Tuesday, September 24, 2013

PHMSA Publishes Penalty Scofflaw NPRM

Today the Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking in the Federal Register (78 FR 58501-58507) to establish operational sanctions on persons who fail to pay a civil penalty or abide by a civil penalty agreement for violations under the hazardous material regulations (HMR). It would prohibit such persons from performing activities regulated by the Hazardous Materials Regulations until payment is made.

While this rule is being issued by PHMSA it could be applied to failure to pay situations for HMR violations under the following additional agency rules:

• Federal Aviation Administration under 14 CFR § 13.16(c);
• Federal Motor Carrier Administration under 49 CFR Part 386; and
• Federal Railroad Administration under 49 CFR Part 209, Subpart B

This rule would enforce congressional requirements under §33010 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, page 126 STAT 838) that added paragraph (i)(1) to 49 USC 5123:

“Except as provided under paragraph (2) [Chapter 11 bankruptcy exemption], a person subject to the jurisdiction of the Secretary under this chapter who fails to pay a civil penalty assessed under this chapter, or fails to arrange and abide by an acceptable payment plan for such civil penalty, may not conduct any activity regulated under this chapter beginning on the 91st day after the date specified by order of the Secretary for payment of such penalty unless the person has filed a formal administrative or judicial appeal of the penalty.”.

The proposed rule would add a new subpart E to 49 CFR 109 [which should probably have required a change in the title for that section] that would include two new sections:

§109.101 Prohibition of Hazardous Materials Operations.
§109.103 Notice of Nonpayment of Penalties.

PHMSA is soliciting public comments on this proposed rulemaking. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2012-0258). Comments need to be submitted by November 25th, 2013.

BTW: This NPRM was not listed in the DOT Unified Agenda nor was it apparently processed through the Office of Information and Regulatory Affairs review process at the OMB.

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