Thursday, August 7, 2014

PHMSA Publishes Civil Penalties Final Rule

Today DOT’s Pipeline and Hazardous Material Safety Administration published a final rule in the Federal Register (79 FR 46194-46200). The rule will would prohibits a person who fails to pay a civil penalty as ordered, or fails to abide by a payment agreement, from performing activities regulated by the Hazardous Materials Regulations until payment is made. As was the case with the NPRM for this rulemaking, this final rule was not reviewed by OMB’s Office of Information and Regulatory Affairs prior to publication.

As I noted in the NPRM blog post this bill implements a congressional mandate set forth in §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.”

There were three public comments posted to the docket for the NPRM for this rulemaking; one supportive and two adversarial comments (here and here; both .PDF download links). In the preamble to this rule PHMSA explains why they rejected the suggested changes to the rule made by the packaging organization and by the railroads. In both cases the final PHMSA argument was that this rulemaking was specifically mandated by Congress.

Today’s notice summarizes the new rule this way:

“Under the provisions of this final rule, the agency [PHMSA, FAA, FMCSA, or FRA] that issued the final order outlining the terms and outcome of an enforcement action will send the respondent a COO [Cease Operations Order] if payment has not been received within 45 calendar days after the payment due date or a payment plan installment date as specified in the final order. The COO would notify the respondent that it must cease hazardous materials operations on the 91st calendar day after failing to make payment in accordance with the agency's final order or payment plan arrangement, unless payment is made. A respondent will be allowed to appeal the COO within 20 days of receipt of the order according to the procedures set forth by the agency issuing the COO.”

The effective date for this rule is September 8th, 2014.

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