[Federal Register Volume 63, Number 104 (Monday, June 1, 1998)]
[Rules and Regulations]
[Pages 29668-29670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14285]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 107
[Notice No. 98-5]
Hazardous Materials Ticketing Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notification continuing the ticketing program.
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SUMMARY: On May 15, 1996, RSPA initiated a pilot program for issuing
tickets for certain hazardous materials transportation violations. The
goal of the program has been to streamline administrative procedures,
cut costs, and reduce regulatory burdens on persons subject to Federal
hazardous materials transportation law. Tickets have been issued for
violations that had little or no direct impact on safety. Penalties
have been substantially reduced for persons who paid the amounts
assessed in the tickets.
This program is consistent with the recommendation in the National
Performance Review to streamline the enforcement process by
implementing pilot programs to offer greater flexibility in enforcement
methods. RSPA's ticketing program has successfully cut costs,
simplified the processing of violations, and achieved compliance
through more efficient and effective processes. RSPA has decided to
make ticketing a permanent part of its compliance program.
EFFECTIVE DATE: May 15, 1998.
FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Director,
Office of Hazardous Materials Enforcement, (202) 366-4700; or Donna L.
O'Berry, Office of the Chief Counsel, (202) 366-4400, Research and
Special Programs Administration, U.S. Department of
[[Page 29669]]
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 materials
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 administrations) and shared
authority over shippers of hazardous materials.
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. OCC initiates an
administrative proceeding by mailing a notice of probable violation
(NOPV) to a person believed to have violated the HMR. 49 CFR 107.311.
The NOPV specifies the alleged violations(s) of the HMR, states the
proposed penalty, and includes a copy of the inspection/investigation
report. Within 30 days of receiving the NOPV, 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 OCC to contest the alleged violations or the proposed
penalty. 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 49 CFR 107,
Subpart D, Appendix A. If the recipient requests an informal
conference, RSPA provides an opportunity to supplement the written
response in person or by telephone with the OCC attorney and the
inspector. Information obtained by OCC during the informal conference
becomes part of the case file. Unless the NOPV is withdrawn, the Chief
Counsel 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. Procedures Under the Ticketing Program
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. On February 26, 1996, RSPA
published the final rule for the ticketing program; that rule contained
no expiration date. The final rule was effective on May 15, 1996. See
61 FR 7178.
Under the program, the Associate Administrator for Hazardous
Materials Safety is authorized to issue tickets for certain HMR
violations that were handled through the civil penalty process.
Violations eligible for inclusion in the pilot ticketing program are
those that do not have a substantial impact on safety. Because the
program is designed to ease administrative and regulatory burdens on
persons subject to enforcement proceedings under the HMR, violations
eligible, under 49 CFR 107.309, for letters of warning generally are
not included in the pilot ticketing program. This procedure will remain
the same.
The preamble of the final rule also suggested a number of
violations for inclusion in the ticketing program. These violations
included, among others, operating under an expired exemption, failing
to register as a hazardous materials shipper when required, failing to
maintain training records, and failing to file hazardous materials
incident reports. In the final rule, 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. RSPA has determined to continue to include all of the
previously mentioned violations as part of the ticketing program. In
addition, RSPA has added to the program violations such as failing to
conduct hazardous materials training, marking a packaging with
unauthorized DOT specification markings after October 1, 1994, using
unauthorized DOT specification packagings after October 1, 1996, and
failing to follow the packaging manufacturer's closing instructions for
closing a package. RSPA believes that there is a continuing need for
flexibility and, therefore, will not establish a definitive list of
violations under this program.
RSPA will continue its policy of not processing violations under
the ticketing program when more serious violations are also alleged.
Furthermore, a previous ticketing violation will continue to be
considered a ``prior'' violation in the event of a future violation of
the HMR by the same party.
As contemplated in the final rule, the Associate Administrator for
Hazardous Materials Safety has delegated the ticketing authority to the
Director, Office of Hazardous Materials Enforcement (OHME), who in turn
has redelegated the authority to the six OHME unit chiefs. RSPA field
inspectors conduct the inspections of parties. Unit chiefs then
evaluate the inspector reports and issue tickets to parties when
appropriate. Tickets are not issued on the spot by inspectors following
an inspection.
A ticket includes a statement of the facts supporting the alleged
violation. In addition, the ticket sets forth the maximum penalty
provided by statute, the proposed penalty determined according to the
RSPA civil penalty guidelines, see 49 CFR part 107, Subpart D, Appendix
A, and the ticket penalty amount. The ticket states that the recipient
must pay the penalty or contest the violation or penalty within 45 days
of receipt of the ticket.
Typically, the civil penalty contained in the ticket is
substantially less than the penalty that would be imposed under current
procedures or that could be imposed by an ALJ at a hearing. RSPA's
policy is to calculate a penalty as it does under its current
procedures
[[Page 29670]]
and guidelines and then reduce that penalty by 50 percent for each
violation processed under this program. In no case will a penalty be
less than the statutory minimum of $250.
If the recipient pays the ticket amount and states that action has
been taken to correct the violation, the matter is closed and there is
no further agency action. If the recipient 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. In this situation, the ticket will be the
functional equivalent of an NOPV, and contested matters will be handled
by OCC. OCC will not be bound by the reduced penalty amount shown on
the ticket and could impose a penalty as high as the unreduced proposed
penalty determined under RSPA's civil penalty guidelines, which is also
shown on the ticket. OCC will not seek a penalty greater than the
highest penalty amount shown on the ticket.
A recipient waives the right to a hearing by failing to respond to
the ticket within 45 days. Moreover, failure to respond is deemed an
admission of the violation, and the reduced penalty is owed to RSPA.
Unpaid penalty amounts constitute a debt owed to the United States
Government.
III. Pilot Ticketing Program Evaluation
The NPRM contained a proposal for a two-year pilot program. RSPA
indicated in the preamble of the final rule that, at the end of two
years from May 15, 1996, it would evaluate the program in terms of cost
savings, time savings, and impact on the effectiveness of its
compliance program.
1. Experience Under the Program
Between June 1, 1996 and April 30, 1998, RSPA issued 380 tickets
and closed 285 tickets with collection of $351,757 in civil penalties.
Regarding the closed tickets, 231 of them (82%) involved one or more of
the violations previously listed. Nearly half of all the closed tickets
involved failure to train employees, failure to maintain records of
training or both. The next most frequent violations were manufacture of
unauthorized DOT specification packaging after its expiration date
(8%), failure to register with RSPA (7%), and operating under an
expired exemption (6%).
2. Cost Savings
RSPA has determined that, because of its streamlined approach, the
ticketing program has produced significant costs savings for its
compliance program and for the regulated community. A party who chooses
to pay the ticket receives an immediate cost saving because the
proposed penalty is half of what it would have been in a civil penalty
proceeding. The ticket recipient also avoids the need to make a
detailed written response to the agency (other than a statement
addressing corrective action) and avoids the oral and written
communications that arise during OCC processing of the case. The formal
hearing process is bypassed and legal fees are avoided.
OHME and OCC realize cost savings when a party elects to pay a
ticket because there is no OCC or post-ticket OHME involvement in the
matter. OCC does not have to issue an NOPV, hold an informal
conference, respond to a compromise offers, issue an order, participate
in ALJ proceedings, draft a decision on appeal, or issue a close-out
letter. OHME avoids involvement in informal conferences or ALJ
proceedings and does not have to interact with the OCC on factual and
technical issues.
Even where a ticket is contested, there are cost savings to OCC,
which 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. The information that OCC receives from OHME will contain the
ticket, a response to the ticket (which may set forth corrective
action) and possibly a compromise offer. This information allows OCC to
begin processing the case in a more advanced state than would otherwise
be the case and reduces the overall processing time.
3. Time Savings
As stated in the discussion of cost savings, the ticketing program
has produced significant time savings in the amount of work required by
OHME, OCC and the ticket recipient to process an enforcement case. In
addition, the average length of time it takes to process a ticket is
significantly less than the time it takes to process a case under the
current procedures. To illustrate, RSPA closed 200 civil penalty cases
in 1997; the average time from issuance of the Notice of Probable
Violation to closure of the case was 17 months. By contrast, RSPA
closed 145 tickets in 1997; the average time from issuance to closure
was 1.5 months.
4. Impact on the Effectiveness of RSPA's Compliance Program
The primary means for RSPA to determine the effectiveness of its
enforcement program is to conduct reinspections of companies involved
in enforcement actions. Although RSPA's reinspection program with
regard to civil penalties cases is extensive, RSPA only recently began
to do reinspections of parties which had received tickets. Thus far,
the compliance rate is over 90%.
Another direct result of the effectiveness of the ticketing program
is the ability of RSPA personnel to spend the time saved by disposing
of cases through tickets on other matters, such as outreach programs,
inspection and investigation of more serious types of violations and
more expeditious processing of existing enforcement cases.
IV. Conclusion
In light of the cost and time savings for all involved parties and
the positive impact on the effectiveness of RSPA's hazardous materials
compliance program, RSPA has decided to continue the ticketing program.
Issued in Washington, DC on May 22, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Transportation.
[FR Doc. 98-14285 Filed 5-29-98; 8:45 am]
BILLING CODE 4910-60-P
