Title 49 CFR Part 107 Subpart D, Appendix A
Guidelines for Civil Penalties
I. This appendix sets forth the guidelines used by the Office of Hazardous Materials Safety (as of January 18, 1995) in making initial baseline determinations for recommending civil penalties. The first part of these guidelines is a list of baseline amounts or ranges for probable violations frequently cited in enforcement reports referred for action. Following the list of violations are general guidelines used by OHMS in making initial penalty determinations in enforcement cases.
II. List of Frequently Cited Violations
Violation description Section or cite Baseline assessment
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PART 107 - REQUIREMENTS
Failure to register as a carrier or 107.608 $1,000 +, $500 each
shipper of hazardous material
add'l year.
PART 171 - REQUIREMENTS
Failure to give immediate telephone 171.15 $3,000.
notice of a reportable hazardous
materials incident
Failure to file a DOT 5800.1 171.16 $500 to $2,500.
Hazardous Materials Incident Report
within 30 days following an
unintentional release of hazardous
materials in transportation
PART 172 - REQUIREMENTS
Shipping Papers (§§172.200 - 172.205):
Failure to execute a shipping paper for 172.201 $3,000 to $6,000.
a shipment of hazardous materials
Failure to follow one or more of the 172.201(a)(1) $1,200.
three approved formats for listing
hazardous materials on a shipping
paper
Failure to include a proper shipping 172.202 $800 to $1,600.
name in the shipping description or
using an incorrect proper shipping
name
Failure to include a hazard 172.202 $1,000 to $2,000.
class/division number in the shipping
description
Using an incorrect hazard 172.202 $800.
class/identification number
-that does not affect compatibility
requirements $3,000 to $6,000.
-that affects compatibility requirements
Failure to include an identification 172.202 $1,000 to $2,000.
number in the shipping description
Using an incorrect identification 172.202 $800.
number
-that does not change the response
information $3,000 to $6,000.
-that changes the response information
Using a shipping description that 172.202 $800.
includes additional unauthorized
information (extra or incorrect words)
Using a shipping description not in 172.202 $500.
required sequence
Using a shipping description with two 172.202
or more required elements missing or
incorrect
-such that the material is misdescribed $3,000.
-such that the material is misclassified $6,000.
Failure to include the total quantity of 172.202(c) $400.
hazardous material covered by a
shipping description
The letters "RQ" are not used in the 172.203(c)(2) $500.
shipping description to identify
materials that are hazardous substances
Using a shipping description for Class 172.203(d) $2,000 to $4,000.
7 (radioactive) material that fails to
contain the required additional entries,
or contains incorrect information for
these additional entries
Failure to include a required technical 172.203(k) $1,000.
name in parentheses for a listed
generic or "nos" material
Failure to list an exemption number in 172.203(a) $800.
association with the shipping
description
Failure to include the required 172.204(a) $1,000.
shipper's certification on a shipping
paper
Failure to execute the required 172.204 $800.
shipper's certification on a shipping
paper
Emergency Response Information Requirements (§§ 172.600 - 172.604):
Providing or listing incorrect 172.602
emergency response information with
or on a shipping paper
-no significant difference in response $800.
-significant difference in response $3,000 to $6,000.
Failure to include an emergency 172.604 $2,600.
response telephone number on a
shipping paper
Failure to have the emergency 172.604 $1,300.
response telephone number monitored
while a hazardous material is in
transportation or listing multiple
telephone numbers (without
specifying the times for each) that are
not monitored 24 hours a day
Listing a fraudulent emergency 172.604 $2,600 to $4,200.
response telephone number on a
shipping paper
Listing an incorrect or non-working 172.604 $1,300.
emergency response telephone
number on a shipping paper
Failure to provide required technical 172.604 $1,300.
information when the listed
emergency response telephone
number is contacted
Package Marking Requirements (§§172.300 - 172.338):
Failure to mark the proper shipping 172.301(a) $800 to $1,600.
name on a package or marking an
incorrect shipping name on a package
Failure to mark the identification 172.301(a) $1,000 to $2,000.
number on a package
Marking a package with an incorrect 172.301(a)
identification number
-that does not change the response $800.
information
-that changes the response information $3,000 to $6,000.
Failure to mark the proper shipping 172.301(a) $3,000 to $6,000.
name and identification number on a
package
Marking a package with an incorrect 172.301(a)
shipping name and identification
number
-that does not change the response $1,500 to $3,000.
information
-that changes the response information $3,000 to $6,000.
Failure to include the required 172.301(c) $1,000.
technical name(s) in parentheses for a
listed generic or "no" entry
Failure to mark a package containing 172.312 $2,500 to $3,500.
liquid hazardous materials with
required orientation marks
Package Labeling Requirements (§§172.400-172.450):
Failure to label a package. 172.400 $5,000.
Placing a label that represents a 172.400 $5,000.
hazard other than the hazard presented
by the hazardous material in the
package.
Placing a label on a package that does 172.401(a) $800.
not contain a hazardous material.
Placing a label on Class 7 172.403 $5,000.
(radioactive) material that understates
the proper label category.
Placing a label on Class 7 172.403(g) $2,000 to $4,000.
(radioactive) material that fails to
contain, or has erroneous, entries for
the name of the radionuclide(s),
activity, and transport index.
Placing a label not conforming to size 172.407(c) $800.
requirements on a package.
Placing a label on a different surface 172.406(a) $800.
of the package than, or far away from,
the proper shipping name.
Placing a label that does not meet 172.407(d) $600 to $2,500.
color specification requirements on a
package (depending on the variance).
Failure to place a required subsidiary 172.402 $500 to $2,500.
label on a package.
Failure to provide an appropriate class 172.411 $2,500.
or division number on a label.
Placarding Requirements (§§172.500-172.560):
Failure to properly placard a freight 172.504 $1,000 to $9,000.
container or vehicle containing
hazardous materials when Table 1 is
applicable.
Failure to properly placard a freight 172.504 $800 to $7,500.
container or vehicle containing
hazardous materials when Table 2 is
applicable.
Training Requirements (§ 172.700-172.704):
Failure to train hazmat employees in 172.702
the three required areas of training
-more than 10 hazmat employees. $2,400 and up.
-10 hazmat employees or less. $1,500 and up.
Failure to train hazmat employees in 172.702
any one of the three required areas of
training
-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.
PART 173 - REQUIREMENTS
Overpack Requirements (§ 173.25)
Failure to mark an overpack with a 173.25(a)(4) $3,000.
statement indicating that the inside
packages comply with prescribed
specifications when specification
packaging is required.
Reconditioner Requirements (§173.28):
Representing, marking, or certifying a 173.28(c) & (d) $6,000 to $10,800.
drum as a reconditioned UN standard
packaging, when the drum did not
meet a UN standard.
Marking an incorrect registration 173.28(b)(2)(ii)
number on a reconditioned packaging
-incorrect number. $800.
-fraudulent use of another $7,200.
reconditioner's number.
Failure to properly conduct alternate 173.28(b)(2)(i)
leakage test
-improper test. $2,000.
-no test at all. $4,000.
Representing, marking, or certifying a 173.28(d) $500.
drum as altered from one standard to
another, when the drum had not
actually been altered.
Portable and IM Tank Requirements
(§§173.32(e), 173.32c, 173.315)
Offering hazardous materials for 173.32(a)(1), $3,500 to $7,000.
transportation in a DOT specification 173.315(a),
or exemption portable tank which is
Applicable Exemption
out of test.
Offering an IM portable tank for 173.32c(c) $3,500.
transportation that has not been
hydrostatically tested within the last 2
½ years per 173.32b(a).
Offering an IM portable tank for 173.32c(c) $3,500.
transportation that has not been
visually inspected in last five years
per 173.32b(b).
Offering an IM portable tank for 173.32c(c) $7,000.
transportation that has not been
visually or hydrostatically tested as
required, or failing to remove the
safety relief valves during testing.
Offering a hazardous material for 173.32c(g)
transportation in an IM portable tank
equipped with bottom outlets, when
the material contained is prohibited
from being offered in this type of
packaging
-Packing Group II. $7,000.
-Packing Group III. $5,000.
Failure to provide the required outage 173.32c(k) $6,000 to $12,000.
for a shipment of hazardous materials,
that results in the release of hazardous
materials.
Offering a hazardous material for 173.32(e)(3), $3,000.
transportation in an DOT, exemption, 173.32b(d)
or IM portable tank which fails to bear
markings that it has been properly
retested.
Cylinder Retesters (§§173.23, 173.34, and 173.302):
Failure to remark as DOT 3AL an 173.23(c) $600.
aluminum cylinder manufactured
under a former exemption.
Certifying or marking as retested a 173.34 $800.
nonspecification cylinder
Marking a cylinder in or on the 173.34(c)(1) $6,000 to $10,800.
sidewall area when not permitted by
the applicable specification
Failure to maintain legible markings 173.34(c) $800.
on a cylinder
Failure to perform hydrostatic 173.34(e) $2,100 to $5,200.
retesting at the minimum of 5/3 times
the service pressure, or at the
minimum specified test pressure
Failure to conduct a complete visual 173.34(e)(3) $2,100 to $5,200.
external and internal examination
Failure to have a retester's 173.34(e)(2)(i) $4,000.
identification number (RIN)
Failure to have current authority due 173.34(e)(2)(i) $2,000.
to failure to renew a retester's
identification number
Failure to have a retester's 173.34(e)(2)(i) $7,200.
identification number and marking
another RIN on a cylinder
Marking a RIN before successfully 173.34(e)(1)(ii) $800.
completing a hydrostatic retest
Requalifying a DOT cylinder without 173.34(e)(1)(ii) $4,200 to $10,400.
performing the visual inspection or
hydrostatic retest
Performing hydrostatic retesting 173.34(e)(4) $2,100 to $5,200.
without demonstrating the accuracy of
the testing equipment
Failure to hold hydrostatic test 173.34(e)(4) $3,100.
pressure for 30 seconds or sufficiently
longer to allow for complete expansion
Failure to perform a second retest, 173.34(e)(4) $3,100.
after equipment failure, at a pressure
of 10% more or 100 psi more,
whichever is less (includes exceeding
90% of test pressure prior
to conducting a retest)
Failure to condemn a cylinder with 173.34(e)(6) $10,000.
permanent expansion of 10% or
greater (5% for certain exemption
cylinders); failure to condemn
cylinders with evidence of internal or
external corrosion, denting, bulging,
or rough usage
Marking an FRP cylinder with steel Applicable $6,000 to $10,800.
stamps in the FRP area of the cylinder Exemption
such that the integrity of the cylinder
is compromised
Failure to keep complete and accurate
records of cylinder reinspection and
retest
- 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 173.34(e)(7) $800
date on a cylinder
Marking a DOT 3HT cylinder with a 173.34(e)(15) $6,000 to $10,800.
steel stamp other than a low-stress
steel stamp
Marking a "+" sign on a cylinder 173.302(c)(3) $3,000 to $4,000.
without determining the average or
maximum wall stress, by calculation
or reference to CGA Pamphlet C-5
Representing, marking, or certifying a 171.2(c), $2,000 to $6,000.
cylinder as meeting the requirements Applicable
of an exemption, when the cylinder Exemption
was not maintained or retested in
accordance with the exemption
Rebuilder Requirements (§173.34):
Representing a DOT-4 series cylinder 173.34(l) $6,000 to $10,800.
as meeting the requirements of the
Hazardous Materials Regulations
without being authorized to do so by
the Associate Administrator for
Hazardous Materials Safety
Offeror Requirements (General):
Offering a hazardous material for Various
transportation in an unauthorized
non-UN standard or nonspecification
packaging (includes the failure to
comply with the terms of an
exemption authorizing the use of a
nonstandard or nonspecification
packaging)
- Packing Group I (includes §172.504 $9,000.
Table 1 materials)
- Packing Group II $7,000.
-Packing Group III $5,000.
Offering a hazardous material for 178.3(a), $3,600.
transportation in a packaging that has 178.503(a)
successfully been tested to an
applicable UN standard, but is not
marked with the required UN marking
Offering a hazardous material for 173.24(b)
transportation in a packaging that
leaks during conditions normally
incident to transportation
- Packing Group I (includes $12,000.
§172.504 Table 2 materials)
- Packing Group II $9,000.
- Packing Group III $6,000.
Overfilling a package so that the 173.24(b)
effectiveness is substantially reduced
- Packing Group I (includes $9,000.
§172.504 Table 1 materials)
- Packing Group II $6,000.
- Packing Group III $3,000.
Offering a hazardous material for 171.14
transportation after October 1, 1996,
in an unauthorized non-UN standard
packaging marked as manufactured to
a DOT specification
- packaging meets DOT specification $3,000.
- packaging does not meet DOT $5,000 to $9,000.
specification
Offeror Requirements (Class 1 - Explosives):
Failing to mark the "EX" approval 172.320 $1,200.
number on a package containing an
explosive
Offering an unapproved explosive for 173.54 and 173.56(b)
transportation
- Div 1.3 & 1.4 fireworks meeting $5,0000 to $10,000.
the chemistry requirements (both
quantity and type) of APA Standard
87-1
- all other explosives (including $10,000 to $27,500.
forbidden explosives)
Offering a leaking or damaged 173.54(c) $10,000 to $27,500.
package of explosives for
transportation
Offeror Requirements (Class
7 - Radioactive Materials):
Offering a DOT specification 7A 173.415(a), 173.461
packaging without maintaining
complete documentation of tests and
an engineering evaluation or
comparative data
-tests and evaluation not performed $8,400.
-complete records not maintained $2,000 to $5,000.
Offering a Type B packaging without 173.471(a)
holding a valid NRC approval
certificate
-never having obtained one $2,500.
-holding an expired certificate $1,000.
Offering a limited quantity of 177.421(d) $5,000 and up.
radioactive materials without marking
the inner (or single) packaging
"Radioactive."
Offering low specific activity (LSA) 173.427(a)(6) $800.
radioactive materials consigned as
exclusive use without providing
instructions for maintenance of
exclusive use shipment controls
Offering a package that exceeds the 173.441 $10,000 and up.
permitted limits for surface radiation
or transport index
Offering a package without 173.443 $5,000 and up.
determining the level of removable
external contamination, or that
exceeds the limit for removable
external contamination
Storing packages of radioactive 173.447(a) $5,000 and up.
material in a group with a total
transport index more than 50
Offering special form radioactive 173.476(a)&(b) $2,500.
materials without maintaining a
complete safety analysis or Certificate
of Competent Authority
Offeror Requirements (Cylinders):
Offering a compressed gas for 173.301(c) $4,200 to $10,400.
transportation in a cylinder that is out
of test
Failure to check each day the pressure 173.303(d) $5,000.
of a cylinder charged with acetylene
that is representative of that day's
compression, after the cylinder has
cooled to a settled temperature, or
failure to keep a record of this test for
at least 30 days
Offering a limited quantity of a 173.306(a)(3),(h) $1,500 to $6,000.
compressed gas in a metal container
for the purpose of propelling a
nonpoisonous material and failing to
heat the cylinder until the pressure is
equivalent to the equilibrium pressure
at 130° F, without evidence of
leakage, distortion, or other defect
PART 178 - REQUIREMENTS
Third-Party Packaging Certifiers (General):
Issuing a certification that directs the 1171.2(e), 1178.2(b), $500 per item.
packaging manufacturer to improperly 178.3(a), 178.503(a)
mark a packaging (e.g.,steel drum to
be marked UN 4G)
Manufacturers (General):
Failure to insure a packaging certified 178.601(b)
as meeting the UN standard is capable
of passing the required performance
testing
- Packing Group I (includes § $10,800.
172.504 Table 1 materials)
- Packing Group II $8,400.
- Packing Group III $6,000.
Certifying a packaging as meeting a 178.601(d)
UN standard when design
qualification testing was not performed
- Packing Group I (includes §172.504 $10,800.
Table 2 materials)
- Packing Group II $8,400.
- Packing Group III $6,000.
Failure to conduct periodic retesting 178.601(e) $2,000 to $10,800.
on UN standard packaging (depending
on length of time and Packing Group)
Failure to properly conduct testing for
UN standard packaging (e.g., testing
with less weight than marked on
packaging; drop testing from lesser
height than required; failing to
condition fiberboard boxes before
design test)
- 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 178.2(b), 178.3(a), $7,200.
packaging with the symbol of a 178.503(a)(8)
manufacturer or packaging certifier
other than the company that actually
manufactured or certified the
packaging
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 171.14
packaging after October 1, 1994 that
is not marked as meeting a UN
performance standard
- if packaging does meet DOT $3,000.
specification
- if packaging does not meet DOT $6,000 to $10,800.
specification
Manufacturing Requirements - Drums
Failure to properly conduct 178.604(b)(1)
production leakproofness test
- improper testing 173.28 $2,000.
- no testing performed $2,000 to $10,800.
Manufacturing
Requirements - Cylinders
Manufacturing, representing, marking, Various $7,500 to $15,000.
certifying, or selling a DOT
high-pressure cylinder that was not
inspected and verified by an approved
independent inspection agency
Failure to have a registration number Various $800.
or failure to mark the registration
number on the cylinder
Marking another company's number Various $7,200.
on a cylinder
Failure to mark the date of 178.65 $3,000.
manufacture or lot number on a
DOT-39 cylinder
Failure to have a chemical analysis Various $5,000.
performed in the US for a material
manufactured outside the US/failure
to obtain a chemical analysis from the
foreign manufacturer
Failure to meet wall thickness Various $7,500 to $15,000.
requirements
Failure to heat treat cylinders prior to Various $5,000 to $15,000.
testing
Failure to conduct a complete visual Various $2,500 to $6,200.
internal examination
Failure to conduct a hydrostatic test, Various $2,500 to $6,200.
or conducting a hydrostatic test with
inaccurate test equipment
Failure to conduct a flattening test Various $7,500 to $15,000.
Failure to conduct a burst test on a 178.65-11 $5,000 to $15,000.
DOT-39 cylinder
Failure to have inspections and Various $7,500 to $15,000.
verifications performed by an inspector
Failure to maintain a required Various
inspector's reports
- no reports at all $5,000.
- incomplete or inaccurate reports $1,000 to $4,000.
Other Requirements
Carrier Requirements:
Transporting packages of hazardous 177.834(a)&(g) $3,000.
materials that have not been secured
against movement within the vehicle
Transporting explosives in a motor 177.835(i) $5,200.
vehicle containing metal or other
articles or materials likely to damage
such explosives or any package in
which they are contained, without
segregating in different parts of the
load or securing them in place in or on
the motor vehicle and separated by
bulkheads or other suitable means to
prevent such damage
Transporting railway track torpedoes 171.2(b) $7,000.
outside of flagging kits, in violation of
E-7991
Transporting Class 7 (radioactive) 177.842(a) $5,000 and up.
material having a total transport index
more than 50
Transporting Class 7 (radioactive) 177.842(b) $5,000 and up.
material without maintaining the
required separation distance
Failing to comply with requirements 171.2(b)
of an exemption authorizing the
transportation of Class 7 (radioactive)
material having a total transport index
more than 50
-failure to have the radiation survey $5,000.
record required by ¶¶ 7(f), 8(b)(3)
-failure to have other accompanying $500 each.
documents required by ¶ 8(b)
-other violations of ¶¶ 7 and 8 $5,000 and up.
Exemptions:
Offering or transporting hazardous 171.2(a),(b),(c) $1,000 + $500 each
materials, or otherwise performing a Various add'l year.
function, covered by an exemption
III.
Consideration of Statutory Criteria
A. These guidelines are used by the Office of Hazardous Materials Safety (OHMS) in setting initial proposed penalties for hazmat violations. They indicate baseline amounts or ranges for probable violations frequently cited in enforcement reports and set forth general OHMS policy for considering statutory criteria.
B. The initial baseline determination partially considers the nature, extent, circumstances, and gravity of the alleged violation. That determination then is adjusted to consider all other evidence concerning the nature, extent, circumstances, and gravity of the alleged violation; degree of culpability; history of prior violations; ability to pay; effect of the penalty on ability to continue to do business; and such other matters as justice may require (a major component of which is corrective action taken by a respondent to prevent a recurrence of similar violations). In making a penalty recommendation, the baseline or range may be increased or decreased on the basis of evidence pertaining to these factors.
C. The following miscellaneous factors are used to implement one or more of the statutory assessment criteria.
IV. Miscellaneous Factors Affecting Penalty Amounts
A. Corrective Action
- A proposed penalty is mitigated for documented corrective action of alleged violations taken by a respondent. Corrective action may occur:
(1) After an inspection and before a Notice of Probable Violation (NOPV) is issued;
(2) on receipt of an NOPV; or
(3) after receipt of an NOPV (possibly after it is solicited by an PHMSA attorney). In general, corrective action may reduce a penalty up to 25%. Mitigation may be taken into account in the referral memo or may be recommended prior to issuance of an Order by PHMSA's Chief Counsel.
-
The two primary factors in determining the penalty reduction are extent and timing of the corrective action.
In other words, mitigation will be determined on the basis of how much corrective action was taken and when it was taken.
Systemic action to prevent future violations is given greater consideration than action simply to remedy violations identified
during the inspection.
-
Mitigation is applied to individual violations. Thus, in a case with two violations, if corrective action for the first violation
is more extensive than for the second, the penalty for the first will be mitigated more than that for the second.
B. Respondents That Re-Ship
A shipper that reships materials received from another company, in the same
packaging and without opening or altering the package, independently is responsible for ensuring that the shipment complies
with Federal hazmat law, and independently may be subject to enforcement action if the package does not comply. Nevertheless,
the reshipper is considered to have a lesser level of responsibility for compliance in those respects in which it reasonably
relies on the compliance of the package as received. In most cases of this type, OHMS will discount the applicable baseline
standard by about 25%. The specific knowledge and expertise of all parties must be considered in discounting for reliance
on a prior shipper. This discount is applied before any consideration of mitigation based on corrective action.
C. Penalty Increases for Multiple Counts
Under the Federal hazmat law, 49 U.S.C. 5213(a), each violation of the
HMR and each day of a continuing violation (except for violations pertaining to packaging manufacture or qualification) is
subject to a civil penalty of up to $25,000 ($27,500 for a violation occurring after January 21, 1997). Absent aggravating
factors, OHMS, in its exercise of discretion, ordinarily will apply a single penalty for multiple counts or days of violation.
In a number of cases, particularly those involving shippers, an inspector may cite two or more similar packaging violations
for different hazardous materials. For example, the inspector may cite the same marking violation for two or more packages.
OHMS usually will consider those additional violations as counts of the same violation and will not recommend multiples of
the same baseline penalty. Rather, OHMS usually will recommend the baseline penalty for a single violation, increased by 25%
for each additional violation.
D. Financial Considerations
- Mitigation is appropriate when the baseline penalty would
(1) exceed an amount that the respondent is able to pay, or
(2) have an adverse effect on the respondent's ability to continue in business. These criteria relate to a respondent's entire business, and not just the product line or part of its operations involved in the violation(s). Beyond the overall financial size of the respondent's business, the relevant items of information on a respondent's balance sheet include the current ratio (current assets to current liabilities), the nature of current assets, and net worth (total assets minus total liabilities).
-
These figures are considered on a case-by-case basis. In general, however, a current
ratio close to or below 1.0 means that the company may have difficulty in paying a large penalty, and may justify reduction of
the penalty or an installment payment plan. A small amount of cash on hand representing limited liquidity, even with substantial
other current assets (such as accounts receivable or inventory), may warrant a short-term payment plan. Respondent's income statement
also will be reviewed to determine whether a payment plan is appropriate.
-
Many companies are able to continue in business for extended periods of time with a small or negative net worth, and
many respondents have paid substantial civil penalties in installments even though net worth was negative. For this
reason, negative net worth alone does not always warrant reduction of a proposed penalty or even, in the
absence of factors discussed above, a payment plan.
-
In general, an installment payment plan may be justified where reduction of a proposed penalty is not, but the
appropriateness of either (or both) will depend on the circumstances of the case. The length of a payment plan should
be as short as possible, but the plan may consider seasonal fluctuations in a company's income if the company's business
is seasonal (e.g., swimming pool chemical sales, fireworks sales) or if the company has documented specific reasons for
current non-liquidity.
-
Evidence of financial condition is used only to decrease a penalty, and not to increase it.
E. Penalty Increases for Prior Violations
-
The baseline penalty presumes an absence of prior violations. If prior violations exist, generally they will serve to
increase a proposed penalty. The general standard for increasing a baseline proposed penalty on the 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 the pre-mitigation recommended penalty
c. Three prior cases-75% increase over the pre-mitigation recommended penalty
d. Four or more prior cases-100% increase over the pre-mitigation recommended penalty
-
A case of prior violations closed more than five years previously normally will not be considered in determining a proposed penalty.
F. Penalty Increases for Use of Expired Exemptions
Adjustments to the base line figures for use of expired exemptions can be made depending on how much material has been
shipped during the period between the expiration date and the renewal date. If the company previously has been found
to have operated under an expired exemption, the penalty is normally doubled. If the company has been previously cited
for other violations, the penalty generally will be increased by about 25%.
[Amdt. 107-33, 60 FR 12141, Mar. 6, 1995; 62 FR 2970, Jan. 21, 1997; 62 FR 51554, October 01, 1997]
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