[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Rules and Regulations]
[Pages 22798-22800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08981]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107 and 171
[Docket No. PHMSA-2012-0257 (HM-258)]
RIN 2137-AE96
Hazardous Materials: Revision of Maximum and Minimum Civil
Penalties
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: PHMSA is revising the references in its regulations to the
maximum and minimum civil penalties for a knowing violation of the
Federal hazardous material transportation law or a regulation, order,
special permit, or approval issued under that law. As amended in the
``Moving Ahead for Progress in the 21st Century Act'' (MAP-21),
effective October 1, 2012, the maximum civil penalty for a knowing
violation is now $75,000, except that the maximum civil penalty is
$175,000 for a violation that results in death, serious illness, or
severe injury to any person or substantial destruction of property. In
addition, there is no longer a minimum civil penalty amount, except
that the minimum civil penalty amount of $450 applies to a violation
relating to training.
DATES: Effective Date: April 17, 2013.
FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous
Materials Safety, (202) 366-8553; or Joseph Solomey, Office of Chief
Counsel, (202) 366-4400, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Civil Penalty Amendments
In Section 33010 of MAP-21 (Pub. L. 112-141, 126 Stat. 837 [July 6,
2012]), Congress revised the maximum and minimum civil penalties set
forth in 49 U.S.C. 5123(a) for a knowing violation of the Federal
hazardous material transportation law or a regulation, order, special
permit, or approval issued under that law. These changes to the civil
penalty amounts apply to violations occurring on or after October 1,
2012. Accordingly, PHMSA is revising the references to the maximum and
minimum civil penalty amounts in its regulations to reflect the changes
to Section 5123 of the Federal hazardous material transportation law.
In 49 CFR 107.329, Appendix A to subpart D of 49 CFR part 107, and 49
CFR 171.1, we are:
Revising the maximum civil penalty from $55,000 to $75,000
for a person who knowingly violates the Federal hazardous material
transportation law or a regulation, order, special permit, or approval
issued under that law.
Revising the maximum civil penalty from $110,000 to
$175,000 for a person who knowingly violates the Federal hazardous
material transportation law or a regulation, order, special permit, or
approval issued under that law that results in death, serious illness,
or severe injury to any person or substantial destruction of the
property.
Removing the current $250 minimum civil penalty and
revising the minimum penalty amount to $450 for a violation related to
training.
Because these revisions simply set forth changes in the law and are
part of PHMSA's general statements of agency policy and procedure,
notice and comment is not necessary.
II. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of the Federal
hazardous materials transportation law (49 U.S.C. 5101 et seq.).
Section 5123(a) of that law provides civil penalties for knowing
violations of Federal hazardous material transportation law or a
regulation, order, special permit, or approval issued under that law.
This rule revises the references in PHMSA's regulations by (1) revising
the maximum penalty amount for a knowing violation and a knowing
violation resulting in death, serious illness, or severe injury to any
person or substantial destruction of property to $75,000 and $175,000,
respectively, and (2) removing the minimum penalty amount, except for
the minimum penalty amount of $450 for a violation related to training.
B. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
This final rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under
Executive Orders 12866 and 13563. Accordingly, this final rule was not
reviewed by the Office of Management and Budget (OMB). Further, this
rule is not a significant regulatory action under the Regulatory
Policies and Procedures of the DOT because it is limited to a
ministerial act on which the agency has
[[Page 22799]]
no discretion. 44 FR 11034. The economic impact of the final rule is
minimal to the extent that preparation of a regulatory evaluation is
not warranted. Given the low number of penalty actions within the scope
of this final rule, the impacts will be very limited. We provide,
however, the following information regarding cases and tickets
involving the maximum and minimum civil penalties to establish the
scope economic impacts associated with this final rule.
Maximum Civil Penalty
In reviewing Penalty Action Reports and enforcement data from 2010-
2012, PHMSA has found that twenty-one separate cases have been referred
by field operations to chief counsel with one or more violations with a
recommended penalty greater than $50,000. Of those cases, seventeen are
pending, and four have been finalized. In three of the four finalized
cases, the penalty assessed in the Order was reduced below the maximum
based on corrective actions, finances, or based on statutory criteria
that PHMSA must consider. In one case, the company paid the maximum
civil penalty.
Minimum Civil Penalty
In reviewing Penalty Action Reports and enforcement data from 2010-
2012, PHMSA has found that approximately 325 tickets that are not
related to training have been issued with a penalty of $500 or less.
These penalties would include actions in which the minimum civil
penalty was assessed for one or more violations. In addition, there
were no cases with a recommended penalty less than $500. Even though
these minimum penalties are no longer required, they will likely be
issued. The minimum civil penalty is expected to be used in a very
limited number of actions under very exceptional circumstances. For
example, a person that demonstrates a willingness to comply, works with
PHMSA to correct violations, and is facing financial hardship may be
granted leniency from a civil penalty.
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. In addition, Executive Order 13563
specifically requires agencies to: (1) Involve the public in the
regulatory process; (2) promote simplification and harmonization
through interagency coordination; (3) identify and consider regulatory
approaches that reduce burden and maintain flexibility; (4) ensure the
objectivity of any scientific or technological information used to
support regulatory action; and (5) consider how to best promote
retrospective analysis to modify, streamline, expand, or repeal
existing rules that are outmoded, ineffective, insufficient, or
excessively burdensome.
This final rule is being undertaken to address our statutory
requirements. It does not conflict with Executive Order 12866,
Executive Order 13563, or DOT Regulatory Policies and Procedures. This
rule imposes no new costs upon persons conducting hazardous materials
operations in compliance with the requirements of the HMR. Those
entities not in compliance with the requirements of the HMR may
experience an increased cost based on the penalties levied against them
for non-compliance; however, this is an avoidable, variable cost and
thus is not considered in any evaluation of the significance of this
regulatory action. The amendments in this rule could provide safety
benefits (i.e., larger penalties deterring knowing violators). Overall,
it is anticipated this rulemaking would be cost neutral.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rule does not impose any regulation having substantial direct effects
on the states, the relationship between the national government and the
states, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments). Because this final rule
does not have adverse tribal implications and does not impose direct
compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply, and, a tribal summary impact
statement is not required.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The provisions of this rule apply specifically to all
business transporting hazardous material. Therefore, PHMSA certifies
this rule would not have a significant economic impact on a substantial
number of small entities.
F. Paperwork Reduction Act
There are no new information requirements in this final rule.
G. 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.
H. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more, in the aggregate, to any of the following:
state, local, or Native American tribal governments, or to the private
sector.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4375), requires Federal agencies to consider the
consequences of major federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. When developing potential regulatory requirements, PHMSA
evaluates those requirements to consider the environmental impact of
each amendment. Specifically, PHMSA evaluates the: risk of release and
resulting environmental impact; risk to human safety, including any
risk to first responders; longevity of the packaging; and if the
proposed regulation would be carried out in a defined geographic area,
the resources, especially any sensitive areas, and how they could be
impacted by any proposed regulations. These amendments would be
generally applicable and not be carried out in a defined geographic
area. Civil penalties may act as a deterrent to those violating the
HMR, and, this can have a negligible positive environmental impact as a
result of increased compliance with the HMR. Based on the above
discussion PHMSA concludes there are no significant environmental
impacts associated with this final rule.
[[Page 22800]]
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be
viewed at http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.
K. Executive Order 13609 and International Trade Analysis
Under Executive Order 13609, agencies must consider whether the
impacts associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed the effects of the final rule to ensure that it does not cause
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is
consistent with Executive Order 13609 and PHMSA's obligations.
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, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 is revised 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 1.81 and 1.97
0
2. Section 107.329 is revised 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 the 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 $75,000 for each
violation, except the maximum civil penalty is $175,000 if the
violation results in death, serious illness or severe injury to any
person or substantial destruction of property. There is no minimum
civil penalty, except for a minimum civil penalty of $450 for
violations 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 the 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
$75,000 for each violation, except the maximum civil penalty is
$175,000 if the violation results in death, serious illness or severe
injury to any person or substantial destruction of property. There is
no minimum civil penalty, except for a minimum civil penalty of $450
for violations relating to training.
0
3. In Appendix A to subpart D of part 107, in Section IV.C., the first
sentence is revised to read as follows:
Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties
* * * * *
IV. * * *
C. * * *
Under the Federal hazmat law, 49 U.S.C. 5123(a), each violation
of the HMR and each day of a continuing violation (except for
violations relating to packaging manufacture or qualification) is
subject to a civil penalty of up to $75,000 or $175,000 for a
violation occurring on or after October 1, 2012. * * *
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
4. The authority citation for part 171 is revised 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. 104-134, section 31001; 49 CFR 1.81
and 1.97.
0
5. In Sec. 171.1, paragraph (g) is revised 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 $75,000 for each violation, except the maximum civil
penalty is $175,000 if the violation results in death, serious illness
or severe injury to any person or substantial destruction of property.
There is no minimum civil penalty, except for a minimum civil penalty
of $450 for a violation relating to training.
* * * * *
Issued in Washington, DC on April 9, 2013 under authority
delegated in 49 CFR part 1.
Cynthia Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-08981 Filed 4-16-13; 8:45 am]
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