[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Notices]
[Pages 47799-47800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22903]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
Appeals in Hazardous Materials Transportation Enforcement Cases
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of the availability of decisions on appeal in
enforcement cases under the Federal hazardous materials transportation
law.
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SUMMARY: This notice alerts the public that decisions on appeal by the
Administrator of the Research and Special Programs Administration
(RSPA) are now available through the Hazardous Materials Information
Exchange (HMIX) computer system. These appellate decisions involve
hazardous materials transportation enforcement cases, issued between
1992 and April 1995, initiated under the Federal hazardous materials
transportation law and the Hazardous Materials Regulations (HMR). In
these decisions, the Administrator establishes RSPA's policy regarding
the enforcement of the HMR and provides a rationale for these policies.
This information will assist the efforts of the regulated community to
comply with HMR and is being provided to the regulated community as a
public service.
FOR FURTHER INFORMATION CONTACT: The public may access the HMIX and the
appeal decisions by computer: Commercial Access (708) 972-3275 or
Internet Access: hmix.dis.anl.gov (146.137.100.54). Members of the
public who do not have access to a computer can request a copy of these
decisions by contacting: Suezett Edwards, Office of Hazardous Materials
Initiatives and Training (DHM-50), Research and Special Programs
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590 (Tel. (202) 366-4900) or Robert A. Monniere,
Office of the Chief Counsel (DCC-10), Research and Special Programs
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590 (Tel. (202) 366-4400).
SUPPLEMENTARY INFORMATION: Federal hazardous materials transportation
law (Federal hazmat law) (49 USC 5101 et seq., formerly 49 app. USC
1801 et seq.) provides that, ``The Secretary shall prescribe
regulations for the safe transportation of hazardous material in
intrastate, interstate, and foreign commerce. The regulations * * *
shall govern safety aspects of the transportation of hazardous material
the Secretary considers appropriate.'' (49 USC 5103(b)(1)). Under this
authority, RSPA issues the Hazardous Materials Regulations (HMR), 49
CFR parts 171-180, a comprehensive set of regulations concerning the
transportation of hazardous materials.
The HMR govern the shipping and transporting of hazardous materials
by aircraft, rail car, vessel and motor vehicle. The HMR also prescribe
requirements governing the manufacture, fabrication, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
container which is represented, marked, certified, or sold for use in
transportation of hazardous materials in commerce.
In addition to the HMR, RSPA has issued other regulations (49 CFR
parts 106 and 107) implementing Federal hazmat law. All of these
regulations are enforced by RSPA, the U.S. Coast Guard, the Federal
Aviation Administration, the Federal Highway Administration, and the
Federal Railroad Administration. Within their respective modes of
transportation, these agencies enforce the requirements of the HMR.
Within RSPA, the Office of Hazardous Materials Enforcement (OHME)
and the Office of the Chief Counsel enforce the HMR and parts 106 and
107. RSPA's enforcement regulations are in subpart D of part 107. When
OHME finds that a person apparently has violated Federal hazmat law or
the regulations, the Office of the Chief Counsel may institute an
enforcement action. That office may issue a notice of probable
violation (notice), in which a respondent is charged with a probable
violation and a civil penalty is proposed. In addition, the notice may
contain a proposed compliance order.
Generally, under 49 CFR 107.313(a), a respondent must respond to a
notice within 30 days of its receipt. The respondent may respond by
admitting the violation(s) and accepting the proposed penalty amount
(or the proposed compliance order), or may contest the notice. A notice
may be challenged through a written response, a telephonic or in-person
conference, or a hearing before an administrative law judge.
If the respondent makes no response within the prescribed period,
the Chief Counsel may enter an order finding that the alleged
violation(s) were committed and imposing the proposed penalty or
compliance order. The same result follows if the respondent admits the
violation(s). When the respondent requests a conference, the Office of
the Chief Counsel conducts the conference; then the Chief Counsel
reviews the proceeding and considers all relevant evidence, including
all submissions of the respondent. The Chief Counsel then issues an
order, which may include a finding of violation, imposition of a civil
penalty and a compliance order.
In assessing civil penalties, the Chief Counsel considers the
nature and circumstances of the violation, its extent and gravity, the
respondent's culpability, the respondent's lack of prior violations,
the respondent's ability to pay, the effect of the civil penalty on
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the respondent's ability to continue in business and any other relevant
factors (especially respondent's corrective actions) (see RSPA penalty
guidelines, 60 12139 (March 6, 1995)).
Where a hearing is requested, the Office of the Chief Counsel
submits the matter to the Department's Office of Hearings. An
administrative law judge is assigned to the case and conducts pre-
hearing and hearing procedures. The administrative law judge issues an
appropriate order.
Following issuance of an order by either the Chief Counsel or an
administrative law judge, a respondent must either comply with the
order or file an appeal with the Administrator of RSPA. The appeal must
be filed within 20 days of respondent's receipt of the order. The
appeal must state, with particularity, the findings in the order that
the respondent is challenging, and it must include all relevant
information and arguments. The filing of an appeal stays enforcement of
the order.
In a decision on appeal, the Administrator determines whether to
affirm or dismiss violations and whether to affirm or modify civil
penalty assessments and compliance orders. A respondent has 30 days
from the date of issuance of the decision on appeal in which to comply
with its terms. Failure to timely comply results in assessment of
interest, penalty and administrative charges where a civil penalty has
been affirmed in the decision on appeal. The Administrator's decision
on appeal is the final step in the administrative process.
The decisions on appeal are presented in case number sequence with
each decision containing the individual case number, respondent's name,
the background of the case, a discussion of the facts and
circumstances, and the Administrator's findings.
Issued in Washington, DC, on September 11, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-22903 Filed 9-13-95; 8:45 am]
BILLING CODE 4910-60-P
