Pt. 107 49 CFR Ch. I (10–1–98 Edition)

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49 CFR Ch. I (10–1–98 Edition)Pt. 107

reconsideration of that direct finalrule.

(e) If an adverse comment or noticeof intent to file an adverse comment isreceived, a timely document will bepublished in the FEDERAL REGISTER ad-vising the public and withdrawing thedirect final rule in whole or in part.The Administrator may then incor-porate the adverse comment into a sub-sequent direct final rule or may pub-lish a notice of proposed rulemaking. Anotice of proposed rulemaking will pro-vide an opportunity for public com-ment, generally a minimum of 60 days,and will be processed in accordancewith §§ 106.11–106.29.

[Amdt. 106–11, 61 FR 30181, June 14, 1996]

PART 107—HAZARDOUS MATERIALSPROGRAM PROCEDURES

Subpart A—General Provisions

Sec.107.1 Purpose and scope.107.3 Definitions.107.5 Request for confidential treatment.107.7 Service of process on non-residents of

the United States.107.9 Public docket room.107.11 Service.107.13 Subpoenas, witness fees.107.14 Availability of informal guidance and

interpretive assistance.

Subpart B—Exemptions

107.101 Purpose and scope.107.105 Application for exemption.107.107 Application for party status.107.109 Application for renewal.107.111 Withdrawal.107.113 Application processing and evalua-

tion.107.117 Emergency processing.107.121 Modification, suspension or termi-

nation of exemption or grant of partystatus.

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 preemp-

tion.

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 enforce-ment.

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 andCertification Agencies

107.401 Purpose and scope.107.402 Application for designation as an ap-

proval 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 andCargo Tank Motor Vehicle Manufac-turers and Repairers and Cargo TankMotor Vehicle Assemblers

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

record retention.

VerDate 14<DEC>98 09:51 Dec 30, 1998 Jkt 179200 PO 00000 Frm 00006 Fmt 8010 Sfmt 8010 Y:\SGML\179200T.XXX pfrm03 PsN: 179200T

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Research and Special Programs Administration, DOT § 107.3

Subpart G—Registration of Persons WhoOffer 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 andSubmissions

107.701 Purpose and scope.107.705 Registrations, reports, and applica-

tions for approval.107.709 Processing of an application for ap-

proval, including an application for re-newal or modification.

107.711 Withdrawal.107.713 Approval modification, suspension

or termination.107.715 Reconsideration.107.717 Appeal.

AUTHORITY: 49 U.S.C. 5101–5127, 44701; Sec.212–213, Pub. L. 104–121, 110 Stat. 857; 49 CFR1.45, 1.53.

Subpart A—General Provisions

§ 107.1 Purpose and scope.(a) This part prescribes procedures

utilized by the Research and SpecialPrograms Administration, the Associ-ate Administrator for Hazardous Mate-rials Safety and the Office of ChiefCounsel in carrying out their dutiesunder the laws pertaining to the trans-portation of hazardous materials.

(b) This subpart defines certain termsand prescribes procedures that are ap-plicable to each proceeding describedin this part.

[40 FR 48470, Oct. 15, 1975, as amended byAmdt. 107–4, 43 FR 43307, Sept. 25, 1978; Amdt.107–23, 56 FR 66156, Dec. 20, 1991]

§ 107.3 Definitions.All terms defined in 49 U.S.C. 5102 are

used in their statutory meaning. Otherterms used in this part are defined asfollows:

Acting knowingly means acting orfailing to act while

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

(2) Having the knowledge that a rea-sonable person acting in the same cir-cumstances and exercising due carewould have had.

Administrator means the Adminis-trator, Research and Special ProgramsAdministration.

Applicant means the person in whosename an exemption, approval, registra-tion, a renewed or modified exemptionor approval, or party status to an ex-emption is requested to be issued.

Application means a request undersubpart B of this part for an exemp-tion, a renewal or modification of anexemption, party status to an exemp-tion, or a request under subpart H ofthis part for an approval, or renewal ormodification of an approval.

Approval means a written authoriza-tion, including a competent authorityapproval, from the Associate Adminis-trator to perform a function for whichprior authorization by the AssociateAdministrator is required under sub-chapter C of this chapter.

Approval Agency means an organiza-tion or a person designated by theRSPA to certify packagings as havingbeen designed, manufactured, tested,modified, marked or maintained incompliance with applicable DOT regu-lations.

Associate Administrator means the As-sociate Administrator for HazardousMaterials Safety, Research and SpecialPrograms Administration.

Competent Authority means a nationalagency responsible under its nationallaw for the control or regulation of aparticular aspect of the transportationof hazardous materials (dangerousgoods). The term Appropriate authority,as used in the ICAO Technical Instruc-tions, has the same meaning as Com-petent Authority. The Associate Admin-istrator for Hazardous Materials Safe-ty, Research and Special Programs Ad-ministration, is the United StatesCompetent Authority for purposes ofthis part.

Competent Authority Approval meansan approval by the competent author-ity which is required under the provi-sions of an international standard,such as the International Civil Avia-tion Organization’s Technical Instruc-tions for the Safe Transport of Dan-gerous Goods by Air or the Inter-national Maritime Dangerous GoodsCode. To the extent that it satisfies therequirement of the international stand-ard, any of the following may serve as


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49 CFR Ch. I (10–1–98 Edition)§ 107.3

a competent authority approval: a spe-cific regulation of this subchapter orsubchapter C of this chapter, an exemp-tion or approval issued under the provi-sions of this subchapter or subchapterC of this chapter, or a separate docu-ment issued to one or more persons bythe Associate Administrator.

Exemption means a document issuedunder the authority of 49 U.S.C. 5117 bythe Associate Administrator that au-thorizes a person to perform a functionthat is not otherwise authorized underthis subchapter, subchapter C, or otherregulations issued under 49 U.S.C. 5101–5127 (e.g., Federal Highway Administra-tion routing).

Federal hazardous material transpor-tation law means 49 U.S.C. 5101 et seq.

Filed means received at the Researchand Special Programs Administrationoffice designated in the applicable pro-vision or, if no office is specified, at theOffice of Hazardous Materials Exemp-tions and Approvals (DHM–30), Re-search and Special Programs Adminis-tration, U.S. Department of Transpor-tation, 400 7th Street SW., WashingtonDC, 20590–0001.

Holder means the person in whosename an exemption or approval hasbeen issued.

Imminent Hazard means the existenceof a condition which presents a sub-stantial likelihood that death, seriousillness, severe personal injury, or sub-stantial endangerment to health, prop-erty, or the environment may occur be-fore the reasonably foreseeable comple-tion of an administrative hearing orother formal proceeding initiated toabate the risks of those effects.

Incident means an event resulting inthe unintended and unanticipated re-lease of a hazardous material or anevent meeting incident reporting re-quirements in § 171.15 or § 171.16 of thischapter.

Indian Tribe shall have the meaninggiven that term under section 4 of theIndian Self-Determination and Edu-cation Act (25 U.S.C. 450b).

Investigation includes investigationsauthorized under 49 U.S.C. 5121 and in-spections authorized under 49 U.S.C.5118 and 5121.

Manufacturing exemption means anexemption from compliance with speci-fied requirements that otherwise must

be met before representing, marking,certifying (including requalifying, in-specting, and testing), selling or offer-ing a packaging or container as meet-ing the requirements of subchapter C ofthis chapter governing its use in thetransportation in commerce of a haz-ardous material. A manufacturing ex-emption is an exemption issued to amanufacturer of packagings who doesnot offer for transportation or trans-port hazardous materials in packagingssubject to the exemption.

Party means a person, other than aholder, authorized to act under theterms of an exemption.

Person means an individual, firm, co-partnership, corporation, company, as-sociation, joint-stock association, in-cluding any trustee, receiver, assignee,or similar representative thereof, orgovernment, Indian tribe, or agency orinstrumentality of any government orIndian tribe when it offers hazardousmaterials for transportation in com-merce or transports hazardous mate-rials in furtherance of a commercialenterprise, but such term does not in-clude:

(1) The United States Postal Service,or

(2) For the purposes of 49 U.S.C. 5123and 5124, any agency or instrumental-ity of the Federal Government.

Registration means a written ac-knowledgment from the Associate Ad-ministrator that a registrant is author-ized to perform a function for whichregistration is required under sub-chapter C of this chapter (e.g., registra-tion with RSPA as a cylinder retesterpursuant to 49 CFR 173.34(e)(1), or reg-istration in accordance with 49 CFR178.503 regarding marking of packag-ings). For purposes of subparts Athrough E, ‘‘registration’’ does not in-clude registration under subpart F or Gof this part.

Report means information, other thanan application, registration or partthereof, required to be submitted tothe Associate Administrator pursuantto this subchapter, subchapter B orsubchapter C of this chapter.

Respondent means a person uponwhom the RSPA has served a notice ofprobable violation.

State means a State of the UnitedStates, the District of Columbia, the


15


Commonwealth of Puerto Rico, theCommonwealth of the Northern Mari-ana Islands, the Virgin Islands, Amer-ican Samoa, Guam, or any other terri-tory or possession of the United Statesdesignated by the Secretary; exceptthat as used in 49 U.S.C. 5119, relatingto uniformity of State registration andpermitting forms and procedures, suchterm means a State of the UnitedStates and the District of Columbia.

Transports or transportation meansany movement of property by anymode, and any loading, unloading, orstorage incidental thereto.

[Amdt. 107–3, 41 FR 38170, Sept. 9, 1976, asamended by Amdt. 107–4, 43 FR 43307, Sept.25, 1978; Amdt. 107–5, 43 FR 48642, Oct. 19,1978; Amdt. 107–8, 46 FR 9888, Jan. 29, 1981;Amdt. 107–12, 48 FR 53711, Nov. 29, 1983; 50 FR45730, Nov. 1, 1985; Amdt. 107–24, 56 FR 8621,Feb. 28, 1991; Amdt. 107–23, 56 FR 66157, Dec.20, 1991; Amdt. 107–32, 59 FR 49130, Sept. 26,1994; Amdt. 107–38, 61 FR 21094, May 9, 1996]

§ 107.5 Request for confidential treat-ment.

(a) If any person filing a documentwith the Associate Administratorclaims that some or all the informa-tion contained in the document is ex-empt from the mandatory public dis-closure requirements of the Freedom ofInformation Act (5 U.S.C. 552), is infor-mation referred to in 18 U.S.C. 1905, oris otherwise exempt by law from publicdisclosure, and if that person requeststhe Associate Administrator not to dis-close the information, that personshall file, together with the document,a second copy of the document with theconfidential information deleted. Theperson shall indicate each page of theoriginal document that is confidentialor contains confidential information bymarking or stamping ‘‘confidential’’ oneach page for which a claim of con-fidentiality is made, and may file astatement specifying the justificationfor the claim of confidentiality. If theperson states that the informationcomes within the exception in 5 U.S.C.552(b)(4) for trade secrets and commer-cial or financial information, that per-son shall include a statement as to whythe information is privileged or con-fidential. If the person filing a docu-ment does not mark or stamp a docu-ment as confidential or submit a sec-ond copy of the document with the con-

fidential information deleted, the Asso-ciate Administrator may assume thatthere is no objection to public disclo-sure of the document in its entirety.

(b) The Associate Administrator re-tains the right to make its own deter-mination with regard to any claim ofconfidentiality. Notice of a decision bythe Associate Administrator to denythe claim, in whole or in part, and anopportunity to respond shall be givento a person claiming confidentiality ofinformation no less than five daysprior to its public disclosure.

[40 FR 48470, Oct. 15, 1975, as amended byAmdt. 107–24, 56 FR 8621, Feb. 28, 1991; Amdt.107–38, 61 FR 21095, May 9, 1996]

§ 107.7 Service of process on non-resi-dents of the United States.

(a) Designation of agent for service.When a person who is not a resident ofthe United States is required by thissubchapter or subchapter C of thischapter to designate a permanent resi-dent of the United States as his agentupon whom service of process may bemade for him and on his behalf, theagent may be an individual, a firm, ora domestic corporation. Any number ofprincipals may designate the same per-son as agent. A designation is bindingon a principal even if the designation isnot in compliance with all the require-ments of this section, until rejected bythe Associate Administrator for Haz-ardous Materials Safety. A designatedagent may not assign performance ofhis functions under the designation toanother person.

(b) Form and contents of designation.The designation shall:

(1) Be in writing and dated;(2) Be made in the legal form re-

quired to make it valid and binding onthe principal under the laws, corporatebylaws, or other requirements govern-ing the making of the designation bythe principal at the place and timewhere it is made and the person or per-sons signing the designation shall cer-tify that it is so made;

(3) State the full legal name, prin-cipal name of business and mailing ad-dress of the principal;

(4) Provide that it remains in effectuntil withdrawn or replaced by theprincipal;


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49 CFR Ch. I (10–1–98 Edition)§ 107.9

(5) State the legal name and mailingaddress of the agent; and

(6) Bear a declaration of acceptanceduly signed by the designated agent.

(c) Method of service. Service of anyprocess, notice, order, decision, or re-quirement of the Associate Adminis-trator for Hazardous Materials Safetymay be made by registered or certifiedmail addressed to the agent with re-turn receipt requested or in any othermanner authorized by law. If servicecannot be effected because the agenthas died (or, if a firm or a corporationceases to exist) or moved, or otherwisedoes not receive correctly addressedmail, service may be made by publica-tion in the FEDERAL REGISTER.

[Amdt. 107–2, 41 FR 7509, Feb. 19, 1976, asamended by Amdt. 107–24, 56 FR 8621, Feb. 28,1991]

§ 107.9 Public docket room.

There is established in the RSPA of-fices at 400 7th Street, SW., Washing-ton, DC, a public docket room in whichthere is available for public inspectionand copying:

(a) Copies of notices of proposed rule-making issued by the RSPA or its pred-ecessor agency, including advance no-tices, together with the comments re-ceived thereon during rulemaking pro-ceedings, copies of any related FED-ERAL REGISTER notices, final rules, pe-titions for reconsideration, and deci-sions issued in response to petitions forreconsideration;

(b) Applications for exemptions fromthe Department of Transportation’sregulations governing the transpor-tation of hazardous materials, includ-ing supporting data, memoranda of anyinformal meetings with applicants, re-lated FEDERAL REGISTER notices, com-ments received thereon during the pub-lic comment period and copies of deci-sions issued granting or denying appli-cations for exemptions;

(c) Applications for preemption andwaiver of preemption determinationsunder subpart C of this part, togetherwith the comments received thereon,related documents filed with theRSPA, copies of related FEDERAL REG-ISTER notices, and rulings, determina-tions and orders issued in response tothose applications;

(d) Records of compliance order pro-ceedings and copies of RSPA compli-ance orders;

(e) Appeals filed under this part andRSPA decisions issued in response tothose appeals; and

(f) Such other information pertainingto the RSPA’s hazardous materialsprogram required by statute to bemade available for public inspectionand copying and any informationwhich the RSPA determines should bemade available to the public.

[Amdt. 107–3, 41 FR 38170, Sept. 9, 1976, asamended by Amdt. 107–8, 45 FR 81571, Dec. 11,1980; Amdt. 107–24, 56 FR 8622, Feb. 28, 1991]

§ 107.11 Service.(a) Each order, notice, or other docu-

ment required to be served under thispart shall be served personally or byregistered or certified mail, except asotherwise provided.

(b) Service upon a person’s duly au-thorized representative constitutesservice upon that person.

(c) Service by registered or certifiedmail is complete upon mailing. An offi-cial United States Postal Service re-ceipt from the registered or certifiedmailing constitutes prima facie evi-dence of service.

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

§ 107.13 Subpoenas, witness fees.(a) The Administrator, RSPA, the

Chief Counsel, Research and SpecialPrograms Administration, or the Offi-cial designated to preside over a hear-ing convened in accordance with thispart, may sign and issue subpoenas ei-ther on his own initiative or, upon anadequate showing that the informationsought will materially advance the pro-ceeding, upon the request of any personparticipating in that proceeding.

(b) A subpoena may require the at-tendance of a witness, or the produc-tion of documentary or other tangibleevidence in the possession or under thecontrol of the person served, or both.

(c) A subpoena may be served person-ally by any person who is not an inter-ested person and is not less than 18years of age, or by certified or reg-istered mail.

(d) Service of a subpoena upon theperson named therein shall be made by


17


delivering a copy of the subpoena tosuch person and by tendering the feesfor one day’s attendance and mileageas specified by paragraph (f) of this sec-tion. When a subpoena is issued at theinstance of any officer or agency of theUnited States, fees and mileage neednot be tendered at the time of service.Delivery of a copy of a subpoena andtender of the fees to a natural personmay be made by handing them to theperson, leaving them at his office withthe person in charge thereof, leavingthem at his dwelling place or usualplace of abode with some person ofsuitable age and discretion then resid-ing therein, by mailing them by reg-istered or certified mail to him at hislast known address, or by any methodwhereby actual notice is given to himand the fees are made available prior tothe return date. When the person to beserved is not a natural person, deliveryof a copy of the subpoena and tender ofthe fees may be effected by handingthem to a registered agent for service,or to any officer, director, or agent incharge of any office of the person, or bymailing them by registered or certifiedmail to that representative at his lastknown address or by any methodwhereby actual notice is given to therepresentative and the fees are madeavailable prior to the return date.

(e) The original subpoena bearing acertificate of service shall be filed withthe RSPA official having responsibilityfor the proceeding in connection withwhich the subpoena was issued.

(f) A witness subpoenaed by theRSPA shall be paid the same fees andmileage as would be paid to a witnessin a proceeding in the district courts ofthe United States. The witness fees andmileage shall be paid by the person atwhose instance the subpoena wasissued.

(g) Notwithstanding the provisions ofparagraph (f) of this section, and uponrequest, the witness fees and mileagemay be paid by the RSPA if the RSPAofficial who issued the subpoena deter-mines on the basis of good causeshown, that:

(1) The presence of the subpoenaedwitness will materially advance theproceeding; and

(2) The person at whose instance thesubpoena was issued would suffer a se-

rious hardship if required to pay thewitness fees and mileage.

(h) Any person to whom a subpoena isdirected may apply no later than 10days after service thereof, to the per-son who issued the subpoena to quashor modify it. The application shall con-tain a brief statement of the reasonsrelied upon in support of the actionsought therein. The person who issuedthe subpoena may:

(1) Deny the application;(2) Quash or modify the subpoena; or(3) Condition denial of the applica-

tion to quash or modify the subpoenaupon the satisfaction of certain justand reasonable requirements. The de-nial may be summary.

(i) If there is a refusal to obey a sub-poena served upon any person underthe provisions of this section, theRSPA may request the Attorney Gen-eral to seek the aid of the UnitedStates District Court for any Districtin which the person is found to compelthat person, after notice, to appear andgive testimony, or to appear andproduce the subpoenaed documents be-fore the RSPA, or both.

[Amdt. 107–3, 41 FR 38170, Sept. 9, 1976, asamended by Amdt. 107–11, 48 FR 2651, Jan. 20,1983]

§ 107.14 Availability of informal guid-ance and interpretive assistance.

(a) Availability of telephonic and Inter-net assistance. (1) RSPA has a toll-free,telephonic information line which pro-vides answers to inquiries by small en-tities and other parties concerning in-formation on and advice about compli-ance with the hazardous materials reg-ulations, 49 CFR parts 171–180. The in-formation line is staffed from 9:00 a.m.through 4:00 p.m., Eastern time, Mon-day through Friday, except Federalholidays. When the information line isnot staffed, callers leave a recordedmessage, which will be answered by thenext business day. The telephone num-bers for the information line are: 1–800–467–4922 (that is; 1–800–HMR49–22 tollfree), or 202–366–4488 (Washington, DCarea). Additionally, information maybe obtained from the Office of Hazard-ous Materials Safety via the Internetat http://ohm.volpe.dot.gov/ohm.

(2) RSPA’s Office of the Chief Counsel(OCC) is available to answer questions


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49 CFR Ch. I (10–1–98 Edition)§ 107.101

concerning Federal hazardous materialtransportation law, 49 USC 5101 et seq.and Federal preemption of state, localand Indian tribe hazardous materialtransportation requirements. OCC maybe contacted by telephone (202–366–4400)from 9:00 a.m. to 4:00 p.m. Easterntime, Monday through Friday, exceptFederal holidays. Information andguidance concerning Federal hazardousmaterial transportation law and pre-emption may also be obtained by con-tacting OCC via the Internet at http://rspa-atty.dot.gov.

(b) Availability of Written Interpreta-tions. (1) A written regulatory clarifica-tion, response to a question, or anopinion concerning hazardous mate-rials offering, transporting, or packag-ing requirements may be obtained bysubmitting a written request to theRSPA Office of Hazardous MaterialsStandards (DHM–10), U.S. Departmentof Transportation, 400 Seventh Street,SW., Washington, DC 20590–0001. The re-questor must include his or her returnaddress and should also include a day-time telephone number.

(2) A written interpretation regard-ing Federal hazardous material trans-portation law, 49 USC 5101 et seq., maybe obtained from the Office of the ChiefCounsel (DCC–1) RSPA, U.S. Depart-ment of Transportation, 400 SeventhStreet, SW., Washington, DC 20590–0001.The requestor must include his or herreturn address and should also includea daytime telephone number.

[62 FR 24057, May 2, 1997; 62 FR 34415, June 26,1997]

Subpart B—Exemptions

SOURCE: Amdt. 107–38, 61 FR 21095, May 9,1996, unless otherwise noted.

§ 107.101 Purpose and scope.

This subpart prescribes proceduresfor the issuance, modification and ter-mination of exemptions from require-ments of this subchapter, subchapter Cof this chapter, or regulations issuedunder chapter 51 of 49 U.S.C.

§ 107.105 Application for exemption.

(a) General. Each application for anexemption or modification of an ex-

emption must be written in Englishand must—

(1) Be submitted in duplicate and, fortimely consideration, at least 120 daysbefore the requested effective date to:Associate Administrator for HazardousMaterials Safety, Research and SpecialPrograms Administration, U.S. Depart-ment of Transportation, 400 7th Street,SW, Washington, DC 20590–0001. Atten-tion: Exemptions, DHM–31;

(2) State the name, street and mail-ing addresses, and telephone number ofthe applicant; if the applicant is not anindividual, state the name, street andmailing addresses, and telephone num-ber of an individual designated as anagent of the applicant for all purposesrelated to the application;

(3) If the applicant is not a residentof the United States, a designation ofagent for service in accordance with§ 107.7 of this part; and

(4) For a manufacturing exemption, astatement of the name and street ad-dress of each facility where manufac-turing under the exemption will occur.

(b) Confidential treatment. To requestconfidential treatment for informationcontained in the application, the appli-cant shall comply with § 107.5(a).

(c) Description of exemption proposal.The application must include the fol-lowing information that is relevant tothe exemption proposal:

(1) A citation of the specific regula-tion from which the applicant seeks re-lief;

(2) Specification of the proposedmode or modes of transportation;

(3) A detailed description of the pro-posed exemption (e.g., alternativepackaging, test, procedure or activity)including, as appropriate, written de-scriptions, drawings, flow charts, plansand other supporting documents;

(4) A specification of the proposed du-ration or schedule of events for whichthe exemption is sought;

(5) A statement outlining the appli-cant’s basis for seeking relief fromcompliance with the specified regula-tions and, if the exemption is requestedfor a fixed period, a description of howcompliance will be achieved at the endof that period;

(6) If the applicant seeks emergencyprocessing specified in § 107.117, a state-ment of supporting facts and reasons;


19


(7) Identification and description ofthe hazardous materials planned fortransportation under the exemption;

(8) Description of each packaging, in-cluding specification or exemptionnumber, as applicable, to be used inconjunction with the requested exemp-tion;

(9) For alternative packagings, docu-mentation of quality assurance con-trols, package design, manufacture,performance test criteria, in-serviceperformance and service-life limita-tions;

(d) Justification of exemption proposal.The application must demonstrate thatan exemption achieves a level of safetyat least equal to that required by regu-lation, or if a required safety level doesnot exist, is consistent with the publicinterest. At a minimum, the applica-tion must provide the following:

(1) Information describing all rel-evant shipping and incident experienceof which the applicant is aware that re-lates to the application;

(2) A statement identifying any in-creased risk to safety or property thatmay result if the exemption is granted,and a description of the measures to betaken to address that risk; and

(3) Either—(i) Substantiation, with applicable

analyses, data or test results, that theproposed alternative will achieve alevel of safety that is at least equal tothat required by the regulation fromwhich the exemption is sought; or

(ii) If the regulations do not establisha level of safety, an analysis that iden-tifies each hazard, potential failuremode and the probability of its occur-rence, and how the risks associatedwith each hazard and failure mode arecontrolled for the duration of an activ-ity or life-cycle of a packaging.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, asamended at 62 FR 51556, Oct. 1, 1997]

§ 107.107 Application for party status.

(a) Any person eligible to apply foran exemption may apply to be madeparty to an application or an existingexemption, other than a manufacturingexemption.

(b) Each application filed under thissection must—

(1) Be submitted in duplicate to: As-sociate Administrator for HazardousMaterials Safety, Research and SpecialPrograms Administration, U.S. Depart-ment of Transportation, 400 7th Street,SW, Washington, DC 20590–0001. Atten-tion: Exemptions, DHM–31;

(2) Identify by number the exemptionapplication or exemption to which theapplicant seeks to become a party;

(3) State the name, street and mail-ing addresses, and telephone number ofthe applicant; if the applicant is not anindividual, state the name, street andmailing addresses, and telephone num-ber of an individual designated as theapplicant’s agent for all purposes relat-ed to the application; and

(4) If the applicant is not a residentof the United States, provide a designa-tion of agent for service in accordancewith § 107.7.

(c) The Associate Administratorgrants or denies an application forparty status in the manner specified in§ 107.113(e) and (f) of this subpart.

(d) A party to an exemption is sub-ject to all terms of that exemption, in-cluding the expiration date. If a partyto an exemption wishes to renew partystatus, the exemption renewal proce-dures set forth in § 107.109 apply.

§ 107.109 Application for renewal.(a) Each application for renewal of an

exemption or party status to an exemp-tion must—

(1) Be submitted in duplicate to: As-sociate Administrator for HazardousMaterials Safety, Research and SpecialPrograms Administration, U.S. Depart-ment of Transportation, 400 7th Street,SW, Washington, DC 20590–0001. Atten-tion: Exemptions, DHM–31;

(2) Identify by number the exemptionfor which renewal is requested;

(3) State the name, street and mail-ing addresses, and telephone number ofthe applicant; if the applicant is not anindividual, state the name, street andmailing addresses, and telephone num-ber of an individual designated as anagent of the applicant for all purposesrelated to the application;

(4) Include either a certification bythe applicant that the original applica-tion, as it may have been updated byany application for renewal, remainsaccurate and complete; or include an


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49 CFR Ch. I (10–1–98 Edition)§ 107.111

amendment to the previously submit-ted application as is necessary to up-date and assure the accuracy and com-pleteness of the application, with cer-tification by the applicant that the ap-plication as amended is accurate andcomplete; and

(5) Include a statement describing allrelevant shipping and incident experi-ence of which the applicant is aware inconnection with the exemption sinceits issuance or most recent renewal. Ifthe applicant is aware of no incidents,the applicant shall so certify. Whenknown to the applicant, the statementshould indicate the approximate num-ber of shipments made or packagesshipped, as the case may be, and num-ber of shipments or packages involvedin any loss of contents, including lossby venting other than as authorized insubchapter C.

(b) If at least 60 days before an exist-ing exemption expires the holder filesan application for renewal that is com-plete and conforms to the requirementsof this section, the exemption will notexpire until final administrative actionon the application for renewal has beentaken.

§ 107.111 Withdrawal.An application may be withdrawn at

any time before a decision to grant ordeny it is made. Withdrawal of an ap-plication does not authorize the re-moval of any related records from theRSPA dockets or files. Applicationsthat are eligible for confidential treat-ment under § 107.5 will remain confiden-tial after the application is withdrawn.The duration of this confidential treat-ment for trade secrets and commercialor financial information is indefinite,unless the party requesting the con-fidential treatment of the materialsnotifies the Associate Administratorthat the confidential treatment is nolonger required.

§ 107.113 Application processing andevaluation.

(a) The Associate Administrator re-views an application for exemption,modification of exemption, party to ex-emption, or renewal of an exemption todetermine if it is complete and con-forms with the requirements of thissubpart. This determination will be

made within 30 days of receipt of theapplication for exemption, modifica-tion of exemption, or party to exemp-tion, and within 15 days of receipt of anapplication for renewal of an exemp-tion. If an application is determined tobe incomplete, the applicant is in-formed of the reasons.

(b) An application, other than a re-newal, party to, or emergency exemp-tion application, that is determined tobe complete is docketed. Notice of theapplication is published in the FED-ERAL REGISTER, and an opportunity forpublic comment is provided. All com-ments received during the comment pe-riod are considered before final actionis taken on the application.

(c) No public hearing or other formalproceeding is required under this sub-part before the disposition of an appli-cation. Unless emergency processingunder § 107.117 is requested and granted,applications are usually processed inthe order in which they are filed.

(d) During the processing and evalua-tion of an application, the AssociateAdministrator may request additionalinformation from the applicant. If theapplicant does not respond to a writtenrequest for additional informationwithin 30 days of the date the requestwas received, the application may bedeemed incomplete and denied. How-ever, if the applicant responds in writ-ing within the 30-day period requestingan additional 30 days within which itwill gather the requested information,the Associate Administrator may grantthe 30-day extension.

(e) The Associate Administrator maygrant or deny an application, in wholeor in part. In the Associate Adminis-trator’s discretion, an application maybe granted subject to provisions thatare appropriate to protect health, safe-ty or property. The Associate Adminis-trator may impose additional provi-sions not specified in the application orremove conditions in the applicationthat are unnecessary.

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

(1) The application complies withthis subpart;

(2) The application demonstratesthat the proposed alternative willachieve a level of safety that:


21


(i) Is at least equal to that requiredby the regulation from which the ex-emption is sought, or

(ii) If the regulations do not establisha level of safety, is consistent with thepublic interest and adequately will pro-tect against the risks to life and prop-erty inherent in the transportation ofhazardous materials in commerce;

(3) The application states all mate-rial facts, and contains no materiallyfalse or materially misleading state-ment;

(4) The applicant meets the qualifica-tions required by applicable regula-tions; and

(5) The applicant is fit to conduct theactivity authorized by the exemption.This assessment may be based on infor-mation in the application, prior com-pliance history of the applicant, andother information available to the As-sociate Administrator.

(g) An applicant is notified in writingwhether the application is granted ordenied. A denial contains a brief state-ment of reasons.

(h) An exemption and any renewalthereof terminates according to itsterms or, if not otherwise specified,two years after the date of issuance. Agrant of party status to an exemption,unless otherwise stated, terminates onthe date that the exemption expires.

(i) The Associate Administrator, ondetermining that an application con-cerns a matter of general applicabilityand future effect and should be the sub-ject of rulemaking, may initiate rule-making under part 106 of this chapterin addition to or instead of acting onthe application.

(j) The Associate Administrator pub-lishes in the FEDERAL REGISTER a listof all exemption grants, denials, andmodifications and all exemption appli-cations withdrawn under this section.

§ 107.117 Emergency processing.(a) An application is granted emer-

gency processing if the Associate Ad-ministrator, on the basis of the appli-cation and any inquiry undertaken,finds that—

(1) Emergency processing is nec-essary to prevent significant injury topersons or property (other than thehazardous material to be transported)that could not be prevented if the ap-

plication were processed on a routinebasis; or

(2) Emergency processing is nec-essary for immediate national securitypurposes or to prevent significant eco-nomic loss that could not be preventedif the application were processed on aroutine basis.

(b) Where the significant economicloss is to the applicant, or to a party ina contractual relationship to the appli-cant with respect to the activity to beundertaken, the Associate Adminis-trator may deny emergency processingif timely application could have beenmade.

(c) A request for emergency process-ing on the basis of potential economicloss must reasonably describe and esti-mate the potential loss.

(d) An application submitted underthis section must conform to § 107.105to the extent that the receiving U.S.Department of Transportation officialdeems necessary to process the applica-tion. An application on an emergencybasis must be submitted to the U.S.Department of Transportation modalcontact official for the initial mode oftransportation to be utilized, as fol-lows:

(1) Certificate-Holding Aircraft: TheFederal Aviation Administration CivilAviation Security Office that servesthe place where the flight will origi-nate or that is responsible for the air-craft operator’s overall aviation secu-rity program. The nearest Civil Avia-tion Security Office may be located bycalling the FAA Duty Officer, 202–267–3333 (any hour).

(2) Noncertificate-Holding Aircraft(Those Which Operate Under 14 CFR Part91): The Federal Aviation Administra-tion Civil Aviation Security Office thatserves the place where the flight willoriginate. The nearest Civil AviationSecurity Office may be located by call-ing the FAA Duty Officer, 202–267–3333(any hour).

(3) Motor Vehicle Transportation: Di-rector, Office of Motor Carrier Re-search and Standards, Federal HighwayAdministration, U.S. Department ofTransportation, Washington, DC 20590–0001, 202–366–4001 (day); 202–267–2100(night).

(4) Rail Transportation: Staff Director,Hazardous Materials Division, Office of


22

49 CFR Ch. I (10–1–98 Edition)§ 107.121

Safety Assurance and Compliance, Fed-eral Railroad Administration, U.S. De-partment of Transportation, Washing-ton, DC 20590–0001, 202–366–0509 or 366–0523 (day); 202–267–2100 (night).

(5) Water Transportation: Chief, Haz-ardous Materials Standards Division,Office of Operating and EnvironmentalStandards, United States Coast Guard,U.S. Department of Transportation,Washington, DC 20593–0001, 202–267–1577(day); 202–267–2100 (night).

(e) On receipt of all information nec-essary to process the application, thereceiving Department of Transpor-tation official transmits to the Associ-ate Administrator, by the most rapidavailable means of communication, anevaluation as to whether an emergencyexists under § 107.117(a) and, if appro-priate, recommendations as to the con-ditions to be included in the exemp-tion. If the Associate Administratordetermines that an emergency existsunder § 107.117(a) and that, with ref-erence to the criteria of § 107.113(f),granting of the application is in thepublic interest, the Associate Adminis-trator grants the application subject tosuch terms as necessary and imme-diately notifies the applicant. If theAssociate Administrator determinesthat an emergency does not exist orthat granting of the application is notin the public interest, the applicantimmediately is so notified.

(f) A determination that an emer-gency does not exist is not subject toreconsideration under § 107.123 of thispart.

(g) Within 90 days following issuanceof an emergency exemption, the Asso-ciate Administrator will publish, in theFEDERAL REGISTER, a notice ofissuance with a statement of the basisfor the finding of emergency and thescope and duration of the exemption.

[Amdt. 107–38, 61 FR 21095, May 9, 1996, asamended at 62 FR 51556, Oct. 1, 1997]

§ 107.121 Modification, suspension ortermination of exemption or grantof party status.

(a) The Associate Administrator maymodify an exemption or grant of partystatus on finding that—

(1) Modification is necessary so thatan exemption reflects current statutesand regulations; or

(2) Modification is required bychanged circumstances to meet thestandards of § 107.113(f).

(b) The Associate Administrator maymodify, suspend or terminate an ex-emption or grant of party status, as ap-propriate, on finding that—

(1) Because of a change in cir-cumstances, the exemption or partystatus no longer is needed or no longerwould be granted if applied for;

(2) The application contained inac-curate or incomplete information, andthe exemption or party status wouldnot have been granted had the applica-tion been accurate and complete;

(3) The application contained delib-erately inaccurate or incomplete infor-mation; or

(4) The holder or party knowinglyhas violated the terms of the exemp-tion or an applicable requirement ofthis chapter, in a manner demonstrat-ing the holder or party is not fit toconduct the activity authorized by theexemption.

(c) Except as provided in paragraph(d) of this section, before an exemptionor grant of party status is modified,suspended or terminated, the AssociateAdministrator notifies the holder orparty in writing of the proposed actionand the reasons for it, and provides anopportunity to show cause why the pro-posed action should not be taken.

(1) The holder or party may file awritten response that shows cause whythe proposed action should not betaken within 30 days of receipt of no-tice of the proposed action.

(2) After considering the holder’s orparty’s written response, or after 30days have passed without responsesince receipt of the notice, the Associ-ate Administrator notifies the holderor party in writing of the final decisionwith a brief statement of reasons.

(d) The Associate Administrator, ifnecessary to avoid a risk of significantharm to persons or property, may inthe notification declare the proposedaction immediately effective.

§ 107.123 Reconsideration.(a) An applicant for exemption, an

exemption holder, or an applicant forparty status to an exemption may re-quest that the Associate Administratorreconsider a decision under § 107.113(g),


23


§ 107.117(e) or § 107.121(c) of this part.The request must—

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

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

(3) Enclose any additional informa-tion needed to support the request toreconsider; and

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

(b) The Associate Administratorgrants or denies, in whole or in part,the relief requested and informs the re-questing person in writing of the deci-sion. If necessary to avoid a risk of sig-nificant harm to persons or property,the Associate Administrator may, inthe notification, declare the action im-mediately effective.

§ 107.125 Appeal.(a) A person who requested reconsid-

eration under § 107.123 and is denied therelief requested may appeal to the Ad-ministrator. The appeal must—

(1) Be in writing and filed within 30days of receipt of the Associate Admin-istrator’s decision on reconsideration;


(3) Enclose any additional informa-tion needed to support the appeal; and


(b) The Administrator, if necessaryto avoid a risk of significant harm topersons or property, may declare theAssociate Administrator’s action effec-tive pending a decision on appeal.

(c) The Administrator grants or de-nies, in whole or in part, the relief re-quested and informs the appellant inwriting of the decision. The Adminis-trator’s decision is the final adminis-trative action.

§ 107.127 Availability of documents forpublic inspection.

(a) Documents related to an applica-tion under this subpart, including theapplication itself, are available forpublic inspection, except as specified inparagraph (b) of this section, at the Of-fice of the Associate Administrator forHazardous Materials Safety, Researchand Special Programs Administration,Dockets Unit, U.S. Department ofTransportation, 400 7th Street, SW,

Washington, DC 20590–0001, Room 8421.Office hours are 8:30 a.m. to 5:00 p.m.,Monday through Friday, except holi-days when the office is closed. Copies ofavailable documents may be obtainedas provided in part 7 of this title.

(b) Documents available for inspec-tion do not include materials deter-mined to be withheld from public dis-closure under § 107.5 and in accordancewith the applicable provisions of sec-tion 552(b) of title 5, United StatesCode, and part 7 of this title.

Subpart C—Preemption


(a) This subpart prescribes proce-dures by which:

(1) Any person, including a State, po-litical subdivision, or Indian tribe, di-rectly affected by any requirement of aState, political subdivision, or Indiantribe, may apply for a determination asto whether that requirement is pre-empted under 49 U.S.C. 5125, or regula-tions issued thereunder; and

(2) A State, political subdivision, orIndian tribe may apply for a waiver ofpreemption with respect to any re-quirement that the State, politicalsubdivision, or Indian tribe acknowl-edges to be preempted by 49 U.S.C. 5125,or regulations issued thereunder, orthat has been determined by a court ofcompetent jurisdiction to be so pre-empted.

(b) For purposes of this subpart ‘‘po-litical subdivision’’ includes a munici-pality; a public agency or other instru-mentality of one or more States, mu-nicipalities, or other political subdivi-sions of a State; or a public corpora-tion, board, or commission establishedunder the laws of one or more States.

(c) For purposes of this subpart, ‘‘reg-ulations issued under the Federal haz-ardous material transportation law’’means the regulations contained inthis subchapter and subchapter C ofthis chapter.

(d) Unless otherwise ordered by theAssociate Administrator, an applica-tion for a preemption determinationwhich includes an application for awaiver of preemption will be treated


24

49 CFR Ch. I (10–1–98 Edition)§ 107.202

and processed solely as an applicationfor a preemption determination.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, asamended 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]

§ 107.202 Standards for determiningpreemption.

(a) Except as provided in § 107.221 andunless otherwise authorized by Federallaw, any requirement of a State or po-litical subdivision thereof or an Indiantribe, that concerns one of the follow-ing subjects and that is not sub-stantively the same as any provision ofthe Federal hazardous material trans-portation law, this subchapter or sub-chapter C that concerns that subject, ispreempted:

(1) The designation, description, andclassification of hazardous material.

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

(3) The preparation, execution, anduse of shipping documents pertainingto hazardous material and require-ments related to the number, content,and placement of those documents.

(4) The written notification, record-ing, and reporting of the unintentionalrelease in transportation of hazardousmaterial.

(5) The design, manufacturing, fab-rication, marking, maintenance, recon-ditioning, repairing, or testing of apackaging or a container which is rep-resented, marked, certified, or sold asqualified for use in the transportationof hazardous material.

(b) Except as provided in § 107.221 andunless otherwise authorized by Federallaw, any requirement of a State or po-litical subdivision or Indian tribe ispreempted if—

(1) Complying with a requirement ofthe State, political subdivision, or In-dian tribe and a requirement under theFederal hazardous material transpor-tation law or regulations issued there-under is not possible;

(2) The requirement of the State, po-litical subdivision, or Indian tribe, asapplied or enforced, is an obstacle toaccomplishing and carrying out theFederal hazardous material transpor-

tation law or regulations issued there-under; or

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

(c) A State, political subdivision, orIndian tribe may impose a fee relatedto transporting hazardous materialonly if the fee is fair and used for apurpose related to transporting hazard-ous material, including enforcementand planning, developing and maintain-ing a capability for emergency re-sponse.

(d) For purposes of this section, ‘‘sub-stantively the same’’ means that thenon-Federal requirement conforms inevery significant respect to the Federalrequirement. Editorial and other simi-lar de minimis changes are permitted.

[Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, asamended by Amdt. 107–25, 57 FR 20428, May13, 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]

PREEMPTION DETERMINATIONS

§ 107.203 Application.

(a) With the exception of highwayrouting matters covered under 49U.S.C. 5125(c), any person, including aState or political subdivision thereofor an Indian tribe, directly affected byany requirement of a State or politicalsubdivision thereof or an Indian tribe,may apply to the Associate Adminis-trator for a determination of whetherthat requirement is preempted by§ 107.202 (a) or (b).

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

(1) Be submitted to Associate Admin-istrator for Hazardous Materials Safe-ty, Research and Special Programs Ad-ministration, U.S. Department ofTransportation, Washington, DC 20590–0001. Attention: Hazardous MaterialsPreemption Docket;

(2) Set forth the text of the State orpolitical subdivision or Indian tribe re-quirement for which the determinationis sought;

(3) Specify each requirement of theFederal hazardous material transpor-tation law or the regulations issuedthereunder with which the applicantseeks the State or political subdivision


25


or Indian tribe requirement to be com-pared;

(4) Explain why the applicant be-lieves the State or political subdivisionor Indian tribe requirement should orshould not be preempted under thestandards of § 107.202; and

(5) State how the applicant is af-fected by the State or political subdivi-sion or Indian tribe requirement.

(c) The filing of an application for adetermination under this section doesnot constitute grounds for noncompli-ance with any requirement of the Fed-eral hazardous material transportationlaw or the regulations issued there-under.

(d) Once the Associate Administratorhas published notice in the FEDERALREGISTER of an application receivedunder paragraph (a) of this section, noapplicant for such determination mayseek relief with respect to the same orsubstantially the same issue in anycourt until final action has been takenon the application or until 180 daysafter filing of the application, which-ever occurs first. Nothing in § 107.203(a)prohibits a State or political subdivi-sion or Indian tribe, or any other per-son directly affected by any require-ment of a State or political subdivisionthereof or Indian tribe, from seeking adetermination of preemption in anycourt of competent jurisdiction in lieuof applying to the Associate Adminis-trator under paragraph (a) of this sec-tion.

[Amdt. 107–24, 56 FR 8622, Feb. 28, 1991, asamended by Amdt. 107–25, 57 FR 20428, May13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26,1994; Amdt. 107–38, 61 FR 21098, May 9, 1996]

§ 107.205 Notice.(a) If the applicant is other than a

State, political subdivision, or Indiantribe, the applicant shall mail a copy ofthe application to the State, politicalsubdivision, or Indian tribe concernedaccompanied by a statement that theState, political subdivision, or Indiantribe may submit comments regardingthe application to the Associate Ad-ministrator. The application filed withthe Associate Administrator must in-clude a certification that the applicanthas complied with this paragraph andmust include the names and addressesof each State, political subdivision, or

Indian tribe official to whom a copy ofthe application was sent.

(b) The Associate Administrator willpublish notice of, including an oppor-tunity to comment on, an applicationin the FEDERAL REGISTER and may no-tify in writing any person readily iden-tifiable as affected by the outcome ofthe determination.

(c) Each person submitting writtencomments to the Associate Adminis-trator with respect to an applicationfiled under this section shall send acopy of the comments to the applicantand certify to the Associate Adminis-trator that he or she has complied withthis requirement. The Associate Ad-ministrator may notify other personsparticipating in the proceeding of thecomments and provide an opportunityfor those other persons to respond.Late-filed comments are considered sofar as practicable.

[Amdt. 107–38, 61 FR 21098, May 9, 1996]

§ 107.207 Processing.(a) The Associate Administrator may

initiate an investigation of any state-ment in an application and utilize inhis or her evaluation any relevant factsobtained by that investigation. The As-sociate Administrator may solicit andaccept submissions from third personsrelevant to an application and will pro-vide the applicant an opportunity torespond to all third person submis-sions. In evaluating an application, theAssociate Administrator may considerany other source of information. TheAssociate Administrator on his or herown initiative may convene a hearingor conference, if he or she considersthat a hearing or conference will ad-vance his or her evaluation of the ap-plication.

(b) The Associate Administrator maydismiss the application without preju-dice if:

(1) He or she determines that there isinsufficient information upon which tobase a determination; or

(2) He or she requests additional in-formation from the applicant and it isnot submitted.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, asamended by Amdt. 107–24, 56 FR 8621, 8622,Feb. 28, 1991; Amdt. 107–38, 61 FR 21098, May9, 1996]


26

49 CFR Ch. I (10–1–98 Edition)§ 107.209

§ 107.209 Determination.(a) Upon consideration of the applica-

tion and other relevant information re-ceived, the Associate Administratorissues a determination.

(b) The determination includes awritten statement setting forth therelevant facts and the legal basis forthe determination, and provides thatany person aggrieved thereby may filea petition for reconsideration with theAssociate Administrator.

(c) The Associate Administrator pro-vides a copy of the determination tothe applicant and to any other personwho substantially participated in theproceeding or requested in commentsto the docket to be notified of the de-termination. A copy of each determina-tion is placed on file in the publicdocket. The Associate Administratorwill publish the determination or no-tice of the determination in the FED-ERAL REGISTER.

(d) A determination issued under thissection constitutes an administrativedetermination as to whether a particu-lar requirement of a State or politicalsubdivision or Indian tribe is pre-empted under the Federal hazardousmaterial transportation law or regula-tions issued thereunder. The fact thata determination has not been issuedunder this section with respect to aparticular requirement of a State orpolitical subdivision or Indian tribecarries no implication as to whetherthe requirement is preempted underthe Federal hazardous material trans-portation law or regulations issuedhereunder.

[Amdt. 107–24, 56 FR 8623, Feb. 28, 1991, asamended by Amdt. 107–25, 57 FR 20428, May13, 1992; Amdt. 107–32, 59 FR 49131, Sept. 26,1994; Amdt. 107–38, 61 FR 21098, May 9, 1996]

§ 107.211 Petition for reconsideration.(a) Any person aggrieved by a deter-

mination issued under § 107.209 may filea petition for reconsideration with theAssociate Administrator. The petitionmust be filed within 20 days of publica-tion of the determination in the FED-ERAL REGISTER.

(b) The petition must contain a con-cise statement of the basis for seekingreview, including any specific factualor legal error alleged. If the petitionrequests consideration of information

that was not previously made availableto the Associate Administrator, the pe-tition must include the reasons whysuch information was not previouslymade available.

(c) The petitioner shall mail a copyof the petition to each person who par-ticipated, either as an applicant orcommenter, in the preemption deter-mination proceeding, accompanied by astatement that the person may submitcomments concerning the petition tothe Associate Administrator within 20days. The petition filed with the Asso-ciate Administrator must contain acertification that the petitioner hascomplied with this paragraph and in-clude the names and addresses of allpersons to whom a copy of the petitionwas sent. Late-filed comments are con-sidered so far as practicable.

(d) The Associate Administrator’s de-cision constitutes final agency action.

[Amdt. 107–25, 57 FR 20428, May 13, 1992, asamended by Amdt. 107–38, 61 FR 21099, May 9,1996]

§ 107.213 Judicial review.

A party to a proceeding under§ 107.203(a) may seek review by the ap-propriate district court of the UnitedStates of a decision of the AssociateAdministrator by filing a petition withthe court within 60 days after the Asso-ciate Administrator’s determinationbecomes final. The determination be-comes final when it is published in theFEDERAL REGISTER.

[Amdt. 107–38, 61 FR 21099, May 9, 1996]

WAIVER OF PREEMPTION

DETERMINATIONS

§ 107.215 Application.

(a) With the exception of require-ments preempted under 49 U.S.C.5125(c), any State or political subdivi-sion thereof, or Indian tribe may applyto the Associate Administrator for awaiver of preemption with respect toany requirement that the State or po-litical subdivision thereof or an Indiantribe acknowledges to be preemptedunder the Federal hazardous materialtransportation law or the regulations


27


issued thereunder, or that has been de-termined by a court of competent juris-diction to be so preempted. The Associ-ate Administrator may waive preemp-tion with respect to such requirementupon a determination that such re-quirement—

(1) Affords an equal or greater levelof protection to the public than is af-forded by the requirements of the Fed-eral hazardous material transportationlaw or the regulations issued there-under, and

(2) Does not unreasonably burdencommerce.

(b) Each application filed under thissection for a waiver of preemption de-termination must:

(1) Be submitted to the Associate Ad-ministrator for Hazardous MaterialsSafety, Research and Special ProgramsAdministration, U.S. Department ofTransportation, Washington, DC 20590–0001. Attention: Hazardous MaterialsPreemption Docket;

(2) Set forth the text of the State orpolitical subdivision requirement forwhich the determination is beingsought;

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

(4) Contain an express acknowledg-ment by the applicant that the State,political subdivision, or Indian triberequirement is preempted under theFederal hazardous material transpor-tation law or the regulations issuedthereunder, unless it has been so deter-mined by a court of competent juris-diction or in a determination issuedunder § 107.209;

(5) Specify each requirement of theFederal hazardous material transpor-tation law or the regulations issuedthereunder that preempts the State,political subdivision, or Indian triberequirement;

(6) State why the applicant believesthe State, political subdivision or In-dian tribe requirements affords anequal or greater level of protection tothe public than is afforded by the re-quirements of the Federal hazardousmaterial transportation law or the reg-ulations issued thereunder;

(7) State why the applicant believesthe State, political subdivision or In-

dian tribe requirement does not unrea-sonably burden commerce; and

(8) Specify what steps the State, po-litical subdivision or Indian tribe istaking to administer and enforce effec-tively its inconsistent requirement.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, asamended 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 FR20428, May 13, 1992; Amdt. 107–32, 59 FR 49131,Sept. 26, 1994; Amdt. 107–38, 61 FR 21099, May9, 1996]

§ 107.217 Notice.

(a) The applicant shall mail a copy ofthe application and any subsequentamendments or other documents relat-ing to the application to each personwho is reasonably ascertainable by theapplicant as a person who will be af-fected by the determination sought.The copy of the application must be ac-companied by a statement that theperson may submit comments regard-ing the application to the AssociateAdministrator within 45 days. The ap-plication filed with the Associate Ad-ministrator must include a certifi-cation that the application has com-plied with this paragraph and must in-clude the names and addresses of eachperson to whom the application wassent.

(b) Notwithstanding the provisions ofparagraph (a) of this section, if theState or political subdivision deter-mines that compliance with paragraph(a) of this section would be impractica-ble, the applicant shall:

(1) Comply with the requirements ofparagraph (a) of this section with re-gard to those persons whom it is rea-sonable and practicable to notify; and

(2) Include with the application filedwith the Associate Administrator a de-scription of the persons or class orclasses of persons to whom notice wasnot sent.

(c) The Associate Administrator mayrequire the applicant to provide noticein addition to that required by para-graphs (a) and (b) of this section, ormay determine that the notice re-quired by paragraph (a) of the sectionis not impracticable, or that noticeshould be published in the FEDERAL


28

49 CFR Ch. I (10–1–98 Edition)§ 107.219

REGISTER. Late-filed comments areconsidered so far as practicable.

(d) The Associate Administrator maynotify any other persons who may beaffected by the outcome of a deter-mination on the application.

(e) Any person submitting writtencomments to the Associate Adminis-trator with respect to an applicationfiled under this section shall send acopy of the comments to the applicant.The person shall certify to the Associ-ate Administrator that he has com-plied with the requirements of thisparagraph. The Associate Adminis-trator may notify other persons par-ticipating in the proceeding of thecomments and provide an opportunityfor those other persons to respond.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, asamended 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]

§ 107.219 Processing.(a) The Associate Administrator may

initiate an investigation of any state-ment in an application and utilize inhis or her evaluation any relevant factsobtained by that investigation. The As-sociate Administrator may solicit andaccept submissions from third personsrelevant to an application and will pro-vide the applicant an opportunity torespond to all third person submis-sions. In evaluating an application, theAssociate Administrator on his or herown initiative may convene a hearingor conference, if he or she considersthat a hearing or conference will ad-vance his or her evaluation of the ap-plication.

(b) The Associate Administrator maydismiss the application without preju-dice if:

(1) He or she determines that there isinsufficient information upon which tobase a determination;

(2) Upon his or her request, addi-tional information is not submitted bythe applicant; or

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

(c) Except as provided in § 107.201(c),the Associate Administrator will onlyconsider an application for a waiver ofpreemption determination if:

(1) The applicant State or politicalsubdivision thereof or Indian tribe ex-

pressly acknowledges in its applicationthat the State or political subdivisionthereof of Indian tribe requirement forwhich the determination is sought isinconsistent with the requirements ofthe Federal hazardous material trans-portation law or the regulations issuedthereunder; or

(2) The State or political subdivisionthereof or Indian tribe requirement hasbeen determined by a court of com-petent jurisdiction or in a ruling issuedunder § 107.209 to be inconsistent withthe requirements of the Federal haz-ardous material transportation law orthe regulations issued thereunder.

(d) When the Associate Adminis-trator has received all substantive in-formation it considers necessary toprocess an application for a waiver ofpreemption determination, it servesnotice of that fact upon the applicantand all other persons who received no-tice of the proceeding pursuant to§ 107.217.

(e) To the extent possible, each appli-cation for a waiver of preemption de-termination will be acted upon in amanner consistent with the dispositionof previous applications for waiver ofpreemption determinations.

[Amdt. 107–3, 41 FR 38171, Sept. 9, 1976, asamended 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]

§ 107.221 Determination.

(a) After considering the applicationand other relevant information re-ceived or obtained during the proceed-ing, the Associate Administrator issuesa determination.

(b) The Associate Administrator mayissue a waiver of preemption only onfinding that the requirement of theState or political subdivision thereofor Indian tribe affords the public alevel of safety at least equal to that af-forded by the requirements of the Fed-eral hazardous material transportationlaw or the regulations issued there-under and does not unreasonably bur-den commerce. In determining if therequirement of the State or politicalsubdivision thereof or Indian tribe un-reasonably burdens commerce, the As-sociate Administrator considers:


29


(1) The extent to which increasedcosts and impairment of efficiency re-sult from the requirement of the Stateor political subdivision thereof or In-dian tribe.

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

(3) Whether the requirement of theState or political subdivision thereofor Indian tribe achieves its stated pur-pose.

(4) Whether there is need for uniform-ity with regard to the subject con-cerned and if so, whether the require-ment of the State or political subdivi-sion thereof or Indian tribe competesor conflicts with those of other Statesor political subdivisions thereof or In-dian tribes.

(c) The determination includes awritten statement setting forth rel-evant facts and legal bases and provid-ing that any person aggrieved by thedetermination may file a petition forreconsideration with the Associate Ad-ministrator.

(d) The Associate Administrator pro-vides a copy of the determination tothe applicant and to any other personwho substantially participated in theproceeding or requested in commentsto the docket to be notified of the de-termination. A copy of the determina-tion is placed on file in the publicdocket. The Associate Administratorwill publish the determination or no-tice of the determination in the FED-ERAL REGISTER.

(e) A determination under this sec-tion constitutes an administrativefinding of whether a particular require-ment of a State or political subdivisionthereof or Indian tribe is preemptedunder the Federal hazardous materialtransportation law or any regulationissued thereunder, or whether preemp-tion is waived.

[Amdt. 107–38, 61 FR 21099, May 9, 1996]

§ 107.223 Petition for reconsideration.

(a) Any person aggrieved by a deter-mination under § 107.221 may file a peti-tion for reconsideration with the Asso-ciate Administrator. The petition mustbe filed within 20 days of publication ofthe determination in the FEDERAL REG-ISTER.

(b) The petition must contain a con-cise statement of the basis for seekingreview, including any specific factualor legal error alleged. If the petitionrequests consideration of informationthat was not previously made availableto the Associate Administrator, the pe-tition must include the reasons whysuch information was not previouslymade available.

(c) The petitioner shall mail a copyof the petition to each person who par-ticipated, either as an applicant orcommenter, in the waiver of preemp-tion proceeding, accompanied by astatement that the person may submitcomments concerning the petition tothe Associate Administrator within 20days. The petition filed with the Asso-ciate Administrator must contain acertification that the petitioner hascomplied with this paragraph and in-clude the names and addresses of allpersons to whom a copy of the petitionwas sent. Late-filed comments are con-sidered so far as practicable.

(d) The Associate Administrator’s de-cision constitutes final agency action.

[Amdt. 107–25, 57 FR 20429, May 13, 1992, asamended by Amdt. 107–38, 61 FR 21099, May 9,1996]

§ 107.227 Judicial review.

A party to a proceeding under§ 107.215(a) may seek review by the ap-propriate district court of the UnitedStates of a decision of the AssociateAdministrator by filing a petition withthe court within 60 days after the Asso-ciate Administrator’s determinationbecomes final. The determination be-comes final when it is published in theFEDERAL REGISTER.

[Amdt. 107–38, 61 FR 21099, May 9, 1996]

Subpart D—Enforcement

SOURCE: Amdt. 107–11, 48 FR 2651, Jan. 20,1983, unless otherwise noted.

§ 107.301 Delegated authority for en-forcement.

Under redelegation from the Admin-istrator, Research and Special Pro-grams Administration, the AssociateAdministrator for Hazardous MaterialsSafety and the Office of the Chief


30

49 CFR Ch. I (10–1–98 Edition)§ 107.303

Counsel exercise their authority for en-forcement of the Federal hazardousmaterial transportation law, this sub-chapter, and subchapter C of this sub-chapter, in accordance with § 1.53 ofthis title.

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


This subchapter describes the variousenforcement authorities exercised bythe Associate Administrator for Haz-ardous Materials Safety and the Officeof Chief Counsel and the associatedsanctions and prescribes the proceduresgoverning the exercise of those au-thorities and the imposition of thosesanctions.

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

§ 107.305 Investigations.

(a) General. In accordance with itsdelegated authority under part 1 of thistitle, the Associate Administrator forHazardous Materials Safety may initi-ate investigations relating to compli-ance by any person with any provisionsof this subchapter or subchapter C ofthis chapter, or any exemption, ap-proval, or order issued thereunder, orany court decree relating thereto. TheAssociate Administrator for HazardousMaterials Safety encourages voluntaryproduction of documents in accordancewith and subject to § 107.13, and hear-ings may be conducted, and depositionstaken pursuant to 49 U.S.C. 5121(a). TheAssociate Administrator for HazardousMaterials Safety may conduct inves-tigative conferences and hearings inthe course of any investigation.

(b) Investigations and Inspections. In-vestigations under 49 U.S.C. 5121(a) areconducted by personnel duly author-ized for that purpose by the AssociateAdministrator. Inspections under 49U.S.C. 5121(c) are conducted by Hazard-ous Materials Enforcement Specialists,also known as ‘‘hazmat inspectors’’ or‘‘inspectors,’’ whom the Associate Ad-ministrator has designated for thatpurpose.

(1) An inspector will, on request,present his or her credentials for exam-

ination, but the credentials may not bereproduced.

(2) An inspector may administeroaths and receive affirmations in anymatter under investigation by the As-sociate Administrator.

(3) An inspector may gather informa-tion by reasonable means including,but not limited to, interviews, state-ments, photocopying, photography, andvideo- and audio-recording.

(4) With concurrence of the Director,Office of Hazardous Materials Enforce-ment, Research and Special ProgramsAdministration, an inspector may issuea subpoena for the production of docu-mentary or other tangible evidence if,on the basis of information available tothe inspector, the documents and evi-dence materially will advance a deter-mination of compliance with this sub-chapter or subchapter C. Service of asubpoena shall be in accordance with§ 107.13 (c) and (d). A person to whom asubpoena is directed may seek reviewof the subpoena by applying to the Of-fice of Chief Counsel in accordancewith § 107.13(h). A subpoena issuedunder this paragraph may be enforcedin accordance with § 107.13(i).

(c) Notification. Any person who is thesubject of an Associate Administratorfor Hazardous Materials Safety inves-tigation and who is requested to fur-nish information or documentary evi-dence is notified as to the general pur-pose for which the information or evi-dence is sought.

(d) Termination. When the facts dis-closed by an investigation indicatethat further action is unnecessary orunwarranted at that time, the personbeing investigated is notified and theinvestigative file is closed withoutprejudice to further investigation bythe Associate Administrator for Haz-ardous Materials Safety.

(e) Confidentiality. Information re-ceived in an investigation under thissection, including the identity of theperson investigated and any other per-son who provides information duringthe investigation, shall remain con-fidential under the investigatory file


31


exception, or other appropriate excep-tion, to the public disclosure require-ments of 5 U.S.C. 552.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended 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]

COMPLIANCE ORDERS AND CIVILPENALTIES

§ 107.307 General.(a) When the Associate Adminis-

trator for Hazardous Materials Safetyand the Office of the Chief Counselhave reason to believe that a person isknowingly engaging or has knowinglyengaged in conduct which is a violationof the Federal hazardous materialtransportation law or any provision ofthis subchapter or subchapter C of thischapter, or any exemption, or orderissued thereunder, for which the Asso-ciate Administrator for Hazardous Ma-terials Safety or the Office of the ChiefCounsel exercise enforcement author-ity, they may—

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

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

(3) Issue an order directing compli-ance, regardless of whether a warningletter has been issued or a civil penaltyassessed; and

(4) Seek any other remedy availableunder the Federal hazardous materialtransportation law.

(b) In the case of a proceeding initi-ated for failure to comply with an ex-emption, the allegation of a violationof a term or condition thereof is con-sidered by the Associate Administratorfor Hazardous Materials Safety and theOffice of the Chief Counsel to con-stitute an allegation that the exemp-tion holder or party to the exemptionis failing, or has failed to comply withthe underlying regulations from whichrelief was granted by the exemption.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended by Amdt. 107–32, 59 FR 49131, Sept.26, 1994; Amdt. 107–36, 61 FR 7183, Feb. 26,1996]

§ 107.309 Warning letters.(a) The Associate Administrator for

Hazardous Materials Safety may issue

a warning letter to any person whomthe Associate Administrator for Haz-ardous Materials Safety believes tohave committed a probable violation ofthe Federal hazardous material trans-portation law or any provision of thissubchapter, subchapter C of this chap-ter, or any exemption issued there-under.

(b) A warning letter issued under thissection includes:

(1) A statement of the facts uponwhich the Associate Administrator forHazardous Materials Safety bases itsdetermination that the person hascommitted a probable violation;

(2) A statement that the recurrenceof the probable violations cited maysubject the person to enforcement ac-tion; and

(3) An opportunity to respond to thewarning letter by submitting pertinentinformation or explanations concern-ing the probable violations cited there-in.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended 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]

§ 107.310 Ticketing.

(a) For an alleged violation that doesnot have a direct or substantial impacton safety, the Associate Administratorfor Hazardous Materials Safety mayissue a ticket.

(b) The Associate Administrator forHazardous Materials Safety issues aticket by mailing it by certified or reg-istered mail to the person alleged tohave committed the violation. Theticket includes:

(1) A statement of the facts on whichthe Associate Administrator bases theconclusion that the person has com-mitted the alleged violation;

(2) The maximum penalty providedfor by statute, the proposed full pen-alty determined according to RSPA’scivil penalty guidelines and the statu-tory criteria for penalty assessment,and the ticket penalty amount; and

(3) A statement that within 45 days ofreceipt of the ticket, the person mustpay the penalty in accordance withparagraph (d) of this section, make an


32

49 CFR Ch. I (10–1–98 Edition)§ 107.311

informal response under § 107.317, or re-quest a formal administrative hearingunder § 107.319.

(c) If the person makes an informalresponse or requests a formal adminis-trative hearing, the Associate Adminis-trator for Hazardous Materials Safetyforwards the inspection report, ticketand response to the Office of the ChiefCounsel for processing under §§ 107.307–107.339, except that the Office of theChief Counsel will not issue a Notice ofProbable Violation under § 107.311. TheOffice of the Chief Counsel may imposea civil penalty that does not exceed theproposed full penalty set forth in theticket.

(d) Payment of the ticket penaltyamount must be made in accordancewith the instructions on the ticket.

(e) If within 45 days of receiving theticket the person does not pay theticket amount, make an informal re-sponse, or request a formal administra-tive hearing, the person has waived theright to make an informal response orrequest a hearing, has admitted theviolation and owes the ticket penaltyamount to RSPA.

[Amdt. 107–36, 61 FR 7183, Feb. 26, 1996]

§ 107.311 Notice of probable violation.(a) The Office of Chief Counsel may

serve a notice of probable violation ona person alleging the violation of oneor more provisions of the Federal haz-ardous material transportation law orany provision of this subchapter orsubchapter C of this chapter, or any ex-emption, or order issued thereunder.

(b) A notice of probable violationissued under this section includes thefollowing information:

(1) A citation of the provisions of theFederal hazardous material transpor-tation law, an order issued thereunder,this subchapter, subchapter C of thischapter, or the terms of any exemptionissued thereunder which the Office ofChief Counsel believes the respondentis violating or has violated.

(2) A statement of the factual allega-tions upon which the demand for reme-dial action, a civil penalty, or both, isbased.

(3) A statement of the respondent’sright to present written or oral expla-nations, information, and arguments inanswer to the allegations and in miti-

gation of the sanction sought in thenotice of probable violation.

(4) A statement of the respondent’sright to request a hearing and the pro-cedures for requesting a hearing.

(5) In addition, in the case of a noticeof probable violation proposing a com-pliance order, a statement of the pro-posed actions to be taken by the re-spondent to achieve compliance.

(6) In addition, in the case of a noticeof probable violation proposing a civilpenalty:

(i) A statement of the maximum civilpenalty for which the respondent maybe liable;

(ii) The amount of the preliminarycivil penalty being sought by the Officeof Chief Counsel, constitutes the maxi-mum amount the Chief Counsel mayseek throughout the proceeding; and

(iii) A description of the manner inwhich the respondent makes paymentof any money due the United States asa result of the proceeding.

(c) The Office of Chief Counsel mayamend a notice of probable violation atany time before issuance of a compli-ance order or an order assessing a civilpenalty. If the Office of Chief Counselalleges any new material facts or seeksnew or additional remedial action or anincrease in the amount of the proposedcivil penalty, it issues a new notice ofprobable violation under this section.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended 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, 60FR 49108, Sept. 21, 1995; Amdt. 107–36, 61 FR7184, Feb. 26, 1996]

§ 107.313 Reply.(a) Within 30 days of receipt of a no-

tice of probable violation, the respond-ent 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 con-stitutes a waiver of the respondent’sright to appear and contest the allega-tions and authorizes the Chief Counsel,without further notice to the respond-ent, to find the facts to be as alleged inthe notice of probable violation and


33


issue an order directing compliance orassess a civil penalty, or, if proposed inthe notice, both. Failure to request ahearing under paragraph (a)(3) of thissection constitutes a waiver of the re-spondent’s right to a hearing.

(c) Upon the request of the respond-ent, the Office of Chief Counsel may,for good cause shown and filed withinthe 30 days prescribed in the notice ofprobable violation, extend the 30-dayresponse period.

§ 107.315 Admission of violations.

(a) In responding to a notice of prob-able violation issued under § 107.311, therespondent may admit the alleged vio-lations and agree to accept the termsof a proposed compliance order or topay the amount of the preliminarilyassessed civil penalty, or, if proposed inthe notice, both.

(b) If the respondent agrees to theterms of a proposed compliance order,the Chief Counsel issues a final orderprescribing the remedial action to betaken by the respondent.

(c) Payment of a civil penalty, whenthe amount of the penalty exceeds$10,000, must be made by wire transfer,through the Federal Reserve Commu-nications System (Fedwire), to the ac-count of the U.S. Treasury. Detailedinstructions on making payments bywire transfer may be obtained from theFinancial Operations Division (AMZ–320), Federal Aviation Administration,Mike Monroney Aeronautical Center,P.O. Box 25880, Oklahoma City, OK73125.

(d) Payment of a civil penalty, whenthe amount of the penalty is $10,000 orless, must be made either by wiretransfer, as set forth in paragraph (c)of this section, or certified check ormoney order payable to ‘‘U.S. Depart-ment of Transportation’’ and submit-ted to the Financial Operations Divi-sion (AMZ–320), Federal Aviation Ad-ministration, Mike Monroney Aero-nautical Center, P.O. Box 25880, Okla-homa City, OK 73125.

[Amdt. 107–11, 48 FR 265l, Jan. 20, 1983, asamended 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]

§ 107.317 Informal response.

(a) In responding to a notice of prob-able violation under § 107.311, the re-spondent may submit to the officialwho issued the notice, written expla-nations, information, or arguments inresponse to the allegations, the termsof a proposed compliance order, or theamount of the preliminarily assessedcivil penalty.

(b) The respondent may include in hisinformal response a request for a con-ference. Upon the request of the re-spondent, the conference may be eitherin person or by telephone. A request fora conference must set forth the issuesthe respondent will raise at the con-ference.

(c) Upon receipt of a request for aconference under paragraph (b) of thissection, the Chief Counsel’s Office, inconsultation with the Associate Ad-ministrator for Hazardous MaterialsSafety, arranges for a conference assoon as practicable at a time and placeof mutual convenience.

(d) The respondent’s written expla-nations, information, and arguments aswell as the respondent’s presentationat a conference are considered by theChief Counsel in reviewing the noticeof probable violation. Based upon a re-view of the proceeding, the Chief Coun-sel may dismiss the notice of probableviolation in whole or in part. If he doesnot dismiss it in whole, he issues anorder directing compliance or assessinga civil penalty, or, if proposed in thenotice, both.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended by Amdt. 107–23, 56 FR 66157, Dec.20, 1991]

§ 107.319 Request for a hearing.

(a) In responding to a notice of prob-able violation under § 107.311, the re-spondent may request a formal admin-istrative hearing on the record beforean Administrative Law Judge (ALJ)obtained by the Office of the ChiefCounsel.

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

(1) State the name and address of therespondent and of the person submit-ting the request if different from therespondent;


34

49 CFR Ch. I (10–1–98 Edition)§ 107.321

(2) State which allegations of viola-tions, if any, are admitted; and

(3) State generally the issues to beraised by the respondent at the hear-ing. Issues not raised in the request arenot barred from presentation at thehearing; and

(4) Be addressed to the official whoissued the notice.

(c) After a request for a hearing thatcomplies with the requirements ofparagraph (b) of this section, the ChiefCounsel obtains an ALJ to preside overthe hearing and notifies the respondentof this fact. Upon assignment of anALJ, further matters in the proceedinggenerally are conducted by andthrough the ALJ, except that the ChiefCounsel and respondent may com-promise or settle the case under§ 107.327 of this subpart without order ofthe ALJ or voluntarily dismiss thecase under Rule 41(a)(1) of the FederalRules of Civil Procedure without orderof the ALJ; in the event of such a com-promise, settlement or dismissal, theChief Counsel expeditiously will notifythe ALJ thereof.

(d) At any time after requesting aformal administrative hearing butprior to the issuance of a decision andfinal order by the ALJ, the respondentmay withdraw such request in writing,thereby terminating the jurisdicationof the ALJ in the case. Such a with-drawal constitutes an irrevocable waiv-er of respondent’s right to such a hear-ing on the facts, allegations, and pro-posed sanction presented in the noticeof probable violation to which the re-quest for hearing relates.

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

§ 107.321 Hearing.

(a) To the extent practicable, thehearing is held in the general vicinityof the place where the alleged violationoccurred or at a place convenient tothe respondent. Testimony by wit-nesses shall be given under oath andthe hearing shall be recorded verbatim.

(b) Hearings are conducted in accord-ance with the Federal Rules of Evi-dence and Federal Rules of Civil Proce-dure; however, the ALJ may modifythem as he determines necessary in the

interest of a full development of thefacts. In addition, the ALJ may:

(1) Administer oaths and affirma-tions;

(2) Issue subpoenas as provided by§ 107.13;

(3) Adopt procedures for the submis-sion of motions, evidence, and otherdocuments pertinent to the proceeding;

(4) Take or cause depositions to betaken;

(5) Rule on offers of proof and receiverelevant evidence;

(6) Examine witnesses at the hearing;(7) Convene, recess, reconvene, ad-

journ and otherwise regulate thecourse of the hearing;

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

(9) Take any other action authorizedby, or consistent with, the provisionsof this subpart and permitted by lawwhich may expedite the hearing or aidin the disposition of an issue raisedtherein.

(c) The official who issued the noticeof probable violation, or his representa-tive, has the burden of proving thefacts alleged therein.

(d) The respondent may appear andbe heard on his own behalf or throughcounsel of his choice. The respondentor his counsel may offer relevant infor-mation including testimony which hebelieves should be considered in opposi-tion to the allegations or which maybear on the sanction being sought andconduct such cross-examination asmay be required for a full disclosure ofthe facts.

§ 107.323 ALJ’s decision.

(a) After consideration of all mattersof record in the proceeding, the ALJshall issue an order dismissing the no-tice of probable violation in whole or inpart or granting the sanction sought bythe Office of Chief Counsel in the no-tice. If the ALJ does not dismiss thenotice of probable violation in whole,he issues an order directing complianceor assessing a civil penalty, or, if pro-posed in the notice, both. The order in-cludes a statement of the findings andconclusions, and the reasons therefore,on all material issues of fact, law, anddiscretion.


35


(b) If, within 20 days of receipt of anorder issued under paragraph (a) of thissection, the respondent does not sub-mit in writing his acceptance of theterms of an order directing compliance,or, where appropriate, pay a civil pen-alty, or file an appeal under § 107.325,the case may be referred to the Attor-ney General with a request that an ac-tion be brought in the appropriateUnited States District Court to enforcethe terms of a compliance order or col-lect the civil penalty.

§ 107.325 Appeals.(a) Hearing proceedings. A party ag-

grieved by an ALJ’s decision and orderissued under § 107.323, may file a writ-ten appeal in accordance with para-graph (c) of this section with the Ad-ministrator, Research and Special Pro-grams Administration (RSPA), 400 Sev-enth Street, SW., Washington, DC20590–0001.

(b) Non-Hearing proceedings. A re-spondent aggrieved by an order issuedunder § 107.317, may file a written ap-peal in accordance with paragraph (c)of this section with the Administrator,RSPA, 400 Seventh Street, SW., Wash-ington, DC 20590–0001.

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

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

(2) State with particularity the find-ings in the order that the appealingparty challenges, and include all infor-mation and arguments pertinent there-to.

(d) If the Administrator, RSPA, af-firms the order in whole or in part, therespondent must comply with theterms of the decision within 20 days ofthe respondent’s receipt thereof, orwithin the time prescribed in the order.If the respondent does not comply withthe terms of the decision within 20days of receipt, or within the time pre-scribed in the order, the case may bereferred to the Attorney General foraction to enforce the terms of the deci-sion.

(e) The filing of an appeal stays theeffectiveness of an order issued under§ 107.317 or § 107.323. However, if the Ad-ministrator, RSPA, determines that itis in the public interest, he may keep

an order directing compliance in forcepending appeal.

[][Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended at 50 FR 45730, Nov. 1, 1985; Amdt.107–22, 55 FR 39978, Oct. 1, 1990]

§ 107.327 Compromise and settlement.

(a) At any time before an orderissued under § 107.317 or § 107.323 is re-ferred to the Attorney General for en-forcement, the respondent or the Officeof Chief Counsel may propose a com-promise as follows:

(1) In civil penalty cases, the re-spondent or Chief Counsel may offer tocompromise the amount of the penaltyby submitting an offer for a specificamount to the other party. An offer ofcompromise by the respondent shall besubmitted to the Chief Counsel whomay, after consultation with AssociateAdministrator for Hazardous MaterialsSafety, accept or reject it.

(i) A compromise offer stays the run-ning of any response period then out-standing.

(ii) If a compromise is agreed to bythe parties, the respondent is notifiedin writing. Upon receipt of payment byOffice of Chief Counsel, the respondentis notified in writing that acceptanceof payment is in full satisfaction of thecivil penalty proposed or assessed, andOffice of Chief Counsel closes the casewith prejudice to the respondent.

(iii) If a compromise cannot beagreed to, the respondent is notified inwriting and is given 10 days or theamount of time remaining in the thenoutstanding response period, whicheveris longer, to respond to whatever ac-tion was taken by the Office of ChiefCounsel or the Administrator, RSPA.

(2) In compliance order cases, the re-spondent may propose a consent agree-ment to the Chief Counsel. If the ChiefCounsel accepts the agreement, heissues an order in accordance with itsterms. If the Chief Counsel rejects theagreement, he directs that the proceed-ing continue. An agreement submittedto the Chief Counsel must include:

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

(ii) The reasons why the terms of acompliance order or proposed compli-ance order are or would be too burden-some for the respondent, or why such


36

49 CFR Ch. I (10–1–98 Edition)§ 107.329

terms are not supported by the recordin the case;

(iii) A proposed compliance ordersuitable for issuance by the ChiefCounsel;

(iv) An admission of all jurisdictionalfacts; and

(v) An express waiver of further pro-cedural steps and all right to seek judi-cial review or otherwise challenge orcontest the validity of the order.

(b) Notwithstanding paragraph (a)(1)of this section, the respondent or Officeof Chief Counsel may propose to settlethe case. If the Chief Counsel agrees toa settlement, the respondent is notifiedand the case is closed without preju-dice to the respondent.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended 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]

§ 107.329 Maximum penalties.

(a) A person who knowingly violatesa requirement of the Federal hazardousmaterial transportation law, an orderissued thereunder, this subchapter,subchapter C of this chapter, or an ex-emption issued under this subchapterapplicable to the transporting of haz-ardous materials or the causing ofthem to be transported or shipped isliable for a civil penalty of not morethan $25,000 ($27,500 for a violation oc-curring after January 21, 1997) and notless than $250 for each violation. Whenthe violation is a continuing one, eachday of the violation constitutes a sepa-rate offense.

(b) A person who knowingly violatesa requirement of the Federal hazardousmaterial transportation law, and orderissued thereunder, this subchapter,subchapter C of this chapter, or an ex-emption issued under this subchapterapplicable to the manufacture, fabrica-tion, marking, maintenance, recondi-tioning, repair, or testing of a packag-ing or container which is represented,marked, certified or sold by that per-son as being qualified for use in thetransportation of hazardous materialsin commerce is liable for a civil pen-alty of not more than $25,000 ($27,500 fora violation occurring after January 21,

1997) and not less than $250 for eachviolation.

[Amdt. 107–24, 56 FR 8624, Feb. 28, 1991, asamended by Amdt. 107–32, 59 FR 49131, Sept.26, 1994; Amdt. 17–40, 62 FR 2971, Jan. 21, 1997]

§ 107.331 Assessment considerations.After finding a knowing violation

under this subpart, the Office of ChiefCounsel assesses a civil penalty takingthe following into account:

(a) The nature and circumstances ofthe violation;

(b) The extent and gravity of the vio-lation;

(c) The degree of the respondent’sculpability;

(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, asamended by Amdt. 107–30, 58 FR 50500, Sept.27, 1993; Amdt. 107–38, 61 FR 21100, May 9,1996]

CRIMINAL PENALTIES

§ 107.333 Criminal penalties generally.A person who knowingly violates

§ 171.2(g) or willfully violates a provi-sion of the Federal hazardous materialtransportation law or an order or regu-lation issued thereunder shall be finedunder title 18, United States Code, orimprisoned for not more than 5 years,or both.

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

§ 107.335 Referral for prosecution.If the Associate Administrator for

Hazardous Materials Safety becomesaware of a possible willful violation ofthe Federal hazardous material trans-portation law, this subchapter, sub-chapter C of this chapter, or any ex-emption, or order issued thereunder,for which the Associate Administratorfor Hazardous Materials Safety exer-cises enforcement responsibility, itshall report it to the Office of the ChiefCounsel, Research and Special Pro-grams Administration, U.S. Depart-ment of Transportation, Washington,DC 20590–0001. If appropriate, the Chief


37

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

Counsel refers the report to the De-partment of Justice for criminal pros-ecution of the offender.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended by Amdt. 107–22, 55 FR 39978, Oct. 1,1990; Amdt. 107–24, 56 FR 8621, Feb. 28, 1991; 56FR 15510, Apr. 17, 1991; Amdt. 107–32, 59 FR49131, Sept. 26, 1994; Amdt. 107–35, 60 FR 49108,Sept. 21, 1995]

§ 107.336 Limitation on fines and pen-alties.

If a State or political subdivision orIndian tribe assesses any fine or pen-alty determined by the Secretary to beappropriate for a violation concerninga subject listed in § 107.202(a), no addi-tional fine or penalty may be assessedfor such violation by any other author-ity.

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

INJUNCTIVE ACTION

§ 107.337 Injunctions generally.

Whenever it appears to the Office ofChief Counsel that a person has en-gaged, or is engaged, or is about to en-gage in any act or practice constitut-ing a violation of any provision of theFederal hazardous material transpor-tation law, this subchapter, subchapterC of this chapter, or any exemption, ororder issued thereunder, for which theOffice of Chief Counsel exercises en-forcement responsibility, the Adminis-trator, RSPA, or his delegate, may re-quest the Attorney General to bring anaction in the appropriate United StatesDistrict Court for such relief as is nec-essary or appropriate, including man-datory 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, asamended by Amdt. 107–32, 59 FR 49131, Sept.26, 1994]

§ 107.339 Imminent hazards.Whenever it appears to the Office of

the Chief Counsel that there is a sub-stantial likelihood that death, seriousillness, or severe personal injury willresult from the transportation of a par-ticular hazardous material or hazard-ous materials container, before a com-pliance order proceeding or other ad-ministrative hearing or formal pro-ceeding to abate the risk of that harmcan be completed, the Administrator,RSPA, or his delegate, may bring anaction under 49 U.S.C. 5122(b) in the ap-propriate United States District Courtfor an order suspending or restrictingthe transporation of that hazardousmaterial or those containers or forsuch other equitable relief as is nec-essary or appropriate to ameliorate thehazard.

[Amdt. 107–11, 48 FR 2651, Jan. 20, 1983, asamended 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 PART107—GUIDELINES FOR CIVIL PENALTIES

I. This appendix sets forth the guidelinesused by the Office of Hazardous MaterialsSafety (as of January 18, 1995) in making ini-tial baseline determinations for recommend-ing civil penalties. The first part of theseguidelines is a list of baseline amounts orranges for probable violations frequentlycited in enforcement reports referred for ac-tion. Following the list of violations are gen-eral guidelines used by OHMS in making ini-tial penalty determinations in enforcementcases.

II. LIST OF FREQUENTLY CITED VIOLATIONS

Violation description Section or cite Baseline assessment

PART 107—REQUIREMENTS

Failure to register as a carrier or shipper of hazardous material .......................... 107.608 ..................... $1,000 +, $500 eachadd’l year.


Failure to give immediate telephone notice of a reportable hazardous materialsincident.

171.15 ....................... $3,000.

Failure to file a DOT 5800.1 Hazardous Materials Incident Report within 30days following an unintentional release of hazardous materials in transpor-tation.

171.16 ....................... $500 to $2,500.


38

49 CFR Ch. I (10–1–98 Edition)Pt. 107, Subpt. D, App. A



Shipping Papers (§ 172.200—172.205):Failure to execute a shipping paper for a shipment of hazardous materials 172.201 ..................... $3,000 to $6,000.Failure to follow one or more of the three approved formats for listing haz-

ardous materials on a shipping paper.172.201(a)(1) ............. $1,200.

Failure to include a proper shipping name in the shipping description orusing an incorrect proper shipping name.

172.202 ..................... $800 to $1,600.

Failure to include a hazard class/division number in the shipping descrip-tion.

172.202 ..................... $1,000 to $2,000.

Using an incorrect hazard class/identification number ................................... 172.202.—that does not affect compatibility requirements ................................... ............................... $800,—that affects compatibility requirements ................................................ ............................... $3,000 to $6,000.

Failure to include an identification number in the shipping description ......... 172.202 ..................... $1,000 to $2,000.Using an incorrect identification number ........................................................ 172.202.

—that does not change the response information .................................. ............................... $800,—that changes the response information ............................................... ............................... $3,000 to $6,000.

Using a shipping description that includes additional unauthorized informa-tion (extra or incorrect words).

172.202 ..................... $800.

Using a shipping description not in required sequence ................................. 172.202 ..................... $500.Using a shipping description with two or more required elements missing

or incorrect.172.202 .....................

—such that the material is misdescribed ................................................ ............................... $3,000.—such that the material is misclassified ................................................. ............................... $6,000.

Failure to include the total quantity of hazardous material covered by ashipping description.

172.202(c) ................. $400.

The letters ‘‘RQ’’ are not used in the shipping description to identify mate-rials that are hazardous substances.

172.203(c)(2) ............. $500.

Using a shipping description for Class 7 (radioactive) material that fails tocontain the required additional entries, or contains incorrect informationfor these additional entries.

172.203(d) ................. $2,000 to $4,000.

Failure to include a required technical name in parentheses for a listed ge-neric or ‘‘nos’’ material.

172.203(k) ................. $1,000.

Failure to list an exemption number in association with the shipping de-scription.

172.203(a) ................. $800.

Failure to include the required shipper’s certification on a shipping paper ... 172.204(a) ................. $1,000.Failure to execute the required shipper’s certification on a shipping paper .. 172.204 ..................... $800.

Emergency Response Information Requirements (§ 172.600—172.604):Providing or listing incorrect emergency response information with or on a

shipping paper.172.602.

—no significant difference in response ................................................... ............................... $800,—significant difference in response ........................................................ ............................... $3,000 to $6,000.

Failure to include an emergency response telephone number on a shippingpaper.

172.604 ..................... $2,600.

Failure to have the emergency response telephone number monitoredwhile a hazardous material is in transportation or listing multiple tele-phone numbers (without specifying the times for each) that are not mon-itored 24 hours a day.

172.604 ..................... $1,300.

Listing a fraudulent emergency response telephone number on a shippingpaper.

172.604 ..................... $2,600 to $4,200.

Listing an incorrect or non-working emergency response telephone numberon a shipping paper.

172.604 ..................... $1,300.

Failure to provide required technical information when the listed emergencyresponse telephone number is contacted.

172.604 ..................... $1,300.

Package Marking Requirements (§ 172.300—172.338):Failure to mark the proper shipping name on a package or marking an in-

correct shipping name on a package.172.301(a) ................. $800 to $1,600.

Failure to mark the identification number on a package ................................ 172.301(a) ................. $1,000 to $2,000.Marking a package with an incorrect identification number ........................... 172.301(a).

—that does not change the response information .................................. ............................... $800,—that changes the response information ............................................... ............................... $3,000 to $6,000.

Failure to mark the proper shipping name and identification number on apackage.

172.301(a) ................. $3,000 to $6,000.

Marking a package with an incorrect shipping name and identification num-ber.

172.301(a).

—that does not change the response information .................................. ............................... $1,500 to $3,000.—that changes the response information ............................................... ............................... $3,000 to $6,000.

Failure to include the required technical name(s) in parentheses for a listedgeneric or ‘‘no’’ entry.

172.301(c) ................. $1,000.

Failure to mark a package containing liquid hazardous materials with re-quired orientation marks.

172.312 ..................... $2,500 to $3,500.

Package Labeling Requirements (§ 172.400–172.450):Failure to label a package. ............................................................................. 172.400 ..................... $5,000.Placing a label that represents a hazard other than the hazard presented

by the hazardous material in the package..172.400 ..................... $5,000.


39



Placing a label on a package that does not contain a hazardous material. .. 172.401(a) ................. $800.Placing a label on Class 7 (radioactive) material that understates the prop-

er label category..172.403 ..................... $5,000.

Placing a label on Class 7 (radioactive) material that fails to contain, or haserroneous, entries for the name of the radionuclide(s), activity, and trans-port index..

172.403(g) ................. $2,000 to $4,000.

Placing a label not conforming to size requirements on a package. ............. 172.407(c) ................. $800.Placing a label on a different surface of the package than, or far away

from, the proper shipping name..172.406(a) ................. $800.

Placing a label that does not meet color specification requirements on apackage (depending on the variance)..

172.407(d) ................. $600 to $2,500.

Failure to place a required subsidiary label on a package. ........................... 172.402 ..................... $500 to $2,500.Failure to provide an appropriate class or division number on a label. ......... 172.411 ..................... $2,500.

Placarding Requirements (§ 172.500–172.560):Failure to properly placard a freight container or vehicle containing hazard-

ous materials when table 1 is applicable..172.504 ..................... $1,000 to $9,000.

Failure to properly placard a freight container or vehicle containing hazard-ous materials when table 2 is applicable..

172.504 ..................... $800 to $7,500.

Training Requirements (§ 172.700–172.704):Failure to train hazmat employees in the three required areas of training .... 172.702 .....................

—more than 10 hazmat employees. ....................................................... .................................... $2,400 and up.—10 hazmat employees or less. ............................................................. .................................... $1,500 and up.

Failure to train hazmat employees in any one of the three required areasof training.

172.702 .....................

—more than 10 hazmat employees. ....................................................... .................................... $800 and up.—10 hazmat employees or less. ............................................................. .................................... $500 and up.

Failure to maintain training records ................................................................ 172.704.—more than 10 hazmat employees. ....................................................... .................................... 800 and up.—10 hazmat employees or less. ............................................................. .................................... $500 and up.


Overpack Requirements (§ 173.25)Failure to mark an overpack with a statement indicating that the inside

packages comply with prescribed specifications when specification pack-aging is required..

173.25(a)(4) ............... $3,000.

Reconditioner Requirements (§173.28):Representing, marking, or certifying a drum as a reconditioned UN stand-

ard packaging, when the drum did not meet a UN standard..173.28(c) & (d) .......... $6,000 to $10,800.

Marking an incorrect registration number on a reconditioned packaging ...... 173.28(b)(2)(ii) ...........—incorrect number. ................................................................................. .................................... $800.—fraudulent use of another reconditioner’s number. .............................. .................................... $7,200.

Failure to properly conduct alternate leakage test ......................................... 173.28(b)(2)(i) ...........—improper test. ....................................................................................... .................................... $2,000.—no test at all. ........................................................................................ .................................... $4,000.

Representing, marking, or certifying a drum as altered from one standardto another, when the drum had not actually been altered..

173.28(d) ................... $500.

Portable and IM Tank Requirements (§§173.32(e), 173.32c, 173.315)Offering hazardous materials for transportation in a DOT specification or

exemption portable tank which is out of test..173.32(a)(1),

173.315(a), Appli-cable Exemption.

$3,500 to $7,000.

Offering an IM portable tank for transportation that has not beenhydrostatically tested within the last 21⁄2 years per 173.32b(a)..

173.32c(c) ................. $3,500.

Offering an IM portable tank for transportation that has not been visuallyinspected in last five years per 173.32b(b)..

173.32c(c) ................. $3,500.

Offering an IM portable tank for transportation that has not been visually orhydrostatically tested as required, or failing to remove the safety reliefvalves during testing..

173.32c(c) ................. $7,000.

Offering a hazardous material for transportation in an IM portable tankequipped with bottom outlets, when the material contained is prohibitedfrom being offered in this type of packaging.

173.32c(g) .................

—Packing Group II. ................................................................................. .................................... $7,000.—Packing Group III. ................................................................................ .................................... $5,000.

Failure to provide the required outage for a shipment of hazardous mate-rials, that results in the release of hazardous materials..

173.32c(k) ................. $6,000 to $12,000.

Offering a hazardous material for transportation in an DOT, exemption, orIM portable tank which fails to bear markings that it has been properlyretested..

173.32(e)(3),173.32b(d).

$3,000.

Cylinder Retesters (§§173.23, 173.34, and 173.302):Failure to remark as DOT 3AL an aluminum cylinder manufactured under a

former exemption..173.23(c) ................... $600.

Certifying or marking as retested a nonspecification cylinder ....................... 173.34 ....................... $800.Marking a cylinder in or on the sidewall area when not permitted by the ap-

plicable specification.173.34(c)(1) ............... $6,000 to $10,800.


40



Failure to maintain legible markings on a cylinder ......................................... 173.34(c) ................... $800.Failure to perform hydrostatic retesting at the minimum of 5/3 times the

service pressure, or at the minimum specified test pressure.173.34(e) ................... $2,100 to $5,200.

Failure to conduct a complete visual external and internal examination ....... 173.34(e)(3) ............... $2,100 to $5,200.Failure to have a retester’s identification number (RIN) ................................ 173.34(e)(2)(i) ........... $4,000.Failure to have current authority due to failure to renew a retester’s identi-

fication number.173.34)(e)(2)(i) .......... $2,000.

Failure to have a retester’s identification number and marking another RINon a cylinder.

173.34(e)(2)(i) ........... $7,200.

Marking a RIN before successfully completing a hydrostatic retest .............. 173.34(e)(1)(ii) ........... $800.Requalifying a DOT cylinder without performing the visual inspection or hy-

drostatic retest.173.34(e)(1)(ii) ........... $4,200 to $10,400.

Performing hydrostatic retesting without demonstrating the accuracy of thetesting equipment.

173.34(e)(4) ............... $2,100 to $5,200.

Failure to hold hydrostatic test pressure for 30 seconds or sufficientlylonger to allow for complete expansion.

173.34(e)(4) ............... $3,100.

Failure to perform a second retest, after equipment failure, at a pressure of10% more or 100 psi more, whichever is less (includes exceeding 90%of test pressure prior to conducting a retest).

173.34(e)(4) ............... $3,100.

Failure to condemn a cylinder with permanent expansion of 10% or greater(5% for certain exemption cylinders); failure to condemn cylinders withevidence of internal or external corrosion, denting, bulging, or roughusage.

173.34(e)(6) ............... $10,000.

Marking an FRP cylinder with steel stamps in the FRP area of the cylindersuch that the integrity of the cylinder is compromised.

Applicable Exemption $6,000 to $10,800.

Failure to keep complete and accurate records of cylinder reinspection andretest.

—No records kept ................................................................................... .................................... $4,000.—Incomplete or inaccurate records ........................................................ 173.34(e)(8) ............... $1,000 to $3,000.

Improper marking of the RIN or retest date on a cylinder ............................. 173.34(e)(7) ............... $800Marking a DOT 3HT cylinder with a steel stamp other than a low-stress

steel stamp.173.34(e)(15) ............. $6,000 to $10,800.

Marking a ‘‘+’’ sign on a cylinder without determining the average or maxi-mum wall stress, by calculation or reference to CGA Pamphlet C–5.

173.302(c)(3) ............. $3,000 to $4,000.

Representing, marking, or certifying a cylinder as meeting the requirementsof an exemption, when the cylinder was not maintained or retested in ac-cordance with the exemption.

171.2(c), ApplicableExemption.

$2,000 to $6,000.

Rebuilder Requirements (§173.34):Representing a DOT–4 series cylinder as meeting the requirements of the

Hazardous Materials Regulations without being authorized to do so bythe Associate Administrator for Hazardous Materials Safety.

173.34(l) .................... $6,000 to $10,800.

Offeror Requirements (General):Offering a hazardous material for transportation in an unauthorized non-UN

standard or nonspecification packaging (includes the failure to complywith the terms of an exemption authorizing the use of a nonstandard ornonspecification packaging).

Various ......................

—Packing Group I (includes §172 504 table 1 materials) ...................... .................................... $9,000.—Packing Group II .................................................................................. .................................... $7,000.—Packing Group III ................................................................................. .................................... $5,000.

Offering a hazardous material for transportation in a packaging that hassuccessfully been tested to an applicable UN standard, but is notmarked with the required UN marking.

178.3(a), 178.503(a) $3,600.

Offering a hazardous material for transportation in a packaging that leaksduring conditions normally incident to transportation.

173.24(b) ...................

—Packing Group I (includes §172.504 table 2 materials) ...................... .................................... $12,000.—Packing Group II .................................................................................. .................................... $9,000.—Packing Group III ................................................................................. .................................... $6,000.

Overfilling a package so that the effectiveness is substantially reduced ...... 173.24(b) ...................—Packing Group I (includes §172.504 table 1 materials) ...................... .................................... $9,000.—Packing Group II .................................................................................. .................................... $6,000.—Packing Group III ................................................................................. .................................... $3,000.

Offering a hazardous material for transportation after October 1, 1996, inan unauthorized non-UN standard packaging marked as manufactured toa DOT specification.

171.14 .......................

—packaging meets DOT specification .................................................... .................................... $3,000.—packaging does not meet DOT specification ....................................... .................................... $5,000 to $9,000.

Offeror Requirements (Class 1—Explosives):Failing to mark the ‘‘EX’’ approval number on a package containing an ex-

plosive.172.320 ..................... $1,200.

Offering an unapproved explosive for transportation ..................................... 173.54 and 173.56(b)—Div 1.3 & 1.4 fireworks meeting the chemistry requirements (both

quantity and type) of APA Standard 87–1..................................... $5,0000 to $10,000.

—all other explosives (including forbidden explosives) .......................... .................................... $10,000 to $27,500.Offering a leaking or damaged package of explosives for transportation ..... 173.54(c) ................... $10,000 to $27,500.


41



Offeror Requirements (Class 7—Radioactive Materials):Offering a DOT specification 7A packaging without maintaining complete

documentation of tests and an engineering evaluation or comparativedata.

173.415(a), 173.461 ..

—tests and evaluation not performed ..................................................... .................................... $8,400.—complete records not maintained ........................................................ .................................... $2,000 to $5,000.

Offering a Type B packaging without holding a valid NRC approval certifi-cate.

173.471(a) .................

—never having obtained one .................................................................. .................................... $2,500.—holding an expired certificate ............................................................... .................................... $1,000.

Offering a limited quantity of radioactive materials without marking theinner (or single) packaging ‘‘Radioactive.’’

177.421(d) ................. $5,000 and up.

Offering low specific activity (LSA) radioactive materials consigned as ex-clusive use without providing instructions for maintenance of exclusiveuse shipment controls.

173.427(a)(6) ............. $800.

Offering a package that exceeds the permitted limits for surface radiationor transport index.

173.441 ..................... $10,000 and up.

Offering a package without determining the level of removable externalcontamination, or that exceeds the limit for removable external contami-nation.

173.443 ..................... $5,000 and up.

Storing packages of radioactive material in a group with a total transportindex more than 50.

173.447(a) ................. $5,000 and up.

Offering special form radioactive materials without maintaining a completesafety analysis or Certificate of Competent Authority.

173.476(a) & (b) ........ $2,500.

Offeror Requirements (Cylinders):Offering a compressed gas for transportation in a cylinder that is out of test 173.301(c) ................. $4,200 to $10,400.Failure to check each day the pressure of a cylinder charged with acety-

lene that is representative of that day’s compression, after the cylinderhas cooled to a settled temperature, or failure to keep a record of thistest for at least 30 days.

173.303(d) ................. $5,000.

Offering a limited quantity of a compressed gas in a metal container for thepurpose of propelling a nonpoisonous material and failing to heat the cyl-inder until the pressure is equivalent to the equilibrium pressure at 130°F, without evidence of leakage, distortion, or other defect.

173.306(a)(3), (h) ...... $1,500 to $6,000.


Third-Party Packaging Certifiers (General):Issuing a certification that directs the packaging manufacturer to improperly

mark a packaging (e.g., steel drum to be marked UN 4G).1171.2(e), 1178.2(b),

178.3(a),178.503(a).

$500 per item.

Manufacturers (General):Failure to insure a packaging certified as meeting the UN standard is capa-

ble of passing the required performance testing.178.601(b) .................

—Packing Group I (includes § 172.504 table 1 materials) ..................... .................................... $10,800.—Packing Group II .................................................................................. .................................... $8,400.—Packing Group III ................................................................................. .................................... $6,000.

Certifying a packaging as meeting a UN standard when design qualificationtesting was not performed.

178.601(d) .................

—Packing Group I (includes §172 504 table 2 materials) ...................... .................................... $10,800.—Packing Group II .................................................................................. .................................... $8,400.—Packing Group III ................................................................................. .................................... $6,000.

Failure to conduct periodic retesting on UN standard packaging (dependingon length of time and Packing Group).

178.601(e) ................. $2,000 to $10,800.

Failure to properly conduct testing for UN standard packaging (e.g., testingwith less weight than marked on packaging; drop testing from lesserheight than required; failing to condition fiberboard boxes before designtest).

....................................

—design qualification testing ................................................................... 178.601(d) ................. $2,000 to $10,800.—periodic retesting .................................................................................. 178.601(e) ................. $500 to $10,800.

Marking, or causing the marking of, a packaging with the symbol of a man-ufacturer or packaging certifier other than the company that actuallymanufactured or certified the packaging.

178.2(b), 178.3(a),178.503(a)(8).

$7,200.

Failure to maintain testing records ................................................................. 178.601(1) .................—design qualification testing ................................................................... .................................... $1,000 to $5,000.—periodic retesting .................................................................................. .................................... $500 to $2,000.

Improper marking of UN certification .............................................................. 178.503 ..................... $500 per item.Manufacturing DOT specification packaging after October 1, 1994 that is

not marked as meeting a UN performance standard.171.14

—if packaging does meet DOT specification .......................................... .................................... $3,000.—if packaging does not meet DOT specification .................................... .................................... $6,000 to $10,800.

Manufacturing Requirements—DrumsFailure to properly conduct production leakproofness test ............................ 178.604(b)(1)

—improper testing ................................................................................... 173.28 ....................... $2,000.


42



—no testing performed ............................................................................ .................................... $2,000 to $10,800.Manufacturing Requirements—Cylinders

Manufacturing, representing, marking, certifying, or selling a DOT high-pressure cylinder that was not inspected and verified by an approvedindependent inspection agency.

Various ...................... $7,500 to $15,000.

Failure to have a registration number or failure to mark the registrationnumber on the cylinder.

Various ...................... $800.

Marking another company’s number on a cylinder ........................................ Various ...................... $7,200.Failure to mark the date of manufacture or lot number on a DOT–39 cyl-

inder.178.65 ....................... $3,000.

Failure to have a chemical analysis performed in the US for a materialmanufactured outside the US/failure to obtain a chemical analysis fromthe foreign manufacturer.

Various ...................... $5,000.

Failure to meet wall thickness requirements .................................................. Various ...................... $7,500 to $15,000.Failure to heat treat cylinders prior to testing ................................................ Various ...................... $5,000 to $15,000.Failure to conduct a complete visual internal examination ............................ Various ...................... $2,500 to $6,200.Failure to conduct a hydrostatic test, or conducting a hydrostatic test with

inaccurate test equipment.Various ...................... $2,500 to $6,200.

Failure to conduct a flattening test ................................................................. Various ...................... $7,500 to $15,000.Failure to conduct a burst test on a DOT–39 cylinder ................................... 178.65–11 ................. $5,000 to $15,000.Failure to have inspections and verifications performed by an inspector ...... Various ...................... $7,500 to $15,000.Failure to maintain a required inspector’s reports .......................................... Various ......................

—no reports at all .................................................................................... .................................... $5,000.—incomplete or inaccurate reports ......................................................... .................................... $1,000 to $4,000.

Other Requirements

Carrier Requirements:Transporting packages of hazardous materials that have not been secured

against movement within the vehicle.177.834(a) & (g) ........ $3,000.

Transporting explosives in a motor vehicle containing metal or other arti-cles or materials likely to damage such explosives or any package inwhich they are contained, without segregating in different parts of theload or securing them in place in or on the motor vehicle and separatedby bulkheads or other suitable means to prevent such damage.

177.835(i) .................. $5,200.

Transporting railway track torpedoes outside of flagging kits, in violation ofE–7991.

171.2(b) ..................... $7,000.

Transporting Class 7 (radioactive) material having a total transport indexmore than 50.

177.842(a) ................. $5,000 and up.

Transporting Class 7 (radioactive) material without maintaining the requiredseparation distance.

177.842(b) ................. $5,000 and up.

Failing to comply with requirements of an exemption authorizing the trans-portation of Class 7 (radioactive) material having a total transport indexmore than 50.

171.2(b) .....................

—failure to have the radiation survey record required by ¶¶ 7(f),8(b)(3).

.................................... $5,000.

—failure to have other accompanying documents required by ¶ 8(b) ... .................................... $500 each.—other violations of ¶¶ 7 and 8 .............................................................. .................................... $5,000 and up.

Exemptions:Offering or transporting hazardous materials, or otherwise performing a

function, covered by an exemption after expiration of the exemption.171.2(a), (b), (c), Var-

ious.$1,000 + $500 each

add’l year.

III. CONSIDERATION OF STATUTORY CRITERIA

A. These guidelines are used by the Officeof Hazardous Materials Safety (OHMS) insetting initial proposed penalties for hazmatviolations. They indicate baseline amountsor ranges for probable violations frequentlycited in enforcement reports and set forthgeneral OHMS policy for considering statu-tory criteria.

B. The initial baseline determination par-tially considers the nature, extent, cir-cumstances, and gravity of the alleged viola-tion. That determination then is adjusted toconsider all other evidence concerning thenature, extent, circumstances, and gravity ofthe alleged violation; degree of culpability;

history of prior violations; ability to pay; ef-fect of the penalty on ability to continue todo business; and such other matters as jus-tice may require (a major component ofwhich is corrective action taken by a re-spondent to prevent a recurrence of similarviolations). In making a penalty rec-ommendation, the baseline or range may beincreased or decreased on the basis of evi-dence pertaining to these factors.

C. The following miscellaneous factors areused to implement one or more of the statu-tory assessment criteria.


43


IV. MISCELLANEOUS FACTORS AFFECTINGPENALTY AMOUNTS

A. Corrective Action

1. A proposed penalty is mitigated for doc-umented corrective action of alleged viola-tions taken by a respondent. Corrective ac-tion may occur: (1) After an inspection andbefore a Notice of Probable Violation(NOPV) is issued; (2) on receipt of an NOPV;or (3) after receipt of an NOPV (possiblyafter it is solicited by an RSPA attorney). Ingeneral, corrective action may reduce a pen-alty up to 25%. Mitigation may be taken intoaccount in the referral memo or may be rec-ommended prior to issuance of an Order byRSPA’s Chief Counsel.

2. The two primary factors in determiningthe penalty reduction are extent and timingof the corrective action. In other words,mitigation will be determined on the basis ofhow much corrective action was taken andwhen it was taken. Systemic action to pre-vent future violations is given greater con-sideration than action simply to remedy vio-lations identified during the inspection.

3. Mitigation is applied to individual viola-tions. Thus, in a case with two violations, ifcorrective action for the first violation ismore extensive than for the second, the pen-alty for the first will be mitigated more thanthat for the second.

B. Respondents That Re-Ship

A shipper that reships materials receivedfrom another company, in the same packag-ing and without opening or altering thepackage, independently is responsible for en-suring that the shipment complies with Fed-eral hazmat law, and independently may besubject to enforcement action if the packagedoes not comply. Nevertheless, the reshipperis considered to have a lesser level of respon-sibility for compliance in those respects inwhich it reasonably relies on the complianceof the package as received. In most cases ofthis type, OHMS will discount the applicablebaseline standard by about 25%. The specificknowledge and expertise of all parties mustbe considered in discounting for reliance ona prior shipper. This discount is applied be-fore any consideration of mitigation basedon corrective action.

C. Penalty Increases for Multiple Counts

Under the Federal hazmat law, 49 U.S.C.5213(a), each violation of the HMR and eachday of a continuing violation (except for vio-lations pertaining to packaging manufactureor qualification) is subject to a civil penaltyof up to $25,000 ($25,500 for a violation occur-ring after January 21, 1997). Absent aggravat-ing factors, OHMS, in its exercise of discre-tion, ordinarily will apply a single penaltyfor multiple counts or days of violation. In anumber of cases, particularly those involving

shippers, an inspector may cite two or moresimilar packaging violations for differenthazardous materials. For example, the in-spector may cite the same marking violationfor two or more packages. OHMS usually willconsider those additional violations ascounts of the same violation and will notrecommend multiples of the same baselinepenalty. Rather, OHMS usually will rec-ommend the baseline penalty for a singleviolation, increased by 25% for each addi-tional violation.

D. Financial Considerations

1. Mitigation is appropriate when the base-line penalty would (1) exceed an amount thatthe respondent is able to pay, or (2) have anadverse effect on the respondent’s ability tocontinue in business. These criteria relate toa respondent’s entire business, and not justthe product line or part of its operations in-volved in the violation(s). Beyond the overallfinancial size of the respondent’s business,the relevant items of information on a re-spondent’s balance sheet include the currentratio (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 currentratio close to or below 1.0 means that thecompany may have difficulty in paying alarge penalty, and may justify reduction ofthe penalty or an installment payment plan.A small amount of cash on hand representinglimited liquidity, even with substantialother current assets (such as accounts re-ceivable or inventory), may warrant a short-term payment plan. Respondent’s incomestatement also will be reviewed to determinewhether a payment plan is appropriate.

3. Many companies are able to continue inbusiness for extended periods of time with asmall or negative net worth, and many re-spondents have paid substantial civil pen-alties in installments even though net worthwas negative. For this reason, negative networth alone does not always warrant reduc-tion of a proposed penalty or even, in the ab-sence of factors discussed above, a paymentplan.

4. In general, an installment payment planmay be justified where reduction of a pro-posed penalty is not, but the appropriatenessof either (or both) will depend on the cir-cumstances of the case. The length of a pay-ment plan should be as short as possible, butthe plan may consider seasonal fluctuationsin a company’s income if the company’sbusiness is seasonal (e.g., swimming poolchemical sales, fireworks sales) or if thecompany has documented specific reasonsfor current non-liquidity.

5. Evidence of financial condition is usedonly to decrease a penalty, and not to in-crease it.


44

49 CFR Ch. I (10–1–98 Edition)§ 107.401

E. Penalty Increases for Prior Violations

1. The baseline penalty presumes an ab-sence of prior violations. If prior violationsexist, generally they will serve to increase aproposed penalty. The general standard forincreasing a baseline proposed penalty onthe basis of prior violations is as follows:

a. One prior case—25% increase over the pre-mitigation recommended penalty

b. Two prior cases—50% increase over thepre-mitigation recommended penalty

c. Three prior cases—75% increase over thepre-mitigation recommended penalty

d. Four or more prior cases—100% increaseover the pre-mitigation recommended pen-alty

2. A case of prior violations closed morethan five years previously normally will notbe considered in determining a proposed pen-alty.

F. Penalty Increases for Use of ExpiredExemptions

Adjustments to the base line figures foruse of expired exemptions can be made de-pending on how much material has beenshipped during the period between the expi-ration date and the renewal date. If the com-pany previously has been found to have oper-ated under an expired exemption, the pen-alty is normally doubled. If the company hasbeen previously cited for other violations,the penalty generally will be increased byabout 25%.

[Amdt. 107–33, 60 FR 12141, Mar. 6, 1995, asamended by Amdt. 107–40, 62 FR 2972, 2977,Jan. 21, 1997; 62 FR 51556, Oct. 1, 1997]

Subpart E—Designation of Ap-proval and CertificationAgencies

§ 107.401 Purpose and scope.(a) This subpart establishes proce-

dures for the designation of agencies toissue approval certificates and certifi-cations for types of packagings de-signed, manufactured, tested, or main-tained in conformance with the re-quirements of this subchapter, sub-chapter C of this chapter, and stand-ards set forth in the United Nations(U.N.) Recommendations (Transport ofDangerous Goods). Except for certifi-cations of compliance with U.N. pack-aging standards, this subpart does notapply unless made applicable by a rulein subchapter C of this chapter.

(b) The Associate Administrator forHazardous Materials Safety may issueapproval certificates and certifications

addressed in paragraph (a) of this sec-tion.

[Amdt. 107–31, 50 FR 10062, Mar. 13, 1985, asamended by Amdt. 107–23, 56 FR 66157, Dec.20, 1991]

§ 107.402 Application for designationas an approval or certificationagency.

(a) Any organization or person seek-ing designation as an approval or cer-tification agency shall apply in writingto the Associate Administrator forHazardous Materials Safety (DHM–32),Department of Transportation, 400 Sev-enth Street, SW., Washington DC 20590–0001. Each application must be signedand certified to be correct by the appli-cant or, if the applicant is an organiza-tion, by an authorized officer or offi-cial representative of the organization.Any false statement or representation,or the knowing and willful conceal-ment of a material fact, may subjectthe applicant to prosecution under theprovisions of 18 U.S.C. 1001, result inthe denial or termination of a designa-tion.

(b) Each application for designationmust be in English and include the fol-lowing information:

(1) Name and address of the appli-cant, including place of incorporationif a corporation. In addition, if the ap-plicant is not a resident of the UnitedStates, the name and address of a per-manent resident of the United Statesdesignated in accordance with § 107.7 toserve as agent for service of process.

(2) If the applicant’s principal placeof business is in a country other thanthe United States, a copy of the des-ignation from the Competent Author-ity of that country delegating to theapplicant an approval or designatedagency authority for the type of pack-aging for which a DOT designation issought, and a statement that the Com-petent Authority also delegates similarauthority to U.S. Citizens or organiza-tions having designations under thissubpart from the RSPA.

(3) A listing, by DOT specification (orexemption) number, or U.N. designa-tion, of the types of packagings forwhich approval authority is sought.

(4) A personnel qualifications planlisting the qualifications that the ap-plicant will require of each person to


45


be used in the performance of eachpackaging approval or certificationfunction. As a minimum, these quali-fications must include:

(i) The ability to review and evaluatedesign drawings, design and stress cal-culations;

(ii) A knowledge of the applicableregulations of subchapter C of thischapter and, when applicable, U.N.standards; and

(iii) The ability to conduct or mon-itor and evaluate test procedures andresults; and

(iv) The ability to review and evalu-ate the qualifications of materials andfabrication procedures.

(5) A statement that the applicantwill perform its functions independentof the manufacturers and owners of thepackagings concerned.

(6) A statement that the applicantwill allow the Associate Administratorfor Hazardous Materials Safety or hisrepresentative to inspect its recordsand facilities in so far as they relate tothe approval or certification of speci-fication packagings and shall cooper-ate in the conduct of such inspections.

(c) The applicant shall furnish anyadditional information relevant to theapplicant’s qualifications, if requestedby the Associate Administrator forHazardous Materials Safety.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985; 50FR 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]

§ 107.403 Designation of approvalagencies.

(a) If the Associate Administrator forHazardous Materials Safety determinesthat an application contains all the re-quired information, the applicant issent a letter of designation and as-signed an identification code.

(b) If the Associate Administrator forHazardous Materials Safety determinesthat an application does not containall the required information, the appli-cation is denied and the applicant issent a written notice containing all thereasons for the denial.

(c) Within 30 days of an initial denialof an application under paragraph (b)of this section, the applicant may filean amended application. If after con-sidering the amended application, the

Associate Administrator for HazardousMaterials Safety determines that itshould be denied, he notifies the appli-cant, and the denial constitutes thefinal action of the Associate Adminis-trator for Hazardous Materials Safetyon the application. Within 60 days ofreceipt of the final denial the applicantmay appeal the denial to the Adminis-trator, RSPA, setting forth in writingwhere the Associate Administrator forHazardous Materials Safety erred inthis determination.

[Amdt. 107–13, 50 FR 10062, Mar. 13, 1985, asamended by Amdt. 107–23, 56 FR 66157, Dec.20, 1991; Amdt. 107–32, 59 FR 49131, Sept. 26,1994]

§ 107.404 Conditions of designation.(a) Each designation made under this

subpart contains the following condi-tions:

(1) The designated approval or cer-tification agency may use only testingequipment that it has determined,through personal inspection, to be suit-able for the purpose.

(2) Each approval certificate and cer-tification issued by the designated ap-proval agency must contain the nameand identification code of the approvalagency.

(3) Each approval certificate and cer-tification must be in a format accept-able to the Associate Administrator forHazardous Materials Safety.

(b) The designated approval agencyshall notify the Associate Adminis-trator for Hazardous Materials Safetywithin 20 days after the date there isany change in the information submit-ted under § 107.402.

(c) The designated approval agencyshall comply with all of the terms andconditions stated in its letter of des-ignation under the subpart.

(d) Nothing in this part relieves amanufacturer or owner of a packagingof responsibility for compliance withany of the applicable requirements ofthis title.


§ 107.405 Termination of designation.(a) Any designation issued under

§ 107.403 of this subchapter may be sus-pended or terminated if the Associate


46

49 CFR Ch. I (10–1–98 Edition)§ 107.501

Administrator for Hazardous MaterialsSafety determines that:

(1) The application for designationcontained a misrepresentation, or theapplicant willfully concealed a mate-rial fact.

(2) The approval agency failed tocomply with a term or condition statedin the agency’s letter of designation.

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

(b) Before a designation is suspendedor terminated, the Associate Adminis-trator for Hazardous Materials Safetyshall give to the approval agency:

(1) Written notice of the facts or con-duct believed to warrant suspension ortermination of the designation.

(2) Sixty days in which to show inwriting why the designation should notbe suspended or terminated.


Subpart F—Registration of CargoTank and Cargo Tank MotorVehicle Manufacturers andRepairers and Cargo TankMotor Vehicle Assemblers

§ 107.501 Scope.(a) This subpart establishes a reg-

istration procedure for persons who areengaged in the manufacture, assembly,inspection and testing, certification, orrepair of a cargo tank or a cargo tankmotor vehicle manufactured in accord-ance with a DOT specification undersubchapter C of this chapter or underterms of an exemption issued underthis part.

(b) Persons engaged in continuingqualification and maintenance of cargotanks and cargo tank motor vehiclesmust be familiar with the requirementsset forth in part 180, subpart E, of thischapter.

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

§ 107.502 General registration require-ments.

(a) Definitions: For purposes of thissubpart—

(1) Assembly means the assembly ofone or more tanks or cargo tanks to amotor vehicle or to a motor vehiclesuspension component and involves nowelding on the cargo tank wall.

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

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

(b) No person may engage in themanufacture, assembly, certification,inspection or repair of a cargo tank orcargo tank motor vehicle manufac-tured under the terms of a DOT speci-fication under subchapter C of thischapter or an exemption issued underthis part unless the person is registeredwith the Department in accordancewith the provisions of this subpart. Aperson employed as an inspector or de-sign certifying engineer is consideredto be registered if the person’s em-ployer is registered.

(c) A person who performs functionswhich are subject to the provisions ofthis subpart may perform only thosefunctions which have been identified tothe Department in accordance with theprocedures of this subpart.

(d) Registration statements must bein English, contain all of the informa-tion required by this subpart, and besubmitted to: Approvals Branch, Asso-ciate Administrator for Hazardous Ma-terials Safety, Attn: DHM–32, Researchand Special Programs Administration,Department of Transportation, Wash-ington, DC 20590–0001.

(e) Upon determination that a reg-istration statement contains all the in-formation required by this subpart, theDepartment will send the registrant aletter confirming receipt of the reg-istration application and assigning aregistration number to that person. Aseparate registration number will beassigned for each cargo tank manufac-turing, assembly, repair facility or


47


other place of business identified bythe registrant.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55FR 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 FR46873, Sept. 3, 1993; Amdt. 107–39, 61 FR 51337,Oct. 1, 1996]

§ 107.503 Registration statement.(a) Each registration statement must

be in English and contain the followinginformation:

(1) Name;(2) Street address, mailing address

and telephone number for each facilityor place of business;

(3) A statement signed by the personresponsible for compliance with the ap-plicable requirements of this chapter,certifying knowledge of those require-ments and that each employee who is aRegistered Inspector or Design Certify-ing Engineer meets the minimum qual-ification requirements set forth in§ 171.8 of this chapter for ‘‘RegisteredInspector’’ or ‘‘Design Certifying Engi-neer’’. The following language may beused.

I certify that all Registered Inspectors andDesign Certifying Engineers used in perform-ance of the prescribed functions meet theminimum qualification requirements setforth in 49 CFR 171.8, that I am the personresponsible for ensuring compliance with theapplicable requirements of this chapter, andthat I have knowledge of the requirementsapplicable to the functions to be performed.

(4) A description of the specific func-tions to be performed on cargo tanks orcargo tank motor vehicles, e.g.:

(i) Manufacture,(ii) Assembly,(iii) Inspection and testing (specify

type, e.g., external or internal visualinspection, lining inspection, hydro-static pressure test, leakage test,thickness test),

(iv) Certification,(v) Repair, or(vi) Equipment manufacture;(5) An identification of the types of

DOT specification and exemption cargotanks or cargo tank motor vehicleswhich the registrant intends to manu-facture, assemble, repair, inspect, testor certify;

(6) A statement indicating whetherthe registrant employs Registered In-

spectors or Design Certifying Engi-neers to conduct certification, inspec-tion or testing functions addressed bythis subpart. If the registrant engagesa person who is not an employee of theregistrant to perform these functions,provide the name, address and registra-tion number of that person; and

(7) If the registrant is not a residentof the United States, the name and ad-dress of a permanent resident of theUnited States designated in accordancewith § 107.7 to serve as agent for serviceof process.

(b) In addition to the information re-quired under paragraph (a) of this sec-tion, each person who manufactures acargo tank or cargo tank motor vehiclemust submit a copy of the manufactur-er’s current ASME Certificate of Au-thorization for the use of the ASME‘‘U’’ stamp.

(c) In addition to the information re-quired under paragraph (a) of this sec-tion, each person who repairs a cargotank or cargo tank motor vehicle mustsubmit a copy of the repair facility’scurrent National Board Certificate ofAuthorization for the use of the ‘‘R’’stamp or ASME Certificate of Author-ization for the use of the ASME ‘‘U’’stamp. Any person who repairs MC-se-ries cargo tanks which are not certifiedto the ASME Code must submit a copyof the National Board or ASME Certifi-cate of Authorization to RSPA beforeJune 30, 1992.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55FR 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 FR52847, Oct. 1, 1998]

§ 107.504 Period of registration, up-dates, and record retention.

(a) Registration will be for a maxi-mum of six years from the date of theoriginal registration.

(b) Any correspondence with the De-partment must contain the registrant’sname and registration number.

(c) A registration must be renewedevery six years or within thirty days ofreissuance of an ASME or NationalBoard Certification, whichever occursfirst, by submitting an up-to-date reg-istration statement containing the in-formation prescribed by § 107.503. Anyperson initially registered under the


48

49 CFR Ch. I (10–1–98 Edition)§ 107.601

provisions of § 107.502 and who is ingood standing is eligible for renewal.

(d) A registrant shall provide writtennotification to the Department withinthirty days of any of the following oc-currences:

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

(2) Replacement of the person respon-sible for compliance with the require-ments in § 107.503(a)(3). If this occurs,the registrant shall resubmit the re-quired certification;

(3) Loss of ASME or National BoardCertificate of Authorization;or

(4) A change in function; such as,from assembly to manufacture, an ad-dition of a function, or a change to thetypes of inspections, tests or certifi-cations of cargo tanks or cargo tankmotor vehicles.

(e) Each registrant shall maintain acurrent copy of the registration infor-mation submitted to the Departmentand a current copy of the registrationnumber identification received fromthe Department at the location identi-fied in § 107.503(a)(2) during such timethe person is registered with the De-partment and for two years thereafter.

(f) The issuance of a registrationnumber under this subpart is not an ap-proval or endorsement by the Depart-ment of the qualifications of any per-son to perform the specified functions.

[Amdt. 107–20, 54 FR 25003, June 12, 1989; 55FR 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 PersonsWho Offer or Transport Haz-ardous Materials

SOURCE: Amdt. No. 107–26, 57 FR 30630, July9, 1992, unless otherwise noted.

§ 107.601 Applicability.The registration and fee require-

ments of this subpart apply to any per-son who offers for transportation, ortransports, in foreign, interstate orintrastate commerce—

(a) Any highway route-controlledquantity of a Class 7 (radioactive) ma-terial, as defined in § 173.403 of thischapter;

(b) More than 25 kg (55 pounds) of aDivision 1.1, 1.2, or 1.3 (explosive) mate-rial (see § 173.50 of this chapter) in amotor vehicle, rail car or freight con-tainer;

(c) More than one L (1.06 quarts) perpackage of a material extremely toxicby inhalation (i.e., ‘‘material poisonousby inhalation,’’ as defined in § 171.8 ofthis chapter, that meets the criteriafor ‘‘hazard zone A,’’ as specified in§§ 173.116(a) or 173.133(a) of this chap-ter);

(d) A hazardous material in a bulkpackaging (see § 171.8 of this chapter)having a capacity equal to or greaterthan 13,248 L (3,500 gallons) for liquidsor gases or more than 13.24 cubic me-ters (468 cubic feet) for solids; or

(e) A shipment in other than a bulkpackaging of 2,268 kg (5,000 pounds)gross weight or more of one class ofhazardous materials for whichplacarding of a vehicle, rail car, orfreight container is required for thatclass, under the provisions of subpart Fof part 172 of this chapter. For applica-bility of this subpart, the term ‘‘ship-ment’’ means the offering or loading ofa hazardous material at one loading fa-cility using one transport vehicle, orthe transport of that transport vehicle.

[Amdt. No. 107–26, 57 FR 30630, July 9, 1992, asamended at 57 FR 37902, Aug. 21, 1992; Amdt.107–26, 58 FR 12545, Mar. 5, 1993; Amdt. 107–31,59 FR 32932, June 27, 1994; Amdt. 107–34, 60 FR27233, May 23, 1995; Amdt. 107–39, 61 FR 51337,Oct. 1, 1996]

§ 107.606 Exceptions.(a) The following are excepted from

the requirements of this subpart:(1) An agency of the Federal govern-

ment.(2) A State agency.(3) An agency of a political subdivi-

sion of a State.(4) An employee of any of those agen-

cies in paragraphs (a)(1) through (a)(3)of this section with respect to the em-ployee’s official duties.

(5) A hazmat employee (including, forpurposes of this subpart, the owner-op-erator of a motor vehicle that trans-ports in commerce hazardous mate-rials, if that vehicle at the time ofthose activities, is leased to a reg-istered motor carrier under a 30-day orlonger lease as prescribed in 49 CFR


49


part 376 or an equivalent contractualagreement).

(6) A person domiciled outside theUnited States, who offers solely from alocation outside the United States,hazardous materials for transportationin commerce, provided that the countryof which such a person is a domiciliarydoes not require persons domiciled inthe United States, who solely offer haz-ardous materials for transportation tothe foreign country from places in theUnited States, to file a registrationstatement or to pay a registration fee.

(b) Upon making a determinationthat persons domiciled in the UnitedStates, who offer hazardous materialsfor transportation to a foreign countrysolely from places in the United States,must file registration statements orpay fees to that foreign country, theU.S. Competent Authority will providenotice of such determination directlyto the Competent Authority of thatforeign country and by publication inthe FEDERAL REGISTER. Persons whooffer hazardous materials for transpor-tation to the United States from thatforeign country must file a registrationstatement and pay the required fee nolater than 60 days following publica-tion of the determination in the FED-ERAL REGISTER.

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

§ 107.608 General registration require-ments.

(a) Except as provided in § 107.616(d),each person subject to this subpartmust submit a complete and accurateregistration statement on DOT Form F5800.2 not later than June 30 for eachregistration year, or in time to complywith paragraph (b) of this section,whichever is later.

(b) After September 15, 1992, no per-son required to file a registrationstatement may transport or cause tobe transported or shipped hazardousmaterials, unless such person has onfile, in accordance with § 107.620, a cur-rent annual Certificate of Registrationin accordance with the requirements ofthis subpart.

(c) A registrant whose name or prin-cipal place of business has changed dur-ing the year of registration must no-tify RSPA of that change by submit-

ting an amended registration state-ment not later than 30 days after thechange.

(d) Copies of DOT Form F 5800.2 andinstructions for its completion may beobtained from the Hazardous MaterialsRegistration Program, DHM–60, U.S.Department of Transportation, Wash-ington, DC 20590–0001 or by calling 617–494–2545 or 202–366–4109.

(e) If the registrant is not a residentof the United States, the registrantmust attach to the registration state-ment the name and address of a perma-nent resident of the United States, des-ignated in accordance with § 107.7, toserve as agent for service of process.

[Amdt. No. 107–26, 57 FR 30630, July 9, 1992, asamended by Amdt. 107–31, 59 FR 32932, June27, 1994]

§ 107.612 Amount of fee.

Each person subject to the require-ments of this subpart must pay an an-nual fee of $300 (which includes a $50processing fee).

§ 107.616 Payment procedures.

(a) Except as provided in paragraph(d) of this section, each person subjectto the requirements of this subpartmust mail the registration statementand payment in full to the U.S. Depart-ment of Transportation, Hazardous Ma-terials Registration, P.O. Box 740188,Atlanta, Georgia 30374–0188. A reg-istrant required to file an amended reg-istration statement under § 107.608(c)must mail it to the same address.

(b) Payment must be made by cer-tified check, cashier’s check, personalcheck, or money order in U.S. fundsand drawn on a U.S. bank, payable tothe U.S. Department of Transportationand identified as payment for the‘‘Hazmat Registration Fee’’ or by aVISA or MasterCard credit card au-thorization completed and signed onthe registration statement.

(c) Payment must correspond to theannual fee indicated in § 107.612.

(d) A person may obtain a temporaryregistration number, valid for 45 daysfrom the date of issuance, through anexpedited registration process as fol-lows:

(1) Contact RSPA by telephone (800–942–6990 or 617–494–2545) and provide


50

49 CFR Ch. I (10–1–98 Edition)§ 107.620

name, principal place of business, andcredit card payment information;

(2) Pay a $350 registration and proc-essing fee (including a $50 expeditedhandling fee); and

(3) Submit a completed registrationstatement and proof of payment toRSPA before the expiration date of thetemporary registration number.

[Amdt. 107–26, 57 FR 30630, July 9, 1992, asamended by Amdt. 107–26, 58 FR 12545, Mar. 5,1993]

§ 107.620 Recordkeeping requirements.

(a) Each person subject to the re-quirements of this subpart, or its agentdesignated under § 107.608(e), mustmaintain at its principal place of busi-ness for a period of three years fromthe date of issuance of each Certificateof Registration:

(1) A copy of the registration state-ment filed with RSPA; and

(2) The Certificate of Registrationissued to the registrant by RSPA.

(b) After January 1, 1993, each motorcarrier subject to the requirements ofthis subpart must carry a copy of itscurrent Certificate of Registrationissued by RSPA or another documentbearing the registration number identi-fied as the ‘‘U.S. DOT Hazmat Reg.No.’’ on board each truck and trucktractor (not including trailers andsemi-trailers) used to transport hazard-ous materials subject to the require-ments of this subpart. The Certificateof Registration or document bearingthe registration number must be madeavailable, upon request, to enforcementpersonnel.

(c) In addition to the requirements ofparagraph (a) of this section, after Jan-uary 1, 1995, each person who trans-ports by vessel a hazardous materialsubject to the requirements of this sub-part must carry on board the vessel acopy of its current Certificate of Reg-istration or another document bearingthe current registration number identi-fied as the ‘‘U.S. DOT Hazmat Reg.No.’’

(d) Each person subject to this sub-part must furnish its Certificate ofRegistration (or a copy thereof) and allother records and information pertain-ing to the information contained in theregistration statement to an author-

ized representative or special agent ofDOT upon request.

[Amdt. No. 107–26, 57 FR 30630, July 9, 1992, asamended 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

SOURCE: Amdt. 107–38, 61 FR 21100, May 9,1996, unless otherwise noted.

§ 107.701 Purpose and scope.(a) This subpart prescribes proce-

dures for the issuance, modificationand termination of approvals, and thesubmission of registrations and re-ports, as required by this chapter.

(b) The procedures of this subpart arein addition to any requirements in sub-chapter C of this chapter applicable toa specific approval, registration or re-port. If compliance with both a specificrequirement of subchapter C of thischapter and a procedure of this subpartis not possible, the specific require-ment applies.

(c) Registration under subpart F or Gof this part is not subject to the proce-dures 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, andapplications for approval.

(a) A person filing a registration, re-port, or application for an approval, ora renewal or modification of an ap-proval subject to the provisions of thissubpart must—

(1) File the registration, report, orapplication with the Associate Admin-istrator for Hazardous Materials Safe-ty, Research and Special Programs Ad-ministration, U.S. Department ofTransportation, 400 7th Street, SW,Washington, DC 20590–0001, Attention:Approvals, DHM–32;

(2) Identify the section of the chapterunder which the registration, report, orapplication is made;

(3) If a report is required by an ap-proval, a registration or an exemption,identify the approval, registration orexemption number;

(4) Provide the name, street, mailingaddress, and telephone number of the


51


person on whose behalf the registra-tion, report, or application is madeand, if different, the person making thefiling;

(5) If the person on whose behalf thefiling is made is not a resident of theUnited States, provide a designation ofagent for service in accordance with§ 107.7;

(6) Provide a description of the activ-ity for which the registration or reportis required; and

(7) Provide additional information asrequested by the Associate Adminis-trator, if the Associate Administratordetermines that a filing lacks perti-nent information or otherwise does notcomply with applicable requirements.

(b) In addition to the provisions inparagraph (a) for an approval, an appli-cation for an approval, or an applica-tion for modification or renewal of anapproval, the applicant must provide—

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

(2) The proposed duration of the ap-proval;

(3) The transport mode or modes af-fected, as applicable;

(4) Any additional information speci-fied in the section containing the ap-proval; and

(5) For an approval which providesexceptions from regulatory require-ments or prohibitions—

(i) Identification of any increasedrisk to safety or property that may re-sult if the approval is granted, andspecification of the measures that theapplicant considers necessary or appro-priate to address that risk; and

(ii) Substantiation, with applicableanalyses or evaluations, if appropriate,demonstrating that the proposed activ-ity will achieve a level of safety that isat least equal to that required by theregulation.

(c) For an approval with an expira-tion date, each application for renewalor modification must be filed in thesame manner as an original applica-tion. If a complete and conforming re-newal application is filed at least 60days before the expiration date of anapproval, the Associate Administrator,on written request from the applicant,will issue a written extension to permitoperation under the terms of the ex-pired approval until a final decision on

the application for renewal has beenmade. Operation under an expired ap-proval is prohibited absent a writtenextension. This paragraph does notlimit the authority of the AssociateAdministrator to modify, suspend orterminate an approval under § 107.713.

(d) To request confidential treatmentfor information contained in the appli-cation, the applicant shall comply with§ 107.5(a).

§ 107.709 Processing of an applicationfor approval, including an applica-tion for renewal or modification.

(a) No public hearing or other formalproceeding is required under this sub-part before the disposition of an appli-cation.

(b) At any time during the processingof an application, the Associate Admin-istrator may request additional infor-mation from the applicant. If the appli-cant does not respond to a written re-quest for additional information within30 days of the date the request was re-ceived, the application may be deemedincomplete and denied. However, if theapplicant responds in writing withinthe 30-day period requesting an addi-tional 30 days within which it willgather the requested information, theAssociate Administrator may grant the30-day extension.

(c) The Associate Administrator maygrant or deny an application, in wholeor in part. At the Associate Adminis-trator’s discretion, an application maybe granted subject to provisions thatare appropriate to protect health, safe-ty and property. The Associate Admin-istrator may impose additional provi-sions not specified in the application,or delete conditions in the applicationwhich are unnecessary.

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

(1) The application complies withthis subpart;

(2) The application demonstratesthat the proposed activity will achievea level of safety that—

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

(ii) If the regulations do not establisha level of safety, is consistent with the


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49 CFR Ch. I (10–1–98 Edition)§ 107.711

public interest and adequately will pro-tect against the risks to life and prop-erty inherent in the transportation ofhazardous materials in commerce;

(3) The application states all mate-rial facts, and contains no materiallyfalse or materially misleading state-ment;

(4) The applicant meets the qualifica-tions required by applicable regula-tions; and

(5) The applicant is fit to conduct theactivity authorized by the approval, orrenewal or modification of approval.This assessment may be based on infor-mation in the application, prior com-pliance history of the applicant, andother information available to the As-sociate Administrator.

(e) Unless otherwise specified in thischapter or by the Associate Adminis-trator, an approval in which a term isnot specified does not expire.

(f) The Associate Administrator noti-fies the applicant in writing of the de-cision on the application. A denial con-tains a brief statement of reasons.

§ 107.711 Withdrawal.An application may be withdrawn at

any time before a decision to grant ordeny it is made. Withdrawal of an ap-plication does not authorize the re-moval of any related records from theRSPA dockets or files. Applicationsthat are eligible for confidential treat-ment under § 107.5 will remain confiden-tial after the application is withdrawn.The duration of this confidential treat-ment for trade secrets and commercialor financial information is indefinite,unless the party requesting the con-fidential treatment of the materialsnotifies the Associate Administratorthat the confidential treatment is nolonger required.

§ 107.713 Approval modification, sus-pension or termination.

(a) The Associate Administrator maymodify an approval on finding that—

(1) Modification is necessary to con-form an existing approval to relevantstatutes and regulations as they maybe amended from time to time; or

(2) Modification is required bychanged circumstances to enable theapproval to continue to meet thestandards of § 107.709(d).

(b) The Associate Administrator maymodify, suspend or terminate an ap-proval, as appropriate, on findingthat—

(1) Because of a change in cir-cumstances, the approval no longer isneeded or no longer would be granted ifapplied for;

(2) The application contained inac-curate or incomplete information, andthe approval would not have beengranted had the application been accu-rate and complete;

(3) The application contained delib-erately inaccurate or incomplete infor-mation; or

(4) The holder knowingly has violatedthe terms of the approval or an appli-cable requirement of this chapter in amanner demonstrating lack of fitnessto conduct the activity for which theapproval is required.

(c) Except as provided in paragraph(d) of this section, before an approval ismodified, suspended or terminated, theAssociate Administrator notifies theholder in writing of the proposed ac-tion and the reasons for it, and pro-vides an opportunity to show causewhy the proposed action should not betaken.

(1) The holder may file a written re-sponse with the Associate Adminis-trator within 30 days of receipt of no-tice of the proposed action.

(2) After considering the holder’s orparty’s written response, or after 30days have passed without responsesince receipt of the notice, the Associ-ate Administrator notifies the holderin writing of the final decision with abrief statement of reasons.

(d) The Associate Administrator, ifnecessary to avoid a risk of significantharm to persons or property, may inthe notification declare the proposedaction immediately effective.

§ 107.715 Reconsideration.

(a) An applicant or a holder may re-quest that the Associate Administratorreconsider a decision under § 107.709(f)or § 107.713(c). The request must:

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



53


(3) Enclose any additional informa-tion needed to support the request toreconsider; and


(b) The Associate Administrator con-siders newly submitted information ona showing that the information couldnot reasonably have been submittedduring application processing.

(c) The Associate Administratorgrants or denies, in whole or in part,the relief requested and informs the re-questing person in writing of the deci-sion.

§ 107.717 Appeal.(a) A person who requested reconsid-

eration under § 107.715 may appeal tothe Administrator the Associate Ad-ministrator’s decision on the request.The appeal must:

(1) Be in writing and filed within 30days of receipt of the Associate Admin-istrator’s decision on reconsideration;


(3) Enclose any additional informa-tion needed to support the appeal; and


(b) The Administrator, if necessaryto avoid a risk of significant harm topersons or property, may declare theAssociate Administrator’s action effec-tive pending a decision on appeal.

(c) The Administrator grants or de-nies, in whole or in part, the relief re-quested and informs the appellant inwriting of the decision on appeal. TheAdministrator’s decision on appeal isthe final administrative action.

PART 110—HAZARDOUS MATERIALSPUBLIC SECTOR TRAINING ANDPLANNING GRANTS

Sec.110.1 Purpose.110.5 Scope.110.7 Control Number under the Paperwork

Reduction Act.110.10 Eligibility.110.20 Definitions.110.30 Grant application.110.40 Activities eligible for funding.110.50 Disbursement of Federal funds.110.60 Cost sharing for planning and train-

ing.110.70 Financial administration.

110.80 Procurement.110.90 Grant monitoring, reports, and

records retention.110.100 Enforcement.110.110 After-grant requirements.110.120 Deviation from this part.110.130 Disputes.

AUTHORITY: 49 U.S.C. 5101–5127; 49 CFR 1.53.

SOURCE: Amdt. 110–1, 57 FR 43067, Sept. 17,1992, unless otherwise noted.

§ 110.1 Purpose.This part sets forth procedures for re-

imbursable grants for public sectorplanning and training in support of theemergency planning and training ef-forts of States, Indian tribes, and localcommunities to deal with hazardousmaterials emergencies, particularlythose involving transportation. Thesegrants will enhance the implementa-tion of the Emergency Planning andCommunity Right-to-Know Act of 1986(42 U.S.C. 11001).

§ 110.5 Scope.(a) This part applies to States and In-

dian tribes and contains the programrequirements for public sector trainingand planning grants to support hazard-ous materials emergency planning andtraining efforts.

(b) The requirements contained in 49CFR part 18, ‘‘Uniform AdministrativeRequirements for Grants and Coopera-tive Agreements to State and LocalGovernments’’, apply to grants issuedunder this part.

(c) Copies of standard forms and OMBcirculars referenced in this part areavailable from the HMTUSA GrantsManager, Research and Special Pro-grams Administration, U.S. Depart-ment of Transportation, 400 SeventhStreet, SW., Washington DC 20590–0001.

§ 110.7 Control Number under the Pa-perwork Reduction Act.

The Office of Management and Budg-et control number assigned to collec-tion of information in §§ 110.30, 110.70,110.80, and 110.90 is 2137–0586.

§ 110.10 Eligibility.This part applies to States and In-

dian tribes. States may apply for plan-ning and training grants. Federally-recognized Indian tribes may apply fortraining grants.
