E7-19254. Civil Penalties Adjustments

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

This final rule specifies inflation adjustments to civil penalties for violating the FMCSA regulations. These adjustments are required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996. This final rule also makes a technical correction to include a reference to a paragraph created by an earlier rulemaking action.

DATES:

Effective September 28, 2007.

FOR FURTHER INFORMATION CONTACT:

Jason Hartman, Regulatory Development Division, [phone], [e-mail]. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Legal Basis for the Rulemaking

The Debt Collection Improvement Act of 1996

In order to preserve the remedial effect of civil penalties and foster compliance with the law, the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as amended by the Debt Collection Improvement Act of 1996 (the Act) (Pub. L. 104-134, 110 Stat. 1321-1373), requires Federal agencies to regularly adjust certain civil penalties for inflation (see 28 U.S.C. 2461 note). The law requires each agency to make an initial inflationary adjustment for all applicable civil penalties and to make further adjustments to these penalty amounts at least once every four years.

The FMCSA previously adjusted civil penalties for inflation by regulation on March 31, 2003 (68 FR 15381). Subsequent to these adjustments, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) on August 10, 2005 (Pub. L. 109-59, 119 Stat. 1144). SAFETEA-LU reset several penalties at amounts required prior to adjustment for inflation and created new categories of penalties. The current penalties are found in 49 CFR part 386, Appendix A and B and 49 CFR 383.53(b).

Under 5 U.S.C. 553(b), the FMCSA finds good cause to dispense with prior notice and opportunity for comment. These procedures are unnecessary because inflation adjustments are ministerial acts required by statute. The adjustment simply recognizes that as inflation occurs, penalties should keep pace so that the impact of the penalty is not diminished with the passage of time.

Method of Calculation

Under the Act (28 U.S.C. 2461 note) the inflation adjustment for each applicable civil penalty is determined by increasing the maximum civil penalty amount per violation by the cost-of-living adjustment. The cost-of-living adjustment is defined as the amount by which the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the year in which the amount of such civil penalty was last set or adjusted pursuant to law (section 5(b), 28 U.S.C. 2461 note). Any calculated increase under this adjustment is subject to a specific rounding formula set forth in the Act (section 5(a), 28 U.S.C. 2461 note).

For example, under Appendix A of 49 CFR part 386, part IV, paragraph (e), failure to return a written certification of correction as required by an out-of-service order is subject to a civil penalty. The penalty was adjusted for inflation on March 31, 2003 (68 FR 15381), resulting in a maximum penalty of $650 for per violation. The CPI was 203 in June 2006, and was 184 in June 2003 (see U.S. Department of Labor CPI index at ftp://ftp.bls.gov/pub/ special.requests/cpi/cpiai.txt). Thus the inflation factor is 203/184 or 1.10. The new penalty amount after the increase is the result of multiplying $650 × 1.10 = $715. Under the statute, however, the increase is to be rounded to the nearest multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000. The amount of the increase in the daily maximum penalty was $65, rounded to the nearest multiple of $100 equals $100, so the new daily maximum penalty is $750. Therefore, Appendix A of 49 CFR part 386, part IV, paragraph (e) is revised to provide an adjusted maximum penalty of $750 per violation.

The 1.10 inflation factor is used to adjust penalties previously adjusted in 2003, which included penalties under the Federal Hazardous Materials Regulations (49 CFR parts 171-180); penalties under the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107); commercial penalties established in the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 809); and penalties enacted in the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748 (Dec. 9, 1999)).

SAFETEA-LU revised or established several civil penalty amounts, which have been promulgated by final rule in 72 FR 36760, July 5, 2007. The FMCSA adjusts these penalties for inflation, using an inflation factor of 203/195 or 1.04, even though the penalties are less than four years old, to place all penalties on the same adjustment schedule. The Debt Collection Improvement Act of 1996 allows for more frequent adjustments, so long as agencies adjust civil penalties at least every four years.

Some penalties established by SAFETEA-LU were not included in the July 5, 2007, final rule. Footnote 2 in the preamble to that rule explained that changes in penalties made by section 4102(a) of SAFETEA-LU (amending 49 U.S.C. 521(b)(2)(B) to increase the penalties for recordkeeping and reporting violations) do not require any change in FMCSA regulations because they are automatically implemented by 49 CFR 386.81. Nevertheless, to avoid confusion on the part of the regulated community and to ensure that the listed regulatory penalties are consistent with those specified in SAFETEA-LU, FMCSA is updating the penalties in Appendix B to 49 CFR part 386, paragraphs (a)(1) and (a)(2).

Section 4209 of SAFETEA-LU also established new penalties for household goods brokers and motor carriers. In a proposed rule entitled “Brokers of Household Goods Transportation by Motor Vehicle” (RIN 2126-AA84), the FMCSA has proposed to add the penalties to 49 CFR part 386, paragraph (e) of Appendix B (72 FR 5947, Feb. 8, 2007). Those penalty amounts will not, however, be adjusted at this time because that rule is not yet final.

Appendices A and B are now adjusted for inflation. Because of the relatively low rate of recent inflation and the rounding formula required by the Act, most penalties remain unchanged from their previous levels.

In addition, the July 5, 2007, revisions to Appendix B to part 386 added paragraph (h). Today's rule modifies the second sentence of the introductory paragraph to Appendix B to reference paragraph (h).

Rulemaking Analyses and Notices

Administrative Procedure Act

The Administrative Procedure Act provides exceptions to its notice and public comment procedures when an agency finds there is good cause on the basis that those procedures are “impracticable, unnecessary, or contrary to the public interest.” (See 5 U.S.C. 553(b).) As stated above, the amendments made by this final rule are mandated by Congress. By making these amendments, the Agency is performing a nondiscretionary ministerial act. For this reason, the FMCSA finds good cause that notice and public comment are unnecessary. Further, the agency finds good cause under 5 U.S.C. 553(d)(3) to make the amendments effective upon publication.

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or within the meaning of Department of Transportation regulatory policies and procedures. The Office of Management and Budget (OMB) did not review this document. We expect the final rule, which is statutorily mandated to preserve the remedial effect of civil penalties, will have minimal costs. Therefore, a full regulatory evaluation is unnecessary.

Executive Order 13132 (Federalism Assessment)

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined this action does not have federalism implications or limit the policymaking discretion of the States.

Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this action.

Paperwork Reduction Act

This action does not contain information collection requirements for purposes of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.).

National Environmental Policy Act

The FMCSA is an Administration within the Department of Transportation (DOT). The FMCSA analyzed this rule under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.) (NEPA), the Council on Environmental Quality Regulations implementing NEPA (40 CFR parts 1500-1508), and DOT Order 5610.1C, Procedures for Considering Environmental Impacts. This rule is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement since this action does not have any effect on the quality of the environment.

Unfunded Mandates Reform Act of 1995

This rule does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120 million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

The FMCSA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environment risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Executive Order 13211 (Energy Effects)

The FMCSA analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We determined that it is not a “significant energy action” under that Executive Order because it will not be economically significant and will not be likely to have an adverse effect on the supply, distribution, or use of energy.

List of Subjects in 49 CFR Part 386

• Administrative procedures
• Commercial motor vehicle safety
• Highways and roads
• Motor carriers
• Penalties

In consideration of the foregoing, the FMCSA amends title 49, Code of Federal Regulations, subtitle, B, chapter III, part 386 as set forth below:

PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS

1. The authority citation for part 386 continues to read as follows:

Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 217, Pub. L. 105-159, 113 stat. 1748, 1767; and 49 CFR 1.73.

Appendix A to Part 386—[Amended]

2. Appendix A to part 386 is amended by revising the figure “$650” to read as “$750,” whenever it appears throughout the appendix.

Appendix B to Part 386—[Amended]

3. In Appendix B to part 386 the introductory text is amended by revising the second sentence to read as follows:

* * *Pursuant to that authority, the inflation-adjusted civil penalties listed in paragraphs (a) through (h) of this appendix supersede the corresponding civil penalty amounts listed in title 49, United States Code.

* * * * *

4. Appendix B to part 386 is further amended as follows:

a. Paragraph (a)(1) is amended by revising the figure “$550” to read as “$1,000,” and the figure “$5,500” to read as “$10,000.”

b. Paragraph (a)(2) is amended by revising the figure “$5,500” to read as “$10,000.”

c. Paragraph (e)(5) is amended by revising the figure “$100,000” to read as “$105,000.”

d. Paragraph (f)(2) is amended by revising the figure “$100,000” to read as “$105,000.”

e. Paragraph (g) is amended by revising the figure “$550” to read as “$650,” the figure “$5,500” to read as “$6,500,” the figure “$27,500” to read as “$32,500,” and the figure “$110,000” to read as “$120,000,” whenever they appear throughout paragraph (g).

Issued on: September 24, 2007.

John H. Hill,

Administrator.