[Federal Register Volume 71, Number 33 (Friday, February 17, 2006)]
[Rules and Regulations]
[Pages 8485-8488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1491]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107 and 171

[Docket No. PHMSA-05-22461]
RIN 2137-AE14


Hazardous Materials: Revisions to Civil and Criminal Penalties; 
Penalty Guidelines

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
revising its regulations to reflect revisions to the civil and criminal 
penalties in the Hazardous Materials Safety and Security 
Reauthorization Act (Title VII of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users), enacted on 
August 10, 2005. We are also revising baseline assessments for 
violations related to training and security plans and making editorial 
changes in our List of Frequently Cited Violations in our Guidelines 
for Civil Penalties. We publish our Guidelines for Civil Penalties in 
order to provide the regulated community and the general public with 
information on the hazardous material penalty assessment process.

EFFECTIVE DATE: This rule is effective February 17, 2006.

FOR FURTHER INFORMATION CONTACT: Douglas S. Smith, Office of Hazardous 
Materials Enforcement, (202) 366-4700; or Joseph Solomey, Office of 
Chief Counsel, (202) 366-4400, Pipeline and Hazardous Materials Safety 
Administration.

SUPPLEMENTARY INFORMATION: 

I. Civil and Criminal Penalties

    On August 10, 2005, the President signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), Public Law 109-59, 119 Stat. 1144. Title VII of SAFETEA-
LU--the Hazardous Materials Safety and Security Reauthorization Act of 
2005--revised the maximum and minimum civil penalties, and the maximum 
criminal penalty, for violations of Federal hazardous materials 
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) or a 
regulation, order, special permit, or approval issued under Federal 
hazmat law (including 49 CFR subtitle B, Chapter I, subchapters A and 
C). The Pipeline and Hazardous Materials Safety Administration (PHMSA; 
we) is revising references in our regulations to the maximum and 
minimum civil penalties, and the maximum criminal penalties, to reflect 
the following statutory changes:

--The maximum civil penalty was increased from $32,500 to $50,000 for a 
knowing violation, and to $100,000 if the violation results in death, 
serious illness or severe injury to any person, or substantial 
destruction of property.
--The minimum civil penalty has reverted from $275 to $250, except a 
minimum civil penalty of $450 applies to a violation related to 
training.
--Criminal penalties now apply to both reckless and willful violations 
(as well to as a knowing violation of the prohibition in 49 U.S.C. 
5104(b) against tampering with a marking, label, placard, or 
description on a shipping document) of Federal hazardous material 
transportation law or the regulations, orders, special permits, and 
approvals issued thereunder.

[[Page 8486]]

--The maximum criminal penalty of 5 years imprisonment and a fine in 
accordance with Title 18 of the United States Code ($250,000 for an 
individual, $500,000 for a corporation) was retained, except the 
maximum time of imprisonment has been increased to 10 years in any case 
in which the violation involves the release of a hazardous material 
which results in death or bodily injury to a person.

II. Revisions to Civil Penalty Guidelines

    PHMSA's hazardous material transportation enforcement civil penalty 
guidelines are published in Appendix A to 49 CFR part 107, subpart D, 
to provide the regulated community and the general public with 
information concerning the manner in which PHMSA generally begins its 
hazmat penalty assessment process and the types of information which 
respondents in enforcement cases should provide to justify reduction of 
proposed penalties. These guidelines were first published in the 
Federal Register on March 6, 1995 (60 FR 12139), in response to a 
request contained in Senate Report 103-150 which accompanied the 
Department of Transportation and Related Agencies Appropriations Act of 
1994. These guidelines are periodically updated. We previously 
published revisions to these guidelines on January 21, 1997 (62 FR 
2970), August 28, 2001 (66 FR 45177), and September 8, 2003 (68 FR 
52844).
    These guidelines are used in PHMSA's enforcement program as a means 
of determining a proposed civil penalty for violations of Federal 
hazardous material transportation law and the regulations issued under 
that law. As a general statement of agency policy and practice, these 
guidelines do not have the force of law. They are informational, impose 
no requirements, and constitute a statement of agency policy for which 
no notice of proposed rulemaking is necessary. See also the discussion 
of the nature and PHMSA's use of these penalty guidelines in the 
preamble to the final rules published on March 6, 1995 (60 FR 12139-
40), January 21, 1997 (62 FR 2970-71), and September 8, 2003 (68 FR 
52845).
    In this final rule, we are revising baseline assessments in the 
General Requirements section of the List of Frequently Cited Violations 
(Part II of PHMSA's Guidelines for Civil penalties in Appendix A to 49 
CFR part 107, subpart D) to reflect the increase to $450 in the minimum 
civil penalty for a violation related to training and to clarify the 
baseline assessments applicable to the failure to develop or adhere to 
a security plan and provide security training when a security plan is 
required. In other sections of the List of Frequently Cited Violations, 
we are revising the entry for failing to retain shipping papers to 
reflect revisions to 49 U.S.C. 5110(d) in SAFETEA-LU, and we are 
correcting an error in an entry in the Cylinder Requalification 
violations.
    Because the provisions adopted in this final rule simply set forth 
changes in the law and our general statements of agency policy and 
procedure, notice-and-comment procedure is not necessary.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking
    This final rule is published under the authority of 49 U.S.C. 5123 
and 5124 which provide civil and criminal penalties for violations of 
Federal hazardous material transportation law or a regulation, order, 
special permit, or approval issued under that law. This rule revises 
references in PHMSA's regulations to reflect revisions to the civil and 
criminal penalties in the Hazardous Materials Safety and Security 
Reauthorization Act (Title VII of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users), enacted on 
August 10, 2005. This rule also revises baseline assessments relating 
to training and security plans in our penalty guidelines.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This rule is not 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). The economic impact of this 
final rule is minimal, and preparation of a regulatory evaluation is 
not warranted.
C. Executive Order 12612
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). As 
amended in SAFETEA-LU, 49 U.S.C. 5125(i) provides the preemption 
provisions in Federal hazardous material transportation law do ``not 
apply to any * * * penalty * * * utilized by a State, political 
subdivision of a State, or Indian tribe to enforce a requirement 
applicable to the transportation of hazardous material.'' Accordingly, 
this final rule does not have any preemptive effect on State, local, or 
Indian tribe enforcement procedures and penalties, and preparation of a 
federalism assessment is not warranted.
D. Regulatory Flexibility Act and Executive Order 13272
    I certify this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule applies to 
shippers and carriers of hazardous materials, some of whom are small 
entities; however, there is no economic impact on any person who 
complies with Federal hazardous materials law and the regulations and 
orders issued under that law.
E. Paperwork Reduction Act
    There are no new information requirements in this final rule.
F. Unfunded Mandates Reform Act of 1995
    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Act of 1995. It does not result in annual costs of 
$120.7 million or more, in the aggregate, to any of the following: 
State, local, or Indian tribal governments, or the private sector, and 
is the least burdensome alternative to achieve the objective of the 
rule.
G. Environmental Assessment
    There are no significant environmental impacts associated with this 
final rule.
H. Regulation Identifier Number (RIN)
    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
spring and fall of each year. The RIN contained in the heading of this 
document can be used to cross-reference this action with the Unified 
Agenda.

List of Subjects

49 CFR Part 107

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

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous Waste, 
Imports, Incorporation by reference, Penalties, Reporting and 
recordkeeping requirements.


0
In consideration of the foregoing, 49 CFR, Subtitle B, Chapter I is 
amended as follows:

[[Page 8487]]

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 
104-134 section 31001; 49 CFR 1.45, 1.53.


0
2. Revise Sec.  107.329 to read as follows:


Sec.  107.329  Maximum penalties.

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

0
3. Revise Sec.  107.333 to read as follows:


Sec.  107.333  Criminal penalties generally.

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

0
4. In Appendix A to subpart D of part 107, make the following changes:
0
a. In Part I, revise the parenthetical phrase ``(as of October 1, 
2003)'' to read: ``(as of October 1, 2005)''.
0
b. In Part II, in the List of Frequently Cited Violations, revise the 
``General Requirements'' section; entry B.3 under ``Offeror 
Requirements--All Hazardous Materials''; and entry F.12 under 
``Manufacturing, Reconditioning, Retesting Requirements.''
0
c. In Part IV, under the section entitled ``Penalty Increase for 
Multiple Counts'' (Section IV.C.), revise the words ``$32,500 ($27,500 
for a violation occurring after January 21, 1997, and before October 1, 
2003)'' to read: ``$50,000 or $100,000 for a violation occurring on or 
after August 10, 2005''.
    The revisions to Part II of Appendix A to subpart D read as 
follows:

Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties

* * * * *

                                    II.--List of Frequently Cited Violations
----------------------------------------------------------------------------------------------------------------
           Violation description                         Section or cite                 Baseline assessment
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                                              General Requirements
----------------------------------------------------------------------------------------------------------------
A. Registration Requirements: Failure to     107.608, 107.612......................  $1,000 + $500 each
 register as an offeror or carrier of                                                 additional year.
 hazardous material and pay registration
 fee.
B. Training Requirements:
    1. Failure to provide initial training   172.702
     to hazmat employees (general
     awareness, function-specific, safety,
     and security awareness training):
        a. More than 10 hazmat employees...  ......................................  $700 and up each area.
        b. 10 hazmat employees or fewer....  ......................................  $450 and up each area.
    2. Failure to provide recurrent          172.702...............................  $450 and up each area.
     training to hazmat employees (general
     awareness, function-specific, safety,
     and security awareness training).
    3. Failure to provide security training  172.702...............................  Included in penalty for no
     when a security plan is required but                                             security plan.
     has not been developed.
    4. Failure to provide security training  172.702...............................  $2,500.
     when a security plan has been
     developed but hazmat employees have
     not been trained concerning the
     security plan and its implementation.
    5. Failure to create and maintain        172.704
     training records:
        a. more than 10 hazmat employees...  ......................................  $800 and up.
        b. 10 hazmat employees or fewer....  ......................................  $500 and up.
C. Security Plans:
    1. Failure to develop a security plan;   172.800
     failure to adhere to security plan:
        a. Sec.   172.504 table 1 materials  ......................................  $7,500.
        b. Packing Group I.................  ......................................  $6,000.
        c. Packing Group II................  ......................................  $4,500.
        d. Packing Group III...............  ......................................  $3,000.
    2. Incomplete security plan or           ......................................  One-quarter (25%) of above
     incomplete adherence (one or more of                                             for each element.
     four required elements missing).
    3. Failure to update a security plan to  172.802(b)............................  One-third (33%) of baseline
     reflect changing circumstances.                                                  for no plan.
    4. Failure to put security plan in       172.800(b)............................  One-third (33%) of baseline
     writing; failure to make all copies                                              for no plan.
     identical.

[[Page 8488]]

 
D. Notification to a Foreign Shipper:        171.12(a).............................  $1,500 to $7,500
 Failure to provide information of HMR                                                (corresponding to
 requirements applicable to a shipment of                                             violations by foreign
 hazardous materials within the United                                                offeror or forwarding
 States, to a foreign offeror or forwarding                                           agent).
 agent at the place of entry into the U.S.
E. Expired Exemption: Offering or            171.2(a), (b), (c), Various...........  $1,000 + $500 each
 transporting a hazardous material, or                                                additional year.
 otherwise performing a function covered by
 an exemption, after expiration of the
 exemption
 
                                                  * * * * * * *
--------------------------------------------
                                  Offeror Requirements--All Hazardous Materials
----------------------------------------------------------------------------------------------------------------
 
 
                                                  * * * * * * *
--------------------------------------------
B. Shipping Papers:
 
                                                  * * * * * * *
    3. Failure to retain shipping papers:
        a. by an offeror, for two years
         after the date the shipment is
         provided to the carrier (or 3
         years if the material is a
         hazardous waste).
        b. by a carrier, for one year after  172.201(e), 174.24(b), 175.30(a),       $1,000.
         the date the shipment is provided    176.24(b), 177.817(f).
         to the carrier (or 3 years if the
         material is a hazardous waste).
 
                                                  * * * * * * *
--------------------------------------------
                              Manufacturing, Reconditioning, Retesting Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
F. Cylinder Requalification:
 
                                                  * * * * * * *
    12. Failure to perform a second retest,  180.205(g)............................  $3,100.
     after equipment failure, at a pressure
     increased by the lesser of 10% or 100
     psi (includes exceeding 90% of test
     pressure prior to conducting a retest).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
5. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.

0
6. In Sec.  171.1, revise paragraph (g) to read as follows:


Sec.  171.1  Applicability of Hazardous Materials Regulations (HMR) to 
persons and functions.

* * * * *
    (g) Penalties for noncompliance. Each person who knowingly violates 
a requirement of the Federal hazardous material transportation law, an 
order issued under Federal hazardous material transportation law, 
subchapter A of this chapter, or a special permit or approval issued 
under subchapter A or C of this chapter is liable for a civil penalty 
of not more than $50,000 and not less than $250 for each violation, 
except the maximum civil penalty is $100,000 if the violation results 
in death, serious illness or severe injury to any person or substantial 
destruction of property, and a minimum $450 civil penalty applies to a 
violation relating to training. When a violation is a continuing one 
and involves transporting of hazardous material or causing them to be 
transported, each day of the violation is a separate offense. Each 
person who knowingly violates Sec.  171.2(l) or willfully or recklessly 
violates a provision of the Federal hazardous material transportation 
law, an order issued under Federal hazardous material transportation 
law, subchapter A of this chapter, or a special permit or approval 
issued under subchapter A or C of this chapter, shall be fined under 
title 18, United States Code, or imprisoned for not more than 5 years, 
or both, except the maximum amount of imprisonment shall be 10 years in 
any case in which a violation involves the release of a hazardous 
material which results in death or bodily injury to any person.


    Issued in Washington, DC on February 13, 2006, under authority 
delegated in 49 CFR part 1.
Brigham A. McCown,
Acting Administrator.
[FR Doc. 06-1491 Filed 2-16-06; 8:45 am]
BILLING CODE 4910-60-P