[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
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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.
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(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]
BILLING CODE 4910-60-P