[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7178-7184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4203]
[[Page 7177]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 107
Hazardous Materials Pilot Ticketing Program; Final Rule
Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 /
Rules and Regulations
[[Page 7178]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 107
[Docket No. HM-207E, Amdt No. 107-36]
RIN 2137-AC70
Hazardous Materials Pilot Ticketing Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: To streamline administrative procedures, cut costs, and reduce
regulatory burdens on persons subject to Federal hazardous materials
transportation law, RSPA is implementing a pilot program for ticketing
of certain hazardous materials transportation violations. RSPA will
issue tickets for violations that have little or no direct impacts on
safety. Persons receiving a ticket may pay the ticket, respond
informally to RSPA or request a formal hearing before a Department of
Transportation Administrative Law Judge (ALJ). Penalties will be
substantially reduced for persons who elect to pay the amounts assessed
in the tickets.
This final rule is consistent with the recommendation in the
National Performance Review (DOT02.01) to streamline the enforcement
process by implementing pilot programs to offer greater flexibility in
enforcement methods. RSPA's pilot ticketing program will cut costs,
simplify the processing of certain Hazardous Materials Regulations
(HMR) violations, and achieve compliance through more efficient and
effective processes. The pilot ticketing program allows recipients to
more easily respond to allegations of HMR violations.
EFFECTIVE DATE: May 15, 1996.
FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Director,
Office of Hazardous Materials Enforcement, (202) 366-4700; or Nancy E.
Machado, Office of the Chief Counsel, (202) 366-4400, Research and
Special Programs Administration, U.S. Department of Transportation, 400
Seventh Street SW, Washington DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The Research and Special Programs Administration (RSPA) is the
administration within the Department of Transportation (DOT) primarily
responsible for implementing the Federal hazardous material
transportation law (Federal hazmat law), 49 U.S.C. 5101-5127. RSPA does
this by issuing and enforcing the Hazardous Materials Regulations
(HMR), 49 CFR Parts 171-180. Under delegations from the Secretary of
Transportation [49 CFR Part 1], the authority for enforcement under
Federal hazardous materials transportation law (Federal hazmat law), 49
U.S.C. 5101-5127, is shared by RSPA and each of the four modal
administrations: the Federal Highway Administration, the Federal
Railroad Administration, the Federal Aviation Administration, and the
United States Coast Guard. RSPA has primary jurisdiction over packaging
manufacturers, reconditioners, and retesters (except with respect to
bulk packagings, which are the responsibility of the applicable modal
administration) and a shared authority over shippers of hazardous
materials. RSPA does not enforce regulations applicable exclusively to
motor carriers, rail carriers, air carriers or vessel carriers.
RSPA's Office of the Chief Counsel (OCC) may initiate
administrative proceedings for violations of the HMR, and these
proceedings may result in a civil penalty, an order directing
compliance actions, or both. 49 CFR 107.307. Administrative proceedings
are initiated by mailing a notice of probable violation (NOPV) to a
person believed to have violated the HMR. 49 CFR 107.311. The notice
specifies the alleged violation(s) of the HMR, states the proposed
penalty, and includes a copy of the inspection/investigation report.
Within 30 days of receiving the notice, the recipient of the notice may
admit the allegations by paying the proposed penalty, make an informal
response, or request a formal hearing. 49 CFR 107.313, 107.315.
The recipient who chooses to respond informally submits a written
response to the OCC to contest the alleged violations or the proposed
penalty. The OCC considers the inspection report, the response, and any
additional evidence obtained to determine whether the recipient
committed the alleged violations and, if so, the appropriate penalty in
accordance with the statutory criteria for penalty determination, 49
U.S.C. 5123(c). See also RSPA's civil penalty guidelines at 60 FR 12139
[March 6, 1995]. If the recipient requests an informal conference, an
opportunity is provided to supplement the written response in person or
by telephone with the OCC attorney and the inspector. Information
obtained by the OCC during the informal conference becomes part of the
case file. The Chief Counsel then issues an order finding a violation
or violations and, for each violation found, assesses a civil penalty.
The order may be appealed to the RSPA Administrator. See generally 49
CFR 107.317, 107.325(b).
Alternatively, the recipient may request a formal administrative
hearing on the record before an ALJ from DOT's Office of Hearings. At
the conclusion of the hearing, the ALJ determines whether the alleged
violations have been committed and, if so, imposes a penalty in
accordance with the statutory assessment criteria. Either party may
appeal a decision of the ALJ to the RSPA Administrator. See generally
49 CFR 107.319, 107.325(a).
At any time during an informal or a formal proceeding, RSPA and the
recipient of the notice may agree upon an appropriate resolution of the
case. 49 CFR 107.327.
II. Proposed Rule
On August 21, 1995, RSPA published a notice of proposed rulemaking
(NPRM) under Docket HM-207E [60 FR 43430] seeking public comment on a
proposal to implement a pilot program for ticketing certain violations
of the HMR. On October 17, 1995, RSPA extended the comment period for
an additional 30 days. See 60 FR 53729.
Under the proposed rule, the Associate Administrator for Hazardous
Materials Safety would be authorized to issue tickets for certain HMR
violations that are currently handled through the civil penalty
process. Violations eligible for inclusion in the pilot ticketing
program would be those that do not have a substantial impact on safety.
Because this program is designed to ease administrative and regulatory
burdens on persons subject to enforcement proceedings under the HMR,
violations currently eligible, under 49 CFR 107.309, for letters of
warning generally would not be included in the pilot ticketing program.
The NPRM contained a proposal for a two-year pilot program. At the
end of two years, RSPA would evaluate the program in terms of cost
savings, time savings, and impact on the effectiveness of its
compliance program. The proposed rule also suggested a number of
violations for inclusion in the pilot ticketing program, including,
among others, operating under an expired exemption, failing to
register, failing to maintain training records, and failing to file
incident reports. RSPA indicated that, based on comments received and
experience gained through administration of the pilot ticketing
program, additional types of violations might be added to the program.
These violations would not be processed under the pilot ticketing
program if
[[Page 7179]]
more serious violations also are alleged. Furthermore, a previous
ticketing violation will be considered a ``prior'' violation in the
event of a future violation of the HMR by the same party.
In the proposed rule, RSPA indicated an expectation that the
Associate Administrator for Hazardous Materials Safety would delegate
ticketing authority to the Director, Office of Hazardous Materials
Enforcement (OHME), who may redelegate that authority. RSPA field
inspectors would conduct inspections as at present. Supervisory
inspectors then would evaluate field inspector reports and issue
tickets to parties when appropriate. Consequently, tickets would not be
issued on the spot by inspectors following an inspection but would be
issued shortly thereafter. The ticketing process would be limited to
those cases involving violations identified as meeting safety risk
criteria for ticketing established by the Associate Administrator.
A ticket would include a statement of the facts supporting the
alleged violation. In addition, the ticket would set forth the maximum
penalty provided by statute, the proposed penalty determined according
to the RSPA civil penalty guidelines, see 60 FR 12139 [March 6, 1995],
and the ticket penalty amount. The ticket would state that the
recipient must pay the penalty or request a hearing within 30 days of
receipt of the ticket.
RSPA proposed that the civil penalty contained in the ticket would
be substantially less than the penalty that would be proposed under
current procedures or that could be imposed by an ALJ at a hearing.
RSPA also stated that if the recipient pays the ticket amount and
states that action to correct the violation has been taken, the matter
would be closed and there would be no further agency action. If the
recipient elects not to pay the ticket and requests a hearing, RSPA
would forward the case file to a Coast Guard Hearing Officer who would
review the case in accordance with Coast Guard procedures set forth at
33 CFR 1.07. The Hearing Officer would not be bound by the reduced
penalty amount in the ticket and could impose a civil penalty as high
as the proposed penalty determined under RSPA's civil penalty
guidelines. The Hearing Officer's factual findings and legal
conclusions in a particular case would apply solely to that case. A
person could appeal the decision of the Hearing Officer to the
Commandant, United States Coast Guard.
RSPA also stated in the proposed rule that a recipient would waive
a right to a hearing by failing to respond to the ticket within 30
days. Moveover, failure to respond would be deemed an admission of the
violation, and the reduced penalty would be owed to RSPA. An unpaid
penalty or a penalty imposed by the Coast Guard Hearing Officer or the
Commandant on appeal would constitute a debt owed to the United States
Government.
III. Discussion of Comments
RSPA received 31 written comments on the NPRM. The comments were
submitted by chemical manufacturing companies, trade associations,
transporters and private individuals. Commenters uniformly supported
RSPA's efforts to streamline administrative procedures, cut costs and
reduce regulatory burdens.
Approximately half of the commenters supported RSPA's proposal but
with various recommended changes. The remainder opposed the proposal,
and some suggested alternative means of improving current enforcement
procedures.
The commenters predominantly addressed the following issues: (1)
Violations under the pilot ticketing program; (2) authority to issue
tickets; (3) the time-frame for issuing a ticket; (4) the time-frame
for responding to a ticket; (5) the option to respond informally; (6)
processing by Coast Guard Hearing Officers; (7) civil penalty amounts;
and (8) reduced cost/burden.
A detailed discussion of the comments, and RSPA's response to them,
is provided in the following summary.
A. Violations Under the Pilot Ticketing Program
1. Impact on Safety
RSPA received numerous comments concerning RSPA's statement in the
NPRM that, under the pilot ticketing program, it would issue tickets
for violations that do not have ``substantial impacts'' on safety. RSPA
stated that these violations might include, among others, operating
under an expired exemption, failing to register, failing to maintain
training records, and failing to file incident reports.
The commenters generally questioned why the agency would expend
limited resources on enforcing regulations that do not have substantial
impacts on safety. Several suggested that the regulations in question
either be eliminated or that enforcement efforts with respect to
violations of those regulations be limited to the issuance of warning
letters.
RSPA disagrees that these regulations should be deleted from the
HMR or that enforcement actions should be limited to warning letters.
The registration, exemption renewal and training record requirements
are mandated by Federal hazmat law, which also mandates that a civil
penalty be imposed for violations of any provisions of that law or the
HMR. In addition, although violations of these regulations, in and of
themselves, may not have a substantial or direct impact on safety,
their enforcement has important, indirect effects on safety.
An exemption is an official authorization to do something, for a
two-year period, that is not authorized under the HMR. 49 U.S.C.
5117(a)(2). See also 49 CFR 107.119(a). Renewal is necessary to keep
the exemption in effect and to allow RSPA to ascertain that practices
authorized under the exemption still provide an equal or greater level
of safety than the HMR. As part of the renewal process, an application
must contain all relevant shipping and accident experience related to
activities under an exemption. 49 U.S.C. 5117(b). See also 49 CFR
107.105(a)(5).
The failure of hazardous materials offerors or transporters to
register with RSPA, when required, affects RSPA's ability to identify
and monitor those who are subject to the registration requirements. It
also affects RSPA's ability to collect fees that are distributed for
public sector planning and training for States, Indian tribes and local
communities, to deal with hazardous materials emergencies, particularly
those involving transportation. See 49 U.S.C. 5108(g); 49 CFR Part 110.
These State and local programs affect safety. Failure to register
directly affects these programs.
Failing to maintain training records, similarly, does not directly
impact safety. Nevertheless, training records are the means of
verifying that hazmat employees have been trained to recognize and
identify hazardous materials, have knowledge of specific requirements
of the HMR applicable to functions they perform, and have knowledge of
emergency response information, self-protection measures and accident
prevention methods and procedures. Federal hazmat law states:
After completing the training, each hazmat employer shall
certify, with documentation the Secretary of Transportation may
require by regulation, that the hazmat employees of the employer
have received training and have been tested on appropriate
transportation areas of responsibility * * *
49 U.S.C. 5107(c). See also 49 CFR 172.704(d). Unquestionably, the
training required under the HMR directly impacts safety, and the
training records
[[Page 7180]]
requirement enables verification that the training is being conducted.
Generally, failing to file incident reports also does not directly
impact safety. Nonetheless, RSPA requires that incident reports be
filed as a means for it to evaluate the effectiveness of its regulatory
program and to determine the need for regulatory changes to address new
or emerging hazardous materials transportation safety problems. The
requirement to file incident reports directly supports RSPA's safety
initiatives and is one of the only means for RSPA to obtain detailed
information concerning hazardous materials incidents.
As supported by the above discussion, RSPA does not agree that
regulations that do not have a direct or substantial impact on safety,
in and of themselves, necessarily should be deleted from the HMR or
enforced only through the issuance of warning letters.
2. Definitive List of Violations Subject to Ticketing
Five commenters asked that RSPA establish a definitive list of
violations subject to the pilot ticketing program. RSPA believes that
there is a legitimate need for flexibility during the initial two years
of this program. Consequently, RSPA will not establish a definitive
list of violations, but will begin the program by addressing the
violations discussed above. Based on experience gained through
administration of the pilot ticketing program, additional types of
violations may be added or certain types of violations deleted from the
program. At the end of the two-year pilot program, RSPA will evaluate
the program in terms of cost savings, time savings, and effectiveness.
Finally, at the request of one commenter, RSPA wishes to clarify
that tickets will not be issued for violations it believes to be
willful.
B. Authority To Issue Tickets
One commenter asked that RSPA clarify who would issue tickets under
the pilot program. Another commenter expressed concern that RSPA might
delegate ticketing authority to ``others,'' including States. The NPRM
indicated that the Associate Administrator for Hazardous Materials
Safety would issue tickets. It is common practice to provide authority
in regulations to the highest level agency official responsible for a
particular program. It is then that official's choice whether to retain
that authority or to delegate it. Presently, it is contemplated that
the Associate Administrator will delegate this authority to the
Director, OHME, who will delegate this authority to OHME supervisory
inspectors. RSPA does not intend to delegate ticket-writing authority
to any entity outside the agency. Although States, local governments
and Indian tribes often incorporate the HMR by reference into their own
regulations, they usually do not incorporate RSPA's procedural
regulations but instead use their own existing procedures for handling
violations of State and local and Indian tribe regulations.
Three commenters also expressed concern that the proposed pilot
ticketing program would lead to a ticket-writing frenzy by RSPA
inspectors, who would find it easy to write tickets in order to provide
a tangible record of the inspectors' enforcement activities. One of the
three commenters stated that the program may encourage inspectors to
focus on ``perceived non-threatening technical violations that have in
the past often been cooperatively and summarily addressed.''
RSPA does not require its inspectors to initiate a certain number
of enforcement actions, and job performance is not measured by the
number of enforcement actions that result from their inspections. Also,
at the inspector level, discovery of ticketing or other types of
violations results in the same amount of work for that inspector.
Consequently, there is no incentive for an inspector to focus on
ticketing violations to the exclusion of other, more serious
violations.
C. Time-Frame for Issuing a Ticket
Several commenters were concerned that the NPRM did not specify a
time-frame within which tickets would be issued after the agency's
discovery of an apparent violation. One commenter suggested that RSPA
issue tickets within 60 days of discovery of an apparent violation.
RSPA agrees that establishing a goal for the timely issuance of tickets
would be useful to both the agency and the regulated community.
Consequently, RSPA will endeavor to issue tickets as expeditiously as
possible, generally within 60 days after an apparent violation has been
discovered.
D. Time-Frame for Responding to a Ticket
In the NPRM, RSPA proposed to require a response to a ticket within
30 days of the date the ticket was received. Several commenters
remarked that the 30-day time period was too short and asked that it be
extended to either 45 or 60 days in order to allow sufficient time for
the ticket recipient to investigate the violations alleged in the
ticket. One commenter remarked that 30 days would not be sufficient
time for a ticket to ``find its way through [an] organization to the
right place to be either appealed or paid.'' Others cited mail delays,
holidays and business travel as reasons why the response time should be
longer than 30 days. RSPA agrees that a 30-day response time may be too
short in some instances and, therefore, agrees that 45 days is a more
suitable time-frame for responding to a ticket.
E. Option to Respond Informally; Processing by Coast Guard Hearing
Officers
Numerous commenters objected to the two limited options for
responding to a ticket, as proposed in the NPRM. RSPA proposed to allow
persons to either pay the ticket or to request a hearing before a Coast
Guard Hearing Officer who would review the case in accordance with
Coast Guard procedures. One commenter strongly recommended that DOT
consider an intermediate option for resolving tickets prior to
burdensome, costly, last-resort court proceedings. Another stated that
the two-year pilot program is worthwhile, but that the proposed rule
should be modified to ensure that due process rights are preserved
where there is a reasonable basis to dispute alleged violations. This
commenter asked that RSPA's pilot ticketing program include procedures
for filing an informal response or request for hearing under RSPA's
current informal response and hearing procedures at 49 CFR 107.317 and
49 CFR 107.319, respectively. The commenter added that the informal
response option eliminates the need to engage an attorney and to go
through the costly hearing process.
Many of these same commenters, in addition to others, also objected
to RSPA's proposal to forward cases to Coast Guard Hearing Officers for
processing under Coast Guard procedures where a person elects not to
pay a ticket and requests a hearing. These objections were based on the
fact RSPA's proposal would require the industry to familiarize itself
with a new set of procedures, thereby increasing the regulatory burden
on the industry. Also, many commenters questioned the Coast Guard's
familiarity with the HMR to the extent it applies to transportation
other than by water. One commenter stated that RSPA's proposal should
be modified to include the right to appeal to the RSPA Administrator,
rather than to the Commandant of the Coast Guard, in order to have some
uniformity in penalty amounts for similar violations. Another commenter
stated that the OCC and DOT's ALJs are well qualified to evaluate the
substance of HMR
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violations and to assess appropriate penalty levels and should be
involved in the pilot ticketing program rather than the Coast Guard.
RSPA does not agree with those commenters who question Coast Guard
Hearing Officers' ability to efficiently process RSPA ticketing cases.
The HMR requirements with respect to exemption renewal, registration,
incident reporting and training records apply to, among others,
carriers by vessel. Nevertheless, after reviewing all the comments,
RSPA has decided that it would be more efficient and cost-effective,
and in the interest of the industry and the agency, to keep the pilot
ticketing program within RSPA and to use essentially the same current
procedures outlined above, if a person elects to contest a ticket.
Specifically, if a person elects to contest a ticket, that person may
do so, within 45 days of receiving the ticket, by making an informal
response under 49 CFR 107.317 or requesting a formal hearing under 49
CFR 107.319.
The ticket will be the functional equivalent of an NOPV, and
contested matters will be handled by the OCC as at present. The OCC
will not be bound by the reduced penalty amount shown on the ticket and
could impose a penalty as high as the proposed penalty determined under
RSPA's civil penalty guidelines, which is also shown on the ticket. In
no case will the OCC seek a penalty greater than the highest penalty
amount shown on the ticket.
Anyone choosing to contest a ticket will have the case processed by
the OCC as at present. In this way, RSPA provides a streamlined process
for those who do not wish to contest an alleged violation and leaves
the present system intact for those who wish to contest an alleged
violation and avail themselves of the current, familiar procedures.
F. Civil Penalty Amounts
1. Amount of Penalty Reductions
RSPA stated in the NPRM that penalties under the pilot ticketing
program would be ``substantially less than the penalty that would be
proposed under current procedures or that could be imposed by an ALJ at
a hearing.'' Several commenters noted that RSPA did not quantify the
percentage or dollar amount of the reduced penalties. Two commenters
stated that the key to a successful pilot ticketing program is
substantially reduced penalties that serve as an inducement for
companies to accept civil penalty responsibility in return for
eliminating costs associated with contesting the violation. Commenters
suggested that penalties assessed under the pilot ticketing program be
at least 50 percent less than the penalties that would be assessed
under current procedures.
RSPA agrees that penalties under the pilot ticketing program should
be sufficiently low to provide an incentive to pay. Therefore, RSPA
will continue to calculate a penalty as it does under its current
procedures and guidelines, but it will reduce that penalty by 50
percent where the violation at issue is processed under this program.
Nevertheless, the ticketing program is a pilot program and RSPA later
may decide to reduce ticketing penalties by more or by less than 50
percent of the penalty calculated under current procedures and
guidelines, based on experience with the program. In no case will a
penalty be less than $250.
One commenter suggested that RSPA waive or reduce penalties even
further when ticket recipients demonstrate compliance, within a
specific time period, with the HMR. Federal hazmat law requires that a
penalty be assessed where a violation of the regulations occurs.
Specifically, Section 5123 of Federal hazmat law states:
A person that knowingly violates this chapter or a regulation
prescribed or order issued under this chapter is liable to the
United States Government for a civil penalty of at least $250 but
not more than $25,000 for each violation.
49 U.S.C. 5123.
2. Incentives to Pay or Not Pay Tickets
Several commenters voiced concern regarding RSPA's proposal to
assess penalties under the pilot ticketing program that are
substantially less than the penalties that would be proposed under
current procedures or that could be imposed by an ALJ at a hearing.
They stated that the disparity in civil penalty amounts, plus the
threat of having the penalty increase if a person contests a ticket,
serves to create an economic incentive to simply pay the ticket despite
the violation history that doing so would create. Several other
commenters reached the opposite conclusion and stated that the
disparity would not create an economic incentive to pay the ticket
because paying the penalty would affect one's violation history and
could result in higher penalties for future violations. Instead, these
commenters predicted a rise in the numbers of hearings and suggested
that, to avoid this result, RSPA not count ticketing violations as
prior violations. Some commenters also voiced concern that lower
penalties would provide an economic incentive for companies not to
comply with the HMR; in other words, it would cost less to pay the
penalty than to comply with the HMR.
RSPA does not agree that reduced penalties for ticketing violations
will be an economic incentive to pay tickets at the expense of one's
violation history. The pilot ticketing program, with its reduced
penalties, provides a streamlined procedure for those who might not
dispute that a violation has occurred--for example, failure to register
or to renew an exemption--but who would dispute the proposed penalty,
under current procedures, as too high. Under the pilot ticketing
program, these people have the option of admitting the violation and
paying a substantially lower civil penalty. Because RSPA has decided,
in response to numerous comments, to authorize an informal response and
to leave the pilot ticketing program within RSPA, those who dispute a
ticket can choose to make an informal response or they may request a
formal hearing and the case will be handled under current OCC
procedures. Consequently, lower ticket penalties provide an opportunity
for those who do not contest the violation but who would contest the
amount of the penalty under current procedures to pay lower ticket
penalties and avoid OCC involvement. Nevertheless, any person who
receives a ticket may choose to have the case processed under existing
OCC procedures.
Likewise, RSPA does not agree that counting ticketing violations as
prior violations in future cases will result in an increased number of
requests for formal hearings, or even in an increase in the number of
informal responses. Under current OCC procedures, the violations that
have been identified for processing under the pilot ticketing program
already count as prior violations. Indeed, Federal hazmat law requires
RSPA to consider violation histories when assessing civil penalties. 49
U.S.C. 5123.
In the NPRM, RSPA proposed to continue counting ticketing
violations as prior violations, and RSPA reaffirms that position here.
Nevertheless, RSPA agrees that ticketing violations should be given
less weight, in the event of future violations, than more serious non-
ticketing violations. Therefore, RSPA intends initially to give prior
ticketing violations only one-half the weight of prior non-ticketing
violations. In the future, RSPA may decide to give more or less weight
to ticketing violations as it gains experience with this pilot program.
Finally, RSPA does not agree that lower ticket penalties will
provide an economic incentive for people not to comply with the HMR.
The amount of the penalty, the violation history that will result from
non-compliance, and
[[Page 7182]]
the processing of repeat violations by the OCC should be incentive
enough to comply with the HMR.
3. Penalty Guidelines
Two commenters questioned whether using RSPA's March 6, 1995 civil
penalty guidelines as proposed in the NPRM is contrary to RSPA's own
pronouncements regarding the meaning and use of its guidelines. One
commenter noted that RSPA proposed to have the ticket include ``the
proposed penalty determined according to the RSPA civil penalty
guidelines'' but that RSPA stated in the preamble to the guidelines
that they were ``merely informational, [and] not finally determinative
of any issues or rights, and do not have the force of law.'' 60 FR
12139. The commenter questioned whether utilizing the penalty
guidelines to discourage ticket recipients from contesting alleged
violations converts those guidelines into determinative rules under
United States Telephone Association v. FCC, 28 F.3d 1232 (D.C.Cir.
1994) and Used Equipment Sales, Inc. v. Department of Transportation,
54 F.3d 862 (D.C. Cir 1995).
RSPA did not intend to imply in the NPRM that the penalty
guidelines would be used in any way that differs from current
procedure. As noted in the preamble to the penalty guidelines:
These guidelines are a preliminary assessment tool used by RSPA
personnel, and they create no rights in any party. They contain
baseline amounts or ranges for violations that frequently have been
cited in RSPA hazmat NOPVs. When a violation not described in the
guidelines is encountered, it sometimes is possible to determine a
baseline penalty by analogy to a similar violation in the
guidelines.
Even when the guidelines are applicable to a violation, the use
of the guidelines is only a starting point. They promote consistency
and generally are used to provide some standard for imposing similar
penalties in similar cases. However, no two cases are identical, and
ritualistic use of the guidelines would produce arbitrary results
and, most significantly, would ignore the statutory mandate to
consider several specific assessment criteria. Therefore, regardless
of whether the guidelines are used to determine a baseline amount
for a violation, RSPA enforcement and legal personnel must apply the
statutory assessment criteria to all relevant information in the
record concerning any alleged violation and the apparent violator.
These criteria are in 49 U.S.C. 5123 and 49 CFR 107.331.
* * * the guidelines are not binding on RSPA or Department of
Transportation personnel. Enforcement personnel and staff attorneys
generally use the guidelines as a starting point for penalty
assessment. However, they, the Chief Counsel, administrative law
judges (ALJs) and the RSPA Administrator may deviate from the
guidelines where appropriate, and are legally bound only by the
statutory assessment criteria.
60 FR 12139. At the time the penalty guidelines final rule and the NPRM
in this matter were published, RSPA was aware of the D.C. Circuit Court
opinion in United States Telephone Ass'n v. FCC, cited above. RSPA
reviewed the FCC case and discussed, in the preamble to the penalty
guidelines final rule, why the penalty guidelines are a policy
statement and, therefore, not subject to the notice and comment
requirements of the Administrative Procedure Act, 5 U.S.C. 551 et seq.
See 60 FR 12139.
In fact, RSPA published its guidelines as an informational appendix
to its rules and not as a regulation. Also, RSPA does not use its
guidelines in a rote fashion to automatically determine a proposed
penalty but instead applies the statutory criteria and the guidelines
to all of the particular evidence in each case to arrive at a proposed
penalty. Consequently, use of RSPA's penalty guidelines as a starting
point when assessing civil penalties either under current procedures or
under the pilot ticketing program does not turn the guidelines into
rules that would require notice and comment. RSPA's actions are
consistent with both of the cited cases.
G. Reduced Cost/Burden
A significant number of commenters stated that the pilot ticketing
program, as proposed, would not accomplish RSPA's stated goals of
streamlining administrative procedures, cutting costs and reducing
regulatory burdens on persons subject to the HMR. These commenters said
that the pilot ticketing program, as proposed, could be
counterproductive and would ultimately create another layer of
administrative procedures, add costs and increase regulatory burdens on
the industry. Many commenters thought that the pilot ticketing program,
as proposed, would unnecessarily complicate the enforcement process for
ticketing violations. Many commenters stated that they did not see any
real savings to either the Federal Government or the regulated industry
under the proposal.
As discussed above, RSPA agrees that the pilot ticketing program,
as proposed, would have added another layer of procedures and might not
have resulted in the cost savings RSPA originally anticipated.
Consequently, RSPA has modified the proposal as outlined above, i.e.,
RSPA will keep the pilot ticketing program within the agency and will
continue to have the OCC process contested cases under current
procedures. RSPA believes that this streamlined procedure will result
in the cost savings and reduced regulatory burden that RSPA originally
anticipated when it published its proposal.
Specifically, anyone who opts to pay a ticket will realize
immediate cost savings in that the proposed penalty will be half of
what it would have been under current procedures. Also, the ticket
recipient avoids the need to make a detailed written response to the
agency (other than a statement of corrective action) and avoids the
subsequent written and oral communications that arise during OCC
processing of cases. The formal hearing process is bypassed, and legal
fees are avoided. Furthermore, there is no OCC or post-ticket OHME
involvement in the enforcement action where a ticket recipient opts to
pay a ticket. The OCC avoids having to issue an NOPV, hold an informal
conference, respond to compromise offers, issue an order, participate
in ALJ proceedings, draft a decision on appeal, and issue a close-out
letter. OHME avoids involvement in the informal conference and formal
hearings, and will not have to interact with the OCC on factual and
technical issues.
Where a ticket is contested, current procedures would apply.
Nevertheless, there will be some savings to the OCC who will not be
required to issue an NOPV but can rely on the ticket to have provided
notice of the alleged violations to the ticket recipient. Furthermore,
when the OCC receives a case from OHME, the package will not only
contain the ticket but a response to the ticket which may set forth
corrective action and may contain a compromise offer. This information
will allow the OCC to begin processing the case at a more advanced
stage than otherwise would be the case and will reduce overall
processing time.
H. Miscellaneous
In discussing the pilot ticketing program, one commenter made two
statements that require a response. First, the commenter stated that
the NPRM is silent on the consequences of paying a civil penalty
without ``the requested admission of guilt.'' RSPA does not require an
admission of guilt either under the pilot ticketing program or under
current procedures. In either case, when a person pays a civil penalty,
the case is closed and counts as a prior violation in the event of a
future violation of the HMR. No admission of guilt is required.
The same commenter questioned whether the agency will require
evidence of corrective action under the
[[Page 7183]]
pilot ticketing program. RSPA currently requests and encourages persons
who have violated the HMR to submit evidence of corrective action to
the agency. RSPA will continue this practice under the pilot ticketing
program. The exit briefing form that RSPA inspectors leave with a
person at the end of an inspection contains language encouraging the
submission of documented corrective action to the agency as soon as
possible. The ticket, like an NOPV, will also contain similar language.
In the event that a ticket is paid but no evidence of corrective action
has been submitted, the agency will send a letter to the ticket
recipient again encouraging the submission of documented corrective
action--just as it does in non-ticketing cases where payment is made in
response to an NOPV. Under current procedures, RSPA receives some
documented corrective action in virtually all of its enforcement cases.
Several commenters also questioned the relationship between RSPA's
pilot ticketing program and tickets issued for violations of State and
Federal motor carrier safety regulations. As stated above, the
authority for enforcement under Federal hazmat law, 49 U.S.C. 5101-
5127, is shared by RSPA and each of the four modal administrations.
RSPA has primary jurisdiction over packaging manufacturers,
reconditioners and retesters (except with respect to single-mode bulk
packagings, which are primarily the responsibility of the applicable
modal administration) and a shared authority over shippers of hazardous
materials. RSPA does not enforce Federal or State motor carrier safety
regulations. To the extent that motor carriers are affected by RSPA's
pilot ticketing program, it generally will be because of: (1) Their
shipper activities; (2) their failure to comply with the HMR's carrier
incident reporting requirements; or (3) their failure to comply with
the HMR's registration requirements.
IV. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and therefore is not
subject to review by the Office of Management and Budget. The rule is
not significant according to the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
The changes adopted in this rule do not result in any additional
costs to persons subject to the HMR, but result in modest cost savings
to a small number of them and to the agency. Because of the minimal
economic impact of this rule, preparation of a regulatory impact
analysis or a regulatory evaluation is not warranted.
Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism'') and does not
have sufficient Federalism impacts to warrant the preparation of a
federalism assessment.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This rule does not
impose any new requirements on persons subject to the HMR; thus, there
are no direct or indirect adverse economic impacts for small units of
government, businesses or other organizations.
Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
Regulation Identifier Number
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
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR Part 107 is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for Part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
2. In Sec. 107.307, paragraph (a) is revised to read as follows:
Sec. 107.307 General.
(a) When the Associate Administrator for Hazardous Materials Safety
and the Office of the Chief Counsel have reason to believe that a
person is knowingly engaging or has knowingly engaged in conduct which
is a violation of the Federal hazardous material transportation law or
any provision of this subchapter or subchapter C of this chapter, or
any exemption, or order issued thereunder, for which the Associate
Administrator for Hazardous Materials Safety or the Office of the Chief
Counsel exercise enforcement authority, they may--
(1) Issue a warning letter, as provided in Sec. 107.309;
(2) Initiate proceedings to assess a civil penalty, as provided in
either Secs. 107.310 or 107.311;
(3) Issue an order directing compliance, regardless of whether a
warning letter has been issued or a civil penalty assessed; and
(4) Seek any other remedy available under the Federal hazardous
material transportation law.
* * * * *
Sec. 107.307 [Amended]
3. In addition, in Sec. 107.307, in paragraph (b), the wording
``Office of Chief Counsel'' is revised to read ``the Associate
Administrator for Hazardous Materials Safety and the Office of the
Chief Counsel''.
Sec. 107.309 [Amended]
4. In Sec. 107.309, at the beginning of paragraph (a), the wording
``In addition to the initiation of proceedings under Sec. 107.307 for
the imposition of sanctions or other remedies, the'' is revised to read
``The''.
5. Section 107.310 is added to read as follows:
Sec. 107.310 Ticketing.
(a) For an alleged violation that does not have a direct or
substantial impact on safety, the Associate Administrator for Hazardous
Materials Safety may issue a ticket.
(b) The Associate Administrator for Hazardous Materials Safety
issues a ticket by mailing it by certified or registered mail to the
person alleged to have committed the violation. The ticket includes:
(1) A statement of the facts on which the Associate Administrator
bases the conclusion that the person has committed the alleged
violation;
(2) The maximum penalty provided for by statute, the proposed full
penalty determined according to RSPA's civil penalty guidelines and the
statutory criteria for penalty assessment, and the ticket penalty
amount; and
(3) A statement that within 45 days of receipt of the ticket, the
person must pay the penalty in accordance with paragraph (d) of this
section, make an informal response under Sec. 107.317, or
[[Page 7184]]
request a formal administrative hearing under Sec. 107.319.
(c) If the person makes an informal response or requests a formal
administrative hearing, the Associate Administrator for Hazardous
Materials Safety forwards the inspection report, ticket and response to
the Office of the Chief Counsel for processing under Secs. 107.307-
107.339, except that the Office of the Chief Counsel will not issue a
Notice of Probable Violation under Sec. 107.311. The Office of the
Chief Counsel may impose a civil penalty that does not exceed the
proposed full penalty set forth in the ticket.
(d) Payment of the ticket penalty amount must be made in accordance
with the instructions on the ticket.
(e) If within 45 days of receiving the ticket the person does not
pay the ticket amount, make an informal response, or request a formal
administrative hearing, the person has waived the right to make an
informal response or request a hearing, has admitted the violation and
owes the ticket penalty amount to RSPA.
6. In Sec. 107.311, paragraph (a) is revised to read as follows:
Sec. 107.311 Notice of probable violation.
(a) The Office of Chief Counsel may serve a notice of probable
violation on a person alleging the violation of one or more provisions
of the Federal hazardous material transportation law or any provision
of this subchapter or subchapter C of this chapter, or any exemption,
or order issued thereunder.
* * * * *
Issued in Washington, DC on February 12, 1996 under authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 96-4203 Filed 2-23-96; 8:45 am]
BILLING CODE 4910-60-P
