[Federal Register: February 17, 2006 (Volume 71, Number 33)]
[Rules and Regulations]
[Page 8485-8488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17fe06-18]
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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:
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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
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Violation description Section or cite Baseline assessment
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General Requirements
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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
* * * * * * *
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Offeror Requirements--All Hazardous Materials
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* * * * * * *
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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).
* * * * * * *
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Manufacturing, Reconditioning, Retesting Requirements
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* * * * * * *
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).
* * * * * * *
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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.
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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