

[Federal Register: September 28, 2007 (Volume 72, Number 188)]
[Rules and Regulations]               
[Page 55100-55102]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se07-24]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 386

RIN 2126-AB12

 
Civil Penalties Adjustments

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule specifies inflation adjustments to civil 
penalties

[[Page 55101]]

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, (202) 366-5043, jason.hartman@dot.gov. 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 x 
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.

[[Page 55102]]

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.


0
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

0
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]

0
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]

0
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.
* * * * *
0
4. Appendix B to part 386 is further amended as follows:
0
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.''
0
b. Paragraph (a)(2) is amended by revising the figure ``$5,500'' to 
read as ``$10,000.''
0
c. Paragraph (e)(5) is amended by revising the figure ``$100,000'' to 
read as ``$105,000.''
0
d. Paragraph (f)(2) is amended by revising the figure ``$100,000'' to 
read as ``$105,000.''
0
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.
[FR Doc. E7-19254 Filed 9-27-07; 8:45 am]

BILLING CODE 4910-EX-P
