[Federal Register Volume 60, Number 161 (Monday, August 21, 1995)]
[Proposed Rules]
[Pages 43430-43433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20676]



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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration

49 CFR Part 107

[Docket No. HM-207E, Notice No. 95-10]
RIN 2137-AC70


Hazardous Materials Pilot Ticketing Program

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: To streamline administrative procedures, cut costs, and reduce 
regulatory burdens on persons subject to hazardous materials 
transportation law, RSPA is proposing to implement a pilot program for 
ticketing of certain hazardous materials transportation violations. 
Under the program, RSPA would issue tickets for violations that do not 
have substantial impacts on safety. These violations may include, among 
others, operating under an expired exemption, failing to register, 
failing to maintain training records, and 

[[Page 43431]]
failing to file incident reports. Procedures under this pilot program 
would be less complicated than current procedures for civil penalty 
actions, and penalties would be substantially reduced for persons who 
elect to pay the amounts assessed in the tickets.

DATES: Comments must be received by October 20, 1995.

ADDRESSES: Address comments to Dockets Unit (DHM-30), Hazardous 
Materials Safety, RSPA, U.S. Department of Transportation, Washington, 
DC 20590-0001. Comments should identify the docket and notice number 
and five copies should be submitted, when possible. Persons wishing to 
receive confirmation of receipt of their comments should include a 
self-addressed, stamped postcard. The Dockets Unit is located in Room 
8421 of the Nassif Building, 400 Seventh Street SW., Washington, DC 
20590-0001. Office hours are 8:30 am to 5:00 pm, Monday through Friday, 
except on public holidays when the office is closed.

FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Director, 
Office of Hazardous Materials Enforcement, (202) 366-4700; or Edward H. 
Bonekemper, III, Office of the Chief Counsel, (202) 366-4400, Research 
and Special Programs Administration, U.S. Department of Transportation, 
400 Seventh Street SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    The Research and Special Programs Administration (RSPA) is the 
administration within the Department of Transportation primarily 
responsible for implementing the Federal hazardous material 
transportation law, 49 U.S.C. 5101-5127. RSPA does this by issuing and 
enforcing the Hazardous Materials Regulations (HMR), 49 CFR parts 171-
180. RSPA's Office of the Chief Counsel (OCC) may initiate 
administrative proceedings for violations of the HMR, and these 
proceedings may result in a civil penalty, an order directing 
compliance actions, or both. 49 CFR 107.307.
    Administrative proceedings are initiated by mailing a notice of 
probable violation to a person believed to have violated the HMR. 49 
CFR 107.311. The notice specifies the alleged violation(s) of the HMR, 
states the proposed penalty, and includes a copy of the inspection 
report. Within 30 days of receiving the notice, the recipient of the 
notice may admit the allegations by paying the proposed penalty, make 
an informal response, or request a formal hearing. 49 CFR 107.313, 
107.315.
    The recipient who chooses to respond informally submits a written 
response to the OCC to contest the alleged violations or the proposed 
penalty. The OCC considers the inspection report, the response, and any 
additional evidence obtained to determine whether the recipient 
committed the alleged violations and, if so, the appropriate penalty in 
accordance with the statutory criteria for penalty determination, 49 
U.S.C. 5123(c). See also RSPA's civil penalty guidelines at 60 FR 12139 
(March 6, 1995). If the recipient requests an informal conference, an 
opportunity is provided to supplement the written response in person or 
by telephone with the OCC attorney and the inspector. Information 
obtained by the OCC during the informal conference becomes part of the 
case file. The Chief Counsel then issues an order finding a violation 
or violations and, for each violation found, assesses a civil penalty. 
The order may be appealed to the RSPA Administrator. See generally 49 
CFR 107.317, 107.325(b).
    Alternatively, the recipient may request a formal administrative 
hearing on the record before an Administrative Law Judge (ALJ) from the 
Department of Transportation's Office of Hearings. At the conclusion of 
the hearing, the ALJ determines whether the alleged violations have 
been committed and, if so, imposes a penalty in accordance with the 
statutory assessment criteria. Either party may appeal a decision of 
the ALJ to the RSPA Administrator. See generally 49 CFR 107.319, 
107.325(a).
    At any time during an informal or a formal proceeding, RSPA and the 
recipient of the notice may agree upon an appropriate resolution of the 
case. 49 CFR 107.327.

II. Proposal

    Under the proposed rule, the Associate Administrator for Hazardous 
Materials Safety would be authorized to issue tickets for certain HMR 
violations that currently are handled through the civil penalty 
process. To be included in the ticketing program, a particular 
violation must not have a substantial impact on safety. Because this 
program is designed to ease administrative and regulatory burdens on 
persons subject to the HMR, violations currently eligible for letters 
of warning under 49 CFR 107.309 generally will not be included in the 
ticketing program. Tickets will not be issued on the spot by inspectors 
following an inspection.
    This program would be a two-year pilot program. At the end of two 
years, RSPA would evaluate the program in terms of cost savings, time 
savings, and impact on the effectiveness of its compliance program.
    RSPA is considering a number of violations for inclusion in the 
ticketing program, including, among others, operating under an expired 
exemption, failing to register, failing to maintain training records, 
and failing to file incident reports. Based on comments received and 
experience gained through administration of the ticketing program, 
additional types of violations may be added to the program. These 
violations will not be processed under the ticketing program if more 
serious violations also are alleged. Violations processed under the 
ticketing program will be considered prior violations in the event of 
future violations of the HMR by the same party.
    RSPA expects that the Associate Administrator for Hazardous 
Materials Safety would delegate ticketing authority to the Director, 
Office of Hazardous Materials Enforcement (OHME) who may redelegate 
that authority. RSPA field inspectors would conduct inspections as at 
present. Supervisory inspectors then would evaluate field inspector 
reports, and tickets would be issued to parties when appropriate. The 
ticketing process would be limited to those cases involving violations 
identified as meeting safety risk criteria for ticketing established by 
the Associate Administrator for Hazardous Materials Safety.
    The ticket would include a statement of the facts supporting the 
alleged violation. In addition, the ticket would set forth the maximum 
penalty provided for by statute, the proposed penalty determined 
according to the RSPA civil penalty guidelines, see 60 FR 12139 (March 
6, 1995), and the ticket penalty amount. The ticket would state that 
the recipient must pay the penalty or request a hearing within 30 days 
of receipt of the ticket.
    The civil penalty contained in the ticket would be substantially 
less than the penalty that would be proposed under current procedures 
or that could be imposed by an ALJ at a hearing. If the recipient pays 
the ticket amount and states that action to correct the violation has 
been taken, the matter would be closed and there would be no further 
agency action. If the recipient elects not to pay the ticket and 
requests a hearing, RSPA would forward the case file to a Coast Guard 
Hearing Officer who would review the case in accordance with Coast 
Guard procedures set forth at 33 CFR 1.07. The Hearing Officer would 
not be bound by the reduced penalty amount in the ticket and could 
impose 

[[Page 43432]]
a civil penalty as high as the proposed penalty determined under RSPA's 
civil penalty guidelines. The Hearing Officer's factual findings and 
legal conclusions in a particular case would apply solely to that case. 
A person could appeal the decision of the Hearing Officer to the 
Commandant, United States Coast Guard.
    A recipient would waive a right to a hearing by failing to respond 
to the ticket within 30 days. Moveover, failure to respond would be 
deemed an admission of the violation, and the proposed penalty would be 
owed to RSPA. An unpaid proposed penalty or a penalty imposed by the 
Coast Guard Hearing Officer or the Commandant on appeal would 
constitute a debt owed to the United States Government.
    This proposed rule is consistent with the recommendation in the 
National Performance Review (DOT02.01) to streamline the enforcement 
process by implementing pilot programs to offer greater flexibility in 
enforcement methods. RSPA's pilot program for ticketing would, for 
certain violations, reengineer RSPA's current program to cut costs, 
simplify the processing of less significant HMR violations, and achieve 
compliance through more efficient and effective processes. The 
ticketing program would create a vehicle for recipients to more easily 
respond to allegations of HMR violations.
    Comments are invited on all of these proposed procedures.

III. Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This notice of proposed rulemaking is not considered a significant 
regulatory action under section 3(f) of Executive Order 12866 and 
therefore is not subject to review by the Office of Management and 
Budget. The notice is not significant according to the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034).
    The proposed changes would not result in any additional costs to 
persons subject to the HMR, but would result in modest cost savings to 
a small number of them and to the agency. Because of the minimal 
economic impact of this rule, preparation of a regulatory impact 
analysis or a regulatory evaluation is not warranted. This 
certification may be revised as a result of public comment.

Executive Order 12612

    This notice of proposed rulemaking has been analyzed in accordance 
with the principles and criteria in Executive Order 12612 
(``Federalism'') and does not have sufficient Federalism impacts to 
warrant the preparation of a federalism assessment.

Regulatory Flexibility Act

    I certify that this notice of proposed rulemaking will not have a 
significant economic impact on a substantial number of small entities. 
This proposal does not impose any new requirements on persons subject 
to the HMR; thus, there are no direct or indirect adverse economic 
impacts for small units of government, businesses or other 
organizations.

Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

List of Subjects in 49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, 49 CFR Part 107 would be amended 
as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

    1. The authority citation for Part 107 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    2. In Sec. 107.307, paragraph (a) would be revised to read as 
follows:


Sec. 107.307  General.

    (a) When RSPA has reason to believe that a person is knowingly 
engaging or has knowingly engaged in conduct which is a violation of 
the Federal hazardous material transportation law or any provision of 
this subchapter or subchapter C of this chapter, or any exemption, or 
order issued thereunder, for which RSPA exercises enforcement 
authority, RSPA may--
    (1) Issue a warning letter, as provided in Sec. 107.309;
    (2) Initiate proceedings to assess a civil penalty, as provided in 
either Sec. 107.310 or 107.311;
    (3) Issue an order directing compliance, regardless of whether a 
warning letter has been issued or a civil penalty assessed; and
    (4) Seek any other remedy available under the Federal hazardous 
material transportation law.
* * * * *


Sec. 107.307  [Amended]

    3. In addition, in Sec. 107.307, in paragraph (b), the wording 
``Office of Chief Counsel'' would be revised to read ``RSPA''.
Sec. 107.309  [Amended]

    4. In Sec. 107.309, at the beginning of paragraph (a), the wording 
``In addition to the initiation of proceedings under Sec. 107.307 for 
the imposition of sanctions or other remedies, the'' would be revised 
to read ``The''.
    5. Section 107.310 would be added to read as follows:


Sec. 107.310  Ticketing.

    (a) For an alleged violation that does not have a substantial 
impact on safety, the Associate Administrator for Hazardous Materials 
Safety may issue a ticket.
    (b) The Associate Administrator issues a ticket by mailing it by 
certified or registered mail to the person alleged to have committed 
the violation. The ticket includes:
    (1) A statement of the facts on which the Associate Administrator 
bases the conclusion that the person has committed the alleged 
violation;
    (2) The maximum penalty provided for by statute, the proposed 
penalty determined according to RSPA's civil penalty guidelines and the 
ticket penalty amount; and
    (3) A statement that within 30 days of receipt of the ticket, the 
person must either pay the penalty in accordance with paragraph (d) of 
this section or request a hearing under paragraph (c) of this section.
    (c) If the person requests a hearing, the Associate Administrator 
forwards the inspection report, ticket and response to a Coast Guard 
Hearing Officer. The Hearing Officer reviews a case in accordance with 
Coast Guard procedures set forth in 33 CFR 1.07-15 to 1.07-65. Where in 
33 CFR 1.07-15 to 1.07-65 the words ``District Commander'' appear, they 
will be understood to mean ``Associate Administrator for Hazardous 
Materials Safety, RSPA''. The Hearing Officer may impose a civil 
penalty that does not exceed the proposed penalty determined according 
to RSPA's civil penalty guidelines (as stated in the ticket). The 
Hearing Officer's findings of fact and conclusions of law in a case 
apply only to that case. The person may appeal the decision of the 
Hearing Officer to the Commandant, United States Coast Guard.
    (d) Payment of the ticket penalty amount or the amount imposed by 
the Coast Guard Hearing Officer must be made in accordance with the 
instructions on the ticket or as instructed by the Hearing Officer. 

[[Page 43433]]

    (e) If within thirty days of receiving the ticket the person 
neither pays the ticket amount nor requests a hearing, the person has 
waived the right to a hearing, has admitted the violation and owes the 
ticket penalty amount to RSPA.
    6. In Sec. 107.311, paragraph (a) would be revised to read as 
follows:


Sec. 107.311  Notice of probable violation.

    (a) The Office of Chief Counsel may serve a notice of probable 
violation on a person alleging the violation of one or more provisions 
of the Federal hazardous material transportation law or any provision 
of this subchapter or subchapter C of this chapter, or any exemption, 
or order issued thereunder.
* * * * *
    Issued in Washington, DC on August 16, 1995 under authority 
delegated in 49 CFR part 106, appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-20676 Filed 8-18-95; 8:45 am]
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