
[Federal Register: December 29, 2009 (Volume 74, Number 248)]
[Rules and Regulations]               
[Page 68701-68702]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de09-15]                         

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107 and 171

[Docket No. PHMSA-2009-0411]
RIN 2137-AE48

 
Hazardous Materials: Adjustment 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 adjusting 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 maximum civil penalty is increased to $55,000, and to 
$110,000 for a violation that results in death, serious illness, or 
severe injury to any person or substantial destruction of property. The 
minimum civil penalty is increased to $275, and to $495 for a violation 
related to training. These adjustments are required by the Federal 
Civil Penalties Inflation Adjustment Act of 1990 as amended by the Debt 
Collection Improvement Act of 1996.

DATES: Effective Date: This final rule is effective on December 31, 
2009.

FOR FURTHER INFORMATION CONTACT: Douglas S. Smith, Office of Hazardous 
Materials Enforcement, 202-366-4700, or Joseph Solomey, Assistant Chief 
Counsel for Hazardous Materials Safety, 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: The Federal Civil Penalties Inflation 
Adjustment Act of 1990 (the Act), as amended by the Debt Collection 
Improvement Act of 1996, requires each Federal agency to periodically 
adjust civil penalties it administers to consider the effects of 
inflation. The Act is set forth in the note to 28 U.S.C. 2461.
    According to Section 5 of the Act, the maximum and minimum civil 
penalties must be increased based on a ``cost-of-living adjustment'' 
determined by the increase in the Consumer Price Index (CPI-U) for the 
month of June of the calendar year preceding the adjustment as compared 
to the CPI-U for the month of June of the calendar year in which the 
last adjustment was made. The Act also specifies that the amount of the 
adjustment must be rounded to the nearest multiple of $5,000, for a 
penalty between $10,000 and $100,000, and that the first adjustment to 
a civil penalty is limited to 10%. Any increased civil penalty amount 
applies only to violations that occur after the date the increase takes 
effect.
    Section 7120 of the Hazardous Materials Safety and Security 
Reauthorization Act of 2005 (Title VII of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(``SAFETEA-LU,'' Pub. L. 109-59, 119 Stat. 1905)) amended 49 U.S.C. 
5123(a) to reset the maximum and minimum civil penalties for a knowing 
violation of Federal hazardous material transportation law, 49 U.S.C. 
5101 et seq., or a regulation, order, special permit, or approval 
issued under that law as follows:

--Maximum civil penalty--$50,000, except that amount may be increased 
to $100,000 for a violation that results in death, serious illness, or 
severe injury to a person or substantial destruction of property.
--Minimum civil penalty--$250, except that the minimum civil penalty 
for a violation related to training is $450.

Because these maximum and minimum civil penalties were reset by 
statute, they applied to any violation that occurred on or after August 
10, 2005, the date on which SAFETEA-LU became law.
    Under the Act, PHMSA is now required to adjust the maximum and 
minimum civil penalties set forth in 49 U.S.C. 5123(a), as amended by 
SAFETEA-LU. Because these adjustments are the first adjustment to the 
amounts reset in SAFETEA-LU, any increase in the maximum and minimum 
civil penalty amounts is limited to 10%.
    Applying the adjustment formula in the Act, PHMSA has compared the 
CPI-U in June 2008 (218.815)--the year before the year in which the 
adjustment is being made--to the CPI-U in June 2005 (194.5)--the year 
in which the maximum and minimum civil penalties were reset in SAFETEA-
LU. This comparison shows that the CPI-U increased by 12.5% during that 
period, which is greater than the 10% maximum increase allowed for the 
first adjustment. Accordingly, PHMSA is increasing the maximum and 
minimum civil penalties by 10%. Because this adjustment and the amount 
thereof are mandated by statute, notice of proposed rulemaking is 
unnecessary, and there is good cause to make the adjusted maximum and 
minimum civil penalties applicable to any violation occurring on or 
after January 1, 2010. 5 U.S.C. 553(b), (d).

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of (1) Federal 
hazardous material transportation law, which, at 49 U.S.C. 5123, 
provides civil penalties for a knowing violation of that law or a 
regulation, order, special permit, or approval issued under that law, 
and also (2) the Federal Civil Penalties Inflation Adjustment Act of 
1990 (the Act), as amended by the Debt Collection Improvement Act of 
1996 (see 28 U.S.C. 2461 note) which requires that maximum and minimum 
civil penalties

[[Page 68702]]

must be adjusted periodically to consider the effects of inflation.

B. 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 was not reviewed by the 
Office of Management and Budget. This rule is not significant under the 
Regulatory Policies and Procedures of the Department of Transportation 
(44 FR 11024). The economic impact of this final rule is minimal, and 
preparation of a regulatory evaluation is not warranted.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693, 
May 22, 2009). As amended in 2005, 49 U.S.C. 5125(h) provided that the 
preemption provisions in Federal hazardous material transportation law 
do ``not apply to any * * * penalty * * * utilized by a State, 
political subdivision of a State, or Indian tribe to enforce a 
requirement applicable to the transportation of hazardous material. 
Accordingly, this final rule does not have any preemptive effect on the 
amount or nature of penalties imposed by a State, local, or Indian 
tribe for violations of their requirements which are consistent with 
requirements in Federal hazardous material transportation law and the 
regulations prescribed under that law. Preparation of a federalism 
assessment is not warranted.

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''). Because this final rule 
does not have tribal implications, does not impose substantial direct 
compliance costs, and is required by statute, the funding and 
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    I certify that this final rule will not have an significant 
economic impact on a substantial number of small entities. This rule 
applies to shippers and carriers of hazardous materials and persons who 
manufacture, mark, certify or sell packagings, containers, and 
packaging components as qualified for use in transporting hazardous 
materials in commerce, some of whom are small entities. However, there 
is no economic impact on any person who complies with Federal hazardous 
material transportation law and the regulations, orders, special 
permits, and approvals issued under that law.

F. Paperwork Reduction Act

    There are no new information requirements in this final rule.

G. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule.

H. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in annual 
costs of $141.3 million or more to either State, local, or Indian 
tribal governments, in the aggregate, or to the private sector, and is 
the least burdensome alternative that achieves the objective of the 
rule.

I. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, 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 (Volume 65, Number 70, 
pages 19477-78) or online at http://www.dot.gov/privacy.html.

J. 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 
the spring and fall of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action in 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

    Exports, Hazardous materials transportation, Hazardous wastes, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

0
In consideration of the foregoing, 49 CFR, Subtitle B, 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; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note), Pub. L. 104-134 
section 31001.


Sec.  107.329  [Amended]

0
2. In Sec.  107.329(a) and (b), revise the following dollar figures:
0
a. Revise ``$50,000'' to read ``$55,000'' each time it appears.
0
b. Revise ``$250'' to read ``$275'' each time it appears.
0
c. Revise ``$100,000'' to read ``$110,000'' each time it appears.
0
d. Revise ``$450'' to read ``$495'' each time it appears.

Appendix A to Subpart D of Part 107 [Amended]

0
3. In Appendix A to subpart D of part 107, in Part IV under the section 
entitled ``Penalty Increases for Multiple Counts'' (Section IV.C.), 
revise ``$50,000 or $100,000 for a violation occurring on or after 
August 10, 2005'' to read ``$55,000 or $110,000 for a violation 
occurring on or after January 1, 2010.''

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; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 1461 note), Pub. L. 104-134 
section 31001.


Sec.  171.1  [Amended]

0
5. In Sec.  171.1(g), revise the following dollar figures:
0
a. Revise ``$50,000'' to read ``$55,000''.
0
b. Revise ``$250'' to read ``$275''.
0
c. Revise ``$100,000'' to read ``$110,000''.
0
d. Revise ``$450'' to read ``$495''.

    Issued in Washington, DC on December 18, 2009, under authority 
delegated in 49 CFR part 1.
Cynthia Douglass,
Assistant Administrator/Chief Safety Officer.
[FR Doc. E9-30696 Filed 12-28-09; 8:45 am]

BILLING CODE 4910-60-P
