Inflation Adjustment of the Ordinary Maximum and Aggravated Maximum Civil Monetary Penalties for a Violation of the Hazardous Material Transportation Laws or Regulations, Orders, Special Permits, and Approvals Issued Under Those Laws, 43101-43105 [2016-15642]
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Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations
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CAS No.
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online at https://apps.fcc.gov/ecfs/. This
document does not contain information
collection requirements subject to the
Paperwork Reduction Act of 1995,
Public Law 104–13. The Commission
will send a copy of the Report and
Order in a report to be sent to Congress
and the Government Accountability
Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
[FR Doc. 2016–15614 Filed 6–30–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 1065
Engine-Testing Procedures; CFR
Correction
In Title 40 of the Code of Federal
Regulations, Parts 1000 to End, revised
as of July 1, 2015, on page 857, in
§ 1065.670, the second paragraph of
introductory text is removed.
[FR Doc. 2016–15805 Filed 6–30–16; 8:45 am]
List of Subjects in 47 CFR Part 73
Radio, Radio broadcasting.
Federal Communications Commission.
Nazifa Sawez,
Assistant Chief, Audio Division, Media
Bureau.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
BILLING CODE 1505–01–D
FEDERAL COMMUNICATIONS
COMMISSION
PART 73—RADIO BROADCAST
SERVICES
47 CFR Part 73
[DA 16–656; MB Docket No. 16–74; RM–
11763]
■
Radio Broadcasting Services;
Raymond, Washington
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
Federal Communications
Commission.
ACTION: Final rule.
§ 73.202
1. The authority citation for part 73
continues to read as follows:
AGENCY:
At the request of Sunnylands
Broadcasting, LLC, the Audio Division
amends the FM Table of Allotments, by
allotting Channel 300A at Raymond,
Washington, as the community’s second
local service. A staff engineering
analysis indicates Channel 300A can be
allotted to Raymond consistent with the
minimum distance separation
requirements of the Commission’s rules
with a site restriction located 4.7
kilometers (3.0 miles) southwest of the
community. The reference coordinates
are 46–38–49 NL and 123–45–11 WL.
DATES: Effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT:
Adrienne Y. Denysyk, Media Bureau,
(202) 418–2700.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order, MB Docket No. 16–74,
adopted June 17, 2016, and released
June 17, 2016. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, CY–
A257, 445 12th Street SW., Washington,
DC 20554. The full text is also available
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SUMMARY:
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[Amended]
2. Section 73.202(b), the Table of FM
Allotments under Washington, is
amended by adding Raymond, Channel
300A.
■
[FR Doc. 2016–15545 Filed 6–30–16; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA–2004–17530; Notice No.
4]
RIN 2130–AC61
Inflation Adjustment of the Ordinary
Maximum and Aggravated Maximum
Civil Monetary Penalties for a Violation
of the Hazardous Material
Transportation Laws or Regulations,
Orders, Special Permits, and
Approvals Issued Under Those Laws
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule.
AGENCY:
To comply with the Federal
Civil Penalties Inflation Adjustment Act
SUMMARY:
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of 1990, as amended by the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, FRA is
adjusting the minimum penalty,
ordinary maximum penalty, and the
aggravated maximum penalty that it will
apply when assessing a civil monetary
penalty for a knowing violation of the
Federal hazardous material
transportation laws or a regulation,
special permit, order, or approval issued
under those laws. The aggravated
maximum penalty is available only for
a violation that results in death, serious
illness, or severe injury to any person or
substantial destruction of property. In
particular, FRA is increasing the
minimum penalty for a training
violation from $450 to $463; the
ordinary maximum civil monetary
penalty per violation from $75,000 to
$77,114; and the aggravated maximum
civil penalty from $175,000 to $179,933.
DATES: This interim final rule is
effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT:
Roberta Stewart, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey
Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone 202–493–6027),
roberta.stewart@dot.gov.
On
November 2, 2015, President Barack
Obama signed the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015
Inflation Act). Public Law 114–74, Sec.
701. This amended the Federal Civil
Penalties Inflation Adjustment Act of
1990 (Inflation Act) that required each
agency to (1) adjust by regulation each
maximum civil monetary penalty
(CMP), or range of minimum and
maximum CMPs, within that agency’s
jurisdiction by October 23, 1996, and (2)
adjust those penalty amounts once every
four years thereafter, to reflect inflation.
See Public Law 101–410, 104 Stat. 890,
28 U.S.C. 2461, note, as amended by
Section 31001(s)(1) of the Debt
Collection Improvement Act of 1996,
Public Law 104–134, 110 Stat. 1321–
373, April 26, 1996. Under the 2015
Inflation Act, agencies must make a
catch-up adjustment for CMPs with the
new penalty levels published by July 1,
2016, to take effect no later than August
1, 2016. In addition, agencies must
make annual inflation adjustments,
starting January 15, 2017, based on
Office of Management and Budget
(OMB) guidance.
SUPPLEMENTARY INFORMATION:
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In the 2015 Inflation Act, Congress
recognized the important role CMPs
play in deterring violations of Federal
laws, regulations, and orders and
determined that inflation has
diminished the impact of these
penalties. In the Inflation Act, Congress
countered the effect that inflation has
had on the CMPs by having the agencies
charged with enforcement responsibility
administratively adjust the CMPs.
This interim final rule is published
under 49 U.S.C. 5123 and 5124, which
provide civil and criminal penalties for
violations of the Federal hazardous
material transportation laws or a
regulation, order, special permit, or
approval issued under those laws. The
Pipeline and Hazardous Materials Safety
Administration (PHMSA) issues the
hazardous material transportation
regulations. 49 CFR 1.96(b)(1). However,
FRA is authorized as the delegate of the
Secretary of Transportation to enforce
the hazardous material statutes,
regulations and orders, including the
civil penalty provisions codified
primarily at 49 U.S.C. 5123. 49 CFR
1.89(j). In this interim final rule, FRA is
amending all references to the minimum
and maximum civil penalties in 49 CFR
part 209, app. B, to raise the minimum
CMP for training violations from $450 to
$463; the ordinary maximum CMP per
violation from $75,000 to $77,114; and
the aggravated maximum CMP from
$175,000 to $179,933.
Description of the Adjustment
Calculation
The 2015 Inflation Act requires FRA
to calculate the inflation adjustment by
increasing the maximum CMP, or the
range of minimum and maximum CMPs,
based on the Consumer Price Index for
the month of October 2015, not
seasonally adjusted. The calculation
uses multipliers to adjust the maximum
CMP, or the range of minimum and
maximum CMPs, based on the year the
penalty was established or last adjusted
by statute or regulation other than under
the Inflation Act. Congress passed the
Moving Ahead for Progress in the 21st
Century Act in 2012 (MAP–21), which
amended the maximum penalty
(ordinary maximum) for a knowing
violation of a Federal hazardous
material safety law, regulation, order,
special permit, or approval to $75,000.
Public Law 112–141 (July 6, 2012).
MAP–21 also set at $175,000 the
maximum civil penalty for a person
who knowingly violates the Federal
hazardous material transportation laws
or a regulation, order, special permit, or
approval issued under those laws that
results in death, serious illness, or
severe injury to any person or
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substantial destruction of property
(aggravated maximum), and also added
a $450 minimum for a training
violation.
OMB guidance, M–16–06,
‘‘Implementation of the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015,’’ dated Feb.
24, 2016, states that after applying the
multiplier, FRA must round the penalty
levels to the nearest dollar.1 The 2015
Inflation Act also specifies that agencies
shall not increase penalty levels by
more than 150 percent of the
corresponding levels in effect on
November 2, 2015. If the new amount or
range of the increase exceeds 150
percent above the last reported level(s),
the new amount or range should be
reduced to 150 percent over the last
reported level(s). The resulting penalty
level(s) in that case would be 250
percent of the last reported level(s).
Applying the inflation adjustment
calculation, FRA determined the
minimum CMP for training violations
should be raised from $450 to $463; the
ordinary maximum CMP should be
raised from $75,000 to $77,114; and the
aggravated maximum CMP should be
raised from $175,000 to $179,933.
Calculations To Determine CMP
Updates for 2016
1. Minimum CMP of $450 for Training
Violations Raised to $463
As the 2015 Inflation Act requires,
FRA evaluated the minimum CMP of
$450 for training violations and
concluded it should increase to $463, as
the next calculations show. The 2012
multiplier of 1.02819 (since the last
update not for inflation was in 2012, by
MAP–21) times $450 equals $462.68, or
$463 rounded to the nearest dollar. The
statutory 150 percent ceiling would be
$450 (the penalty level in effect on
November 2, 2015, including Inflation
Act increases), times 2.5, or $1,125.
Because $463 is less than the $1,125
ceiling, the 150 percent limit does not
apply. The inflation adjusted minimum
penalty is $463, and applies to all
violations of the hazardous materials
statutes, regulations, special permits,
approvals, and orders related to
training. This new FRA minimum
penalty for training violations will
apply to violations that occur on or after
August 1, 2016.
2. Ordinary Maximum CMP of $75,000
Raised to $77,114
As the 2015 Inflation Act requires,
FRA evaluated the ordinary maximum
1 Available at https://www.whitehouse.gov/sites/
default/files/omb/memoranda/2016/m-16-06.pdf.
See also Public Law 114–74, Sec. 701.
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CMP and determined it should increase
to $77,114, as the following calculations
show. The 2012 multiplier of 1.02819
(since the last update not for inflation
was in 2012, by MAP–21) times $75,000
equals $77,114.25, or $77,114 rounded
to the nearest dollar. The statutory 150
percent ceiling would be $75,000 (the
penalty level in effect on November 2,
2015, including Inflation Act increases),
times 2.5, or $187,500. Because $77,114
is less than the $ 187,500 ceiling, the
150 percent limit does not apply. The
inflation adjusted ordinary maximum
penalty is $77,114, and applies to all
violations of the hazardous materials
transportation statutes, regulations,
special permits, approvals, and orders.
Therefore, the ordinary maximum CMP
should increase from $75,000 to
$77,114. This new FRA ordinary
maximum penalty will apply to
violations that occur on or after August
1, 2016.
3. Aggravated Maximum CMP of
$175,000 Raised to $179,933
FRA also evaluated the maximum
CMP for an aggravated violation and
determined it should increase to
$179,933, as the following calculations
show. The 2012 multiplier of 1.02819
(since the last update not for inflation
was in 2012, by MAP–21) times
$175,000 equals $179,933.25, or
$179,933, rounded to the nearest dollar.
The statutory 150 percent ceiling would
be $175,000 (the penalty level in effect
on November 2, 2015, including
Inflation Act increases), times 2.5, or
$437,500 Because $179,933 is less than
the $437,500 ceiling, the 150 percent
limit does not apply. The inflation
adjusted aggravated maximum penalty
is $179,933, and applies to all violations
of the hazardous materials
transportation statutes, regulations,
special permits, approvals, and orders.
Therefore, the aggravated maximum
should increase from $175,000 to
$179,933. This new FRA aggravated
maximum penalty will apply to
violations that occur on or after August
1, 2016.
Public Participation
FRA is proceeding to an interim final
rule without providing a notice of
proposed rulemaking or an opportunity
for public comment. The adjustments
the 2015 Inflation Act requires are
ministerial acts over which FRA has no
discretion, making public comment
unnecessary. As such, notice and
comment procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest’’ within the
meaning of the Administrative
Procedure Act (APA), 5 U.S.C.
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553(b)(3)(B). FRA is issuing these
amendments as an interim final rule
applicable to all future hazardous
materials transportation civil penalty
cases under its authority to cite for
violations that occur on or after the
effective date of this interim final rule.
Regulatory Impact
A. Executive Orders 12866 and 13563
and DOT Regulatory Policies and
Procedures
This interim final rule has been
evaluated consistent with Executive
Order 12866 (Regulatory Planning and
Review), Executive Order 13563
(Improving Regulation and Regulatory
Review), and DOT policies and
procedures. It is not considered a
significant regulatory action under
section 3(f) of Executive Order 12866.
The rule is expected to have minimal
economic impacts. Additionally, FRA
has no discretion to change the amount
by which the CMPs are updated due to
the clear direction in the 2015 Inflation
Act and OMB memorandum M–16–06.
Further, this rule is not significant
under the Regulatory Policies and
Procedures of the Department of
Transportation (44 FR 11034; Feb. 26,
1979) because it is limited to ministerial
acts on which the agency has no
discretion, and the economic impact of
the interim final rule is minimal to the
extent that preparation of a regulatory
evaluation is not warranted.
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B. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act of 1980
(RFA), Public Law 96–354, as amended,
and codified as amended at 5 U.S.C.
601–612, and Executive Order 13272
(Proper Consideration of Small Entities
in Agency Rulemaking), require agency
review of proposed and final rules to
assess their impact on ‘‘small entities’’
for purposes of the RFA. An agency
must prepare a regulatory flexibility
analysis unless it determines and
certifies that a rule is not expected to
have a significant economic impact on
a substantial number of small entities.
FRA does not expect this interim final
rule will have a significant economic
impact on a substantial number of small
entities. Although this interim final rule
will apply to railroads, hazardous
materials shippers, and others that are
considered small entities, there is no
economic impact on any person who
complies with the Federal hazardous
materials laws and the regulations,
special permits, approvals, and orders
issued under those laws.
In addition, FRA has determined the
RFA does not apply to this rulemaking.
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The 2015 Inflation Act requires FRA to
publish an interim final rule and does
not require FRA to complete notice and
comment procedures under the APA.
The Small Business Administration’s A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act (2003), provides that:
If, under the APA or any rule of general
applicability governing federal grants to state
and local governments, the agency is
required to publish a general notice of
proposed rulemaking (NPRM), the RFA must
be considered [citing 5 U.S.C. 604(a)] . . . .
If an NPRM is not required, the RFA does not
apply.
Therefore, because the 2015 Inflation
Act does not require an NPRM for this
rulemaking, the RFA does not apply.
C. Federalism
This interim final rule will not have
a substantial effect on the States, on the
relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. Thus, consistent
with Executive Order 13132
(Federalism), preparation of a
Federalism assessment is not warranted.
D. Paperwork Reduction Act
There are no new information
collection requirements in this interim
final rule to submit for OMB review
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.).
E. Unfunded Mandates Reform Act of
1995
This interim final rule will not result
in the expenditure, in the aggregate, of
$156,000,000 or more in any one year by
State, local, or Indian Tribal
governments, or the private sector.
Thus, consistent with Section 202 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1532),
preparation of a written statement
detailing the effect of such an
expenditure is not warranted.
F. Environmental Impact
FRA has evaluated this interim final
rule under the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.), other environmental statutes,
related regulatory requirements, and its
‘‘Procedures for Considering
Environmental Impacts’’ (FRA’s
Procedures) (64 FR 28545; May 26,
1999). FRA has determined that this
interim final rule is categorically
excluded from detailed environmental
review pursuant to section 4(c)(20) of
FRA’s NEPA Procedures, ‘‘Promulgation
of railroad safety rules and policy
statements that do not result in
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43103
significantly increased emissions of air
or water pollutants or noise or increased
traffic congestion in any mode of
transportation.’’ See 64 FR 28547 (May
26, 1999). Categorical exclusions (CEs)
are actions identified in an agency’s
NEPA implementing procedures that do
not normally have a significant impact
on the environment and therefore do not
require either an environmental
assessment (EA) or environmental
impact statement (EIS). See 40 CFR
1508.4.
In analyzing the applicability of a CE,
the agency must also consider whether
extraordinary circumstances are present
that would warrant a more detailed
environmental review through the
preparation of an EA or EIS. Id. Under
section 4(c) and (e) of FRA’s Procedures,
FRA has further concluded that no
extraordinary circumstances exist with
respect to this regulation that might
trigger the need for a more detailed
environmental review. The purpose of
this rulemaking is to comply with the
Inflation Act, as amended by the 2015
Inflation Act. Specifically, FRA is
adjusting the minimum, maximum, and
aggravated maximum penalty that it will
apply when assessing a civil penalty for
a violation of a Federal hazardous
materials law, regulation, special
permit, approval, or order. FRA does not
anticipate any environmental impacts
from this requirement and finds there
are no extraordinary circumstances
present in connection with this interim
final rule.
G. Executive Order 12898
(Environmental Justice)
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534; May 10,
2012) require DOT agencies to achieve
environmental justice as part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
of their programs, policies, and
activities on minority populations and
low-income populations. The DOT
Order instructs DOT agencies to address
compliance with Executive Order 12898
and requirements within the DOT Order
in rulemaking activities, as appropriate.
FRA has evaluated this interim final
rule under Executive Order 12898 and
the DOT Order and has determined that
it would not cause disproportionately
high and adverse human health and
environmental effects on minority
populations or low-income populations.
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H. Executive Order 13175 (Tribal
Consultation)
FRA has evaluated this interim final
rule under the principles and criteria
contained in Executive Order 13175,
Consultation and Coordination with
Indian Tribal Governments, dated
November 6, 2000. The interim final
rule would not have a substantial direct
effect on one or more Indian tribes,
would not impose substantial direct
compliance costs on Indian tribal
governments, and would not preempt
tribal laws. Therefore, the funding and
consultation requirements of Executive
Order 13175 do not apply, and a tribal
summary impact statement is not
required.
B, of this title is liable for a civil penalty
of not more than $77,114 for each
violation, except that—
(1) The maximum civil penalty for a
violation is $179,933 if the violation
results in death, serious illness, or
severe injury to any person, or
substantial destruction of property and
(2) A minimum $463 civil penalty
applies to a violation related to training.
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(c) The maximum and minimum civil
penalties described in paragraph (a)
above apply to violations occurring on
or after August 1, 2016.
■ 3. Revise the last sentence of
§ 209.105(c) to read as follows:
List of Subjects in 49 CFR Part 209
Administrative practice and
procedure, Hazardous materials
transportation, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
The Interim Final Rule
In consideration of the foregoing, part
209 of subtitle B, chapter II of title 49
of the Code of Federal Regulations is
amended as follows:
(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 $77,114 for each violation, except
that if the violation results in death,
serious illness or severe injury to any
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 $179,933.
PART 209—[AMENDED]
Appendix B to Part 209—[Amended]
§ 209.105
Notice of probable violation.
4. Amend appendix B to part 209 as
follows:
■
1. The authority citation for part 209
continues 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(a) and (c) 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
a. In the introductory text, revise the
second sentence of the first paragraph,
the last sentence of the second
paragraph, and the next to last sentence
of the third paragraph;
■ b. In the table ‘‘CIVIL PENALTY
ASSESSMENT GUIDELINES,’’ below
the heading ‘‘PART 173—SHIPPERS—
GENERAL REQUIREMENTS FOR
SHIPMENTS AND PACKAGES,’’ revise
the entry for ‘‘§§ 173.24(b)(1) and
173.24(b)(2) and 173.24(f)(1) and
173.24(f)(1)(ii)’’, and revise the entry for
‘‘§ 173.24(c)’’; and
■
■
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* * * The guideline penalty amounts
reflect the best judgment of the FRA
Office of Railroad Safety (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 $77,114 penalty, except
the maximum civil penalty is $179,933
if the violation results in death, serious
illness or severe injury to any person, or
substantial destruction of property, and
a minimum $463 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
$77,114 and up to and including
$179,933 shall always be assessed
initially.
* * * In fact, FRA reserves the express
authority to amend the NOPV to seek a
penalty of up to $77,114 for each
violation, and up to $179,933 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 Guidlenes
*
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*
and
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PART 173—SHIPPERS—GENERAL
REQUIREMENTS FOR SHIPMENTS
AND PACKAGES
*
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*
Guideline
amount 2
Description
*
*
173.24(b)(1)
and
173.24(b)(2)
173.24(f)(1) and 173.24(f)(1)(ii).
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Appendix B to Part 209—Federal
Railroad Administration Guidelines for
Initial Hazardous Materials
Assessments
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c. Revise footnote 2.
49 CFR Section
The revisions read as follows:
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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 $77,114, and up to $179,933 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
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49 CFR Section
43105
Guideline
amount 2
Description
—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
$77,114, and up to $179,933 if the violation results in death, serious illness or injury or substantial
destruction of property.
173.24(c) ...................................................
—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.
*
* * * *
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 $77,114 for each violation, except that the maximum civil penalty for a violation is $179,933 if the violation results in death, serious illness, or severe injury to any person or substantial destruction of property; and a minimum $463 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.
2A
Corey Hill,
Executive Director.
[FR Doc. 2016–15642 Filed 6–30–16; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 209, 213, 214, 215, 216,
217, 218, 219, 220, 221, 222, 223, 224,
225, 227, 228, 229, 230, 231, 232, 233,
234, 235, 236, 237, 238, 239, 240, 241,
242, 243, 244, and 272
[Docket No. FRA–2016–0021; Notice No. 1]
RIN 2130–AC59
Implementation of the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act for a Violation of a
Federal Railroad Safety Law or Federal
Railroad Administration Safety
Regulation or Order
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule.
AGENCY:
To comply with the Federal
Civil Penalties Inflation Adjustment Act
of 1990, as amended by the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, FRA is
adjusting the minimum, maximum, and
aggravated maximum penalties that it
will apply when assessing a civil
penalty for a violation of a railroad
safety statute, regulation, or order under
its authority. In particular, FRA is
increasing the minimum civil penalty
per violation from $650 to $839, the
ordinary maximum civil penalty per
asabaliauskas on DSK3SPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:44 Jun 30, 2016
Jkt 238001
violation from $25,000 to $27,455, and
the aggravated maximum civil penalty
(i.e., the maximum civil penalty per
violation where a grossly negligent
violation or a pattern of repeated
violations has created an imminent
hazard of death or injury or has caused
death or injury) from $105,000 to
$109,819.
DATES: This interim final rule is
effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT:
Veronica Chittim, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey
Avenue SE., Mail Stop 10, Washington,
DC 20590 (telephone 202–493–0273),
veronica.chittim@dot.gov.
SUPPLEMENTARY INFORMATION: On
November 2, 2015, President Barack
Obama signed the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015
Inflation Act). Public Law 114–74, Sec.
701. This amended the Federal Civil
Penalties Inflation Adjustment Act of
1990 (Inflation Act) that required each
agency to (1) adjust by regulation each
maximum civil monetary penalty
(CMP), or range of minimum and
maximum CMPs, within that agency’s
jurisdiction by October 23, 1996, and (2)
adjust those penalty amounts once every
four years thereafter, to reflect inflation.
See Public Law 101–410, 104 Stat. 890,
28 U.S.C. 2461, note, as amended by
Section 31001(s)(1) of the Debt
Collection Improvement Act of 1996,
Public Law 104–134, 110 Stat. 1321–
373, April 26, 1996. Under the 2015
Inflation Act, agencies must make a
catch-up adjustment for CMPs with the
new penalty levels published by July 1,
2016, to take effect no later than August
PO 00000
Frm 00123
Fmt 4700
Sfmt 4700
1, 2016. In addition, agencies must
make annual inflation adjustments,
starting January 15, 2017, based on
Office of Management and Budget
(OMB) guidance.
In the 2015 Inflation Act, Congress
recognized the important role CMPs
play in deterring violations of Federal
laws, regulations, and orders and
determined that inflation has
diminished the impact of these
penalties. In the Inflation Act, Congress
countered the effect that inflation has
had on the CMPs by having the agencies
charged with enforcement responsibility
administratively adjust the CMPs.
FRA is authorized as the delegate of
the Secretary of Transportation to
enforce the Federal railroad safety
statutes, regulations, and orders,
including the civil penalty provisions
codified primarily at 49 U.S.C. 213. See
49 U.S.C. 103 and 49 CFR 1.89; 49
U.S.C. 201–213. FRA currently has
safety regulations in 33 parts of the CFR
that contain the agency’s authority to
impose civil penalties if a person
violates any requirement in the
pertinent portion of a statute or the CFR.
In this interim final rule, FRA is
amending each of the separate
regulatory provisions and the
corresponding footnotes in each
Schedule of Civil Penalties appended to
those regulations to raise the minimum
CMP to $839, ordinary maximum CMP
to $27,455, and aggravated maximum
CMP to $109,819. Where applicable,
FRA is amending the corresponding
appendices to those regulatory
provisions which outline FRA
enforcement policy. See 49 CFR part
209, app. A; 49 CFR part 228, app. A.
E:\FR\FM\01JYR1.SGM
01JYR1
]]>Agencies
[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)]
[Rules and Regulations]
[Pages 43101-43105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15642]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2004-17530; Notice No. 4]
RIN 2130-AC61
Inflation Adjustment of the Ordinary Maximum and Aggravated
Maximum Civil Monetary Penalties for a Violation of the Hazardous
Material Transportation Laws or Regulations, Orders, Special Permits,
and Approvals Issued Under Those Laws
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: To comply with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015, FRA is adjusting the
minimum penalty, ordinary maximum penalty, and the aggravated maximum
penalty that it will apply when assessing a civil monetary penalty for
a knowing violation of the Federal hazardous material transportation
laws or a regulation, special permit, order, or approval issued under
those laws. The aggravated maximum penalty is available only for a
violation that results in death, serious illness, or severe injury to
any person or substantial destruction of property. In particular, FRA
is increasing the minimum penalty for a training violation from $450 to
$463; the ordinary maximum civil monetary penalty per violation from
$75,000 to $77,114; and the aggravated maximum civil penalty from
$175,000 to $179,933.
DATES: This interim final rule is effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT: Roberta Stewart, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 10,
Washington, DC 20590 (telephone 202-493-6027), roberta.stewart@dot.gov.
SUPPLEMENTARY INFORMATION: On November 2, 2015, President Barack Obama
signed the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015 Inflation Act). Public Law 114-74,
Sec. 701. This amended the Federal Civil Penalties Inflation Adjustment
Act of 1990 (Inflation Act) that required each agency to (1) adjust by
regulation each maximum civil monetary penalty (CMP), or range of
minimum and maximum CMPs, within that agency's jurisdiction by October
23, 1996, and (2) adjust those penalty amounts once every four years
thereafter, to reflect inflation. See Public Law 101-410, 104 Stat.
890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the
Debt Collection Improvement Act of 1996, Public Law 104-134, 110 Stat.
1321-373, April 26, 1996. Under the 2015 Inflation Act, agencies must
make a catch-up adjustment for CMPs with the new penalty levels
published by July 1, 2016, to take effect no later than August 1, 2016.
In addition, agencies must make annual inflation adjustments, starting
January 15, 2017, based on Office of Management and Budget (OMB)
guidance.
[[Page 43102]]
In the 2015 Inflation Act, Congress recognized the important role
CMPs play in deterring violations of Federal laws, regulations, and
orders and determined that inflation has diminished the impact of these
penalties. In the Inflation Act, Congress countered the effect that
inflation has had on the CMPs by having the agencies charged with
enforcement responsibility administratively adjust the CMPs.
This interim final rule is published under 49 U.S.C. 5123 and 5124,
which provide civil and criminal penalties for violations of the
Federal hazardous material transportation laws or a regulation, order,
special permit, or approval issued under those laws. The Pipeline and
Hazardous Materials Safety Administration (PHMSA) issues the hazardous
material transportation regulations. 49 CFR 1.96(b)(1). However, FRA is
authorized as the delegate of the Secretary of Transportation to
enforce the hazardous material statutes, regulations and orders,
including the civil penalty provisions codified primarily at 49 U.S.C.
5123. 49 CFR 1.89(j). In this interim final rule, FRA is amending all
references to the minimum and maximum civil penalties in 49 CFR part
209, app. B, to raise the minimum CMP for training violations from $450
to $463; the ordinary maximum CMP per violation from $75,000 to
$77,114; and the aggravated maximum CMP from $175,000 to $179,933.
Description of the Adjustment Calculation
The 2015 Inflation Act requires FRA to calculate the inflation
adjustment by increasing the maximum CMP, or the range of minimum and
maximum CMPs, based on the Consumer Price Index for the month of
October 2015, not seasonally adjusted. The calculation uses multipliers
to adjust the maximum CMP, or the range of minimum and maximum CMPs,
based on the year the penalty was established or last adjusted by
statute or regulation other than under the Inflation Act. Congress
passed the Moving Ahead for Progress in the 21st Century Act in 2012
(MAP-21), which amended the maximum penalty (ordinary maximum) for a
knowing violation of a Federal hazardous material safety law,
regulation, order, special permit, or approval to $75,000. Public Law
112-141 (July 6, 2012). MAP-21 also set at $175,000 the maximum civil
penalty for a person who knowingly violates the Federal hazardous
material transportation laws or a regulation, order, special permit, or
approval issued under those laws that results in death, serious
illness, or severe injury to any person or substantial destruction of
property (aggravated maximum), and also added a $450 minimum for a
training violation.
OMB guidance, M-16-06, ``Implementation of the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015,'' dated
Feb. 24, 2016, states that after applying the multiplier, FRA must
round the penalty levels to the nearest dollar.\1\ The 2015 Inflation
Act also specifies that agencies shall not increase penalty levels by
more than 150 percent of the corresponding levels in effect on November
2, 2015. If the new amount or range of the increase exceeds 150 percent
above the last reported level(s), the new amount or range should be
reduced to 150 percent over the last reported level(s). The resulting
penalty level(s) in that case would be 250 percent of the last reported
level(s).
---------------------------------------------------------------------------
\1\ Available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf. See also Public Law 114-74, Sec.
701.
---------------------------------------------------------------------------
Applying the inflation adjustment calculation, FRA determined the
minimum CMP for training violations should be raised from $450 to $463;
the ordinary maximum CMP should be raised from $75,000 to $77,114; and
the aggravated maximum CMP should be raised from $175,000 to $179,933.
Calculations To Determine CMP Updates for 2016
1. Minimum CMP of $450 for Training Violations Raised to $463
As the 2015 Inflation Act requires, FRA evaluated the minimum CMP
of $450 for training violations and concluded it should increase to
$463, as the next calculations show. The 2012 multiplier of 1.02819
(since the last update not for inflation was in 2012, by MAP-21) times
$450 equals $462.68, or $463 rounded to the nearest dollar. The
statutory 150 percent ceiling would be $450 (the penalty level in
effect on November 2, 2015, including Inflation Act increases), times
2.5, or $1,125. Because $463 is less than the $1,125 ceiling, the 150
percent limit does not apply. The inflation adjusted minimum penalty is
$463, and applies to all violations of the hazardous materials
statutes, regulations, special permits, approvals, and orders related
to training. This new FRA minimum penalty for training violations will
apply to violations that occur on or after August 1, 2016.
2. Ordinary Maximum CMP of $75,000 Raised to $77,114
As the 2015 Inflation Act requires, FRA evaluated the ordinary
maximum CMP and determined it should increase to $77,114, as the
following calculations show. The 2012 multiplier of 1.02819 (since the
last update not for inflation was in 2012, by MAP-21) times $75,000
equals $77,114.25, or $77,114 rounded to the nearest dollar. The
statutory 150 percent ceiling would be $75,000 (the penalty level in
effect on November 2, 2015, including Inflation Act increases), times
2.5, or $187,500. Because $77,114 is less than the $ 187,500 ceiling,
the 150 percent limit does not apply. The inflation adjusted ordinary
maximum penalty is $77,114, and applies to all violations of the
hazardous materials transportation statutes, regulations, special
permits, approvals, and orders. Therefore, the ordinary maximum CMP
should increase from $75,000 to $77,114. This new FRA ordinary maximum
penalty will apply to violations that occur on or after August 1, 2016.
3. Aggravated Maximum CMP of $175,000 Raised to $179,933
FRA also evaluated the maximum CMP for an aggravated violation and
determined it should increase to $179,933, as the following
calculations show. The 2012 multiplier of 1.02819 (since the last
update not for inflation was in 2012, by MAP-21) times $175,000 equals
$179,933.25, or $179,933, rounded to the nearest dollar. The statutory
150 percent ceiling would be $175,000 (the penalty level in effect on
November 2, 2015, including Inflation Act increases), times 2.5, or
$437,500 Because $179,933 is less than the $437,500 ceiling, the 150
percent limit does not apply. The inflation adjusted aggravated maximum
penalty is $179,933, and applies to all violations of the hazardous
materials transportation statutes, regulations, special permits,
approvals, and orders. Therefore, the aggravated maximum should
increase from $175,000 to $179,933. This new FRA aggravated maximum
penalty will apply to violations that occur on or after August 1, 2016.
Public Participation
FRA is proceeding to an interim final rule without providing a
notice of proposed rulemaking or an opportunity for public comment. The
adjustments the 2015 Inflation Act requires are ministerial acts over
which FRA has no discretion, making public comment unnecessary. As
such, notice and comment procedures are ``impracticable, unnecessary,
or contrary to the public interest'' within the meaning of the
Administrative Procedure Act (APA), 5 U.S.C.
[[Page 43103]]
553(b)(3)(B). FRA is issuing these amendments as an interim final rule
applicable to all future hazardous materials transportation civil
penalty cases under its authority to cite for violations that occur on
or after the effective date of this interim final rule.
Regulatory Impact
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This interim final rule has been evaluated consistent with
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT policies
and procedures. It is not considered a significant regulatory action
under section 3(f) of Executive Order 12866. The rule is expected to
have minimal economic impacts. Additionally, FRA has no discretion to
change the amount by which the CMPs are updated due to the clear
direction in the 2015 Inflation Act and OMB memorandum M-16-06.
Further, this rule is not significant under the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11034; Feb. 26,
1979) because it is limited to ministerial acts on which the agency has
no discretion, and the economic impact of the interim final rule is
minimal to the extent that preparation of a regulatory evaluation is
not warranted.
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, as
amended, and codified as amended at 5 U.S.C. 601-612, and Executive
Order 13272 (Proper Consideration of Small Entities in Agency
Rulemaking), require agency review of proposed and final rules to
assess their impact on ``small entities'' for purposes of the RFA. An
agency must prepare a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
FRA does not expect this interim final rule will have a significant
economic impact on a substantial number of small entities. Although
this interim final rule will apply to railroads, hazardous materials
shippers, and others that are considered small entities, there is no
economic impact on any person who complies with the Federal hazardous
materials laws and the regulations, special permits, approvals, and
orders issued under those laws.
In addition, FRA has determined the RFA does not apply to this
rulemaking. The 2015 Inflation Act requires FRA to publish an interim
final rule and does not require FRA to complete notice and comment
procedures under the APA. The Small Business Administration's A Guide
for Government Agencies: How to Comply with the Regulatory Flexibility
Act (2003), provides that:
If, under the APA or any rule of general applicability governing
federal grants to state and local governments, the agency is
required to publish a general notice of proposed rulemaking (NPRM),
the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an
NPRM is not required, the RFA does not apply.
Therefore, because the 2015 Inflation Act does not require an NPRM
for this rulemaking, the RFA does not apply.
C. Federalism
This interim final rule will not have a substantial effect on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Thus, consistent with Executive Order
13132 (Federalism), preparation of a Federalism assessment is not
warranted.
D. Paperwork Reduction Act
There are no new information collection requirements in this
interim final rule to submit for OMB review under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
E. Unfunded Mandates Reform Act of 1995
This interim final rule will not result in the expenditure, in the
aggregate, of $156,000,000 or more in any one year by State, local, or
Indian Tribal governments, or the private sector. Thus, consistent with
Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4,
2 U.S.C. 1532), preparation of a written statement detailing the effect
of such an expenditure is not warranted.
F. Environmental Impact
FRA has evaluated this interim final rule under the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other
environmental statutes, related regulatory requirements, and its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545; May 26, 1999). FRA has determined that this interim final
rule is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's NEPA Procedures, ``Promulgation
of railroad safety rules and policy statements that do not result in
significantly increased emissions of air or water pollutants or noise
or increased traffic congestion in any mode of transportation.'' See 64
FR 28547 (May 26, 1999). Categorical exclusions (CEs) are actions
identified in an agency's NEPA implementing procedures that do not
normally have a significant impact on the environment and therefore do
not require either an environmental assessment (EA) or environmental
impact statement (EIS). See 40 CFR 1508.4.
In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, FRA
has further concluded that no extraordinary circumstances exist with
respect to this regulation that might trigger the need for a more
detailed environmental review. The purpose of this rulemaking is to
comply with the Inflation Act, as amended by the 2015 Inflation Act.
Specifically, FRA is adjusting the minimum, maximum, and aggravated
maximum penalty that it will apply when assessing a civil penalty for a
violation of a Federal hazardous materials law, regulation, special
permit, approval, or order. FRA does not anticipate any environmental
impacts from this requirement and finds there are no extraordinary
circumstances present in connection with this interim final rule.
G. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534; May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA has evaluated this interim final rule under Executive
Order 12898 and the DOT Order and has determined that it would not
cause disproportionately high and adverse human health and
environmental effects on minority populations or low-income
populations.
[[Page 43104]]
H. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this interim final rule under the principles and
criteria contained in Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, dated November 6, 2000.
The interim final rule would not have a substantial direct effect on
one or more Indian tribes, would not impose substantial direct
compliance costs on Indian tribal governments, and would not preempt
tribal laws. Therefore, the funding and consultation requirements of
Executive Order 13175 do not apply, and a tribal summary impact
statement is not required.
List of Subjects in 49 CFR Part 209
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Interim Final Rule
In consideration of the foregoing, part 209 of subtitle B, chapter
II of title 49 of the Code of Federal Regulations is amended as
follows:
PART 209--[AMENDED]
0
1. The authority citation for part 209 continues 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(a) and (c) 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 $77,114 for each violation, except that--
(1) The maximum civil penalty for a violation is $179,933 if the
violation results in death, serious illness, or severe injury to any
person, or substantial destruction of property and
(2) A minimum $463 civil penalty applies to a violation related to
training.
* * * * *
(c) The maximum and minimum civil penalties described in paragraph
(a) above apply to violations occurring on or after August 1, 2016.
0
3. Revise the last sentence of Sec. 209.105(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 $77,114 for each violation, except that if the violation
results in death, serious illness or severe injury to any 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 $179,933.
Appendix B to Part 209--[Amended]
0
4. Amend appendix B to part 209 as follows:
0
a. In the introductory text, revise the second sentence of the first
paragraph, the last sentence of the second paragraph, and the next to
last sentence of the third paragraph;
0
b. In the table ``CIVIL PENALTY ASSESSMENT GUIDELINES,'' below the
heading ``PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGES,'' revise the entry for ``Sec. Sec. 173.24(b)(1) and
173.24(b)(2) and 173.24(f)(1) and 173.24(f)(1)(ii)'', and revise the
entry for ``Sec. 173.24(c)''; and
0
c. Revise footnote 2.
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 Railroad Safety (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 $77,114 penalty, except the maximum civil
penalty is $179,933 if the violation results in death, serious illness
or severe injury to any person, or substantial destruction of property,
and a minimum $463 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 $77,114 and up to and including $179,933 shall always be assessed
initially.
* * * In fact, FRA reserves the express authority to amend the NOPV
to seek a penalty of up to $77,114 for each violation, and up to
$179,933 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 Guidlenes
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGES
* * * * *
----------------------------------------------------------------------------------------------------------------
Guideline
49 CFR Section Description amount \2\
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
* * * * * * *
173.24(b)(1) and 173.24(b)(2) and Securing closures: These subsections are the general ``no leak''
173.24(f)(1) and 173.24(f)(1)(ii). standard 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 $77,114, and up to $179,933 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, e.g., IBC; not portable tank or 5,000
tank car..
----------------------------------------------------------------------
[[Page 43105]]
--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 outside of package (i.e., 5,000
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
$77,114, and up to $179,933 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 5,000
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.
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* * * * *
\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 $77,114 for each violation,
except that the maximum civil penalty for a violation is $179,933 if the violation results in death, serious
illness, or severe injury to any person or substantial destruction of property; and a minimum $463 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.
Corey Hill,
Executive Director.
[FR Doc. 2016-15642 Filed 6-30-16; 8:45 am]
BILLING CODE 4910-06-P
