On September 24, 2013, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued aNotice of Proposed Rulemaking to amend the hazardous materials procedural. Specifically, the proposed action would prohibit a person from performing activities regulated by the Hazardous Materials Regulations (HMR) if they failed to pay a civil penalty or abide by a payment agreement. In identifying the need for this rule, PHMSA noted that persons who fail to comply with the HMR and fail to pay civil penalties are not fit to transport hazardous materials, as they are more likely to jeopardize public safety and/or the environment.
Under the proposed rule, four agencies in the Department of Transportation responsible for enforcing Hazardous Materials Regulations (HMR) will be able to add to its current enforcement and debt collection practices using the proposed provisions. These agencies are the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration and PHMSA.
Overview of Mandated Changes to the Penalty Procedures:
According to Section 33010 of the Moving Ahead for Progress in the 21st Century Act, a person is prohibited from engaging in the transportation of hazardous materials if that person has failed to pay a civil penalty or if they failed to abide by a payment plan. This prohibition does not apply if a person filed a formal administrative or judicial appeal of the penalty.
Additionally, Section 33010 includes an exception to the prohibition of hazardous materials operations because of nonpayment if that person is a Chapter 11 debtor. In considering the mandated procedural changes, PHMSA interprets the statutory language as requiring the agency to seek a determination from the bankruptcy court of a debtor's ability to pay the civil penalty claim before the agency imposes the prohibition on hazardous materials operations.
Section 33010 does not include the prohibition of hazardous materials operations by those persons who have not paid the penalties prior to this mandate. As the Section does not provide specific instruction, the presumption against retroactive application prevents PHMSA from applying the prohibition to those whose final order was issued prior to the issuance of a final rule. The provisions of the proposed rule will then only apply to final orders issued on or after the effective date of the final rule. .
Proposed Provisions
Specifically, PHMSA proposes the adoption of a Subpart E to 49 CFR Part 109 to create procedures requiring a person who failed to pay civil penalties to stop any hazardous material operations until the penalties have been paid or a payment plan has been arranged. Additionally, the proposed amendment includes procedures to notify a person subject to prohibition in writing and to give that person an opportunity to reply before the prohibition is enacted.
There is a comment period of 60 days on this proposed rule.
For further information or questions regarding the proposed rulemaking, contact Ronce Almond at (202) 457-7790.