Minimum and Ordinary Maximum and Aggravated Maximum Civil Monetary Penalties for a Violation of the Hazardous Materials Transportation Laws or Regulations, Orders, Special Permits, or Approvals Under Those Laws, 9845-9848 [2013-03208]
Download as PDF
<![CDATA[
Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
James A. Walke,
Acting Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
SUPPLEMENTARY INFORMATION:
Amendments to the Statutory Civil
Penalty Provisions
[FR Doc. 2013–03077 Filed 2–11–13; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA–2004–17530, Notice No.
3]
RIN 2130–ZA11
Minimum and Ordinary Maximum and
Aggravated Maximum Civil Monetary
Penalties for a Violation of the
Hazardous Materials Transportation
Laws or Regulations, Orders, Special
Permits, or Approvals Under Those
Laws
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA is revising its regulations
to reflect amendments to certain
statutory civil monetary penalty
provisions effected by the Moving
Ahead for Progress in the 21st Century
Act (MAP–21), which was enacted on
July 6, 2012. These statutory
amendments became effective on
October 1, 2012. Pursuant to the Act,
FRA is eliminating the minimum
penalty for other than a training
violation and adjusting both the
ordinary maximum penalty and the
aggravated maximum penalty that
applies when assessing a civil monetary
penalty for a violation of the Federal
hazardous materials transportation laws
or a regulation, special permit, or
approval issued under those laws. FRA
is also revising references to these
minimums and maximums in its civil
penalty assessment guidelines to
conform to these statutory changes.
DATES: Effective Date: This rule is
effective February 12, 2013.
Applicability Date: This final rule
applies to all violations of the Federal
hazardous materials transportation laws
or a regulation, order, special permit, or
approval issued under those laws that
occur on or after October 1, 2012.
FOR FURTHER INFORMATION CONTACT:
Joseph St. Peter, Trial Attorney, U.S.
Department of Transportation, Federal
Railroad Administration, Office of Chief
pmangrum on DSK3VPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
15:05 Feb 11, 2013
Jkt 229001
Counsel, RCC–12, Mail Stop 10, 1200
New Jersey Ave. SE., Washington, DC
20590 (telephone 202–493–6047),
joseph.st.peter@dot.gov.
Title III of Division C of MAP–21
(Pub. L. 112–141)—the Hazardous
Materials Transportation Safety
Improvement Act of 2012–revises the
maximum and minimum civil penalties
for violation of Federal hazardous
materials transportation laws at 49
U.S.C. ch. 51 (Federal hazmat laws) or
a regulation, order, special permit, or
approval issued under the Federal
hazmat laws (including the regulations
at 49 CFR subtitle B, chapter I,
subchapters A (Hazardous Materials and
Oil Transportation) and C (Hazardous
Materials Regulations)). See Sec. 33010
of MAP–21, amending 49 U.S.C. 5123.
FRA is revising all references to the
maximum and minimum civil penalties
in its regulations and guidelines in
order to reflect the following statutory
changes:
—The maximum civil penalty was
increased from $50,000 to $75,000 for
a knowing violation and from
$100,000 to $175,000 if the violation
results in death, serious illness or
severe injury to any person, or
substantial destruction of property.
—The minimum civil penalty of $250
was eliminated, except that a
minimum civil penalty of $450 still
applies to a violation related to
training.
Revisions to Civil Penalty Assessment
Guidelines
FRA’s hazardous material
transportation enforcement civil penalty
guidelines are published in appendix B
to 49 CFR part 209, to provide the
regulated community and the general
public with information concerning the
manner in which FRA generally begins
its hazmat penalty assessment process
and the types of information that
respondents in enforcement cases
should provide to justify reduction of
proposed penalties. These guidelines
were first published in the Federal
Register on July 25, 1996 in response to
a request contained in Senate Report
103–150 that accompanied the
Department of Transportation and
Related Agencies Appropriations Act of
1994. 61 FR 38644. These guidelines are
periodically updated, and FRA most
recently published revisions to them on
July 27, 2010, pursuant to the Federal
Civil Penalties Inflation Adjustment Act
PO 00000
Frm 00069
Fmt 4700
Sfmt 4700
9845
of 1990, as amended (28 U.S.C. 2461,
note). 75 FR 43840.
In this final rule, FRA is revising all
references to the maximum and
minimum civil penalties published in
appendix B to 49 CFR part 209 in order
to reflect the statutory changes of MAP–
21.
Statutory Authority
This final rule is published under the
authority of 49 U.S.C. 5123, which
provides civil penalties for violations of
the Federal hazmat laws or a regulation,
order, special permit, or approval issued
under those laws. The hazardous
material transportation regulations are
issued by the Pipeline and Hazardous
Materials Safety Administration. 49 CFR
1.97(b). Responsibility for the
enforcement of the Federal hazmat laws
and regulations primarily in instances
where violations involve railroads and
those entities that ship by rail has been
delegated to FRA. 49 CFR 1.89(j). This
rule revises references in FRA’s
regulations to reflect revisions to the
civil penalty provisions in the
Hazardous Materials Transportation
Safety Improvement Act of 2012. The
amendments to the statutory provisions
became effective on October 1, 2012,
and FRA is implementing these
amendments within respect to
violations that occur on or after that
date.
Public Participation
FRA is proceeding to a final rule
without providing a notice of proposed
rulemaking or an opportunity for public
comment. Public comment is
unnecessary because, in making these
revisions, FRA is not exercising
discretion in a way that could be
informed by public comment. As such,
notice and comment procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest’’ within the
meaning of the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(B).
FRA is issuing these revisions as a final
rule applicable to all hazardous material
civil penalty cases under its authority to
cite for violations that occur on or after
October 1, 2012.
Regulatory Impact
A. Executive Orders 12866 and 13563
and DOT Regulatory Policies and
Procedures
This final rule has been evaluated in
accordance with existing policies and
procedures and determined to be nonsignificant under Executive Orders
12866 and 13563. Accordingly, this
final rule was not reviewed by the
Office of Management and Budget
E:\FR\FM\12FER1.SGM
12FER1
9846
Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations
(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
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.
B. Regulatory Flexibility Act and
Executive Order 13272
FRA certifies that 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 material and
persons who manufacture, mark, certify,
or sell packagings, containers, and
packaging components as qualified for
use in transporting hazardous materials
in commerce, some of whom are small
entities. However, there is no economic
impact on any person who complies
with the Federal hazmat laws and the
regulations, orders, special permits, and
approvals issued under that law.
pmangrum on DSK3VPTVN1PROD with RULES
C. Federalism Implications
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’), and the
President’s May 20, 2009 memorandum
on ‘‘Preemption’’ (74 FR 24693, May 22,
2009). As amended in 2005, 49 U.S.C.
5125(h) provided that the preemption
provisions in Federal hazmat laws 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. Compliance With the Unfunded
Mandates Reform Act of 1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
VerDate Mar<15>2010
15:05 Feb 11, 2013
Jkt 229001
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
[$140,800,000 or more (as adjusted for
inflation)] in any one year, and before
promulgating any final rule for which a
general notice of proposed rulemaking
was published, the agency shall prepare
a written statement’’ detailing the effect
on State, local, and tribal governments
and the private sector. This final rule
will not result in the expenditure, in the
aggregate, of $140,800,000 or more in
any one year by State, local, or Indian
Tribal governments, or the private
sector, and thus preparation of such a
statement is not required.
E. Environmental Assessment
There are no significant
environmental impacts associated with
this final rule.
F. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355 (May 22,
2001). According to definitions set forth
under the Executive Order, there will be
no significant energy action as a result
of the issuance of this final rule.
G. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
appropriate, that they be the basis for
U.S. standards. This rulemaking is
purely domestic in nature and is not
expected to affect trade opportunities
for U.S. firms doing business overseas or
for foreign firms doing business in the
United States.
H. Paperwork Reduction Act
There are no new information
collection requirements in this final
rule.
I. Privacy Act
Anyone is able to search the
electronic form of any comments or
other written communications received
into any of FRA’s dockets, by the name
of the individual submitting the
comment or other written
communication (or signing the comment
or other written communication, if
submitted on behalf of an association,
business, labor union, etc.). See https://
PO 00000
Frm 00070
Fmt 4700
Sfmt 4700
www.regulations.gov/#!privacyNotice
for the privacy notice of regulations.gov,
or you may review DOT’s complete
Privacy Act Statement in the Federal
Register published on April 11, 2000
(65 FR 19477).
List of Subjects in 49 CFR Part 209
Administrative practices and
procedures, Hazardous materials
transportation, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
The Final Rule
In consideration of the foregoing,
chapter II, subtitle B of title 49 of the
Code of Federal Regulations is amended
as follows:
PART 209—[AMENDED]
1. The authority citation for part 209
is revised to read as follows:
■
Authority: 49 U.S.C. 5123, 5124, 20103,
20107, 20111, 20112, 20114; 28 U.S.C. 2461,
note; and 49 CFR 1.89.
■
2. Revise § 209.103 to read as follows:
§ 209.103 Minimum and maximum
penalties.
(a) A person who knowingly violates
a requirement of the Federal hazardous
materials transportation laws, an order
issued thereunder, subchapter A or C of
chapter I, subtitle B, of this title, or a
special permit or approval issued under
subchapter A or C of chapter I, subtitle
B, of this title is liable for a civil penalty
of not more than $75,000 for each
violation, except that—
(1) The maximum civil penalty for a
violation is $175,000 if the violation
results in death, serious illness, or
severe injury to any person, or
substantial destruction of property and
(2) A minimum $450 civil penalty
applies to a violation related to training.
(b) When the violation is a continuing
one, each day of the violation
constitutes a separate offense. 49 U.S.C.
5123.
(c) The maximum and minimum civil
penalties described in paragraph (a) of
this section apply to violations
occurring on or after October 1, 2012.
3. In § 209.105, revise the last
sentence of (c) to read as follows:
■
§ 209.105
Notice of probable violation.
*
*
*
*
*
(c) * * * In an amended notice, FRA
may change the civil penalty amount
proposed to be assessed up to and
including the maximum penalty amount
of $75,000 for each violation, except
that if the violation results in death,
serious illness or severe injury to any
E:\FR\FM\12FER1.SGM
12FER1
9847
Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations
person, or substantial destruction of
property, FRA may change the penalty
amount proposed to be assessed up to
and including the maximum penalty
amount of $175,000.
■
4. Amend appendix B to part 209 as
follows:
■ a. Revise the second sentence of the
first paragraph of the introductory text;
■ b. Revise the last sentence of the
second paragraph of the introductory
text;
■ c. Revise the fifth sentence of the third
paragraph of the introductory text;
■ d. Revise the table entry for
‘‘173.24(b)(1) and 173.24(b)(2) and
173.24(f)(1) and 173.24(f)(1)(ii)’’;
■ e. Revise the table entry for
‘‘173.24(c)’’; and
■
f. Revise footnote 2 to the table.
The revisions read as follows:
Appendix B to Part 209—Federal
Railroad Administration Guidelines for
Initial Hazardous Materials
Assessments
* * * The guideline penalty amounts
reflect the best judgment of the FRA Office
of Safety Assurance and Compliance (RRS)
and of the Safety Law Division of the Office
of Chief Counsel (RCC) on the relative
severity of the various violations routinely
encountered by FRA inspectors on a scale of
amounts up to the maximum $75,000
penalty, 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, and a
minimum $450 penalty applies to a violation
related to training. * * *
49 CFR Section
Civil Penalty Assessment Guidelines
*
*
*
*
and
*
*
173.24(c) ....................................................
*
*
Guideline
amount 2
Description
*
*
173.24(b)(1)
and
173.24(b)(2)
173.24(f)(1) and 173.24(f)(1)(ii).
*
* * * When a violation of the Federal
hazardous material transportation law, an
order issued thereunder, the Hazardous
Materials Regulations or a special permit,
approval, or order issued under those
regulations results in death, serious illness or
severe injury to any person, or substantial
destruction of property, a maximum penalty
of at least $75,000 and up to and including
$175,000 shall always be assessed initially.
* * * In fact, FRA reserves the express
authority to amend the NOPV to seek a
penalty of up to $75,000 for each violation,
and up to $175,000 for any violation
resulting in death, serious illness or severe
injury to any person, or substantial
destruction of property, at any time prior to
issuance of an order. * * *
*
*
*
*
*
Securing closures: These subsections are the general ‘‘no leak’’ standard for all packagings. Sec.
173.24(b) deals primarily with packaging as a whole, while § 173.24(f) focuses on closures.
Use § 173.31(d) for tank cars, when possible. Cite the sections accordingly, using both the
leak/non-leak criteria and the package size considerations to reach the appropriate penalty.
Any actual leak will aggravate the guideline by, typically, 50%; a leak with contact with a
human being will aggravate by at least 100%, up to the maximum of $75,000, and up to
$175,000 if the violation results in death, serious illness or injury or substantial destruction of
property. For intermodal (IM) portable tanks and other tanks of that size range, use the tank
car penalty amounts, as stated in § 173.31.
—Small bottle or box ......................................................................................................
1,000
—55-gallon drum ............................................................................................................
2,500
—Larger container, e.g., IBC; not portable tank or tank car. .........................................
5,000
—IM portable tank, cite § 173.24(f) and use the penalty amounts for tank cars: Residue, generally,
§ 173.29(a) and, loaded, § 173.31(d).
—Residue adhering to outside of package (i.e., portable tanks, tank cars, etc.). .........
5,000
*
*
*
*
*
Use of package not meeting specifications, including required stencils and markings. The most specific section for the package involved should be cited (see below). The penalty guideline should
be adjusted for the size of the container. Any actual leak will aggravate the guideline by, typically, 50%; a leak with contact with a human being will aggravate by at least 100%, up to the
maximum of $75,000, and up to $175,000 if the violation results in death, serious illness or injury or substantial destruction of property.
—Small bottle or box. .....................................................................................................
1,000
—55-gallon drum. ...........................................................................................................
2,500
—Larger container, e.g., IBC; not portable tank or tank car, but this section is appli5,000
cable to a hopper car..
For more specific sections: Tank cars–§ 173.31(a), portable tanks–§ 173.32, and IM portable tanks–
§§ 173.32a, 173.32b, and 173.32c.
*
*
*
*
2A
*
pmangrum on DSK3VPTVN1PROD with RULES
person who knowingly violates the hazardous material transportation law or a regulation, order, special permit, or approval issued thereunder, is subject to a civil penalty of up to $75,000 for each violation, except that the maximum civil penalty for a violation is $175,000 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 related to training. Each day that the violation continues is a separate offense. 49 U.S.C. 5123; 28 U.S.C. 2461, note.
VerDate Mar<15>2010
15:05 Feb 11, 2013
Jkt 229001
PO 00000
Frm 00071
Fmt 4700
Sfmt 9990
E:\FR\FM\12FER1.SGM
12FER1
9848
Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations
Issued in Washington, DC on February 6,
2013
Joseph C. Szabo,
Administrator.
[FR Doc. 2013–03208 Filed 2–11–13; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 040205043–4043–01]
RIN 0648–XC468
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; 2013
Commercial Accountability Measure
and Closure for South Atlantic
Vermilion Snapper
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS implements
accountability measures (AMs) for the
commercial sector for vermilion snapper
in the exclusive economic zone (EEZ) of
the South Atlantic. Commercial
landings for vermilion snapper, as
estimated by the Science Research
Director (SRD), are projected to reach
the commercial annual catch limit
(ACL) for the January 1 through June 30,
2013 fishing period on February 13,
2013. Therefore, NMFS closes the
commercial sector for vermilion snapper
in the South Atlantic EEZ on February
13, 2013, and it will remain closed until
the start of the July 1 through December
31, 2013, fishing period. This closure is
necessary to protect the vermilion
snapper resource.
DATES: This rule is effective 12:01 a.m.,
local time, February 13, 2013, until
12:01 a.m., local time, July 1, 2013.
FOR FURTHER INFORMATION CONTACT:
Catherine Hayslip, telephone: 727–824–
5305, email:
Catherine.Hayslip@noaa.gov.
SUMMARY:
The
snapper-grouper fishery of the South
Atlantic includes vermilion snapper and
is managed under the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP). The FMP was prepared
by the South Atlantic Fishery
Management Council and is
implemented under the authority of the
Magnuson-Stevens Fishery
Conservation and Management Act
pmangrum on DSK3VPTVN1PROD with RULES
SUPPLEMENTARY INFORMATION:
VerDate Mar<15>2010
15:05 Feb 11, 2013
Jkt 229001
(Magnuson-Stevens Act) by regulations
at 50 CFR part 622.
The commercial ACL (commercial
quota) for vermilion snapper in the
South Atlantic is divided into two, 6month time periods, and is 315,523 lb
(143,119 kg), gutted weight, for the
current fishing period, January 1
through June 30, 2013, as specified in 50
CFR 622.42(e)(4)(i).
In accordance with regulations at 50
CFR 622.49(b)(6)(i), NMFS is required to
close the commercial sector for
vermilion snapper when its commercial
ACL (commercial quota) for that portion
of the fishing year applicable to the
respective commercial ACL (commercial
quota) has been reached, or is projected
to be reached, by filing a notification to
that effect with the Office of the Federal
Register. NMFS has determined that the
commercial ACL (commercial quota) for
South Atlantic vermilion snapper for
the January-June fishing period will
have been reached by February 13,
2013. Accordingly, the commercial
sector for South Atlantic vermilion
snapper is closed effective 12:01 a.m.,
local time, February 13, 2013, until
12:01 a.m., local time, July 1, 2013. The
commercial ACL (commercial quota) for
vermilion snapper in the South Atlantic
is 302,523 lb (137,222 kg), gutted
weight, for the July 1 through December
31, 2013, fishing period, as specified in
50 CFR 622.42(e)(4)(ii).
The operator of a vessel with a valid
commercial vessel permit for South
Atlantic snapper-grouper having
vermilion snapper onboard must have
landed and bartered, traded, or sold
such vermilion snapper prior to 12:01
a.m., local time, February 13, 2013.
During the closure, the bag limit
specified in 50 CFR 622.39(d)(1)(v),
applies to all harvest or possession of
vermilion snapper in or from the South
Atlantic EEZ, including the bag limit
that may be retained by the captain or
crew of a vessel operating as a charter
vessel or headboat. The bag limit for
such captain and crew is zero. During
the closure, the possession limits
specified in 50 CFR 622.39(d)(2) apply
to all harvest or possession of vermilion
snapper in or from the South Atlantic
EEZ. During the closure, the sale or
purchase of vermilion snapper taken
from the EEZ is prohibited. The
prohibition on sale or purchase does not
apply to the sale or purchase of
vermilion snapper that were harvested,
landed ashore, and sold prior to 12:01
a.m., local time, February 13, 2013, and
were held in cold storage by a dealer or
processor. For a person on board a
vessel for which a Federal commercial
or charter vessel/headboat permit for the
South Atlantic snapper-grouper fishery
PO 00000
Frm 00072
Fmt 4700
Sfmt 4700
has been issued, the sale and purchase
provisions of the commercial closure for
vermilion snapper would apply
regardless of whether the fish are
harvested in state or Federal waters, as
specified in 50 CFR 622.43(a)(5)(ii).
Classification
The Regional Administrator,
Southeast Region, NMFS, has
determined this temporary rule is
necessary for the conservation and
management of the South Atlantic
snapper-grouper fishery and is
consistent with the Magnuson-Stevens
Act, the FMP, and other applicable
laws.
The temporary rule has been
determined to be not significant for
purposes of Executive Order 12866.
These measures are exempt from the
procedures of the Regulatory Flexibility
Act because the temporary rule is issued
without opportunity for prior notice and
comment.
This action responds to the best
available scientific information recently
obtained from the fishery. The Assistant
Administrator for Fisheries, NOAA,
(AA), finds that the need to immediately
implement this action to close the
commercial sector for vermilion snapper
constitutes good cause to waive the
requirements to provide prior notice
and opportunity for public comment
pursuant to the authority set forth in 5
U.S.C. 553(b)(B), as such procedures
would be unnecessary and contrary to
the public interest. Such procedures
would be unnecessary because the rule
itself has been subject to notice and
comment, and all that remains is to
notify the public of the closure.
Allowing prior notice and opportunity
for public comment is contrary to the
public interest because of the need to
immediately implement this action to
protect vermilion snapper since the
capacity of the fishing fleet allows for
rapid harvest of the quota. Prior notice
and opportunity for public comment
would require time and would likely
result in a harvest well in excess of the
established commercial ACL
(commercial quota).
For the aforementioned reasons, the
AA also finds good cause to waive the
30-day delay in the effectiveness of this
action under 5 U.S.C. 553(d)(3).
This action is taken under 50 CFR
622.43(a) and is exempt from review
under Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
E:\FR\FM\12FER1.SGM
12FER1
]]>Agencies
[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Rules and Regulations]
[Pages 9845-9848]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03208]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2004-17530, Notice No. 3]
RIN 2130-ZA11
Minimum and Ordinary Maximum and Aggravated Maximum Civil
Monetary Penalties for a Violation of the Hazardous Materials
Transportation Laws or Regulations, Orders, Special Permits, or
Approvals Under Those Laws
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is revising its regulations to reflect amendments to
certain statutory civil monetary penalty provisions effected by the
Moving Ahead for Progress in the 21st Century Act (MAP-21), which was
enacted on July 6, 2012. These statutory amendments became effective on
October 1, 2012. Pursuant to the Act, FRA is eliminating the minimum
penalty for other than a training violation and adjusting both the
ordinary maximum penalty and the aggravated maximum penalty that
applies when assessing a civil monetary penalty for a violation of the
Federal hazardous materials transportation laws or a regulation,
special permit, or approval issued under those laws. FRA is also
revising references to these minimums and maximums in its civil penalty
assessment guidelines to conform to these statutory changes.
DATES: Effective Date: This rule is effective February 12, 2013.
Applicability Date: This final rule applies to all violations of
the Federal hazardous materials transportation laws or a regulation,
order, special permit, or approval issued under those laws that occur
on or after October 1, 2012.
FOR FURTHER INFORMATION CONTACT: Joseph St. Peter, Trial Attorney, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Chief Counsel, RCC-12, Mail Stop 10, 1200 New Jersey Ave. SE.,
Washington, DC 20590 (telephone 202-493-6047), joseph.st.peter@dot.gov.
SUPPLEMENTARY INFORMATION:
Amendments to the Statutory Civil Penalty Provisions
Title III of Division C of MAP-21 (Pub. L. 112-141)--the Hazardous
Materials Transportation Safety Improvement Act of 2012-revises the
maximum and minimum civil penalties for violation of Federal hazardous
materials transportation laws at 49 U.S.C. ch. 51 (Federal hazmat laws)
or a regulation, order, special permit, or approval issued under the
Federal hazmat laws (including the regulations at 49 CFR subtitle B,
chapter I, subchapters A (Hazardous Materials and Oil Transportation)
and C (Hazardous Materials Regulations)). See Sec. 33010 of MAP-21,
amending 49 U.S.C. 5123. FRA is revising all references to the maximum
and minimum civil penalties in its regulations and guidelines in order
to reflect the following statutory changes:
--The maximum civil penalty was increased from $50,000 to $75,000 for a
knowing violation and from $100,000 to $175,000 if the violation
results in death, serious illness or severe injury to any person, or
substantial destruction of property.
--The minimum civil penalty of $250 was eliminated, except that a
minimum civil penalty of $450 still applies to a violation related to
training.
Revisions to Civil Penalty Assessment Guidelines
FRA's hazardous material transportation enforcement civil penalty
guidelines are published in appendix B to 49 CFR part 209, to provide
the regulated community and the general public with information
concerning the manner in which FRA generally begins its hazmat penalty
assessment process and the types of information that respondents in
enforcement cases should provide to justify reduction of proposed
penalties. These guidelines were first published in the Federal
Register on July 25, 1996 in response to a request contained in Senate
Report 103-150 that accompanied the Department of Transportation and
Related Agencies Appropriations Act of 1994. 61 FR 38644. These
guidelines are periodically updated, and FRA most recently published
revisions to them on July 27, 2010, pursuant to the Federal Civil
Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461,
note). 75 FR 43840.
In this final rule, FRA is revising all references to the maximum
and minimum civil penalties published in appendix B to 49 CFR part 209
in order to reflect the statutory changes of MAP-21.
Statutory Authority
This final rule is published under the authority of 49 U.S.C. 5123,
which provides civil penalties for violations of the Federal hazmat
laws or a regulation, order, special permit, or approval issued under
those laws. The hazardous material transportation regulations are
issued by the Pipeline and Hazardous Materials Safety Administration.
49 CFR 1.97(b). Responsibility for the enforcement of the Federal
hazmat laws and regulations primarily in instances where violations
involve railroads and those entities that ship by rail has been
delegated to FRA. 49 CFR 1.89(j). This rule revises references in FRA's
regulations to reflect revisions to the civil penalty provisions in the
Hazardous Materials Transportation Safety Improvement Act of 2012. The
amendments to the statutory provisions became effective on October 1,
2012, and FRA is implementing these amendments within respect to
violations that occur on or after that date.
Public Participation
FRA is proceeding to a final rule without providing a notice of
proposed rulemaking or an opportunity for public comment. Public
comment is unnecessary because, in making these revisions, FRA is not
exercising discretion in a way that could be informed by public
comment. As such, notice and comment procedures are ``impracticable,
unnecessary, or contrary to the public interest'' within the meaning of
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). FRA is issuing
these revisions as a final rule applicable to all hazardous material
civil penalty cases under its authority to cite for violations that
occur on or after October 1, 2012.
Regulatory Impact
A. Executive Orders 12866 and 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
[[Page 9846]]
(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 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.
B. Regulatory Flexibility Act and Executive Order 13272
FRA certifies that 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 material and persons who
manufacture, mark, certify, or sell packagings, containers, and
packaging components as qualified for use in transporting hazardous
materials in commerce, some of whom are small entities. However, there
is no economic impact on any person who complies with the Federal
hazmat laws and the regulations, orders, special permits, and approvals
issued under that law.
C. Federalism Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''), and
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693,
May 22, 2009). As amended in 2005, 49 U.S.C. 5125(h) provided that the
preemption provisions in Federal hazmat laws 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. Compliance With the Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of [$140,800,000 or more (as
adjusted for inflation)] in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
This final rule will not result in the expenditure, in the aggregate,
of $140,800,000 or more in any one year by State, local, or Indian
Tribal governments, or the private sector, and thus preparation of such
a statement is not required.
E. Environmental Assessment
There are no significant environmental impacts associated with this
final rule.
F. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). According to definitions set forth under the
Executive Order, there will be no significant energy action as a result
of the issuance of this final rule.
G. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
H. Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
I. Privacy Act
Anyone is able to search the electronic form of any comments or
other written communications received into any of FRA's dockets, by the
name of the individual submitting the comment or other written
communication (or signing the comment or other written communication,
if submitted on behalf of an association, business, labor union, etc.).
See https://www.regulations.gov/#!privacyNotice for the privacy notice
of regulations.gov, or you may review DOT's complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (65 FR
19477).
List of Subjects in 49 CFR Part 209
Administrative practices and procedures, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Final Rule
In consideration of the foregoing, chapter II, subtitle B of title
49 of the Code of Federal Regulations is amended as follows:
PART 209--[AMENDED]
0
1. The authority citation for part 209 is revised to read as follows:
Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112,
20114; 28 U.S.C. 2461, note; and 49 CFR 1.89.
0
2. Revise Sec. 209.103 to read as follows:
Sec. 209.103 Minimum and maximum penalties.
(a) A person who knowingly violates a requirement of the Federal
hazardous materials transportation laws, an order issued thereunder,
subchapter A or C of chapter I, subtitle B, of this title, or a special
permit or approval issued under subchapter A or C of chapter I,
subtitle B, of this title is liable for a civil penalty of not more
than $75,000 for each violation, except that--
(1) The maximum civil penalty for a violation is $175,000 if the
violation results in death, serious illness, or severe injury to any
person, or substantial destruction of property and
(2) A minimum $450 civil penalty applies to a violation related to
training.
(b) When the violation is a continuing one, each day of the
violation constitutes a separate offense. 49 U.S.C. 5123.
(c) The maximum and minimum civil penalties described in paragraph
(a) of this section apply to violations occurring on or after October
1, 2012.
0
3. In Sec. 209.105, revise the last sentence of (c) to read as
follows:
Sec. 209.105 Notice of probable violation.
* * * * *
(c) * * * In an amended notice, FRA may change the civil penalty
amount proposed to be assessed up to and including the maximum penalty
amount of $75,000 for each violation, except that if the violation
results in death, serious illness or severe injury to any
[[Page 9847]]
person, or substantial destruction of property, FRA may change the
penalty amount proposed to be assessed up to and including the maximum
penalty amount of $175,000.
0
4. Amend appendix B to part 209 as follows:
0
a. Revise the second sentence of the first paragraph of the
introductory text;
0
b. Revise the last sentence of the second paragraph of the introductory
text;
0
c. Revise the fifth sentence of the third paragraph of the introductory
text;
0
d. Revise the table entry for ``173.24(b)(1) and 173.24(b)(2) and
173.24(f)(1) and 173.24(f)(1)(ii)'';
0
e. Revise the table entry for ``173.24(c)''; and
0
f. Revise footnote 2 to the table.
The revisions read as follows:
Appendix B to Part 209--Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments
* * * The guideline penalty amounts reflect the best judgment of
the FRA Office of Safety Assurance and Compliance (RRS) and of the
Safety Law Division of the Office of Chief Counsel (RCC) on the
relative severity of the various violations routinely encountered by
FRA inspectors on a scale of amounts up to the maximum $75,000
penalty, 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, and a minimum $450
penalty applies to a violation related to training. * * *
* * * When a violation of the Federal hazardous material
transportation law, an order issued thereunder, the Hazardous
Materials Regulations or a special permit, approval, or order issued
under those regulations results in death, serious illness or severe
injury to any person, or substantial destruction of property, a
maximum penalty of at least $75,000 and up to and including $175,000
shall always be assessed initially.
* * * In fact, FRA reserves the express authority to amend the
NOPV to seek a penalty of up to $75,000 for each violation, and up
to $175,000 for any violation resulting in death, serious illness or
severe injury to any person, or substantial destruction of property,
at any time prior to issuance of an order. * * *
Civil Penalty Assessment Guidelines
* * * * *
------------------------------------------------------------------------
Guideline
49 CFR Section Description amount \2\
------------------------------------------------------------------------
* * * * * * *
173.24(b)(1) and 173.24(b)(2) and Securing closures: These subsections
173.24(f)(1) and are the general ``no leak'' standard
173.24(f)(1)(ii). for all packagings. Sec. 173.24(b)
deals primarily with packaging as a
whole, while Sec. 173.24(f)
focuses on closures. Use Sec.
173.31(d) for tank cars, when
possible. Cite the sections
accordingly, using both the leak/non-
leak criteria and the package size
considerations to reach the
appropriate penalty. Any actual leak
will aggravate the guideline by,
typically, 50%; a leak with contact
with a human being will aggravate by
at least 100%, up to the maximum of
$75,000, and up to $175,000 if the
violation results in death, serious
illness or injury or substantial
destruction of property. For
intermodal (IM) portable tanks and
other tanks of that size range, use
the tank car penalty amounts, as
stated in Sec. 173.31.
--Small bottle or box... 1,000
--55-gallon drum........ 2,500
--Larger container, 5,000
e.g., IBC; not portable
tank or tank car..
--IM portable tank, cite Sec.
173.24(f) and use the penalty
amounts for tank cars: Residue,
generally, Sec. 173.29(a) and,
loaded, Sec. 173.31(d).
--Residue adhering to 5,000
outside of package
(i.e., portable tanks,
tank cars, etc.)..
* * * * * * *
173.24(c)........................ Use of package not meeting
specifications, including required
stencils and markings. The most
specific section for the package
involved should be cited (see
below). The penalty guideline should
be adjusted for the size of the
container. Any actual leak will
aggravate the guideline by,
typically, 50%; a leak with contact
with a human being will aggravate by
at least 100%, up to the maximum of
$75,000, and up to $175,000 if the
violation results in death, serious
illness or injury or substantial
destruction of property.
--Small bottle or box... 1,000
--55-gallon drum........ 2,500
--Larger container, 5,000
e.g., IBC; not portable
tank or tank car, but
this section is
applicable to a hopper
car..
For more specific sections: Tank cars-
Sec. 173.31(a), portable tanks-
Sec. 173.32, and IM portable tanks-
Sec. Sec. 173.32a, 173.32b, and
173.32c.
* * * * * * *
------------------------------------------------------------------------
\2\ A person who knowingly violates the hazardous material
transportation law or a regulation, order, special permit, or approval
issued thereunder, is subject to a civil penalty of up to $75,000 for
each violation, except that the maximum civil penalty for a violation
is $175,000 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 related to
training. Each day that the violation continues is a separate offense.
49 U.S.C. 5123; 28 U.S.C. 2461, note.
[[Page 9848]]
Issued in Washington, DC on February 6, 2013
Joseph C. Szabo,
Administrator.
[FR Doc. 2013-03208 Filed 2-11-13; 8:45 am]
BILLING CODE 4910-06-P
