Hazardous Materials: Revision of Maximum and Minimum Civil Penalties, 18397-18400 [2017-07908]
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Federal Register / Vol. 82, No. 74 / Wednesday, April 19, 2017 / Rules and Regulations
requirements, Security measures,
Waterways.
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
18397
I. Executive Order 13609 and International
Trade Analysis
J. Privacy Act
K. Regulation Identifier Number (RIN)
List of Subjects
49 CFR Parts 107 and 171
I. Civil Penalty Amendments
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
[Docket No. PHMSA–2016–0041 (HM–258D)]
■
1. The authority citation for part 165
continues to read as follows:
Hazardous Materials: Revision of
Maximum and Minimum Civil Penalties
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
AGENCY:
Section 701 of the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015
Act), Public Law 114–74, which
amended the Federal Civil Penalties
Inflation Adjustment Act of 1990 (the
Inflation Adjustment Act), Public Law
101–410, required that the Agency make
an initial catch-up adjustment with
subsequent annual adjustments to the
maximum and minimum civil penalties
set forth in 49 U.S.C. 5123(a) for a
knowing violation of the Federal
hazardous material transportation law
or a regulation, order, special permit, or
approval issued under that law. These
changes to the maximum and minimum
civil penalty amounts apply to
violations assessed on or after the
effective date of August 1, 2016. The
2015 Act also requires that the Agency
make subsequent annual adjustments
for inflation beginning in 2017, which
are to be published no later than January
15th of each subsequent year.
The Office of Management and
Budget’s (OMB) ‘‘Memorandum for the
Heads of Executive Departments and
Agencies, Implementation of the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015,’’ M–17–11,
provides guidance on how to update
agencies’ civil penalties pursuant to the
2015 Act. In order to complete the 2017
annual adjustment, agencies should
multiply each applicable penalty by the
multiplier (1.01636) and round to the
nearest dollar. The multiplier should be
applied to the most recent penalty
amount, i.e., the one that includes the
catch-up adjustment that the 2015 Act
required agencies to issue no later than
July 1, 2016.
Accordingly, PHMSA is revising the
references to the maximum and
minimum civil penalty amounts in 49
CFR 107.329, appendix A to subpart D
of 49 CFR part 107, and 49 CFR 171.1
to reflect the changes required by the
2015 Act:
2. Add § 165.T13–0313 to read as
follows:
■
(a) Location. The following area is
designated as a safety zone: all waters
within 500-yard radius of the
unexploded ordnance detonation, Naval
Base Kitsap, Elwood Point (47°35′30.8″
N, 122°41′11.1″ W); Bremerton, WA.
(b) Regulations. In accordance with
the general regulations in subpart C of
this part no person or vessel may enter
or remain in the safety zone unless
authorized by the Captain of the Port,
Puget Sound or a designated
representative. To request permission to
enter the safety zone, contact the Joint
Harbor Operations Center at 206–217–
6001, or the on-scene patrol craft, if any,
via VHF–FM Channel 16. If permission
for entry into the safety zone is granted,
vessels or persons must proceed at the
minimum speed for safe navigation and
in compliance with any other directions
given by the Captain of the Port, Puget
Sound or a designated representative.
(c) Effective period. This section is
effective from 8 a.m. on April 19, 2017
to 8 p.m. on April 20, 2017. It will only
be enforced during two periods: From 8
a.m. to 8 p.m. on April 19, 2017, and
from 8 a.m. to 8 p.m. on April 20, 2017.
[FR Doc. 2017–07883 Filed 4–18–17; 8:45 am]
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Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Final rule.
PHMSA is revising the
maximum and minimum civil penalties
for a knowing violation of the Federal
hazardous material transportation law
or a regulation, order, special permit, or
approval issued under that law. The
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015, which amended the Federal Civil
Penalties Inflation Adjustment Act of
1990, required Agencies to update their
civil monetary penalties in August 2016
through an interim final rulemaking.
PHMSA has elected to do the 2017
update in a final rulemaking. Per this
final rule, the maximum civil penalty
for a knowing violation is now $78,376,
except for violations that result in death,
serious illness, or severe injury to any
person or substantial destruction of
property, for which the maximum civil
penalty is $182,877. In addition, the
minimum civil penalty amount for a
violation relating to training is now
$471.
SUMMARY:
§ 165.T13–0313 Safety Zone; Unexploded
Ordnance Detonation; Naval Base Kitsap;
Elwood Point; Bremerton, WA.
Dated: April 13, 2017.
L.A. Sturgis,
Captain, U.S. Coast Guard, Captain of the
Port Puget Sound.
RIN 2137–AF23
DATES:
Effective Date: April 19, 2017.
FOR FURTHER INFORMATION CONTACT:
Shawn Wolsey, Office of Chief Counsel,
(202) 366–4400, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue SE., Washington,
DC 20590–0001.
SUPPLEMENTARY INFORMATION:
Table of Contents:
I. Civil Penalty Amendments
II. Justification for Final Rule
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866, Executive Order
13563, and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Environmental Assessment
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• Revising the maximum civil penalty
from $77,114 to $78,376 for a person who
knowingly violates the Federal hazardous
material transportation law or a regulation,
order, special permit, or approval issued
under that law.
• Revising the maximum civil penalty
from $179,933 to $182,877 for a person who
knowingly violates the Federal hazardous
material transportation law or a regulation,
order, special permit, or approval issued
under that law that results in death, serious
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illness, or severe injury to any person or
substantial destruction of property.
• Revising the minimum penalty amount
from $463 to $471 for a violation related to
training.
II. Justification for Final Rule
PHMSA is proceeding directly to a
final rule without providing a notice of
proposed rulemaking (NPRM) or an
opportunity for public comment. This
action is permitted, in part, because the
2015 Act directs PHMSA to adjust the
civil monetary penalties in accordance
with the schedule provided in the 2015
Act, notwithstanding the notice and
public comment procedures in the
Administrative Procedure Act (APA).
However, PHMSA also notes that the
APA authorizes agencies to forego
providing the opportunity for prior
public notice and comment if an agency
finds good cause that notice and public
comment are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ See 5 U.S.C 553(b)(3)(B). In
this instance, public comment is
unnecessary because, in making these
technical amendments, PHMSA is not
exercising discretion in a way that could
be informed by public comment.
PHMSA is required under the 2015 Act
and directed by the OMB Guidance to
publish this rule by January 15, 2017,
with the penalty levels stated herein to
take effect on that date. Further, PHMSA
is mandated by the 2015 Act and
directed by the OMB Guidance to adjust
the penalty levels pursuant to the
specific procedures also stated herein.
Any public comments received through
notice and comment procedure would
therefore not affect PHMSA’s obligation
to comply with the 2015 Act, nor would
they affect the methods used by PHMSA
to adjust the penalty levels.
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III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
This final rule is published under the
authority of the Federal hazardous
materials transportation law. 49 U.S.C.
5101 et seq. Section 5123(a) of which
provides civil penalties for knowing
violations of Federal hazardous material
transportation law or a regulation, order,
special permit, or approval issued under
that law. This rule revises the references
in PHMSA’s regulations by (1) revising
the maximum penalty amount for a
knowing violation and a knowing
violation resulting in death, serious
illness, or severe injury to any person or
substantial destruction of property to
$78,376 and $182,877, respectively, and
(2) revising the minimum penalty
amount to $471 for a violation related to
training.
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B. Executive Order 12866, Executive
Order 13563, and DOT Regulatory
Policies and Procedures
This final rule has been evaluated in
accordance with existing policies and
procedures and determined to be nonsignificant under Executive Order
12866, ‘‘Regulatory Planning and
Review,’’ 58 FR 51735 (Oct. 4, 1993),
and Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review,’’ 76
FR 3821 (Jan. 21, 2011). However,
consistent with OMB memorandum M–
17–11, this final rule was not reviewed
by OMB in order to make a significance
determination.
Further, this rule is not a significant
regulatory action under DOT Regulatory
Policies and Procedures. See 44 FR
11034 (Feb. 26, 1979). It is a ministerial
act for which the Agency has no
discretion. The economic impact of the
final rule is minimal to the extent that
preparation of a regulatory evaluation is
not warranted. Given the low number of
penalty actions within the scope of this
final rule, the impacts will be very
limited.
This final rule is being undertaken to
address our statutory requirements and
imposes no new costs upon persons
conducting hazardous materials
operations in compliance with the
requirements of the Hazardous Materials
Regulations (HMR; 49 CFR parts 171–
180). Those entities not in compliance
with the requirements of the HMR may
experience an increased cost based on
the penalties levied against them for
non-compliance; however, this is an
avoidable, variable cost and thus is not
considered in any evaluation of the
significance of this regulatory action.
Moreover, as the cost is an inflationary
adjustment and the magnitude of the
increase is minimal since these
penalties were recently enacted,
reflected costs are nominal. The
amendments in this rule could provide
safety benefits (i.e., larger penalties
deterring knowing violators). Overall, it
is anticipated this rulemaking would
have minimal real costs and benefits.
C. Executive Order 13132
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, ‘‘Federalism.’’ See 64 FR 43255
(Aug. 10, 1999). This rule does not
impose any regulation having
substantial direct effects on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. Therefore, the
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consultation and funding requirements
of Executive Order 13132 do not apply.
D. Executive Order 13175
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13175, ‘‘Consultation and Coordination
with Indian Tribal Governments.’’ See
65 FR 67249 (Nov. 9, 2000). Because
this final rule does not have adverse
tribal implications and does not impose
direct compliance costs, the funding
and consultation requirements of
Executive Order 13175 do not apply and
a tribal summary impact statement is
not required.
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601–611, requires each agency
to analyze regulations and assess their
impact on small businesses and other
small entities to determine whether the
rule is expected to have a significant
impact on a substantial number of small
entities. The provisions of this rule
apply specifically to all businesses
transporting hazardous material.
Therefore, PHMSA certifies this rule
would not have a significant economic
impact on a substantial number of small
entities.
In addition, PHMSA has determined
the RFA does not apply to this
rulemaking. The 2015 Act requires
PHMSA to publish a final rule and does
not require PHMSA to complete notice
and comment procedures under the
APA. The Small Business
Administration’s A Guide for
Government Agencies: How to Comply
with the Regulatory Flexibility Act
(2003), provides that:
If, under the APA or any rule of general
applicability governing Federal grants to state
and local governments, the agency is
required to publish a general notice of
proposed rulemaking (NPRM), the RFA must
be considered [citing 5 U.S.C. 604(a)]. . . . If
an NPRM is not required, the RFA does not
apply.
Therefore, because the 2015 Act does
not require an NPRM for this
rulemaking, the RFA does not apply.
F. Paperwork Reduction Act
There are no new information
requirements in this final rule.
G. Unfunded Mandates Reform Act of
1995
This final rule does not impose
unfunded mandates under the
Unfunded Mandates Reform Act of
1995. Public Law 104–4. It does not
result in costs of $100 million or more,
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adjusted for inflation, to any of the
following: State, local, or Native
American tribal governments, or to the
private sector.
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H. Environmental Assessment
The National Environmental Policy
Act of 1969 (NEPA), as amended,
requires Federal agencies to consider
the consequences of major Federal
actions and prepare a detailed statement
on actions significantly affecting the
quality of the human environment. 42
U.S.C. 4321–4375. When developing
potential regulatory requirements,
PHMSA evaluates those requirements to
consider the environmental impact of
each amendment. Specifically, PHMSA
evaluates the following: Risk of release
and resulting environmental impact;
risk to human safety, including any risk
to first responders; longevity of the
packaging; and if the proposed
regulation would be carried out in a
defined geographic area, the resources,
especially any sensitive areas, and how
they could be impacted by any proposed
regulations. These amendments would
be generally applicable and would not
be carried out in a defined geographic
area. Civil penalties may act as a
deterrent to those violating the HMR,
and this can have a negligible positive
environmental impact as a result of
increased compliance. Based on the
above discussion, PHMSA concludes
there are no significant environmental
impacts associated with this final rule.
I. Executive Order 13609 and
International Trade Analysis
Under Executive Order 13609,
‘‘Promoting International Regulatory
Cooperation,’’ agencies must consider
whether the impacts associated with
significant variations between domestic
and international regulatory approaches
are unnecessary or may impair the
ability of American business to export
and compete internationally. See 77 FR
26413 (May 4, 2012). In meeting shared
challenges involving health, safety,
labor, security, environmental, and
other issues, international regulatory
cooperation can identify approaches
that are at least as protective as those
that are or would be adopted in the
absence of such cooperation.
International regulatory cooperation can
also reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements.
Similarly, the Trade Agreements Act
of 1979 (Pub. L. 96–39), as amended by
the Uruguay Round Agreements Act
(Pub. L. 103–465), prohibits Federal
agencies from establishing any
standards or engaging in related
activities that create unnecessary
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obstacles to the foreign commerce of the
United States. For purposes of these
requirements, Federal agencies may
participate in the establishment of
international standards, so long as the
standards have a legitimate domestic
objective, such as providing for safety,
and do not operate to exclude imports
that meet this objective. The statute also
requires consideration of international
standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the
establishment of international standards
in order to protect the safety of the
American public, and we have assessed
the effects of this final rule to ensure
that it does not cause unnecessary
obstacles to foreign trade. Accordingly,
this rulemaking is consistent with
Executive Order 13609 and PHMSA’s
obligations.
J. Privacy Act
Anyone is able to search the
electronic form of all comments
received by any of our dockets using the
name of the individual submitting the
comments (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19476), which may be viewed at https://
www.gpo.gov/fdsys/pkg/FR-2000-04-11/
pdf/00-8505.pdf.
K. Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in spring and fall of each year.
The RIN contained in the heading of
this document can be used to crossreference this action with the Unified
Agenda.
List of Subjects
49 CFR Part 107
Administrative practices and
procedure, Hazardous materials
transportation, Packaging and
containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Definitions, General information,
Regulations.
In consideration of the foregoing, 49
CFR chapter I is amended as follows:
PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
1. The authority citation for part 107
continues to read as follows:
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18399
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 section 4; Pub. L. 104–121,
sections 212–213; Pub. L. 104–134, section
31001; Pub. L. 114–74 section 4 (28 U.S.C.
2461 note); 49 CFR 1.81 and 1.97.
■
2. Revise § 107.329 to read as follows:
§ 107.329
Maximum penalties.
(a) A person who knowingly violates
a requirement of the Federal hazardous
material transportation law, an order
issued thereunder, this subchapter,
subchapter C of the chapter, or a special
permit or approval issued under this
subchapter applicable to the
transportation of hazardous materials or
the causing of them to be transported or
shipped is liable for a civil penalty of
not more than $78,376 for each
violation, except the maximum civil
penalty is $182,877 if the violation
results in death, serious illness, or
severe injury to any person or
substantial destruction of property.
There is no minimum civil penalty,
except for a minimum civil penalty of
$471 for violations relating to training.
When the violation is a continuing one,
each day of the violation constitutes a
separate offense.
(b) A person who knowingly violates
a requirement of the Federal hazardous
material transportation law, an order
issued thereunder, this subchapter,
subchapter C of the chapter, or a special
permit or approval issued under this
subchapter applicable to the design,
manufacture, fabrication, inspection,
marking, maintenance, reconditioning,
repair or testing of a package, container,
or packaging component which is
represented, marked, certified, or sold
by that person as qualified for use in the
transportation of hazardous materials in
commerce is liable for a civil penalty of
not more than $78,376 for each
violation, except the maximum civil
penalty is $182,877 if the violation
results in death, serious illness, or
severe injury to any person or
substantial destruction of property.
There is no minimum civil penalty,
except for a minimum civil penalty of
$471 for violations relating to training.
3. In appendix A to subpart D of part
107, section II.B. (‘‘Penalty Increases for
Multiple Counts’’), the first sentence of
the second paragraph is revised to read
as follows:
Appendix A to Subpart D of Part 107—
Guidelines for Civil Penalties
*
*
*
*
*
II. * * *
B. * * *
Under the Federal hazmat law, 49
U.S.C. 5123(a), each violation of the
HMR and each day of a continuing
violation (except for violations relating
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to packaging manufacture or
qualification) is subject to a civil
penalty of up to $78,376 or $182,877 for
a violation occurring on or after April
19, 2017. * * *
*
*
*
*
*
PART 171—GENERAL INFORMATION,
REGULATIONS, AND DEFINITIONS
4. The authority citation for part 171
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 section 4; Pub. L. 104–134,
section 31001; Pub. L. 114–74 section 4 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
5. In § 171.1, paragraph (g) is revised
to read as follows:
■
§ 171.1 Applicability of Hazardous
Materials Regulations (HMR) to persons and
functions.
*
*
*
*
*
(g) Penalties for noncompliance. Each
person who knowingly violates a
requirement of the Federal hazardous
material transportation law, an order
issued under Federal hazardous
material transportation law, subchapter
A of this chapter, or a special permit or
approval issued under subchapter A or
C of this chapter is liable for a civil
penalty of not more than $78,376 for
each violation, except the maximum
civil penalty is $182,877 if the violation
results in death, serious illness, or
severe injury to any person or
substantial destruction of property.
There is no minimum civil penalty,
except for a minimum civil penalty of
$471 for a violation relating to training.
Issued in Washington, DC on April 14,
2017, under authority delegated in 49 CFR
part 1.97.
Howard W. McMillan,
Acting Deputy Administrator, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2017–07908 Filed 4–18–17; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket Nos. 100120037–1626–02 and
101217620–1788–03]
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RIN 0648–XF344
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; 2017
Accountability Measure-Based
Closures for Recreational Species in
the U.S. Caribbean off Puerto Rico
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closures.
NMFS implements
accountability measures (AMs) for two
species groups in the exclusive
economic zone (EEZ) of the U.S.
Caribbean off Puerto Rico for the 2017
fishing year through this temporary rule.
NMFS has determined that recreational
sector annual catch limits (ACLs) in the
EEZ off Puerto Rico were exceeded for
wrasses and parrotfishes based on
average landings during the 2013–2015
fishing years. This temporary rule
reduces the lengths of the 2017 fishing
seasons for these species groups by the
amounts necessary to ensure that
landings do not exceed the applicable
recreational ACLs in 2017. NMFS closes
the recreational sectors for these species
groups beginning on the dates specified
in the DATES section and continuing
through the end of the current fishing
year, December 31, 2017. These AMs are
necessary to protect the Caribbean reef
fish resources in the EEZ off Puerto
Rico.
DATES: This rule is effective for
recreational sector wrasses in the EEZ
off Puerto Rico at 12:01 a.m., local time,
April 19, 2017, until 12:01 a.m., local
time, January 1, 2018. This rule is
effective for recreational sector
parrotfishes in the EEZ off Puerto Rico
May 19, 2017, until 12:01 a.m., local
time, January 1, 2018. The AM-based
closure for recreational parrotfishes
applies at 12:01 a.m., local time,
November 4, 2017, until 12:01 a.m.,
local time, January 1, 2018.
FOR FURTHER INFORMATION CONTACT:
´
´
Marıa del Mar Lopez, NMFS Southeast
Regional Office, telephone: 727–824–
5305, email: maria.lopez@noaa.gov.
SUPPLEMENTARY INFORMATION: The reef
fish fishery of the Caribbean EEZ
includes wrasses and parrotfishes, and
is managed under the Fishery
Management Plan for the Reef Fish
Fishery of Puerto Rico and the U.S.
Virgin Islands (Reef Fish FMP). The
Reef Fish FMP was prepared by the
Caribbean Fishery Management Council
(Council) and is implemented by NMFS
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) by regulations at 50 CFR part 622.
The 2010 Caribbean ACL Amendment
(Amendment 2 to the FMP for the
Queen Conch Resources of Puerto Rico
and the U.S. Virgin Islands (Queen
Conch FMP) and Amendment 5 to the
Reef Fish FMP) and 2011 Caribbean
ACL Amendment (Amendment 3 to the
Queen Conch FMP, Amendment 6 to the
SUMMARY:
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Reef Fish FMP, Amendment 5 to the
Spiny Lobster FMP, and Amendment 3
to FMP for Corals and Reef Associated
Plants and Invertebrates of Puerto Rico
and the U.S. Virgin Islands) revised the
Reef Fish FMP (76 FR 82404, December
30, 2011, and 76 FR 82414, December
30, 2011). Among other actions, the
2010 and 2011 Caribbean ACL
Amendments and the associated final
rules established ACLs and AMs for
Caribbean reef fish, including the
species groups identified in this
temporary rule. The 2010 and 2011
Caribbean ACL Amendments and final
rules also allocated ACLs among three
Caribbean island management areas, i.e.,
the Puerto Rico, St. Croix, and St.
Thomas/St. John management areas of
the EEZ, as specified in Appendix E to
part 622. The ACLs for reef fish species
and species groups in the Puerto Rico
management area were further allocated
between the commercial and
recreational sectors, and AMs apply to
each of these sectors separately. The
Puerto Rico management area
encompasses the EEZ off Puerto Rico.
The recreational ACLs in the EEZ off
Puerto Rico for the species groups
covered by this temporary rule are as
follows and are given in round weight:
• The recreational ACL for wrasses is
5,050 lb (2,291 kg), as specified in
§ 622.12(a)(1)(ii)(L).
• The recreational ACL for
parrotfishes is 15,263 lb (6,921 kg), as
specified in § 622.12(a)(1)(ii)(B).
In accordance with regulations at 50
CFR 622.12(a), if landings from a
Caribbean island management area are
estimated to have exceeded the
applicable ACL, the Assistant
Administrator for NOAA Fisheries (AA)
will file a notification with the Office of
the Federal Register to reduce the length
of the fishing season for the applicable
species or species group the following
fishing year by the amount necessary to
ensure landings do not exceed the
applicable ACL. NMFS evaluates
landings relative to the applicable ACL
based on a moving 3-year average of
landings, as described in the Reef Fish
FMP.
Based on the most recent available
landings data, from the 2013–2015
fishing years, NMFS has determined
that the recreational ACLs for wrasses
and parrotfishes in the EEZ off Puerto
Rico have been exceeded. In addition,
NMFS has determined that the
recreational ACLs for these species
groups were exceeded because of
increased catches and not as a result of
enhanced data collection and
monitoring efforts.
This temporary rule implements AMs
for both recreational wrasses and
E:\FR\FM\19APR1.SGM
19APR1
]]>Agencies
[Federal Register Volume 82, Number 74 (Wednesday, April 19, 2017)]
[Rules and Regulations]
[Pages 18397-18400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07908]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107 and 171
[Docket No. PHMSA-2016-0041 (HM-258D)]
RIN 2137-AF23
Hazardous Materials: Revision of Maximum and Minimum Civil
Penalties
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: PHMSA is revising the maximum and minimum civil penalties for
a knowing violation of the Federal hazardous material transportation
law or a regulation, order, special permit, or approval issued under
that law. The Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, which amended the Federal Civil Penalties
Inflation Adjustment Act of 1990, required Agencies to update their
civil monetary penalties in August 2016 through an interim final
rulemaking. PHMSA has elected to do the 2017 update in a final
rulemaking. Per this final rule, the maximum civil penalty for a
knowing violation is now $78,376, except for violations that result in
death, serious illness, or severe injury to any person or substantial
destruction of property, for which the maximum civil penalty is
$182,877. In addition, the minimum civil penalty amount for a violation
relating to training is now $471.
DATES: Effective Date: April 19, 2017.
FOR FURTHER INFORMATION CONTACT: Shawn Wolsey, Office of Chief Counsel,
(202) 366-4400, Pipeline and Hazardous Materials Safety Administration,
U.S. Department of Transportation, 1200 New Jersey Avenue SE.,
Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents:
I. Civil Penalty Amendments
II. Justification for Final Rule
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Environmental Assessment
I. Executive Order 13609 and International Trade Analysis
J. Privacy Act
K. Regulation Identifier Number (RIN)
List of Subjects
I. Civil Penalty Amendments
Section 701 of the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015 Act), Public Law 114-74, which
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(the Inflation Adjustment Act), Public Law 101-410, required that the
Agency make an initial catch-up adjustment with subsequent annual
adjustments to the maximum and minimum civil penalties set forth in 49
U.S.C. 5123(a) for a knowing violation of the Federal hazardous
material transportation law or a regulation, order, special permit, or
approval issued under that law. These changes to the maximum and
minimum civil penalty amounts apply to violations assessed on or after
the effective date of August 1, 2016. The 2015 Act also requires that
the Agency make subsequent annual adjustments for inflation beginning
in 2017, which are to be published no later than January 15th of each
subsequent year.
The Office of Management and Budget's (OMB) ``Memorandum for the
Heads of Executive Departments and Agencies, Implementation of the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015,'' M-17-11, provides guidance on how to update agencies' civil
penalties pursuant to the 2015 Act. In order to complete the 2017
annual adjustment, agencies should multiply each applicable penalty by
the multiplier (1.01636) and round to the nearest dollar. The
multiplier should be applied to the most recent penalty amount, i.e.,
the one that includes the catch-up adjustment that the 2015 Act
required agencies to issue no later than July 1, 2016.
Accordingly, PHMSA is revising the references to the maximum and
minimum civil penalty amounts in 49 CFR 107.329, appendix A to subpart
D of 49 CFR part 107, and 49 CFR 171.1 to reflect the changes required
by the 2015 Act:
Revising the maximum civil penalty from $77,114 to
$78,376 for a person who knowingly violates the Federal hazardous
material transportation law or a regulation, order, special permit,
or approval issued under that law.
Revising the maximum civil penalty from $179,933 to
$182,877 for a person who knowingly violates the Federal hazardous
material transportation law or a regulation, order, special permit,
or approval issued under that law that results in death, serious
[[Page 18398]]
illness, or severe injury to any person or substantial destruction
of property.
Revising the minimum penalty amount from $463 to $471
for a violation related to training.
II. Justification for Final Rule
PHMSA is proceeding directly to a final rule without providing a
notice of proposed rulemaking (NPRM) or an opportunity for public
comment. This action is permitted, in part, because the 2015 Act
directs PHMSA to adjust the civil monetary penalties in accordance with
the schedule provided in the 2015 Act, notwithstanding the notice and
public comment procedures in the Administrative Procedure Act (APA).
However, PHMSA also notes that the APA authorizes agencies to forego
providing the opportunity for prior public notice and comment if an
agency finds good cause that notice and public comment are
``impracticable, unnecessary, or contrary to the public interest.'' See
5 U.S.C 553(b)(3)(B). In this instance, public comment is unnecessary
because, in making these technical amendments, PHMSA is not exercising
discretion in a way that could be informed by public comment. PHMSA is
required under the 2015 Act and directed by the OMB Guidance to publish
this rule by January 15, 2017, with the penalty levels stated herein to
take effect on that date. Further, PHMSA is mandated by the 2015 Act
and directed by the OMB Guidance to adjust the penalty levels pursuant
to the specific procedures also stated herein. Any public comments
received through notice and comment procedure would therefore not
affect PHMSA's obligation to comply with the 2015 Act, nor would they
affect the methods used by PHMSA to adjust the penalty levels.
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of the Federal
hazardous materials transportation law. 49 U.S.C. 5101 et seq. Section
5123(a) of which provides civil penalties for knowing violations of
Federal hazardous material transportation law or a regulation, order,
special permit, or approval issued under that law. This rule revises
the references in PHMSA's regulations by (1) revising the maximum
penalty amount for a knowing violation and a knowing violation
resulting in death, serious illness, or severe injury to any person or
substantial destruction of property to $78,376 and $182,877,
respectively, and (2) revising the minimum penalty amount to $471 for a
violation related to training.
B. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
This final rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under
Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735
(Oct. 4, 1993), and Executive Order 13563, ``Improving Regulation and
Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011). However, consistent
with OMB memorandum M-17-11, this final rule was not reviewed by OMB in
order to make a significance determination.
Further, this rule is not a significant regulatory action under DOT
Regulatory Policies and Procedures. See 44 FR 11034 (Feb. 26, 1979). It
is a ministerial act for which the Agency has no discretion. The
economic impact of the final rule is minimal to the extent that
preparation of a regulatory evaluation is not warranted. Given the low
number of penalty actions within the scope of this final rule, the
impacts will be very limited.
This final rule is being undertaken to address our statutory
requirements and imposes no new costs upon persons conducting hazardous
materials operations in compliance with the requirements of the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). Those
entities not in compliance with the requirements of the HMR may
experience an increased cost based on the penalties levied against them
for non-compliance; however, this is an avoidable, variable cost and
thus is not considered in any evaluation of the significance of this
regulatory action. Moreover, as the cost is an inflationary adjustment
and the magnitude of the increase is minimal since these penalties were
recently enacted, reflected costs are nominal. The amendments in this
rule could provide safety benefits (i.e., larger penalties deterring
knowing violators). Overall, it is anticipated this rulemaking would
have minimal real costs and benefits.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132, ``Federalism.'' See 64
FR 43255 (Aug. 10, 1999). This rule does not impose any regulation
having substantial direct effects on the States, the relationship
between the national government and the States, or the distribution of
power and responsibilities among the various levels of government.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments.'' See 65 FR 67249 (Nov. 9,
2000). Because this final rule does not have adverse tribal
implications and does not impose direct compliance costs, the funding
and consultation requirements of Executive Order 13175 do not apply and
a tribal summary impact statement is not required.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-611, requires
each agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The provisions of this rule apply specifically to all
businesses transporting hazardous material. Therefore, PHMSA certifies
this rule would not have a significant economic impact on a substantial
number of small entities.
In addition, PHMSA has determined the RFA does not apply to this
rulemaking. The 2015 Act requires PHMSA to publish a final rule and
does not require PHMSA to complete notice and comment procedures under
the APA. The Small Business Administration's A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act (2003),
provides that:
If, under the APA or any rule of general applicability governing
Federal grants to state and local governments, the agency is
required to publish a general notice of proposed rulemaking (NPRM),
the RFA must be considered [citing 5 U.S.C. 604(a)]. . . . If an
NPRM is not required, the RFA does not apply.
Therefore, because the 2015 Act does not require an NPRM for this
rulemaking, the RFA does not apply.
F. Paperwork Reduction Act
There are no new information requirements in this final rule.
G. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. Public Law 104-4. It does not
result in costs of $100 million or more,
[[Page 18399]]
adjusted for inflation, to any of the following: State, local, or
Native American tribal governments, or to the private sector.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended,
requires Federal agencies to consider the consequences of major Federal
actions and prepare a detailed statement on actions significantly
affecting the quality of the human environment. 42 U.S.C. 4321-4375.
When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates the following: Risk of release
and resulting environmental impact; risk to human safety, including any
risk to first responders; longevity of the packaging; and if the
proposed regulation would be carried out in a defined geographic area,
the resources, especially any sensitive areas, and how they could be
impacted by any proposed regulations. These amendments would be
generally applicable and would not be carried out in a defined
geographic area. Civil penalties may act as a deterrent to those
violating the HMR, and this can have a negligible positive
environmental impact as a result of increased compliance. Based on the
above discussion, PHMSA concludes there are no significant
environmental impacts associated with this final rule.
I. Executive Order 13609 and International Trade Analysis
Under Executive Order 13609, ``Promoting International Regulatory
Cooperation,'' agencies must consider whether the impacts associated
with significant variations between domestic and international
regulatory approaches are unnecessary or may impair the ability of
American business to export and compete internationally. See 77 FR
26413 (May 4, 2012). In meeting shared challenges involving health,
safety, labor, security, environmental, and other issues, international
regulatory cooperation can identify approaches that are at least as
protective as those that are or would be adopted in the absence of such
cooperation. International regulatory cooperation can also reduce,
eliminate, or prevent unnecessary differences in regulatory
requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed the effects of this final rule to ensure that it does not
cause unnecessary obstacles to foreign trade. Accordingly, this
rulemaking is consistent with Executive Order 13609 and PHMSA's
obligations.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received by any of our dockets using the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19476), which may be viewed at https://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.
K. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
spring and fall of each year. The RIN contained in the heading of this
document can be used to cross-reference this action with the Unified
Agenda.
List of Subjects
49 CFR Part 107
Administrative practices and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Definitions, General information, Regulations.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section
31001; Pub. L. 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81
and 1.97.
0
2. Revise Sec. 107.329 to read as follows:
Sec. 107.329 Maximum penalties.
(a) A person who knowingly violates a requirement of the Federal
hazardous material transportation law, an order issued thereunder, this
subchapter, subchapter C of the chapter, or a special permit or
approval issued under this subchapter applicable to the transportation
of hazardous materials or the causing of them to be transported or
shipped is liable for a civil penalty of not more than $78,376 for each
violation, except the maximum civil penalty is $182,877 if the
violation results in death, serious illness, or severe injury to any
person or substantial destruction of property. There is no minimum
civil penalty, except for a minimum civil penalty of $471 for
violations relating to training. When the violation is a continuing
one, each day of the violation constitutes a separate offense.
(b) A person who knowingly violates a requirement of the Federal
hazardous material transportation law, an order issued thereunder, this
subchapter, subchapter C of the chapter, or a special permit or
approval issued under this subchapter applicable to the design,
manufacture, fabrication, inspection, marking, maintenance,
reconditioning, repair or testing of a package, container, or packaging
component which is represented, marked, certified, or sold by that
person as qualified for use in the transportation of hazardous
materials in commerce is liable for a civil penalty of not more than
$78,376 for each violation, except the maximum civil penalty is
$182,877 if the violation results in death, serious illness, or severe
injury to any person or substantial destruction of property. There is
no minimum civil penalty, except for a minimum civil penalty of $471
for violations relating to training.
3. In appendix A to subpart D of part 107, section II.B. (``Penalty
Increases for Multiple Counts''), the first sentence of the second
paragraph is revised to read as follows:
Appendix A to Subpart D of Part 107--Guidelines for Civil Penalties
* * * * *
II. * * *
B. * * *
Under the Federal hazmat law, 49 U.S.C. 5123(a), each violation of
the HMR and each day of a continuing violation (except for violations
relating
[[Page 18400]]
to packaging manufacture or qualification) is subject to a civil
penalty of up to $78,376 or $182,877 for a violation occurring on or
after April 19, 2017. * * *
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
4. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 4 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
0
5. In Sec. 171.1, paragraph (g) is revised to read as follows:
Sec. 171.1 Applicability of Hazardous Materials Regulations (HMR) to
persons and functions.
* * * * *
(g) Penalties for noncompliance. Each person who knowingly violates
a requirement of the Federal hazardous material transportation law, an
order issued under Federal hazardous material transportation law,
subchapter A of this chapter, or a special permit or approval issued
under subchapter A or C of this chapter is liable for a civil penalty
of not more than $78,376 for each violation, except the maximum civil
penalty is $182,877 if the violation results in death, serious illness,
or severe injury to any person or substantial destruction of property.
There is no minimum civil penalty, except for a minimum civil penalty
of $471 for a violation relating to training.
Issued in Washington, DC on April 14, 2017, under authority
delegated in 49 CFR part 1.97.
Howard W. McMillan,
Acting Deputy Administrator, Pipeline and Hazardous Materials Safety
Administration.
[FR Doc. 2017-07908 Filed 4-18-17; 8:45 am]
BILLING CODE 4910-60-P
