[Federal Register Volume 82, Number 74 (Wednesday, April 19, 2017)]
[Rules and Regulations]
[Pages 18397-18400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07908]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107 and 171
[Docket No. PHMSA-2016-0041 (HM-258D)]
RIN 2137-AF23
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 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. The Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, which amended the Federal Civil Penalties
Inflation Adjustment Act of 1990, required Agencies to update their
civil monetary penalties in August 2016 through an interim final
rulemaking. PHMSA has elected to do the 2017 update in a final
rulemaking. Per this final rule, the maximum civil penalty for a
knowing violation is now $78,376, except for violations that result in
death, serious illness, or severe injury to any person or substantial
destruction of property, for which the maximum civil penalty is
$182,877. In addition, the minimum civil penalty amount for a violation
relating to training is now $471.
DATES: Effective Date: April 19, 2017.
FOR FURTHER INFORMATION CONTACT: Shawn Wolsey, 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:
Table of Contents:
I. Civil Penalty Amendments
II. Justification for Final Rule
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Environmental Assessment
I. Executive Order 13609 and International Trade Analysis
J. Privacy Act
K. Regulation Identifier Number (RIN)
List of Subjects
I. Civil Penalty Amendments
Section 701 of the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015 Act), Public Law 114-74, which
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(the Inflation Adjustment Act), Public Law 101-410, required that the
Agency make an initial catch-up adjustment with subsequent annual
adjustments to 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 maximum and
minimum civil penalty amounts apply to violations assessed on or after
the effective date of August 1, 2016. The 2015 Act also requires that
the Agency make subsequent annual adjustments for inflation beginning
in 2017, which are to be published no later than January 15th of each
subsequent year.
The Office of Management and Budget's (OMB) ``Memorandum for the
Heads of Executive Departments and Agencies, Implementation of the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015,'' M-17-11, provides guidance on how to update agencies' civil
penalties pursuant to the 2015 Act. In order to complete the 2017
annual adjustment, agencies should multiply each applicable penalty by
the multiplier (1.01636) and round to the nearest dollar. The
multiplier should be applied to the most recent penalty amount, i.e.,
the one that includes the catch-up adjustment that the 2015 Act
required agencies to issue no later than July 1, 2016.
Accordingly, PHMSA is revising the references to the maximum and
minimum civil penalty amounts in 49 CFR 107.329, appendix A to subpart
D of 49 CFR part 107, and 49 CFR 171.1 to reflect the changes required
by the 2015 Act:
Revising the maximum civil penalty from $77,114 to
$78,376 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 $179,933 to
$182,877 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
[[Page 18398]]
illness, or severe injury to any person or substantial destruction
of property.
Revising the minimum penalty amount from $463 to $471
for a violation related to training.
II. Justification for Final Rule
PHMSA is proceeding directly to a final rule without providing a
notice of proposed rulemaking (NPRM) or an opportunity for public
comment. This action is permitted, in part, because the 2015 Act
directs PHMSA to adjust the civil monetary penalties in accordance with
the schedule provided in the 2015 Act, notwithstanding the notice and
public comment procedures in the Administrative Procedure Act (APA).
However, PHMSA also notes that the APA authorizes agencies to forego
providing the opportunity for prior public notice and comment if an
agency finds good cause that notice and public comment are
``impracticable, unnecessary, or contrary to the public interest.'' See
5 U.S.C 553(b)(3)(B). In this instance, public comment is unnecessary
because, in making these technical amendments, PHMSA is not exercising
discretion in a way that could be informed by public comment. PHMSA is
required under the 2015 Act and directed by the OMB Guidance to publish
this rule by January 15, 2017, with the penalty levels stated herein to
take effect on that date. Further, PHMSA is mandated by the 2015 Act
and directed by the OMB Guidance to adjust the penalty levels pursuant
to the specific procedures also stated herein. Any public comments
received through notice and comment procedure would therefore not
affect PHMSA's obligation to comply with the 2015 Act, nor would they
affect the methods used by PHMSA to adjust the penalty levels.
III. 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 which 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 $78,376 and $182,877,
respectively, and (2) revising the minimum penalty amount to $471 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 Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735
(Oct. 4, 1993), and Executive Order 13563, ``Improving Regulation and
Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011). However, consistent
with OMB memorandum M-17-11, this final rule was not reviewed by OMB in
order to make a significance determination.
Further, this rule is not a significant regulatory action under DOT
Regulatory Policies and Procedures. See 44 FR 11034 (Feb. 26, 1979). It
is a ministerial act for which the Agency has no discretion. 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.
This final rule is being undertaken to address our statutory
requirements and imposes no new costs upon persons conducting hazardous
materials operations in compliance with the requirements of the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). 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. Moreover, as the cost is an inflationary adjustment
and the magnitude of the increase is minimal since these penalties were
recently enacted, reflected costs are nominal. The amendments in this
rule could provide safety benefits (i.e., larger penalties deterring
knowing violators). Overall, it is anticipated this rulemaking would
have minimal real costs and benefits.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132, ``Federalism.'' See 64
FR 43255 (Aug. 10, 1999). 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.'' See 65 FR 67249 (Nov. 9,
2000). 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 (RFA), 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
businesses transporting hazardous material. Therefore, PHMSA certifies
this rule would not have a significant economic impact on a substantial
number of small entities.
In addition, PHMSA has determined the RFA does not apply to this
rulemaking. The 2015 Act requires PHMSA to publish a final rule and
does not require PHMSA to complete notice and comment procedures under
the APA. The Small Business Administration's A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act (2003),
provides that:
If, under the APA or any rule of general applicability governing
Federal grants to state and local governments, the agency is
required to publish a general notice of proposed rulemaking (NPRM),
the RFA must be considered [citing 5 U.S.C. 604(a)]. . . . If an
NPRM is not required, the RFA does not apply.
Therefore, because the 2015 Act does not require an NPRM for this
rulemaking, the RFA does not apply.
F. Paperwork Reduction Act
There are no new information requirements in this final rule.
G. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. Public Law 104-4. It does not
result in costs of $100 million or more,
[[Page 18399]]
adjusted for inflation, to any of the following: State, local, or
Native American tribal governments, or to the private sector.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended,
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. 42 U.S.C. 4321-4375.
When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates the following: 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 would 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. Based on the
above discussion, PHMSA concludes there are no significant
environmental impacts associated with this final rule.
I. Executive Order 13609 and International Trade Analysis
Under Executive Order 13609, ``Promoting International Regulatory
Cooperation,'' 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. See 77 FR
26413 (May 4, 2012). 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 this 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.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received by any of our dockets using 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 (65 FR 19476), which may be viewed at http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.
K. 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
Definitions, General information, Regulations.
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 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section
31001; Pub. L. 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81
and 1.97.
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 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 $78,376 for each
violation, except the maximum civil penalty is $182,877 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 $471 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
$78,376 for each violation, except the maximum civil penalty is
$182,877 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 $471
for violations relating to training.
3. In appendix A to subpart D of part 107, section II.B. (``Penalty
Increases for Multiple Counts''), the first sentence of the second
paragraph is revised to read as follows:
Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties
* * * * *
II. * * *
B. * * *
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
[[Page 18400]]
to packaging manufacture or qualification) is subject to a civil
penalty of up to $78,376 or $182,877 for a violation occurring on or
after April 19, 2017. * * *
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
4. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 4 (28
U.S.C. 2461 note); 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 $78,376 for each violation, except the maximum civil
penalty is $182,877 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 $471 for a violation relating to training.
Issued in Washington, DC on April 14, 2017, under authority
delegated in 49 CFR part 1.97.
Howard W. McMillan,
Acting Deputy Administrator, Pipeline and Hazardous Materials Safety
Administration.
[FR Doc. 2017-07908 Filed 4-18-17; 8:45 am]
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