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994]

Appendix A to Subpart D of Part 107—Guidelines for Civil Penalties
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I. This appendix sets forth the guidelines used by the Office of Hazardous Materials Safety (as of October 1, 2005) in making initial baseline determinations for recommending civil penalties. The first part of these guidelines is a list of baseline amounts or ranges for probable violations frequently cited in enforcement reports referred for action. Following the list of violations are general guidelines used by OHMS in making initial penalty determinations in enforcement cases.

II. List of Frequently Cited Violations

                 II_List of Frequently Cited Violations------------------------------------------------------------------------    Violation description        Section or cite     Baseline assessment------------------------------------------------------------------------                          General Requirements------------------------------------------------------------------------A. Registration               107.608, 107.612....  $1,000 + $500 each Requirements: Failure to                            additional year. register as an offeror or carrier of hazardous material and pay registration fee.B. Training Requirements:    1. Failure to provide     172.702     initial training to     hazmat employees     (general awareness,     function-specific,     safety, and security     awareness training):        a. More than 10       ....................  $700 and up each         hazmat employees.                           area.        b. 10 hazmat          ....................  $450 and up each         employees or fewer.                         area.    2. Failure to provide     172.702.............  $450 and up each     recurrent training to                           area.     hazmat employees     (general awareness,     function-specific,     safety, and security     awareness training).    3. Failure to provide     172.702.............  Included in penalty     security training when                          for no security     a security plan is                              plan.     required but has not     been developed.    4. Failure to provide     172.702.............  $2,500.     security training when     a security plan has     been developed but     hazmat employees have     not been trained     concerning the security     plan and its     implementation.    5. Failure to create and  172.704     maintain training     records:        a. more than 10       ....................  $800 and up.         hazmat employees.        b. 10 hazmat          ....................  $500 and up.         employees or fewer.C. Security Plans:    1. Failure to develop a   172.800     security plan; failure     to adhere to security     plan:        a. § 172.504     ....................  $7,500.         table 1 materials.        b. Packing Group I..  ....................  $6,000.        c. Packing Group II.  ....................  $4,500.        d. Packing Group III  ....................  $3,000.    2. Incomplete security    ....................  One-quarter (25%) of     plan or incomplete                              above for each     adherence (one or more                          element.     of four required     elements missing).    3. Failure to update a    172.802(b)..........  One-third (33%) of     security plan to                                baseline for no     reflect changing                                plan.     circumstances.    4. Failure to put         172.800(b)..........  One-third (33%) of     security plan in                                baseline for no     writing; failure to                             plan.     make all copies     identical.D. Notification to a Foreign  171.12(a)...........  $1,500 to $7,500 Shipper: Failure to provide                         (corresponding to information of HMR                                  violations by requirements applicable to                          foreign offeror or a shipment of hazardous                             forwarding agent). materials within the United States, to a foreign offeror or forwarding agent at the place of entry into the U.S.E. Expired Exemption:         171.2(a), (b), (c),   $1,000 + $500 each Offering or transporting a    Various.              additional year. hazardous material, or otherwise performing a function covered by an exemption, after expiration of the exemption------------------------------------------------------------------------              Offeror Requirements_All hazardous materials------------------------------------------------------------------------A. Undeclared Shipment:    Offering for              172.200, 172.300,     $15,000 and up.     transportation a          172.400, 172.500.     hazardous material     without shipping     papers, package     markings, labels, or     placards.B. Shipping Papers:    1. Failure to provide a   172.201.............  $3,000 to $6,000.     shipping paper for a     shipment of hazardous     materials.    2. Failure to follow one  172.201(a)(1).......  $1,200.     or more of the three     approved formats for     listing hazardous     materials on a shipping     paper.    3. Failure to retain     shipping papers:.        a. by an offeror,         for two years after         the date the         shipment is         provided to the         carrier (or 3 years         if the material is         a hazardous waste).        b. by a carrier, for  172.201(e),           $1,000.         one year after the    174.24(b),         date the shipment     175.30(a),         is provided to the    176.24(b),         carrier (or 3 years   177.817(f).         if the material is         a hazardous waste).    4. Failure to include a   172.202.............  $800 to $1,600.     proper shipping name in     the shipping     description or using an     incorrect proper     shipping name.    5. Failure to include a   172.202.............  $1,000 to $2,000.     hazard class/division     number in the shipping     description.    6. Failure to include an  172.202.............  $1,000 to $2,000.     identification number     in the shipping     description.    7. Using an incorrect     172.202.............     hazard class/     identification number:.        a. that does not      ....................  $800.         affect         compatibility         requirements.        b. that affects       ....................  $3,000 to $6,000.         compatibility         requirements.    8. Using an incorrect     172.202.............     identification number:.        a. that does not      ....................  $800.         change the response         information.        b. that changes the   ....................  $3,000 to $6,000.         response         information.    9. Failure to include     172.202.............  $1,200.     the Packing Group, or     using an incorrect     Packing Group.    10. Using a shipping      172.202.............  $800.     description that     includes additional     unauthorized     information (extra or     incorrect words).    11. Using a shipping      172.202.............  $500.     description not in     required sequence.    12. Using a shipping      172.202.............     description with two or     more required elements     missing or incorrect:.        a. such that the      ....................  $3,000.         material is         misdescribed.        b. such that the      ....................  $6,000.         material is         misclassified.    13. Failure to include    172.202(c)..........  $500.     the total quantity of     hazardous material     covered by a shipping     description.    14. Failure to list an    172.203(a)..........  $800.     exemption or special     permit number in     association with the     shipping description.    15. Failure to indicate   172.203(b)..........  $500.     ``Limited Quantity'' or     ``Ltd Qty'' following     the basic shipping     description of a     material offered for     transportation as a     limited quantity.    16. Failure to include    172.203(c)(2).......  $500.     ``RQ'' in the shipping     description to identify     a material that is a     hazardous substance.    17. Failure to include a  172.203(k)..........  $1,000.     required technical name     in parenthesis for a     listed generic or     ``n.o.s.'' material.    18. Failure to include    172.204.............  $1,000.     the required shipper's     certification on a     shipping paper.    19. Failure to sign the   172.204.............  $800.     required shipper's     certification on a     shipping paper.C. Emergency Response Information Requirements:    1. Providing or listing   172.602.............     incorrect emergency     response information     with or on a shipping     paper.        a. No significant     ....................  $800.         difference in         response.        b. Significant        ....................  $3,000 to $6,000.         difference in         response.    2. Failure to include an  172.604.............  $2,600.     emergency response     telephone number on a     shipping paper.    3. Failure to have the    172.604.............  $1,300.     emergency response     telephone number     monitored while a     hazardous material is     in transportation or     listing multiple     telephone numbers     (without specifying the     times for each) that     are not monitored 24     hours a day.    4. Listing an             172.604.............  $2,600 to $4,200.     unauthorized emergency     response telephone     number on a shipping     paper.    5. Listing an incorrect   172.604.............  $1,300.     or non-working     emergency response     telephone number on a     shipping paper.    6. Failure to provide     172.604.............  $1,300.     required technical     information when the     listed emergency     response telephone     number is contacted.D. Package Marking Requirements:    1. Failure to mark the    172.301(a)..........  $800 to $1,600.     proper shipping name on     a package or marking an     incorrect shipping name     on a package.    2. Failure to mark the    172.301(a)..........  $1,000 to $2,000.     identification number     on a package.    3. Marking a package      172.301(a)..........     with an incorrect     identification number.        a. that does not      ....................  $800.         change the response         information.        b. that changes the   ....................  $3,000 to $6,000.         response         information.    4. Failure to mark the    172.301(a)..........  $3,000 to $6,000.     proper shipping name     and identification     number on a package.    5. Marking a package      172.301(a)..........     with an incorrect     shipping name and     identification number.        a. that does not      ....................  $1,500 to $3,000.         change the response         information.        b. that changes the   ....................  $3,000 to $6,000.         response         information.    6. Failure to include     172.301(c)..........  $1,000.     the required technical     name(s) in parenthesis     for a listed generic or     ``n.o.s.'' entry.    7. Marking a package as   172.303(a)..........  $800.     containing hazardous     material when it     contains no hazardous     material.    8. Failure to locate      172.304(a)(4).......  $800.     required markings away     from other markings     that could reduce their     effectiveness.    9. Failure to mark a      172.312.............  $2,500 to $3,500.     package containing     liquid hazardous     materials with required     orientation marking.    10. Failure to mark       172.324(b)..........  $500.     ``RQ'' on a non-bulk     package containing a     hazardous substance.E. Package Labeling Requirements:    1. Failure to label a     172.400.............  $5,000.     package.    2. Placing a label that   172.400.............  $5,000.     represents a hazard     other than the hazard     presented by the     hazardous material in     the package.    3. Placing a label on a   172.401(a)..........  $800.     package that does not     contain a hazardous     material.    4. Failure to place a     172.402.............  $500 to $2,500.     required subsidiary     label on a package.    5. Placing a label on a   172.406(a)..........  $800.     different surface of     the package than, or     away from, the proper     shipping name.    6. Placing an improper    172.407(c)..........  $800.     size label on a package.    7. Placing a label on a   172.407(d)..........  $600 to $2,500.     package that does not     meet color     specification     requirements (depending     on the variance).    8. Failure to provide an  172.411.............  $2,500.     appropriate class or     division number on a     label.F. Placarding Requirements:    Failure to properly       172.504.............     placard a freight     container or vehicle     containing hazardous     materials:.        a. when Table 1 is    ....................  $1,000 to $9,000.         applicable.        b. when Table 2 is    ....................  $800 to $7,200.         applicable.G. Packaging Requirements:    1. Offering a hazardous   Various.............     material for     transportation in an     unauthorized non-UN     standard or     nonspecification     packaging (includes     failure to comply with     the terms of an     exemption or special     permit authorizing use     of a nonstandard or     nonspecification     packaging).        a. Packing Group I    ....................  $9,000.         (and § 172.504         Table I materials).        b. Packing Group II.  ....................  $7,000.        c. Packing Group III  ....................  $5,000.    2. Offering a hazardous   178.601 &     material for              Various.     transportation in a     self-certified     packaging that has not     been subjected to     design qualification     testing:.        a. Packing Group I    ....................  $10,800.         (and § 172.504         Table I materials).        b. Packing Group II.  ....................  $8,400.        c. Packing Group III  ....................  $6,000.    3. Offering a hazardous   178.503(a)..........  $3,600.     material for     transportation in a     packaging that has been     successfully tested to     an applicable UN     standard but is not     marked with the     required UN marking.    4. Failure to close a UN  173.22(a)(4)........  $2,500.     standard packaging in     accordance with the     closure instructions.    5. Offering a hazardous   173.24(b)...........     material for     transportation in a     packaging that leaks     during conditions     normally incident to     transportation:        a. Packing Group I    ....................  $12,000.         (and § 172.504         Table I materials).        b. Packing Group II.  ....................  $9,000.        c. Packing Group III  ....................  $6,000.    6. Overfilling or         173.24(b)...........     underfilling a package     so that the     effectiveness is     substantially reduced:        a. Packing Group I    ....................  $9,000.         (and § 172.504         Table I materials).        b. Packing Group II.  ....................  $6,000.        c. Packing Group III  ....................  $3,000.    7. Offering a hazardous   171.14..............     material for     transportation after     October 1, 1996, in an     unauthorized non-UN     standard packaging     marked as manufactured     to a DOT specification:        a. packaging meets    ....................  $3,000.         DOT specification.        b. packaging does     ....................  $5,000 to $9,000.         not meet DOT         specification.    8. Failure to mark an     173.25(a)(4)........  $3,000.     overpack with a     statement that the     inside packages comply     with prescribed     specifications or     standards when     specification or     standard packaging is     required.    9. Filling an IBC or a    173.32(a), 180.352,     portable tank (DOT, UN,   180.605.     or IM) that is out of     test and offering     hazardous materials for     transportation in that     IBC or portable tank.        a. All testing        ....................  $3,500 to $7,000.         overdue.        b. Only periodic (5   ....................  $3,500.         year) test overdue.        c. Only intermediate  ....................  $3,500.         periodic (2.5 year)         tests overdue.    10. Failure to provide    173.32(f)(6)........  $6,000 to $12,000.     the required outage in     a portable tank that     results in a release of     hazardous materials.------------------------------------------------------------------------            Offeror Requirements_Specific hazardous materials------------------------------------------------------------------------A. Cigarette Lighters:    Offering for              173.21(i)...........  $7,500.     transportation an     unapproved cigarette     lighter, lighter     refill, or similar     device, equipped with     an ignition element and     containing fuel.B. Class 1_Explosives:    1. Failure to mark the    172.320.............  $1,200.     package with the EX     number for each     substance contained in     the package or,     alternatively, indicate     the EX number for each     substance in     association with the     description on the     shipping description.    2. Offering an            ....................  173.54,     unapproved explosive     for transportation:        a. Div. 1.3 and 1.4   173.56(b)...........  $5,000 to $10,000.         fireworks meeting         the chemistry         requirements         (quantity and type)         of APA Standard 87-         1.        b. All other          ....................  $10,000 and up.         explosives         (including         forbidden).    3. Offering a leaking or  173.54(c)...........  $10,000 and up.     damaged package of     explosives for     transportation.    4. Packaging explosives   173.61..............  $2,500 to $5,000.     in the same outer     packaging with other     materials.C. Class 7_Radioactive Materials:    1. Failure to include     172.203(d)..........  $1,000 to $3,000.     required additional     entries, or providing     incorrect information     for these additional     entries.    2. Failure to mark the    172.310(a)..........  $800.     gross mass on the     outside of a package of     Class 7 material that     exceeds 110 pounds.    3. Failure to mark each   172.310(b)..........  $800.     package in letters at     least 13 mm (\1/2\     inch) high with the     words ``Type A'' or     ``Type B'' as     appropriate.    4. Placing a label on     172.403.............  $5,000.     Class 7 material that     understates the proper     label category.    5. Placing a label on     172.403(g)..........  $2,000 to $4,000.     Class 7 material that     fails to contain (or     has erroneous) entries     for the name of the     radionuclide(s),     activity, and transport     index.    6. Failure to meet one    173.410.............  $5,000.     or more of the general     design requirements for     a package used to ship     a Class 7 material.    7. Failure to comply      173.411.............  $5,000.     with the industrial     packaging (IP)     requirements when     offering a Class 7     material for     transportation.    8. Failure to provide a   173.412(a)..........  $2,000.     tamper-indicating     device on a Type A     package used to ship a     Class 7 material.    9. Failure to meet the    173.412(b)-(i)......  $5,000.     additional design     requirements of a Type     A package used to ship     a Class 7 material.    10. Failure to meet the   173.412(j)-(l)......  $8,400.     performance     requirements for a Type     A package used to ship     a Class 7 material..    11. Offering a DOT        173.415(a), 173.461   ....................     specification 7A     packaging without     maintaining complete     documentation of tests     and an engineering     evaluation or     comparative data:        a. Tests and          ....................  $8,400.         evaluation not         performed.        b. Complete records   ....................  $2,000 to $5,000.         not maintained.    12. Offering any Type B,  173.416.............  $9,000.     Type B(U), Type B(M)     packaging that failed     to meet the approved     DOT, NRC or DOE design,     as applicable.    13. Offering a Type B     173.471(a).           ....................     packaging without     holding a valid NRC     approval certificate:        a. Never having       ....................  $3,000.         obtained one.        b. Holding an         ....................  $1,000.         expired certificate.    14. Failure to meet one   173.420.............  $10,800.     or more of the special     requirements for a     package used to ship     uranium hexafluoride.    15. Offering Class 7      173.421(a)..........  $4,000.     material for     transportation as a     limited quantity     without meeting the     requirements for     limited quantity.    16. Offering a multiple-  173.423(a)..........  $500 to $2,500.     hazard limited quantity     Class 7 material     without addressing the     additional hazard.    17. Offering Class 7 low  173.427(a)(1).......  $6,000.     specific activity (LSA)     materials or surface     contaminated objects     (SCO) with an external     dose rate that exceeds     an external radiation     level of 1 rem/hr at 3     meters from the     unshielded material.    18. Offering Class 7 LSA  173.427(a)(6).......  $1,000.     materials or SCO as     exclusive use without     providing specific     instructions to the     carrier for maintenance     of exclusive use     shipment controls.    19. Offering in excess    173.431.............  $12,000.     of Type A quantity of a     Class 7 material in a     Type A packaging.    20. Offering a package    173.441.............  $10,000 and up.     that exceeds the     permitted limits for     surface radiation or     transport index.    21. Offering a package    173.443.............  $5,000 and up.     without determining the     level of removable     external contamination,     or that exceeds the     limit for removable     external contamination.    22. Storing packages of   173.447(a)..........  $5,000 and up.     radioactive material in     a group with a total     transport index more     than 50.    23. Offering for          173.448(e)..........  $5,000 and up.     transportation or     transporting aboard a     passenger aircraft any     single package or     overpack of Class 7     material with a     transport index greater     than 3.0.    24. Exporting a Type B,   173.471(d)..........  $3,000.     Type B(U), Type B(M),     or fissile package     without obtaining a     U.S. Competent     Authority Certificate     or, after obtaining a     U.S. Competent     Authority Certificate,     failing to submit a     copy to the national     competent authority of     each country into or     through which the     package is transported.    25. Offering special      173.476(a), (b).....  $2,500.     form radioactive     materials without     maintaining a complete     safety analysis or     Certificate of     Competent Authority.D. Class 2_Compressed Gases                         .................... in Cylinders:    1. Filling and offering   173.301(a)(6).......  $4,200 to $10,400.     a cylinder with     compressed gas when the     cylinder is out of test.    2. Failure to check each  173.303(d)..........  $5,000.     day the pressure of a     cylinder charged with     acetylene that is     representative of that     day's compression,     after the cylinder has     cooled to a settled     temperature, or failure     to keep a record of     this test for 30 days.    3. Offering a limited     173.306(a)(3), (h)..  $1,500 to $6,000.     quantity of a     compressed gas in a     metal container for the     purpose of propelling a     nonpoisonous material     and failure to heat the     cylinder until the     pressure is equivalent     to the equilibrium     pressure at 130 °F,     without evidence of     leakage, distortion, or     other defect.------------------------------------------------------------------------          Manufacturing, Reconditioning, Retesting Requirements------------------------------------------------------------------------A. Third-Party Packaging Certifiers (General):    Issuing a certification   171.2(e), 178.2(b),   $500 per item.     that directs the          178.3(a),     packaging manufacturer    178.503(a).     to improperly mark a     packaging (e.g., steel     drum to be marked UN     4G).B. Packaging Manufacturers (General):    1. Failure of a           178.2(c)............  $2,500.     manufacturer or     distributor to notify     each person to whom the     packaging is     transferred of all the     requirements not met at     the time of transfer,     including closure     instructions.    2. Failure to insure a    178.601(b)..........     packaging certified as     meeting the UN standard     is capable of passing     the required     performance testing.        a. Packing Group I    ....................  $10,800.         (and § 172.504         Table 1 materials).        b. Packing Group II.  ....................  $8,400.        c. Packing Group III  ....................  $6,000.    3. Certifying a           178.601(d)..........     packaging as meeting a     UN standard when design     qualification testing     was not performed.        a. Packing Group I    ....................  $10,800.         (and § 172.504         table 1 materials).        b. Packing Group II.  ....................  $8,400.        c. Packing Group III  ....................  $6,000.    4. Failure to conduct     178.601(e)..........  $2,000 to $10,800.     periodic retesting on     UN standard packaging     (depending on length of     time and Packing Group).    5. Failure to properly     conduct testing for UN     standard packaging     (e.g., testing with     less weight than marked     on packaging; drop     testing from lesser     height than required;     failing to condition     fiberboard boxes before     design test):.        a. Design             178.601(d)..........  $2,000 to $10,800.         qualification         testing.        b. Periodic           178.601(e)..........  $500 to $10,800.         retesting.    6. Marking, or causing    178.2(b), 178.3(a),   $7,200.     the marking of, a         178.503(a)(8).     packaging with the     symbol of a     manufacturer or     packaging certifier     other than the company     that actually     manufactured or     certified the packaging.    7. Failure to maintain    178.601(l)..........     testing records.        a. Design             ....................  $1,000 to $5,000.         qualification         testing.        b. Periodic           ....................  $500 to $2,000.         retesting.    8. Improper marking of    178.503.............  $500 per item.     UN certification.    9. Manufacturing DOT      171.14..............     specification packaging     after October 1, 1994     that is not marked as     meeting a UN     performance standard.        a. If packaging does  ....................  $3,000.         meet DOT         specification.        b. If packaging does  ....................  $6,000 to $10,800.         not meet DOT         specification.C. Drum Manufacturers & Reconditioners:    1. Failure to properly    178.604(b), (d),     conduct production        173.28(b)(2)(i).     leakproofness test on a     new or reconditioned     drum.        a. Improper testing.  ....................  $2,000.        b. No testing         ....................  $3,000 to $5,000.         performed.    2. Marking an incorrect   173.28(b)(2)(ii)....     registration number on     a reconditioned drum.        a. Incorrect number.  ....................  $800.        b. Unauthorized use   ....................  $7,200.         of another         reconditioner's         number.    3. Representing,          173.28(c), (d)......  $6,000 to $10,800.     marking, or certifying     a drum as a     reconditioned UN     standard packaging when     the drum does not meet     a UN standard.    4. Representing,          173.28(d)...........  $500.     marking, or certifying     a drum as altered from     one UN standard to     another, when the drum     has not actually been     altered.D. IBC and Portable Tank Requalification:    1. Failure to properly    180.352(e),           $500 per item.     mark an IBC or portable   178.703(b),     tank with the most        180.605(k).     current retest and/or     inspection information.    2. Failure to keep        180.352(f),     complete and accurate     180.605(l).     records of IBC or     portable tank retest     and reinspection.        a. No records kept..  ....................  $4,000.        b. Incomplete or      ....................  $1,000 to $3,000.         inaccurate records.    3. Failure to make        180.352(f), 49        $1,000.     reinspection and retest   U.S.C. 5121(b)(2).     records available to a     DOT representative upon     request.E. Cylinder Manufacturers & Rebuilders:    1. Manufacturing,         Various.............  $7,500 to $15,000.     representing, marking,     certifying, or selling     a DOT high-pressure     cylinder that was not     inspected and verified     by an approved     independent inspection     agency.    2. Failure to have a      Various.............  $800.     registration number or     failure to mark the     registration number on     the cylinder.    3. Marking another        Various.............  $7,200.     company's number on a     cylinder.    4. Failure to mark the    178.65(i)...........  $3,000.     date of manufacture or     lot number on a DOT-39     cylinder.    5. Failure to have a      Various.............  $5,000.     chemical analysis     performed in the U.S.     for a material     manufactured outside     the U.S./failure to     obtain a chemical     analysis from the     foreign manufacturer.    6. Failure to meet wall   Various.............  $7,500 to $15,000.     thickness requirements.    7. Failure to heat treat  Various.............  $5,000 to $15,000.     cylinders prior to     testing.    8. Failure to conduct a   Various.............  $2,500 to $6,200.     complete visual     internal examination.    9. Failure to conduct a   Various.............  $2,500 to $6,200.     hydrostatic test, or     conducting a     hydrostatic test with     inaccurate test     equipment.    10. Failure to conduct a  Various.............  $7,500 to $15,000.     flattening test.    11. Failure to conduct a  178.65(f)(2)........  $5,000 to $15,000.     burst test on a DOT-39     cylinder.    12. Failure to have       Various.............  $7,500 to $15,000.     inspections and     verifications performed     by an inspector.    13. Failure to maintain   Various.............     required inspector's     reports.        a. No reports at all  ....................  $5,000.        b. Incomplete or      ....................  $1,000 to $4,000.         inaccurate reports.    14. Representing a DOT-4  180.211(a)..........  $6,000 to $10,800.     series cylinder as     repaired or rebuilt to     the requirements of the     HMR without being     authorized by the     Associate Administrator.F. Cylinder Requalification:    1. Failure to remark as   173.23(c)...........  $800.     DOT 3AL an aluminum     cylinder manufactured     under a former     exemption or special     permit.    2. Certifying or marking  180.205(a)..........  $800.     as retested a     nonspecification     cylinder.    3. Failure to have        180.205(b)..........  $4,000.     retester's     identification number     (RIN).    4. Failure to have        180.205(b)..........  $2,000.     current authority due     to failure to renew a     retester's     identification number     (RIN).    5. Failure to have a      180.205(b)..........  $7,200.     retester's     identification number     and marking another RIN     on a cylinder.    6. Marking a RIN before   180.205(b)..........  $800.     successfully completing     a hydrostatic retest.    7. Representing,          171.2(c), (e),        $2,000 to $6,000.     marking, or certifying    178.205(c),     a cylinder as meeting     Applicable     the requirements of an    Exemption or     exemption or special      Special Permit.     permit when the     cylinder was not     maintained or retested     in accordance with the     exemption or special     permit.    8. Failure to conduct a   180.205(f)..........  $2,100 to $5,200.     complete visual     external and internal     examination.    9. Failure to conduct     180.205(f) & (g)  $4,200 to $10,400.     visual inspection or     hydrostatic retest.    10. Performing            180.205(g)(3).......  $2,100 to $5,200.     hydrostatic retesting     without confirming the     accuracy of the test     equipment.    11. Failure to hold       180.205(g)(5).......  $3,100.     hydrostatic test     pressure for 30 seconds     or sufficiently longer     to allow for complete     expansion.    12. Failure to perform a  180.205(g)..........  $3,100.     second retest, after     equipment failure, at a     pressure increased by     the lesser of 10% or     100 psi (includes     exceeding 90% of test     pressure prior to     conducting a retest).    13. Failure to condemn a  180.205(i)..........  $6,000 to $10,800.     cylinder when required     (e.g., permanent     expansion of 10% [5%     for certain exemption     or special permit     cylinders], internal or     external corrosion,     denting, bulging,     evidence of rough     usage).    14. Failure to properly   180.205(i)(2).......  $800.     mark a condemned     cylinder or render it     incapable of holding     pressure.    15. Failure to notify     180.205(i)(2).......  $1,000.     the cylinder owner in     writing when a cylinder     has been condemned.    16. Failure to perform    180.209(a)(1).......  $2,100 to $5,200.     hydrostatic retesting     at the minimum     specified test pressure.    17. Marking a star on a   180.209(b)..........  $2,000 to $4,000.     cylinder that does not     qualify for that mark.    18. Marking a ``+'' sign  173.302a(b).........  $2,000 to $4,000.     on a cylinder without     determining the average     or minimum wall stress     by calculation or     reference to CGA     Pamphlet C-5.    19. Marking a cylinder    180.213(b)..........  $6,000 to $10,800.     in or on the sidewall     when not permitted by     the applicable     specification.    20. Failure to maintain   180.213(b)(1).......  $800.     legible markings on a     cylinder.    21. Marking a DOT 3HT     180.213(c)(2).......  $6,000 to $10,800.     cylinder with a steel     stamp other than a low-     stress steel stamp.    22. Improper marking of   180.213(d)..........  $800.     the RIN or retest date     on a cylinder.    23. Marking an FRP        Applicable Exemption  $6,000 to $10,800.     cylinder with steel       or Special Permit.     stamps in the FRP area     of the cylinder such     that the integrity of     the cylinder is     compromised.    24. Failure to maintain   180.215(a)..........  $600 to $1,200.     current copies of 49     CFR, DOT exemption or     special permits, and     CGA Pamphlets     applicable to     inspection, retesting,     and marking activities.    25. Failure to keep       180.215(b)..........     complete and accurate     records of cylinder     reinspection and retest.        a. No records kept..  ....................  $4,000.        b. Incomplete or      ....................  $1,000 to $3,000.         inaccurate records.    26. Failure to report in  171.2(c) & (e),   $600 to $1,200.     writing a change in       Approval Letter.     name, address,     ownership, test     equipment, management,     or retester personnel.------------------------------------------------------------------------                          Carrier Requirements------------------------------------------------------------------------A. Incident Notification:    1. Failure to give        171.15..............  $3,000.     immediate notification     of a reportable     hazardous materials     incident.    2. Failure to file a      171.16..............  $500 to $2,500.     written hazardous     material incident     report within 30 days     following an     unintentional release     of hazardous materials     in transportation (or     other reportable     incident).B. Shipping Papers:    Failure to retain         174.24(b),            $1,000.     shipping papers for 375   175.30(a)(2),     days after a hazardous    176.24(b),     material (or 3 years      177.817(f).     for a hazardous waste)     is accepted by the     initial carrier.C. Stowage/transportation Requirements:    1. Transporting packages  Various.............  $3,000.     of hazardous material     that have not been     secured against     movement.    2. Failure to properly    Various.............  $7,500 and up.     segregate hazardous     materials.    3. Transporting           177.835(i)..........  $5,200.     explosives in a motor     vehicle containing     metal or other articles     or materials likely to     damage the explosives     or any package in which     they are contained,     without segregating in     different parts of the     load or securing them     in place in or on the     motor vehicle and     separated by bulkheads     or other suitable means     to prevent damage.    4. Transporting railway   171.2(b) & (e)..  $7,000.     track torpedoes outside     of flagging kits, in     violation of DOT-E 7991.    5. Transporting Class 7   177.842(a)..........  $5,000 and up.     (radioactive) material     having a total     transport index greater     than 50.    6. Transporting Class 7   177.842(b)..........  $5,000 and up.     (radioactive) material     without maintaining the     required separation     distance.    7. Failure to comply      171.2(b) & (e)..     with requirements of an     exemption or special     permit authorizing the     transportation of Class     7 (radioactive)     material having a total     transportation index of     50.        a. Failure to have    ....................  $5,000.         the required         radiation survey         record.        b. Failure to have    ....................  $500 each.         other required         documents.        c. Other violations.  ....................  $5,000 and up.------------------------------------------------------------------------

III. Consideration of Statutory Criteria

A. These guidelines are used by the Office of Hazardous Materials Safety (OHMS) in setting initial proposed penalties for hazmat violations. They indicate baseline amounts or ranges for probable violations frequently cited in enforcement reports and set forth general OHMS policy for considering statutory criteria.

B. The initial baseline determination partially considers the nature, extent, circumstances, and gravity of the alleged violation. That determination then is adjusted to consider all other evidence concerning the nature, extent, circumstances, and gravity of the alleged violation; degree of culpability; history of prior violations; ability to pay; effect of the penalty on ability to continue to do business; and such other matters as justice may require (a major component of which is corrective action taken by a respondent to prevent a recurrence of similar violations). In making a penalty recommendation, the baseline or range may be increased or decreased on the basis of evidence pertaining to these factors.

C. The following miscellaneous factors are used to implement one or more of the statutory assessment criteria.

IV. Miscellaneous Factors Affecting Penalty Amounts

A. Corrective Action

1. A proposed penalty is mitigated for documented corrective action of alleged violations taken by a respondent. Corrective action may occur: (1) After an inspection and before a Notice of Probable Violation (NOPV) is issued; (2) on receipt of an NOPV; or (3) after receipt of an NOPV (possibly after it is solicited by an PHMSA attorney). In general, corrective action may reduce a penalty up to 25%. Mitigation may be taken into account in the referral memo or may be recommended prior to issuance of an Order by PHMSA's Chief Counsel.

2. The two primary factors in determining the penalty reduction are extent and timing of the corrective action. In other words, mitigation will be determined on the basis of how much corrective action was taken and when it was taken. Systemic action to prevent future violations is given greater consideration than action simply to remedy violations identified during the inspection.

3. Mitigation is applied to individual violations. Thus, in a case with two violations, if corrective action for the first violation is more extensive than for the second, the penalty for the first will be mitigated more than that for the second.

B. Respondents That Re-Ship

A shipper that reships materials received from another company, in the same packaging and without opening or altering the package, independently is responsible for ensuring that the shipment complies with Federal hazmat law, and independently may be subject to enforcement action if the package does not comply. Nevertheless, the reshipper is considered to have a lesser level of responsibility for compliance in those respects in which it reasonably relies on the compliance of the package as received. In most cases of this type, OHMS will discount the applicable baseline standard by about 25%. The specific knowledge and expertise of all parties must be considered in discounting for reliance on a prior shipper. This discount is applied before any consideration of mitigation based on corrective action.

C. Penalty Increases for Multiple Counts

Under the Federal hazmat law, 49 U.S.C. 5123(a), each violation of the HMR and each day of a continuing violation (except for violations pertaining to packaging manufacture or qualification) is subject to a civil penalty of up to $50,000 or $100,000 for a violation occurring on or after August 10, 2005. Absent aggravating factors, OHMS, in its exercise of discretion, ordinarily will apply a single penalty for multiple counts or days of violation. In a number of cases, particularly those involving shippers, an inspector may cite two or more similar packaging violations for different hazardous materials. For example, the inspector may cite the same marking violation for two or more packages. OHMS usually will consider those additional violations as counts of the same violation and will not recommend multiples of the same baseline penalty. Rather, OHMS usually will recommend the baseline penalty for a single violation, increased by 25% for each additional violation.

D. Financial Considerations

1. Mitigation is appropriate when the baseline penalty would (1) exceed an amount that the respondent is able to pay, or (2) have an adverse effect on the respondent's ability to continue in business. These criteria relate to a respondent's entire business, and not just the product line or part of its operations involved in the violation(s). Beyond the overall financial size of the respondent's business, the relevant items of information on a respondent's balance sheet include the current ratio (current assets to current liabilities), the nature of current assets, and net worth (total assets minus total liabilities).

2. These figures are considered on a case-by-case basis. In general, however, a current ratio close to or below 1.0 means that the company may have difficulty in paying a large penalty, and may justify reduction of the penalty or an installment payment plan. A small amount of cash on hand representing limited liquidity, even with substantial other current assets (such as accounts receivable or inventory), may warrant a short-term payment plan. Respondent's income statement also will be reviewed to determine whether a payment plan is appropriate.

3. Many companies are able to continue in business for extended periods of time with a small or negative net worth, and many respondents have paid substantial civil penalties in installments even though net worth was negative. For this reason, negative net worth alone does not always warrant reduction of a proposed penalty or even, in the absence of factors discussed above, a payment plan.

4. In general, an installment payment plan may be justified where reduction of a proposed penalty is not, but the appropriateness of either (or both) will depend on the circumstances of the case. The length of a payment plan should be as short as possible, but the plan may consider seasonal fluctuations in a company's income if the company's business is seasonal (e.g., swimming pool chemical sales, fireworks sales) or if the company has documented specific reasons for current non-liquidity.

5. Evidence of financial condition is used only to decrease a penalty, and not to increase it.

E. Penalty Increases for Prior Violations

The baseline penalty presumes an absence of prior violations. If prior violations exist, generally they will serve to increase a proposed penalty. The general standards for increasing a baseline proposed penalty on the basis of prior violations are as follows:

1. For each prior civil or criminal enforcement case—25% increase over the pre-mitigation recommended penalty.

2. For each prior ticket—10% increase over the pre-mitigation recommended penalty.

3. A baseline proposed penalty will not be increased more than 100% on the basis of prior violations.

4. A case or ticket of prior violations initiated in a calendar year more than six years before the calendar year in which the current case is initiated normally will not be considered in determining a proposed penalty for the current violation(s).

F. Penalty Increases for Use of Expired Special Permits

Adjustments to the base line figures for use of expired special permits can be made depending on how much material has been shipped during the period between the expiration date and the renewal date. If the company previously has been found to have operated under an expired special permit, the penalty is normally doubled. If the company has been previously cited for other violations, the penalty generally will be increased by about 25%.

[Amdt. 107–33, 60 FR 12141, Mar. 6, 1995, as amended by Amdt. 107–40, 62 FR 2972, 2977, Jan. 21, 1997; 62 FR 51556, Oct. 1, 1997; 65 FR 58618, Sept. 29, 2000; 66 FR 45180, Aug. 28, 2001; 68 FR 52848, 52855, Sept. 8, 2003; 69 FR 54044, Sept. 7, 2004; 70 FR 56090, Sept. 23, 2005; 70 FR 73162, Dec. 9, 2005; 71 FR 8488, Feb. 17, 2006]

Subpart E—Designation of Approval and Certification Agencies
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§ 107.401   Purpose and scope.
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(a) This subpart establishes procedures for the designation of agencies to issue approval certificates and certifications for types of packagings designed, manufactured, tested, or maintained in conformance with the requirements of this subchapter, subchapter C of this chapter, and standards set forth in the United Nations (U.N.) Recommendations (Transport of Dangerous Goods). Except for certifications of compliance with U.N. packaging standards, this subpart does not apply unless made applicable by a rule in subchapter C of this chapter.

(b) The Associate Administrator may issue approval certificates and certifications addressed in paragraph (a) of this section.

[Amdt. 107–31, 50 FR 10062, Mar. 13, 1985, as amended by Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28, 2001]

§ 107.402   Application for designation as an approval or certification agency.
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(a) Any organization or person seeking designation as an approval or certification agency shall apply in writing to the Associate Administrator for Hazardous Materials Safety (PHH–32), Department of Transportation, 400 Seventh Street, SW., Washington DC 20590–0001. Alternatively, the application with any attached supporting documentation in an appropriate format may be submitted by facsimile (fax) to: (202) 366–3753 or (202) 366–3308 or by electronic mail (e-mail) to: [email protected]. Each application must be signed and certified to be correct by the applicant or, if the applicant is an organization, by an authorized officer or official representative of the organization. Any false statement or representation, or the knowing and willful concealment of a material fact, may subject the applicant to prosecution under the provisions of 18 U.S.C. 1001, result in the denial or termination of a designation.

(b) Each application for designation must be in English and include the following information:

(1) Name and address of the applicant, including place of incorporation if a corporation. In addition, if the applicant is not a resident of the United States, the name and address of a permanent resident of the United States designated in accordance with §105.40 to serve as agent for service of process.

(2) If the applicant's principal place of business is in a country other than the United States, a copy of the designation from the Competent Authority of that country delegating to the applicant an approval or designated agency authority for the type of packaging for which a DOT designation is sought, and a statement that the Competent Authority also delegates similar authority to U.S. Citizens or organizations having designations under this subpart from the PHMSA.

(3) A listing, by DOT specification (or special permit) number, or U.N. designation, of the types of packagings for which approval authority is sought.

(4) A personnel qualifications plan listing the qualifications that the applicant will require of each person to be used in the performance of each packaging approval or certification function. As a minimum, these qualifications must include:

(i) The ability to review and evaluate design drawings, design and stress calculations;

(ii) A knowledge of the applicable regulations of subchapter C of this chapter and, when applicable, U.N. standards; and

(iii) The ability to conduct or monitor and evaluate test procedures and results; and

(iv) The ability to review and evaluate the qualifications of materials and fabrication procedures.

(5) A statement that the applicant will perform its functions independent of the manufacturers and owners of the packagings concerned.

(6) A statement that the applicant will allow the Associate Administrator or his representative to inspect its records and facilities in so far as they relate to the approval or certification of specification packagings and shall cooperate in the conduct of such inspections.

(c) The applicant shall furnish any additional information relevant to the applicant's qualifications, if requested by the Associate Administrator.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985; 50 FR 16089, Apr. 24, 1985, as amended by Amdt. 107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28, 2001; 67 FR 61011, Sept. 27, 2002; 70 FR 56090, Sept. 23, 2005]

§ 107.403   Designation of approval agencies.
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(a) If the Associate Administrator determines that an application contains all the required information, the applicant is sent a letter of designation and assigned an identification code.

(b) If the Associate Administrator determines that an application does not contain all the required information, the application is denied and the applicant is sent a written notice containing all the reasons for the denial.

(c) Within 30 days of an initial denial of an application under paragraph (b) of this section, the applicant may file an amended application. If after considering the amended application, the Associate Administrator determines that it should be denied, he notifies the applicant, and the denial constitutes the final action of the Associate Administrator on the application. Within 60 days of receipt of the final denial the applicant may appeal the denial to the Administrator, PHMSA, setting forth in writing where the Associate Administrator for Hazardous Materials Safety erred in this determination.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as amended by Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; 66 FR 45377, Aug. 28, 2001]

§ 107.404   Conditions of designation.
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(a) Each designation made under this subpart contains the following conditions:

(1) The designated approval or certification agency may use only testing equipment that it has determined, through personal inspection, to be suitable for the purpose.

(2) Each approval certificate and certification issued by the designated approval agency must contain the name and identification code of the approval agency.

(3) Each approval certificate and certification must be in a format acceptable to the Associate Administrator.

(b) The designated approval agency shall notify the Associate Administrator within 20 days after the date there is any change in the information submitted under §107.402.

(c) The designated approval agency shall comply with all of the terms and conditions stated in its letter of designation under the subpart.

(d) Nothing in this part relieves a manufacturer or owner of a packaging of responsibility for compliance with any of the applicable requirements of this title.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as amended by Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28, 2001]

§ 107.405   Termination of designation.
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(a) Any designation issued under §107.403 of this subchapter may be suspended or terminated if the Associate Administrator determines that:

(1) The application for designation contained a misrepresentation, or the applicant willfully concealed a material fact.

(2) The approval agency failed to comply with a term or condition stated in the agency's letter of designation.

(3) The Competent Authority of an approval agency of a country outside the United States has failed to initiate, maintain or recognize a qualified U.S. approval agency.

(b) Before a designation is suspended or terminated, the Associate Administrator shall give to the approval agency:

(1) Written notice of the facts or conduct believed to warrant suspension or termination of the designation.

(2) Sixty days in which to show in writing why the designation should not be suspended or terminated.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, as amended by Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; 66 FR 45377, Aug. 28, 2001]

Subpart F—Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design Certifying Engineers
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§ 107.501   Scope.
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(a) This subpart establishes a registration procedure for persons who are engaged in the manufacture, assembly, inspection and testing, certification, or repair of a cargo tank or a cargo tank motor vehicle manufactured in accordance with a DOT specification under subchapter C of this chapter or under terms of a special permit issued under this part.

(b) Persons engaged in continuing qualification and maintenance of cargo tanks and cargo tank motor vehicles must be familiar with the requirements set forth in part 180, subpart E, of this chapter.

[Amdt. 107–20, 55 FR 37047, Sept. 7, 1990]

§ 107.502   General registration requirements.
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(a) Definitions: For purposes of this subpart—

(1) Assembly means the performance of any of the following functions when the function does not involve welding on the cargo tank wall:

(i) The mounting of one or more tanks or cargo tanks on a motor vehicle or to a motor vehicle suspension component;

(ii) The installation of equipment or components necessary to meet the specification requirements prior to the certification of the cargo tank motor vehicle; or

(iii) The installation of linings, coatings, or other materials to the inside of a cargo tank wall.

(2) The terms Authorized Inspector, Cargo tank, Cargo tank motor vehicle, Design Certifying Engineer, Registered Inspector, and Person are defined in §171.8 of this chapter.

(3) The terms cargo tank wall and manufacturer are defined in §178.320(a), and repair is defined in §180.403 of this chapter.

(b) No person may engage in the manufacture, assembly, certification, inspection or repair of a cargo tank or cargo tank motor vehicle manufactured under the terms of a DOT specification under subchapter C of this chapter or a special permit issued under this part unless the person is registered with the Department in accordance with the provisions of this subpart. A person employed as an inspector or design certifying engineer is considered to be registered if the person's employer is registered.

(c) A person who performs functions which are subject to the provisions of this subpart may perform only those functions which have been identified to the Department in accordance with the procedures of this subpart.

(d) Registration statements must be in English, contain all of the information required by this subpart, and be submitted to: FMCSA Hazardous Materials Division—MC-ECH, Room 8310, 400 7th Street SW, Washington, DC 20590.

(e) Upon determination that a registration statement contains all the information required by this subpart, the Department will send the registrant a letter confirming receipt of the registration application and assigning a registration number to that person. A separate registration number will be assigned for each cargo tank manufacturing, assembly, repair facility or other place of business identified by the registrant.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55 FR 37047, Sept. 7, 1990, as amended by Amdt. 107–22, 55 FR 39978, Oct. 1, 1990; Amdt. 107–23, 56 FR 66157, Dec. 20, 1991; Amdt. 107–28, 58 FR 46873, Sept. 3, 1993; Amdt. 107–39, 61 FR 51337, Oct. 1, 1996; 67 FR 61011, Sept. 27, 2002; 68 FR 19273, Apr. 18, 2003]

§ 107.503   Registration statement.
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(a) Each registration statement must be in English and contain the following information:

(1) Name;

(2) Street address, mailing address and telephone number for each facility or place of business;

(3) A statement indicating whether the facility uses mobile testing/inspection equipment to perform inspections, tests, or repairs at a location other than the address listed in paragraph (a)(2) of this section.

(4) A statement signed by the person responsible for compliance with the applicable requirements of this chapter, certifying knowledge of those requirements and that each employee who is a Registered Inspector or Design Certifying Engineer meets the minimum qualification requirements set forth in §171.8 of this chapter for “Registered Inspector” or “Design Certifying Engineer”. The following language may be used.

I certify that all Registered Inspectors and Design Certifying Engineers used in performance of the prescribed functions meet the minimum qualification requirements set forth in 49 CFR 171.8, that I am the person responsible for ensuring compliance with the applicable requirements of this chapter, and that I have knowledge of the requirements applicable to the functions to be performed.

(5) A description of the specific functions to be performed on cargo tanks or cargo tank motor vehicles, e.g.:

(i) Manufacture,

(ii) Assembly,

(iii) Inspection and testing (specify type, e.g., external or internal visual inspection, lining inspection, hydrostatic pressure test, leakage test, thickness test),

(iv) Certification,

(v) Repair, or

(vi) Equipment manufacture;

(6) An identification of the types of DOT specification and special permit cargo tanks or cargo tank motor vehicles which the registrant intends to manufacture, assemble, repair, inspect, test or certify;

(7) A statement indicating whether the registrant employs Registered Inspectors or Design Certifying Engineers to conduct certification, inspection or testing functions addressed by this subpart. If the registrant engages a person who is not an employee of the registrant to perform these functions, provide the name, address and registration number of that person; and

(8) If the registrant is not a resident of the United States, the name and address of a permanent resident of the United States designated in accordance with §105.40 to serve as agent for service of process.

(b) In addition to the information required under paragraph (a) of this section, each person who manufactures a cargo tank or cargo tank motor vehicle must submit a copy of the manufacturer's current ASME Certificate of Authorization for the use of the ASME “U” stamp.

(c) In addition to the information required under paragraph (a) of this section, each person who repairs a cargo tank or cargo tank motor vehicle must submit a copy of the repair facility's current National Board Certificate of Authorization for the use of the “R” stamp or ASME Certificate of Authorization for the use of the ASME “U” stamp. Any person who repairs MC-series cargo tanks which are not certified to the ASME Code must submit a copy of the National Board or ASME Certificate of Authorization to PHMSA before June 30, 1992.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55 FR 37047, Sept. 7, 1990; 57 FR 365, Jan. 6, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26, 1994; Amdt. 107–39, 61 FR 51337, Oct. 1, 1996; 63 FR 52846, Oct. 1, 1998; 68 FR 19273, Apr. 18, 2003]

§ 107.504   Period of registration, updates, and record retention.
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(a) Registration will be for a maximum of six years from the date of the original registration.

(b) Any correspondence with the Department must contain the registrant's name and registration number.

(c) A registration must be renewed every six years or within thirty days of reissuance of an ASME or National Board Certification, whichever occurs first, by submitting an up-to-date registration statement containing the information prescribed by §107.503. Any person initially registered under the provisions of §107.502 and who is in good standing is eligible for renewal.

(d) A registrant shall provide written notification to the Department within thirty days of any of the following occurrences:

(1) Any change in the registration information submitted under §107.503;

(2) Replacement of the person responsible for compliance with the requirements in §107.503(a)(3). If this occurs, the registrant shall resubmit the required certification;

(3) Loss of ASME or National Board Certificate of Authorization; or

(4) A change in function; such as, from assembly to manufacture, an addition of a function, or a change to the types of inspections, tests or certifications of cargo tanks or cargo tank motor vehicles.

(e) Each registrant shall maintain a current copy of the registration information submitted to the Department and a current copy of the registration number identification received from the Department at the location identified in §107.503(a)(2) during such time the person is registered with the Department and for two years thereafter.

(f) The issuance of a registration number under this subpart is not an approval or endorsement by the Department of the qualifications of any person to perform the specified functions.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55 FR 37048, Sept. 7, 1990, as amended by Amdt. 107–20, 56 FR 27875, June 17, 1991; Amdt. 107–37, 61 FR 18931, Apr. 29, 1996]

Subpart G—Registration of Persons Who Offer or Transport Hazardous Materials
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Source:  Amdt. No. 107–26, 57 FR 30630, July 9, 1992, unless otherwise noted.

§ 107.601   Applicability.
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(a) The registration and fee requirements of this subpart apply to any person who offers for transportation, or transports, in foreign, interstate or intrastate commerce—

(1) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined in §173.403 of this chapter;

(2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material (see §173.50 of this chapter) in a motor vehicle, rail car or freight container;

(3) More than one L (1.06 quarts) per package of a material extremely toxic by inhalation (i.e., “material poisonous by inhalation,” as defined in §171.8 of this chapter, that meets the criteria for “hazard zone A,” as specified in §§173.116(a) or 173.133(a) of this chapter);

(4) A shipment of a quantity of hazardous materials in a bulk packaging (see §171.8 of this chapter) having a capacity equal to or greater than 13,248 L (3,500 gallons) for liquids or gases or more than 13.24 cubic meters (468 cubic feet) for solids;

(5) A shipment in other than a bulk packaging of 2,268 kg (5,000 pounds) gross weight or more of one class of hazardous materials for which placarding of a vehicle, rail car, or freight container is required for that class, under the provisions of subpart F of part 172 of this chapter; or

(6) Except as provided in paragraph (b) of this section, a quantity of hazardous material that requires placarding, under provisions of subpart F of part 172 of this chapter.

(b) Paragraph (a)(6) of this section does not apply to those activities of a farmer, as defined in §171.8 of this chapter, that are in direct support of the farmer's farming operations.

(c) In this subpart, the term “shipment” means the offering or loading of hazardous material at one loading facility using one transport vehicle, or the transport of that transport vehicle.

[65 FR 7309, Feb. 14, 2000, as amended at 67 FR 61011, Sept. 27, 2002]

§ 107.606   Exceptions.
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(a) The following are excepted from the requirements of this subpart:

(1) An agency of the Federal government.

(2) A State agency.

(3) An agency of a political subdivision of a State.

(4) An employee of any of those agencies in paragraphs (a)(1) through (a)(3) of this section with respect to the employee's official duties.

(5) A hazmat employee (including, for purposes of this subpart, the owner-operator of a motor vehicle that transports in commerce hazardous materials, if that vehicle at the time of those activities, is leased to a registered motor carrier under a 30-day or longer lease as prescribed in 49 CFR part 376 or an equivalent contractual agreement).

(6) A person domiciled outside the United States, who offers solely from a location outside the United States, hazardous materials for transportation in commerce, provided that the country of which such a person is a domiciliary does not require persons domiciled in the United States, who solely offer hazardous materials for transportation to the foreign country from places in the United States, to file a registration statement or to pay a registration fee.

(b) Upon making a determination that persons domiciled in the United States, who offer hazardous materials for transportation to a foreign country solely from places in the United States, must file registration statements or pay fees to that foreign country, the U.S. Competent Authority will provide notice of such determination directly to the Competent Authority of that foreign country and by publication in the Federal Register. Persons who offer hazardous materials for transportation to the United States from that foreign country must file a registration statement and pay the required fee no later than 60 days following publication of the determination in the Federal Register.

[Amdt 107–34, 60 FR 27233, May 23, 1995, as amended at 63 FR 52847, Oct. 1, 1998]

§ 107.608   General registration requirements.
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(a) Except as provided in §107.616(d), each person subject to this subpart must submit a complete and accurate registration statement on DOT Form F 5800.2 not later than June 30 for each registration year, or in time to comply with paragraph (b) of this section, whichever is later. Each registration year begins on July 1 and ends on June 30 of the following year.

(b) No person required to file a registration statement may transport a hazardous material or cause a hazardous material to be transported or shipped, unless such person has on file, in accordance with §107.620, a current Certificate of Registration in accordance with the requirements of this subpart.

(c) A registrant whose name or principal place of business has changed during the year of registration must notify PHMSA of that change by submitting an amended registration statement not later than 30 days after the change.

(d) Copies of DOT Form F 5800.2 and instructions for its completion may be obtained from the Hazardous Materials Registration Program, PHH–60, U.S. Department of Transportation, Washington, DC 20590–0001, by calling 617–494–2545 or 202–366–4109, or via the Internet at http://hazmat.dot.gov.

(e) If the registrant is not a resident of the United States, the registrant must attach to the registration statement the name and address of a permanent resident of the United States, designated in accordance with §105.40, to serve as agent for service of process.

[Amdt. No. 107–26, 57 FR 30630, July 9, 1992, as amended by Amdt. 107–31, 59 FR 32932, June 27, 1994; 65 FR 7309, Feb. 14, 2000; 67 FR 61011, Sept. 27, 2002; 70 FR 56090, Sept. 23, 2005]

§ 107.612   Amount of fee.
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(a) Registration year 1999–2000 and earlier. For all registration years through 1999–2000, each person subject to the requirements of §107.601(a)(1)–(5) of this subpart must pay an annual fee of $300 (which includes a $50 processing fee).

(b) Registration years 2000–2001, 2001–2002 and 2002–2003. For the registration years 2000–2001, 2001–2002, and 2002–2003, each person subject to the requirements of this subpart must pay an annual fee as follows:

(1) Small business. Each person that qualifies as a small business under criteria specified in 13 CFR part 121 applicable to the North American Industry Classification System (NAICS) code that describes that person's primary commercial activity must pay an annual fee of $275 and the processing fee required by paragraph (b)(3) of this section.

(2) Other than a small business. Each person that does not meet criteria specified in paragraph (b)(1) of this section must pay an annual fee of $1,975 and the processing fee required by paragraph (b)(3) of this section.

(3) Processing fee. The processing fee is $25 for each registration statement filed. A single statement may be filed for one, two, or three registration years as provided in §107.616(c).

(c) Registration years 2003–2004, 2004–2005 and 2005–2006. For registration years 2003–2004, 2004–2005, and 2005–2006, each person subject to the requirements of this subpart must pay an annual registration fee as follows:

(1) Small business. Each person that qualifies as a small business, under criteria specified in 13 CFR part 121 applicable to the North American Industry Classification System (NAICS) code that describes that person's primary commercial activity, must pay an annual registration fee of $125 and the processing fee required by paragraph (c)(4) of this section.

(2) Not-for-profit organization. Each not-for-profit organization must pay an annual registration fee of $125 and the processing fee required by paragraph (c)(4) of this section. A not-for-profit organization is an organization exempt from taxation under 26 U.S.C. 501(a).

(3) Other than a small business or not-for-profit organization. Each person that does not meet the criteria specified in paragraph (c)(1) or (c)(2) of this section must pay an annual registration fee of $275 and the processing fee required by paragraph (c)(4) of this section.

(4) Processing fee. The processing fee is $25 for each registration statement filed. A single statement may be filed for one, two, or three registration years as provided in §107.616(c).

(d) Registration years 2006–2007 and following. For each registration year beginning with 2006–2007, each person subject to the requirements of this subpart must pay an annual fee as follows:

(1) Small business. Each person that qualifies as a small business, under criteria specified in 13 CFR part 121 applicable to the North American Industry Classification System (NAICS) code that describes that person's primary commercial activity, must pay an annual registration fee of $250 and the processing fee required by paragraph (d)(4) of this section.

(2) Not-for-profit organization. Each not-for-profit organization must pay an annual registration fee of $250 and the processing fee required by paragraph (d)(4) of this section. A not-for-profit organization is an organization exempt from taxation under 26 U.S.C. 501(a).

(3) Other than a small business or not-for-profit organization. Each person that does not meet the criteria specified in paragraph (d)(1) or (d)(2) of this section must pay an annual registration fee of $975 and the processing fee required by paragraph (d)(4) of this section.

(4) Processing fee. The processing fee is $25 for each registration statement filed. A single statement may be filed for one, two, or three registration years as provided in §107.616(c).

[65 FR 7309, Feb. 14, 2000, as amended at 67 FR 58345, Sept. 16, 2002; 68 FR 1345, Jan. 9, 2003]

§ 107.616   Payment procedures.
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(a) Except as provided in paragraph (d) of this section, each person subject to the requirements of this subpart must mail the registration statement and payment in full to the U.S. Department of Transportation, Hazardous Materials Registration, P.O. Box 740188, Atlanta, Georgia 30374–0188, or submit the statement and payment electronically through the Department's e-Commerce Internet site. Access to this service is provided at http://hazmat.dot.gov/register.htm. A registrant required to file an amended registration statement under §107.608(c) must mail it to the same address or submit it through the same Internet site.

(b) Payment must be made by certified check, cashier's check, personal check, or money order in U.S. funds and drawn on a U.S. bank, payable to the U.S. Department of Transportation and identified as payment for the “Hazmat Registration Fee,” or by completing an authorization for payment by credit card or other electronic means of payment acceptable to the Department on the registration statement or as part of an Internet registration as provided in paragraph (a) of this section.

(c) Payment must correspond to the total fees properly calculated in the “Amount Due” block of the DOT form F 5800.2. A person may elect to register and pay the required fees for up to three registration years by filing one complete and accurate registration statement.

(d) A person may obtain a temporary registration number, valid for 45 days from the date of issuance, through an expedited registration process as follows:

(1) Contact PHMSA by telephone (800–942–6990 or 617–494–2545) and provide name, principal place of business, and credit card payment information;

(2) Pay a registration and processing fee as follows:

(i) For registration year 2002–2003, pay a registration fee of $275, a processing fee of $25, and an expedited handling fee of $50. The total fee is $350. Persons who do not meet the criteria for a small business, as specified in §107.612(b)(1), must enclose an additional registration fee payment of $1,700 with the expedited follow-up material, for a total of $2,050 (registration fee—$1,975; processing fee—$25; expedited handling fee—$50);

(ii) For registration years 2003–2004, 2004–2005, and 2005–2006, pay a registration fee of $125, a processing fee of $25, and an expedited handling fee of $50. The total fee is $200. Persons who do not meet the criteria for a small business or are not a not-for-profit organization, as specified in §107.612(c), must enclose an additional registration fee payment of $150 with the expedited follow-up material, for a total of $350 (registration fee—$275; processing fee—$25; expedited handling fee—$50); and

(iii) For registration years beginning with 2006–2007, pay a registration fee of $250, a processing fee of $25, and an expedited handling fee of $50. The total fee is $325. Persons who do not meet the criteria for a small business or are not a not-for-profit organization, as specified in §107.612(d), must enclose an additional registration fee payment of $725 with the expedited follow-up material, for a total of $1,050 (registration fee—$975; processing fee—$25; expedited handling fee—$50); and

(3) Submit a completed registration statement and proof of payment to PHMSA before the expiration date of the temporary registration number.

[Amdt. 107–26, 57 FR 30630, July 9, 1992, as amended by Amdt. 107–26, 58 FR 12545, Mar. 5, 1993; 65 FR 7310, Feb. 14, 2000; 67 FR 58345, Sept. 16, 2002; 68 FR 1346, Jan. 9, 2003]

§ 107.620   Recordkeeping requirements.
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(a) Each person subject to the requirements of this subpart, or its agent designated under §107.608(e), must maintain at its principal place of business for a period of three years from the date of issuance of each Certificate of Registration:

(1) A copy of the registration statement filed with PHMSA; and

(2) The Certificate of Registration issued to the registrant by PHMSA.

(b) After January 1, 1993, each motor carrier subject to the requirements of this subpart must carry a copy of its current Certificate of Registration issued by PHMSA or another document bearing the registration number identified as the “U.S. DOT Hazmat Reg. No.” on board each truck and truck tractor (not including trailers and semi-trailers) used to transport hazardous materials subject to the requirements of this subpart. The Certificate of Registration or document bearing the registration number must be made available, upon request, to enforcement personnel.

(c) In addition to the requirements of paragraph (a) of this section, after January 1, 1995, each person who transports by vessel a hazardous material subject to the requirements of this subpart must carry on board the vessel a copy of its current Certificate of Registration or another document bearing the current registration number identified as the “U.S. DOT Hazmat Reg. No.”

(d) Each person subject to this subpart must furnish its Certificate of Registration (or a copy thereof) and all other records and information pertaining to the information contained in the registration statement to an authorized representative or special agent of DOT upon request.

[Amdt. No. 107–26, 57 FR 30630, July 9, 1992, as amended at 57 FR 37902, August 21, 1992; Amdt. 107–26, 58 FR 12545, Mar. 5, 1993; Amdt. 107–31, 59 FR 32932, June 27, 1994]

Subpart H—Approvals, Registrations and Submissions
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Source:  Amdt. 107–38, 61 FR 21100, May 9, 1996, unless otherwise noted.

§ 107.701   Purpose and scope.
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(a) This subpart prescribes procedures for the issuance, modification and termination of approvals, and the submission of registrations and reports, as required by this chapter.

(b) The procedures of this subpart are in addition to any requirements in subchapter C of this chapter applicable to a specific approval, registration or report. If compliance with both a specific requirement of subchapter C of this chapter and a procedure of this subpart is not possible, the specific requirement applies.

(c) Registration under subpart F or G of this part is not subject to the procedures of this subpart.

[Amdt. 107–38, 61 FR 21100, May 9, 1996; Amdt. 107–38, 61 FR 27948, June 3, 1996]

§ 107.705   Registrations, reports, and applications for approval.
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(a) A person filing a registration, report, or application for an approval, or a renewal or modification of an approval subject to the provisions of this subpart must—

(1) File the registration, report, or application with the Associate Administrator for Hazardous Materials Safety (Attention: Approvals, PHH–32), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the document with any attached supporting documentation in an appropriate format may be filed by facsimile (fax) to: (202) 366–3753 or (202) 366–3308 or by electronic mail (e-mail) to: [email protected].

(2) Identify the section of the chapter under which the registration, report, or application is made;

(3) If a report is required by an approval, a registration or a special permit, identify the approval, registration or special permit number;

(4) Provide the name, street and mailing addresses, e-mail address optional, and telephone number of the person on whose behalf the registration, report, or application is made and, if different, the person making the filing;

(5) If the person on whose behalf the filing is made is not a resident of the United States, provide a designation of agent for service in accordance with §105.40;

(6) Provide a description of the activity for which the registration or report is required; and

(7) Provide additional information as requested by the Associate Administrator, if the Associate Administrator determines that a filing lacks pertinent information or otherwise does not comply with applicable requirements.

(b) In addition to the provisions in paragraph (a) for an approval, an application for an approval, or an application for modification or renewal of an approval, the applicant must provide—

(1) A description of the activity for which the approval is required;

(2) The proposed duration of the approval;

(3) The transport mode or modes affected, as applicable;

(4) Any additional information specified in the section containing the approval; and

(5) For an approval which provides exceptions from regulatory requirements or prohibitions—

(i) Identification of any increased risk to safety or property that may result if the approval is granted, and specification of the measures that the applicant considers necessary or appropriate to address that risk; and

(ii) Substantiation, with applicable analyses or evaluations, if appropriate, demonstrating that the proposed activity will achieve a level of safety that is at least equal to that required by the regulation.

(c) For an approval with an expiration date, each application for renewal or modification must be filed in the same manner as an original application. If a complete and conforming renewal application is filed at least 60 days before the expiration date of an approval, the Associate Administrator, on written request from the applicant, will issue a written extension to permit operation under the terms of the expired approval until a final decision on the application for renewal has been made. Operation under an expired approval is prohibited absent a written extension. This paragraph does not limit the authority of the Associate Administrator to modify, suspend or terminate an approval under §107.713.

(d) To request confidential treatment for information contained in the application, the applicant shall comply with §105.30(a).

[Amdt. 107–38, 61 FR 21100, May 9, 1996, as amended at 65 FR 50457, Aug. 18, 2000; 67 FR 61011, Sept. 27, 2002; 70 FR 56090, Sept. 23, 2005; 70 FR 73162, Dec. 9, 2005]

§ 107.709   Processing of an application for approval, including an application for renewal or modification.
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(a) No public hearing or other formal proceeding is required under this subpart before the disposition of an application.

(b) At any time during the processing of an application, the Associate Administrator may request additional information from the applicant. If the applicant does not respond to a written request for additional information within 30 days of the date the request was received, the application may be deemed incomplete and denied. However, if the applicant responds in writing within the 30-day period requesting an additional 30 days within which it will gather the requested information, the Associate Administrator may grant the 30-day extension.

(c) The Associate Administrator may grant or deny an application, in whole or in part. At the Associate Administrator's discretion, an application may be granted subject to provisions that are appropriate to protect health, safety and property. The Associate Administrator may impose additional provisions not specified in the application, or delete conditions in the application which are unnecessary.

(d) The Associate Administrator may grant an application on finding that—

(1) The application complies with this subpart;

(2) The application demonstrates that the proposed activity will achieve a level of safety that—

(i) Is at least equal to that required by the regulation, or

(ii) If the regulations do not establish a level of safety, is consistent with the public interest and adequately will protect against the risks to life and property inherent in the transportation of hazardous materials in commerce;

(3) The application states all material facts, and contains no materially false or materially misleading statement;

(4) The applicant meets the qualifications required by applicable regulations; and

(5) The applicant is fit to conduct the activity authorized by the approval, or renewal or modification of approval. This assessment may be based on information in the application, prior compliance history of the applicant, and other information available to the Associate Administrator.

(e) Unless otherwise specified in this chapter or by the Associate Administrator, an approval in which a term is not specified does not expire.

(f) The Associate Administrator notifies the applicant in writing of the decision on the application. A denial contains a brief statement of reasons.

§ 107.711   Withdrawal.
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An application may be withdrawn at any time before a decision to grant or deny it is made. Withdrawal of an application does not authorize the removal of any related records from the PHMSA dockets or files. Applications that are eligible for confidential treatment under §105.30 will remain confidential after the application is withdrawn. The duration of this confidential treatment for trade secrets and commercial or financial information is indefinite, unless the party requesting the confidential treatment of the materials notifies the Associate Administrator that the confidential treatment is no longer required.

[Amdt. 107–38, 61 FR 21100, May 9, 1996, as amended at 67 FR 61011, Sept. 27, 2002]

§ 107.713   Approval modification, suspension or termination.
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(a) The Associate Administrator may modify an approval on finding that—

(1) Modification is necessary to conform an existing approval to relevant statutes and regulations as they may be amended from time to time; or

(2) Modification is required by changed circumstances to enable the approval to continue to meet the standards of §107.709(d).

(b) The Associate Administrator may modify, suspend or terminate an approval, as appropriate, on finding that—

(1) Because of a change in circumstances, the approval no longer is needed or no longer would be granted if applied for;

(2) The application contained inaccurate or incomplete information, and the approval would not have been granted had the application been accurate and complete;

(3) The application contained deliberately inaccurate or incomplete information; or

(4) The holder knowingly has violated the terms of the approval or an applicable requirement of this chapter in a manner demonstrating lack of fitness to conduct the activity for which the approval is required.

(c) Except as provided in paragraph (d) of this section, before an approval is modified, suspended or terminated, the Associate Administrator notifies the holder in writing of the proposed action and the reasons for it, and provides an opportunity to show cause why the proposed action should not be taken.

(1) The holder may file a written response with the Associate Administrator within 30 days of receipt of notice of the proposed action.

(2) After considering the holder's or party's written response, or after 30 days have passed without response since receipt of the notice, the Associate Administrator notifies the holder in writing of the final decision with a brief statement of reasons.

(d) The Associate Administrator, if necessary to avoid a risk of significant harm to persons or property, may in the notification declare the proposed action immediately effective.

§ 107.715   Reconsideration.
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(a) An applicant or a holder may request that the Associate Administrator reconsider a decision under §107.709(f) or §107.713(c). The request must:

(1) Be in writing and filed within 20 days of receipt of the decision;

(2) State in detail any alleged errors of fact and law;

(3) Enclose any additional information needed to support the request to reconsider; and

(4) State in detail the modification of the final decision sought.

(b) The Associate Administrator considers newly submitted information on a showing that the information could not reasonably have been submitted during application processing.

(c) The Associate Administrator grants or denies, in whole or in part, the relief requested and informs the requesting person in writing of the decision.

§ 107.717   Appeal.
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(a) A person who requested reconsideration under §107.715 may appeal to the Administrator the Associate Administrator's decision on the request. The appeal must:

(1) Be in writing and filed within 30 days of receipt of the Associate Administrator's decision on reconsideration;

(2) State in detail any alleged errors of fact and law;

(3) Enclose any additional information needed to support the appeal; and

(4) State in detail the modification of the final decision sought.

(b) The Administrator, if necessary to avoid a risk of significant harm to persons or property, may declare the Associate Administrator's action effective pending a decision on appeal.

(c) The Administrator grants or denies, in whole or in part, the relief requested and informs the appellant in writing of the decision on appeal. The Administrator's decision on appeal is the final administrative action.

Subpart I—Approval of Independent Inspection Agencies, Cylinder Requalifiers, and Non-domestic Chemical Analyses and Tests of DOT Specification Cylinders
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Source:  67 FR 51639, Aug. 8, 2002, unless otherwise noted.

§ 107.801   Purpose and scope.
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Link to an amendment published at 71 FR 33873, June 12, 2006.

(a) This subpart prescribes procedures for—

(1) A person who seeks approval to be an independent inspection agency to perform cylinder inspections and verifications required by parts 178 and 180 of this chapter;

(2) A person who seeks approval to engage in the requalification (e.g., inspection, testing, or certification), rebuilding, or repair of a cylinder manufactured in accordance with a DOT specification under subchapter C of this chapter or under the terms of a special permit issued under this part;

(3) A person who seeks approval to perform the manufacturing chemical analyses and tests of DOT specification or special permit cylinders outside the United States.

(b) No person may engage in a function identified in paragraph (a) of this section unless approved by the Associate Administrator in accordance with the provisions of this subpart. Each person must comply with the applicable requirements in this subpart. In addition, the procedural requirements in subpart H of this part apply to the filing, processing, and termination of an approval issued under this subpart.

§ 107.803   Approval of independent inspection agency.
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Link to an amendment published at 71 FR 33873, June 12, 2006.

(a) General. Prior to performing cylinder inspections and verifications required by parts 178 and 180 of this chapter, a person must apply to the Associate Administrator for an approval as an independent inspection agency. A person approved as an independent inspection agency is not an PHMSA agent or representative.

(b) Criteria. No applicant for approval as an independent inspection agency may be engaged in the manufacture of cylinders for use in the transportation of hazardous materials, or be directly or indirectly controlled by, or have a financial involvement with, any entity that manufactures cylinders for use in the transportation of hazardous materials, except for providing services as an independent inspector.

(c) Application information. Each applicant must submit an application in conformance with §107.705 containing the information prescribed in §107.705(a). In addition, the application must contain the following information:

(1) Name and address of each facility where tests and inspections are to be performed.

(2) Detailed description of the inspection and testing facilities to be used by the applicant.

(3) Detailed description of the applicant's qualifications and ability to perform the inspections and to verify the inspections required by part 178 of this chapter or under the terms of a special permit issued under this part.

(4) Name, address, and principal business activity of each person having any direct or indirect ownership interest in the applicant greater than three percent and any direct or indirect ownership interest in each subsidiary or division of the applicant.

(5) Name of each individual whom the applicant proposes to employ as an inspector and who will be responsible for certifying inspection and test results, and a statement of that person's qualifications.

(6) An identification or qualification number assigned to each inspector who is supervised by a certifying inspector identified in paragraph (c)(3) of this section.

(7) A statement that the applicant will perform its functions independent of the manufacturers and owners of the cylinders.

(8) The signature of the person certifying the approval application and the date on which it was signed.

(d) Facility inspection. Upon the request of the Associate Administrator, the applicant must allow the Associate Administrator or the Associate Administrator's designee to inspect the applicant's facilities and records. The person seeking approval must bear the cost of the inspection.

(e) After approval, the Associate Administrator may authorize, upon request, the independent inspection agency to perform other inspections and functions for which the Associate Administrator finds the applicant to be qualified. Such additional authorizations will be noted on each inspection agency's approval documents.

[67 FR 51639, Aug. 8, 2002, as amended at 68 FR 24659, May 8, 2003]

§ 107.805   Approval of cylinder requalifiers.
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Link to an amendment published at 71 FR 33873, June 12, 2006.

(a) General. A person must meet the requirements of this section to be approved to inspect, test, certify, repair, or rebuild a cylinder in accordance with a DOT specification under subpart C of part 178 or subpart C of part 180 of this chapter or under the terms of a special permit issued under this part.

(b) Independent Inspection Agency Review. Each applicant must arrange for an independent inspection agency, approved by the Associate Administrator pursuant to this subpart, to perform a review of its inspection or requalification operation. The person seeking approval must bear the cost of the inspection. A list of approved independent inspection agencies is available from the Associate Administrator at the address listed in §107.705. Assistance in obtaining an approval is available from the same address.

(c) Application for approval. If the inspection performed by an independent inspection agency is completed with satisfactory results, the applicant must submit a letter of recommendation from the independent inspection agency, an inspection report, and an application containing the information prescribed in §107.705(a). In addition, the application must contain—

(1) The name of the facility manager;

(2) The DOT specification/special permit cylinders that will be inspected, tested, repaired, or rebuilt at the facility;

(3) A certification that the facility will operate in compliance with the applicable requirements of subchapter C of this chapter; and

(4) The signature of the person making the certification and the date on which it was signed.

(d) Issuance of requalifier identification number (RIN). The Associate Administrator issues a RIN as evidence of approval to requalify DOT specification/special permit cylinders if it is determined, based on the applicant's submission and other available information, that the applicant's qualifications and, when applicable, facility are adequate to perform the requested functions in accordance with the criteria prescribed in subpart C of part 180 of this chapter.

(e) Expiration of RIN. Unless otherwise provided in the issuance letter, an approval expires five years from the date of issuance, provided the applicant's facility and qualifications are maintained at or above the level observed at the time of inspection by the independent inspection agency, or at the date of the certification in the application for approval for requalifiers only performing inspections made under §180.209(g) of this chapter.

(f) Exceptions. Notwithstanding the requirements in paragraphs (b) and (c) of this section, a person who only performs inspections in accordance with §180.209(g) of this chapter may submit an application that, in addition to the information prescribed in §107.705(a), identifies the DOT specification/special permit cylinders to be inspected; certifies the requalifier will operate in compliance with the applicable requirements of subchapter C of this chapter; certifies the persons performing inspections have been trained and have the information contained in each applicable CGA pamphlet incorporated by reference in §171.7 of this chapter applicable to the requalifiers' activities; and includes the signature of the person making the certification and the date on which it was signed. Each person must comply with the applicable requirements in this subpart. In addition, the procedural requirements in subpart H of this part apply to the filing, processing and termination of an approval issued under this subpart. After May 31, 2004, no person may requalify a DOT specification/special permit cylinder in accordance with §180.209(g) of this chapter unless that person has been issued a RIN as provided in paragraph (d) of this section.

(g) Each holder of a current RIN shall report in writing any change in its name, address, ownership, testing equipment, or management or personnel performing any function under this section, to the Associate Administrator (PHH–32) within 20 days of the change.

[67 FR 51639, Aug. 8, 2002, as amended at 68 FR 24659, May 8, 2003; 68 FR 55544, Sept. 26, 2003; 70 FR 56090, Sept. 23, 2005; 70 FR 73162, Dec. 9, 2005]

§ 107.807   Approval of non-domestic chemical analyses and tests.
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(a) General. A person who seeks to manufacture DOT specification or special permit cylinders outside the United States must seek an approval from the Associate Administrator to perform the chemical analyses and tests of those cylinders outside the United States.

(b) Application for approval. Each applicant must submit an application containing the information prescribed in §107.705(a). In addition, the application must contain—

(1) The name, address, and a description of each facility at which cylinders are to be manufactured and chemical analyses and tests are to be performed;

(2) Complete details concerning the dimensions, materials of construction, wall thickness, water capacity, shape, type of joints, location and size of openings and other pertinent physical characteristics of each specification or special permit cylinder for which approval is being requested, including calculations for cylinder wall stress and wall thickness, which may be shown on a drawing or on separate sheets attached to a descriptive drawing;

(3) The name of the independent inspection agency to be used; and

(4) The signature of the person making the certification and the date on which it was signed.

(c) Facility inspections. Upon the request of the Associate Administrator, the applicant must allow the Associate Administrator or the Associate Administrator's designee to inspect the applicant's cylinder manufacturing and testing facilities and records, and must provide such materials and cylinders for analyses and tests as the Associate Administrator may specify. The applicant or holder must bear the cost of the initial and subsequent inspections, analyses, and tests.

§ 107.809   xxx
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Link to an amendment published at 71 FR 33874, June 12, 2006.

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