EXECUTIVE SUMMARY
The U.S. DOT has issued a final rule
amending requirements for payment of civil penalties for
violations of federal hazardous material regulations (HMR)
and the federal motor carrier safety regulations (FMCSR).
Specifically, the final rule prohibits a person who fails
to pay a civil penalty, or fails to abide by a payment
agreement, from transporting HAZMAT materials until
payment is made.
U.S. DOT TO ISSUE
OUT-OF-SERVICE ORDERS FOR NONPAYMENT OF CIVIL PENALTIES:
The U.S. DOT has issued a new rule that
requires a person who is delinquent in paying civil
penalties relating to the violation of the HMR or the
FMCSR to cease transportation operations until payment has
been made. This rule affects both intra and
interstate
petroleum marketers who transport fuel in a commercial
motor vehicle. The rule is important to petroleum
marketers because for the first time it punishes late or
unmet payments with out-of-service orders. Important
highlights of the rule are as follows:
1. Types of
Violations Subject to the New Rule
- FMCSA - Violations
of the FMCSR set forth in a Notice of Claim (NOC) issued
by the Federal Motor Carrier Safety Administration (FMCSA)
parts 390 through 397 (49 CFR 390 -397).
- PHMSA -
Violations of the HMR set forth in a Notice of Probable
Violation (NOPV) issued by Pipeline and Hazardous
Materials Safety Administration (PHMSA) parts 100 through
187 (49 CFR 100 – 187).
- Violations issued in the
form of a ticket are not covered under the rule. Tickets
are issued for violations that do not “substantially
impact safety”.
2. Types of Enforcement Procedures
Subject to the New Rule
- FMCSA - Federal Motor Carrier
Safety Administration - FMCSA begins the process of
assessing civil penalties by issuing a notice of claim
(NOC). Each NOC sets forth the facts alleged; the
provisions of the regulations violated; a proposed civil
penalty; the time, form, and instructions for payment,
contesting violation, or otherwise seek resolution of the
claim. Once the NOC is fully adjudicated or a settlement
reached, the FMCSA issues a final agency order. The order
sets the payment terms and final penalty amount. This
final rule affects only those respondents who violate the
payment terms of an order.
- PHMSA – Violations that do
not substantially impact safety are handled through the
ticket process and are not covered under the new rule. For
all other hazardous materials violations, PHMSA begins the
process of assessing civil penalties by serving a notice
of probable violation (NOPV) on a person alleging the
violation of hazardous materials operations. The NOPV must
include: citation of the provision(s) of the HMR that
PHMSA believes the respondent has violated; a statement of
the factual allegations; a statement of the right to
present written or oral explanations, information, and
arguments; a statement of the respondent's right to
request a hearing; and the proposed civil penalty and
payment information. Once the matter is fully adjudicated
or a settlement is reached, PHMSA issues an order. Orders
outline the terms and outcome of the enforcement action,
including the final penalty amount due, and they describe
any payment arrangements made between the agency and the
respondent. This final rule affects only those respondents
who violate the payment terms of an order.
3. Out of
Services Orders for Failure to Pay
- Under the final
rule, the agency that issued the final order outlining the
terms and outcome of an enforcement action will send the
respondent a Cessation of Operations Order (COO) 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.
4. Effective
Date
- The FMCSA and PHMSA will order a COO only for
violations which occur on or after September 8, 2014. All
existing violations before September 8, 2014 are not
subject to the final rule.
For more information or
questions contact Mark S. Morgan at
mmorgan@pmaa.org
or, go to
http://www.gpo.gov/fdsys/pkg/FR-2014-08-07/html/2014-18617.htm
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