[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]



-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 

[[Page 47800]]
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