Hazardous Materials: Revisions to Civil and Criminal Penalties; Penalty Guidelines, 8485-8488 [06-1491]

Download as PDF Federal Register / Vol. 71, No. 33 / Friday, February 17, 2006 / Rules and Regulations approach to selecting State Advisory Committee members. Additionally, the Commission decides that the use of racial preferences and caps in the selection of State Advisory Committee members would deprive the Committees of members with much-needed skill sets in a time of diminishing financial support. Denying membership in this manner could also diminish the quality of State Advisory Committee research and reports. One comment addressed balance in political representation. The guidance as provided in the new Administrative Instruction will provide for representation by both major political parties, while also allowing independent and third party members. The Commission has chosen to rely on its requirement for a broadly diverse membership, instead of seeking a required balance that could be perceived as a quota or cap. Others commenting on the proposed regulation chose to focus on the skills, experiences and professional backgrounds sought in potential State Advisory Committee members. The identified professions represent no change from previous guidance. Since at least 1991, educators, lawyers, business and labor leaders, corporate officers, social scientists, researchers and news gatherers have been identified as professions that should be represented in State Advisory Committee membership. The Commission has also chosen to introduce the consideration of technical skills and abilities, including, but not limited to, background in social science research, legal research and analysis, and statistical analysis. Consideration of these skills and abilities in selecting State Advisory Committee members will enhance the ability of these Committees in continuing their work in the face of diminished fiscal resources. The inclusion of these skill sets will also encourage the selection of members with the knowledge and experience necessary to produce effective and influential reports. The established criteria are not exclusionary; they are broadly inclusive and would not bar individuals from a variety of backgrounds, including persons with a background in advocacy. wwhite on PROD1PC61 with RULES List of Subjects in 45 CFR Part 703 Advisory Committees, organization and functions (Government agencies). Accordingly, 45 CFR part 703 is amended as follows: I VerDate Aug<31>2005 18:49 Feb 16, 2006 Jkt 208001 PART 703—OPERATIONS AND FUNCTIONS OF STATE ADVISORY COMMITTEES 1. The authority citation for part 703 continues to read as follows: I Authority: 42 U.S.C. 1975a(d). I 2. Revise § 703.5 to read as follows: § 703.5 Membership. (a) Subject to exceptions made from time to time by the Commission to fit special circumstances, each Advisory Committee shall consist of at least 11 members appointed by the Commission. Members of the Advisory Committees shall serve for a fixed term to be set by the Commission upon the appointment of a member subject to the duration of Advisory Committees as prescribed by the charter, provided that members of the Advisory Committee may, at any time, be removed by the Commission. (b) No person is to be denied an opportunity to serve on a State Advisory Committee because of race, age, sex, religion, national origin, or disability. The Commission shall encourage membership on the State Advisory Committee to be broadly diverse. Kenneth L. Marcus, Staff Director/Acting General Counsel. [FR Doc. 06–1489 Filed 2–16–06; 8:45 am] BILLING CODE 6335–01–P 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 Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. AGENCY: 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 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 8485 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. E:\FR\FM\17FER1.SGM 17FER1 8486 Federal Register / Vol. 71, No. 33 / Friday, February 17, 2006 / Rules and Regulations wwhite on PROD1PC61 with RULES —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 VerDate Aug<31>2005 18:49 Feb 16, 2006 Jkt 208001 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, noticeand-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. 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 crossreference this action with the Unified Agenda. List of Subjects C. Executive Order 12612 49 CFR Part 107 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, Administrative practices and procedure, Hazardous materials transportation, Packaging and containers, Penalties, Reporting and recordkeeping requirements. PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous Waste, Imports, Incorporation by reference, Penalties, Reporting and recordkeeping requirements. In consideration of the foregoing, 49 CFR, Subtitle B, Chapter I is amended as follows: I E:\FR\FM\17FER1.SGM 17FER1 Federal Register / Vol. 71, No. 33 / Friday, February 17, 2006 / Rules and Regulations PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES 1. The authority citation for part 107 continues to read as follows: I 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. I 2. Revise § 107.329 to read as follows: § 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. I 3. Revise § 107.333 to read as follows: § 107.333 Criminal penalties generally. A person who knowingly violates § 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, 8487 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. I 4. In Appendix A to subpart D of part 107, make the following changes: I a. In Part I, revise the parenthetical phrase ‘‘(as of October 1, 2003)’’ to read: ‘‘(as of October 1, 2005)’’. I 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.’’ I 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 wwhite on PROD1PC61 with RULES General Requirements A. Registration Requirements: Failure to register as an offeror or carrier of hazardous material and pay registration fee. B. Training Requirements: 1. Failure to provide initial training to hazmat employees (general awareness, function-specific, safety, and security awareness training): a. More than 10 hazmat employees ...................................................................... b. 10 hazmat employees or fewer ......................................................................... 2. Failure to provide recurrent training to hazmat employees (general awareness, function-specific, safety, and security awareness training). 3. Failure to provide security training when a security plan is required but has not been developed. 4. Failure to provide security training 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 training records: a. more than 10 hazmat employees ...................................................................... b. 10 hazmat employees or fewer ......................................................................... C. Security Plans: 1. Failure to develop a security plan; failure to adhere to security plan: a. § 172.504 table 1 materials ............................................................................... b. Packing Group I ................................................................................................. c. Packing Group II ................................................................................................ d. Packing Group III ............................................................................................... 2. Incomplete security plan or incomplete adherence (one or more of four required elements missing). 3. Failure to update a security plan to reflect changing circumstances ....................... 107.608, 107.612 ...... 4. Failure to put security plan in writing; failure to make all copies identical ............... 172.800(b) ................. VerDate Aug<31>2005 18:49 Feb 16, 2006 Jkt 208001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 $1,000 + $500 each additional year. 172.702 .................................... .................................... 172.702 ..................... $700 and up each area. $450 and up each area. $450 and up each area. 172.702 ..................... 172.702 ..................... Included in penalty for no security plan. $2,500. 172.704 .................................... .................................... $800 and up. $500 and up. 172.800 .................................... .................................... .................................... .................................... .................................... 172.802(b) ................. E:\FR\FM\17FER1.SGM 17FER1 $7,500. $6,000. $4,500. $3,000. One-quarter (25%) of above for each element. One-third (33%) of baseline for no plan. One-third (33%) of baseline for no plan. 8488 Federal Register / Vol. 71, No. 33 / Friday, February 17, 2006 / Rules and Regulations II.—LIST OF FREQUENTLY CITED VIOLATIONS—Continued Violation description Section or cite Baseline assessment D. Notification to a Foreign Shipper: Failure to provide information of HMR requirements applicable to a shipment of hazardous materials within the United States, to a foreign offeror or forwarding agent at the place of entry into the U.S. 171.12(a) ................... E. Expired Exemption: Offering or transporting a hazardous material, or otherwise performing a function covered by an exemption, after expiration of the exemption 171.2(a), (b), (c), Various. $1,500 to $7,500 (corresponding to violations by foreign offeror or forwarding agent). $1,000 + $500 each additional year. * * * * * * * * * * * * * 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 the date the shipment is provided to the carrier (or 3 years if the material is a hazardous waste). * * * * 172.201(e), 174.24(b), 175.30(a), 176.24(b), 177.817(f). * $1,000. * * * * Manufacturing, Reconditioning, Retesting Requirements * F. Cylinder Requalification: * * * * * * * * 12. Failure to perform a second retest, 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 5. The authority citation for part 171 continues to read as follows: I 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. 6. In § 171.1, revise paragraph (g) to read as follows: I § 171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions. wwhite on PROD1PC61 with RULES * * * * * (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 VerDate Aug<31>2005 19:53 Feb 16, 2006 Jkt 208001 * * * 180.205(g) ................. $3,100. * 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 § 171.2(l) or willfully or recklessly violates a provision of the Federal hazardous material transportation law, an order issued under Federal PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 * * * 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 E:\FR\FM\17FER1.SGM 17FER1

Agencies

[Federal Register Volume 71, Number 33 (Friday, February 17, 2006)]
[Rules and Regulations]
[Pages 8485-8488]
From the Federal Register Online via the Government Printing 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.

-----------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
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

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