PHMSA Clarifies Criminal Enforcement Procedures

Posted on 5/16/2022 by Roseanne Bottone

Hazardous materials inspectors with US DOT PHMSA may cite shippers, manufacturers, and other stakeholders for two types of regulatory violations: civil and criminal (i.e., “willful”).
In the Federal Register on May 11, PHMSA published a Final Rule to clarify that hazardous materials and pipeline inspectors may report actual or possible criminal activity to the US DOT Office of the Inspector General (OIG). Because the rulemaking impacts PHMSA’s internal enforcement procedures only, it was published without public notice or comment.
While the rulemaking does not directly impact the regulated community, shippers and other stakeholders should know the difference between a “criminal” or “willful” violation of the Hazardous Materials Regulations (HMR) and a civil violation.

What is a “Criminal” Hazmat Violation?

A “criminal” or “willful” violation occurs when a person knowingly disregards legal rules and regulations, or acts with indifference, malice, recklessness, or purposeful ignorance of requirements. In other words, the violation is made with intent.
The following actions constitute a criminal violation:
  1. To knowingly alter, remove, deface, destroy, or otherwise tamper with any marking, label, placard, or description on a document required by Federal hazardous materials transportation law or regulations.
  2. To knowingly alter, remove, deface, destroy, or otherwise unlawfully tamper with a package, container, motor vehicle, rail car, aircraft, or vessel used to transport hazardous materials.  
  3. To willfully or recklessly violate a requirement of a hazardous material law, regulation, order, special permit, or approval.
The consequences of a criminal violation can include up to five years of incarceration and monetary penalties of $250,000 per incident (for individuals) and $500,000 per incident (for corporations).
For criminal violations involving a release of hazardous materials that results in death or injury, the maximum term of imprisonment is ten years (see 49 CFR 107.333).

What is a “Civil” Hazmat Violation?

Civil violations, on the other hand, are committed unintentionally. Those responsible for compliance with US DOT regulations are only human, and we all make mistakes. Civil violations result from errors, unintentional omissions, or an incomplete or inaccurate understanding of the regulations.
The maximum civil penalty for a hazmat shipping violation is now $89,678 per day, per violation. For violations that result in death, serious illness, severe injury, or substantial property destruction, the penalty can reach $209,249 per day, per violation. These civil penalty amounts increase annually to keep pace with inflation.
A list of frequently cited hazmat shipping violations—and the recommended baseline penalty amount for each—can be found in the HMR at 49 CFR Part 107, Subpart D, Appendix A.

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