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Federal Civil Penalties Inflation Adjustment of 2015

American Government Special Collections Reference Desk

American Government

Federal Civil Penalties Inflation Adjustment of 2015

T.F. Scott Darling III
Federal Motor Carrier Safety Administration
27 June 2016


[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)]
[Rules and Regulations]
[Pages 41453-41465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14973]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 386

[Docket Number: FMCSA-2016-0128]
RIN 2126-AB93


Federal Civil Penalties Inflation Adjustment of 2015

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

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: FMCSA amends the civil penalties listed in its regulations to 
ensure that the civil penalties assessed or enforced by the Agency 
reflect the statutorily mandated ranges as adjusted for inflation. 
Pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (2015 Act), FMCSA is required to promulgate a 
catch-up adjustment through an interim final rule. Pursuant to the 
Administrative Procedure Act, FMCSA finds that good cause exists for 
immediate implementation of this interim final rule because prior 
notice and comment are unnecessary, per the specific provisions of the 
2015 Act.

DATES: This interim rule is effective on August 1, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. LaTonya Mimms, Enforcement 
Division, by email at civilpenalty@dot.gov or phone at 202-366-0991. 
Office hours are from 8:00 a.m. to 4:30 p.m. Monday through Friday, 
except Federal holidays. If you have questions on viewing or submitting 
material to the docket, contact Docket Services, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Purpose and Summary of the Major Provisions

    This interim final rule (IFR) adjusts the amount of FMCSA's civil 
penalties to account for inflation as directed by the 2015 Act. The 
specific inflation adjustment methodology is described later in this 
document.

B. Benefits and Costs

    The changes imposed by this IFR affect the civil penalty amounts, 
which are considered by the Office of Management and Budget (OMB) 
Circular A-4, Regulatory Analysis, as transfer payments, not costs. 
Transfer payments are payments from one group to another that do not 
affect total resources available to society. By definition they are not 
considered in the monetization of societal costs and benefits of 
rulemakings. Congress stated in the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (1990 Act) that increasing penalties over time 
will ``maintain the deterrent effect of civil monetary penalties and 
promote compliance with the law.'' \1\ Therefore, with this continued 
deterrence, FMCSA infers that there may be some safety benefits that 
occur due to this IFR. The deterrence effect of increasing penalties, 
which Congress has recognized, cannot be reliably quantified into 
safety benefits, however.
---------------------------------------------------------------------------

    \1\ 28 U.S.C. 2461 note (Pub. L. 101-410, Oct. 5, 1990, 104 
Stat. 890).
---------------------------------------------------------------------------

II. Legal Basis for the Rulemaking

A. Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015

    This rulemaking is based primarily on the 2015 Act, Public Law 114-
74, title VII, Sec.  701, 129 Stat. 599, 28 U.S.C. 2461 note (Nov. 2, 
2015). The 2015 Act amended the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (1990 Act) (28 U.S.C. 2461 note). The basic 
findings and purpose of the amended 1990 Act remain unchanged and 
include supporting the role civil penalties play in federal law and 
regulations in deterring violations by allowing for regulatory 
adjustments to account for inflation. The changes based on the 2015 Act 
amend sections four, five, six, and also add a new section seven. The 
effective provisions relevant to this rulemaking will be discussed in 
turn.
    Under section four, agencies must adjust their civil monetary 
penalties and publish such adjusted penalties in the Federal Register 
by July 1, 2016, while utilizing an initial ``catch-up''

[[Page 41454]]

adjustment through an IFR to be effective no later than August 1, 2016. 
This IFR satisfies the catch-up requirement. Subsequent annual 
adjustments are also required. Agencies can determine that a provision 
or provisions be exempt from these adjustments based on certain 
criteria through a notice and comment rulemaking, though OMB must 
concur in the determination (Id. at subsection (c)). FMCSA is not 
seeking an exemption under section 4(c).There is also a provision to 
account for a situation where other adjustments are made that go above 
those required by the 2015 Act. If this is the case, then no 
adjustments are needed that year (Id. at subsection (d)).
    Section five outlines the procedure for applying cost of living 
increases to adjust penalties. As with section four, section five 
addresses both initial and subsequent adjustments based on the 
definition of cost of living adjustment (COLA). For initial 
adjustments, COLA is defined as the difference between the consumer 
price index (CPI) for October 2015 and the CPI for October of the year 
the penalty was ``adjusted or established under a provision of law, 
other than the 2015 Act'' (Id. at subsection 5(b)(2)). FMCSA interprets 
the phrase ``under a provision of law'' to include both statutorily 
mandated adjustments prior to the 2015 Act and those penalties 
initially promulgated through rulemaking. This is a reasonable 
interpretation, as many penalties are initially prescribed by statute 
and subsequently adjusted over time through the regulatory process. In 
addition, such a reading is consistent with the interpretation 
contained in guidance provided by OMB as further discussed in the 
Background section, below. Subsequent adjustments are based on 
increasing the civil penalty or range of penalties by the COLA using 
the difference in the CPI between the month of October preceding the 
date of adjustment and the month of October one year previously (Id. at 
subsection (a) and (b)(1)).
    The 2015 Act also amended provisions of the Debt Collection 
Improvement Act of 1996 (DCIA) Public Law 104-134, 110 Stat 1321, 28 
U.S.C. 2461 note (April 26, 1996), which amended the 1990 Act. Most 
importantly, the DCIA had previously provided that the first adjustment 
of a civil monetary penalty may not exceed 10 percent of such penalty. 
This 10 percent cap provision was rescinded by the 2015 Act (Id. at 
subsection (c)). Under section six of the 1990 Act, the period of time 
covered by increases to civil penalties has been revised. Previously, 
adjustments to civil penalties were applied only to violations that 
occurred after the date the increases took effect. The 2015 Act revised 
section six to read, ``Any increase under this Act in a civil monetary 
penalty shall apply only to the civil monetary penalties, including 
those whose associated violation predated such increase, which are 
assessed after the date the increase takes effect.'' By adding the 
phrase ``including those [penalties] whose associated violation 
predated such increase,'' if a violation took place before the 
effective date of the adjusted penalty, and the agency then issued a 
notice of claim proposing a penalty after the effective date, the new 
adjusted penalty level would be assessed.
    In previous enforcement cases on administrative review, the FMCSA 
Assistant Administrator has stated that, for various purposes, a 
penalty will not be deemed ``assessed'' until the date that the Agency 
issues its Final Agency Action. In re Mittlestadt Trucking, LLC, FMCSA-
2007-0058, at page 3 (Second Interim Order, May 4, 2012); In re America 
Express, Inc. d/b/a Mid America Express, FMCSA-2001-9836, at footnote 
24 (Final Order, May 23, 2005). Before the issuance of the Final Agency 
Action, the penalty is merely a proposed penalty. The question 
therefore arises whether section six of the 1990 Act, as amended by the 
2015 Act, requires that proposed penalties in open cases, in which a 
notice of claim has been issued but which have not been formally 
reduced to an ``assessment'' through order of the Assistant 
Administrator or other Final Agency Order, must be adjusted.
    Section 521(b)(2)(D) of Title 49, U.S. Code, requires FMCSA to 
calculate each civil penalty assessment to induce further compliance. 
FMCSA has concluded that, for those open enforcement matters in which a 
penalty was proposed before the date of the ``catch-up'' adjustment or 
an annual adjustment but in which a Final Agency Action has not been 
issued, recalculating the amount of the proposed penalty would not 
induce further compliance, and would thus be contrary to the goal of 49 
U.S.C. 521(b)(2)(D). Moreover, the length of time between the date that 
a person is notified of the amount of the proposed penalty and the 
issuance of the Final Agency Action can vary, but is sometimes several 
years, depending on litigation schedules and other factors. Applying an 
inflation adjustment to proposed penalties in cases long awaiting 
administrative review could raise questions of equity. FMCSA therefore 
will not retroactively adjust the proposed penalty amounts in notices 
of claim issued prior to the effective date. Otherwise, the 2015 Act 
applies prospectively, and does not retroactively change previously 
assessed or enforced penalties an agency is actively collecting or has 
collected.
    While the statutory language speaks to only increases in penalty 
amounts, FMCSA will assess the new penalty both in cases where the 
penalty increases and where it decreases. This aligns with the intent 
of the statute, which is to ensure penalty amounts properly reflect 
inflation. Congress likely did not envision a scenario where penalty 
amounts would be decreased pursuant to the 2015 Act, which explains the 
use of the term ``increases'' in the statutory language.
    Based on new section seven, oversight and reporting requirements 
apply. First, OMB must provide annual guidance by December of each year 
on implementing the 2015 Act (Id. at subsection (a)). In response to 
this provision, OMB has provided guidance to agencies regarding the 
methodology to follow to implement adjustments required under the 2015 
Act, as further discussed in the Background section, below. Agencies 
must report civil penalty adjustments through their Agency Financial 
Report required under OMB Circular A-136 or its successor (Id. at 
subsection (b)). Last, the Comptroller General is required to report to 
Congress regarding compliance with the 2015 Act (Id. at subsection 
(c)).

B. Administrative Procedure Act (APA)

    Generally, agencies may promulgate final rules only after issuing a 
notice of proposed rulemaking and providing an opportunity for public 
comment under procedures required by the APA, as provided in 5 U.S.C. 
553(b) and (c). The APA, in 5 U.S.C. 553(b)(3)(B), provides an 
exception from these requirements when notice and public comment 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' FMCSA finds that prior notice and comment is unnecessary 
because section 4 of the 2015 Act specifically requires the initial 
catch-up adjustment to be accomplished through an IFR. While prior 
notice and comment is not required, FMCSA will accept comments on any 
errors that may be found in this document. We note, however, that the 
penalty adjustments, and the methodology used to determine the 
adjustments, are set by the terms of the 2015 Act, and FMCSA has no 
discretion to make changes in those areas.

[[Page 41455]]

III. Background

A. Method of Calculation

    OMB published a memorandum on February 24th, 2016, providing 
guidance to the Agencies for implementation of the 2015 Act (OMB 
implementation guidance, https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf). The OMB implementation guidance 
detailed a method of calculating inflation adjustments that differs 
substantially from the methods used in past inflation adjustments under 
the 1990 Act. Previous adjustments were conducted under rules that 
required significant rounding of figures. For example, in the case of 
penalties greater than $1,000 but less than or equal to $10,000, the 
penalty inflation increment would be rounded to the nearest multiple of 
$1,000. While this allowed penalties to be kept at round numbers, it 
meant that penalties would often not be increased at all if the 
inflation increment was not large enough. Furthermore, first-time 
increases to penalties were capped at 10 percent. Over time, this 
approach caused some penalties to lose value relative to total 
inflation. Alternatively, in some instances the prescribed approach 
resulted in the rounding up of the inflation increment, thus causing 
the total penalty amount to increase in value relative to total 
inflation.
    The 2015 Act has removed these rounding rules; now, penalties are 
simply rounded to the nearest $1. While this creates penalty values 
that are no longer round numbers, it does ensure that penalties will be 
increased each year to a figure commensurate with the actual calculated 
inflation. Furthermore, the 2015 Act ``resets'' the inflation 
calculations by excluding prior inflationary adjustments under the 1990 
Act, which contributed to a change in the real value of penalty levels. 
This means the inflationary adjustments made by FMCSA in 2015,\2\ 
2007,\3\ and 2003 \4\ have been disregarded for purposes of determining 
the baseline year to perform the calculations for this interim final 
rule. As a result of the new approach required by the 2015 Act, some of 
the penalty amounts will increase in value relative to the current 
codified amount, and some penalty amounts will decrease in value. The 
2015 Act requires agencies to identify, for each penalty, the year and 
corresponding amount(s) for which the maximum penalty level or range of 
minimum and maximum penalties was established (i.e., originally enacted 
by Congress) or last adjusted other than pursuant to the 1990 Act.
---------------------------------------------------------------------------

    \2\ 80 FR 19146, April 3, 2015.
    \3\ 72 FR 55100, September 28, 2007.
    \4\ 68 FR 15381, March 31, 2003.
---------------------------------------------------------------------------

    The FMCSA thoroughly reviewed its civil penalties. This IFR sets 
forth the initial ``catch-up'' adjustment required by the 2015 Act, as 
shown in the table below. The first column provides a description of 
the penalty and its location in 49 CFR part 386. The second column 
(``Legal Authority'') provides the United States Code (U.S.C.) 
statutory citation. In the third column (``Current Penalty''), FMCSA 
lists the existing codified penalty. The fourth column (``Baseline 
Penalty'') provides the penalty amount as enacted by Congress or 
changed through a mechanism other than the 1990 Act. The fifth column 
(``Baseline Penalty Year'') lists the year in which the baseline 
penalty was enacted by Congress or changed through a mechanism other 
than the 1990 Act. The sixth column (``Multiplier'') lists the 
multiplier used to adjust the CPI for all urban consumers (CPI-U) of 
the baseline penalty year to the CPI-U for the current year. The OMB 
prescribes, in Table A of the OMB implementation guidance the 
multiplier for agencies to use. Adjusting the baseline penalty with the 
multiplier provides the ``Preliminary New Penalty'' listed in column 
seven. The preliminary new penalty is then compared with the current 
penalty from column three to find the Final Adjusted Penalty in column 
eight. The adjusted penalty is the lesser of either the preliminary new 
penalty or an amount equal to 250% of the current penalty. As no 
preliminary new penalties are greater than 250% of the current penalty, 
columns seven and eight are identical.

IV. Today's Interim Final Rule

Summary of Penalty Adjustments

    As noted in the regulatory text (Part 386, Appendices A and B) in 
today's rule, the adjusted civil penalties identified in the appendices 
supersede, where a discrepancy exists, the corresponding civil penalty 
amounts identified in title 49, United States Code.

Part 386

    The introductions to Part 386, Appendices A and B, have been 
revised to refer to the 2015 Act. Below is the table with the current 
civil penalty amounts in the appendices of Part 386 and new civil 
penalties following the inflation adjustments required by the 2015 Act:

                                                       Table 1--Inflation Adjustments for Part 386
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Final
                                                                              Current      Baseline     Baseline       OMB      Preliminary    adjusted
           Civil penalty location                   Legal authority         penalty ($)  penalty ($)    penalty     prescribed  new penalty   penalty in
                                                                                                          year      multiplier      ($)        2016 ($)
(1)                                          (2)..........................          (3)          (4)          (5)          (6)          (7)          (8)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appendix A II Subpoena.....................  MAP-21 Pub. L. 112-141, sec.        $1,000       $1,000         2012      1.02819       $1,028       $1,028
                                              32110, 126 Stat. 405, 782,
                                              (2012) (49 U.S.C. 525).
Appendix A II Subpoena.....................  MAP-21 Pub. L. 112-141, sec.        10,000       10,000         2012      1.02819       10,282       10,282
                                              32110, 126 Stat. 405, 782
                                              (2012) (49 U.S.C. 525).
Appendix A IV (a) Out-of-service order       Pub. L. 98-554, sec. 213(b),         3,100        1,000         1990      1.78156        1,782        1,782
 (operation of CMV by driver).                98 Stat. 2829, 2841-2843
                                              (1984) (49 U.S.C.
                                              521(b)(7)), 55 FR 11224
                                              (March 27, 1990).

[[Page 41456]]

 
Appendix A IV (b) Out-of-service order       Pub. L. 98-554, sec. 213(a),        21,000       10,000         1990      1.78156       17,816       17,816
 (requiring or permitting operation of CMV    98 Stat, 2829 (1984) (49
 by driver).                                  U.S.C. 521(b)(7)), 55 FR
                                              11224 (March 27, 1990).
Appendix A IV (c) Out-of-service order       Pub. L. 98-554, sec. 213(a),         3,100        1,000         1990      1.78156        1,782        1,782
 (operation by driver of CMV or intermodal    98 Stat 2829 (1984) (49
 equipment that was placed out of service).   U.S.C. 521(b)(7)), FR 11224
                                              (March 27, 1990).
Appendix A IV (d) Out-of-service order       Pub. L. 98-554, sec. 213(a),        21,000       10,000         1990      1.78156       17,816       17,816
 (requiring or permitting operation of CMV    98 Stat 2829 (1984) (49
 or intermodal equipment that was placed      U.S.C. 521(b)(7)); 55 FR
 out of service).                             11224 (March 27, 1990).
Appendix A IV (e) Out-of-service order       49 U.S.C. 521(b)(2)(B), 49             850          500         1990      1.78156          891          891
 (failure to return written certification     CFR 396.9(d)(3).
 of correction).
Appendix A IV (g) Out-of-service order       MAP-21, Pub. L. 112-141, sec.       25,000       25,000         2012      1.02819       25,705       25,705
 (failure to cease operations as ordered).    32503, 126 Stat. 405, 803
                                              (2012) (49 U.S.C.
                                              521(b)(2)(F)).
Appendix A IV (h) Out-of-service order       Pub. L. 98-554, sec. 213(a),        16,000       10,000         1984      2.25867       22,587       22,587
 (operating in violation of order).           98 Stat, 2829, 2841-2843
                                              (1984) (49 U.S.C. 521(b)(7)).
Appendix A IV (i) Out-of-service order       TEA-21, Pub. L. 105-178, sec.       16,000       10,000         1998      1.45023       14,502       14,502
 (conducting operations during suspension     4015(b), 112 Stat. 411-12
 or revocation for failure to pay             (1998) (49 U.S.C.
 penalties).                                  521(b)(2)(A), 521(b)(7)); 65
                                              FR 56521, 56530 (September
                                              19, 2000).
Appendix A IV (j) (conducting operations     Pub. L. 98-554, sec. 213(a),        11,000       10,000         1984      2.25867       22,587       22,587
 during suspension or revocation).            98 Stat, 2829, 2841-2843
                                              (1984) (49 U.S.C. 521(b)(7)).
Appendix B (a)(1) Recordkeeping--maximum     SAFETEA-LU, Pub. L. 109-59,          1,100        1,000         2005      1.19397        1,194        1,194
 penalty per day.                             sec. 4102(a), 119 Stat.
                                              1144, 1715 (2005) (49 U.S.C.
                                              521(b)(2)(B)(i)).
Appendix B (a)(1) Recordkeeping--maximum     SAFETEA-LU, Pub. L. 109-59,         11,000       10,000         2005      1.19397       11,940       11,940
 total penalty.                               sec. 4102(a), 119 Stat.
                                              1144, 1715 (2005) (49 U.S.C.
                                              521(b)(2)(B)(i)).
Appendix B (a)(2) Knowing falsification of   SAFETEA-LU, Pub. L. 109-59,         11,000       10,000         2005      1.19397       11,940       11,940
 records.                                     sec. 4102(a), 119 Stat.
                                              1144, 1715 (2005) (49 U.S.C.
                                              521(b)(2)(B)(ii)).
Appendix B (a)(3) Non-recordkeeping          TEA-21, Pub. L. 105-178, sec.       16,000       10,000         1998      1.45023       14,502       14,502
 violations.                                  4015(b), 112 Stat. 107, 411-
                                              12 (1998) (49 U.S.C.
                                              521(b)(2)(A)).
Appendix B (a)(4) Non-recordkeeping          TEA-21, Pub. L. 105-178, sec.        3,750        2,500         1998      1.45023        3,626        3,626
 violations by drivers.                       4015(b), 112 Stat. 107, 411-
                                              12 (1998) (49 U.S.C.
                                              521(b)(2)(A)).

[[Page 41457]]

 
Appendix B (a)(5) Violation of 49 CFR 392.5  SAFETEA-LU, Pub. L. 109-59,          4,125        2,500         2005      1.19397        2,985        2,985
 (first offense).                             119 Stat. 1144, 1715; sec.
                                              4102(b), 119 Stat. 1715-16
                                              (2005) (49 U.S.C.
                                              31310(i)(2)(A)).
Appendix B (a)(5) Violation of 49 CFR 392.5  SAFETEA-LU, Pub. L. 109-59,          4,125        5,000         2005      1.19397        5,970        5,970
 (second or subsequent conviction).           119 Stat. 1144, 1715; sec.
                                              4102(b), 119 Stat. 1715-16
                                              (2005) (49 U.S.C.
                                              31310(i)(2)(A)).
Appendix B (b) Commercial driver's license   Pub. L. 99-570, sec.                 4,750        2,500         1986      2.15628        5,391        5,391
 (CDL) violations.                            12012(b), 100 Stat. 3207-184-
                                              85 (1986) (49 U.S.C.
                                              521(b)(2)(C)).
Appendix B (b)(1): Special penalties         SAFETEA-LU, Pub. L. 109-59,          2,750        2,500         2005      1.19397        2,985        2,985
 pertaining to violation of out-of-service    sec. 4102(b), 119 Stat.
 orders (first conviction).                   1144, 1715 (2005) (49 U.S.C.
                                              31310(i)(2)(A)).
Appendix B (b)(1) Special penalties          SAFETEA-LU, Pub. L. 109-59,          5,500        5,000         2005      1.19397        5,970        5,970
 pertaining to violation of out-of-service    119, sec. 4102(b), Stat.
 orders (second or subsequent conviction).    1144, 1715 (2005) (49 U.S.C.
                                              31310(i)(2)(A)).
Appendix B (b)(2) Employer violations        Pub. L. 99-570, sec.                 4,750        2,500         1986      2.15628        5,391        5,391
 pertaining to knowingly allowing,            12012(b), 100 Stat. 3207-184-
 authorizing employee violations of out-of-   85 (1986) (49 U.S.C.
 service order (minimum penalty).             521(b)(2)(C)).
Appendix B (b)(2) Employer violations        SAFETEA-LU, Pub. L. 109-59,         27,500       25,000         2005      1.19397       29,849       29,849
 pertaining to knowingly allowing,            sec. 4102(b), 119 Stat.
 authorizing employee violations of out-of-   1144, 1715 (2005) (49 U.S.C.
 service order (maximum penalty).             31310(i)(2)(C)).
Appendix B (b)(3) Special penalties          ICC Termination Act of 1995,        11,000       10,000         1995      1.54742       15,474       15,474
 pertaining to railroad-highway grade         Pub. L. 104-88, sec. 403(a),
 crossing violations.                         109 Stat. 956 (1995) (49
                                              U.S.C. 31310(j)(2)(B)).
Appendix B (d) Financial responsibility      Pub. L. 103-272, sec.               21,000       10,000         1994      1.59089       15,909       15,909
 violations.                                  31139(f), 108 Stat. 745,
                                              1006-1008 (1994) (49 U.S.C.
                                              31139(g)(1)).
Appendix B (e)(1) Violations of Hazardous    MAP-21 Pub. L. 112-141, sec.        75,000       75,000         2012      1.02819       77,114       77,114
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837-
 Permitting Regulations (transportation or    838 (2012) (49 U.S.C.
 shipment of hazardous materials).            5123(a)(1)).
Appendix B (e)(2) Violations of Hazardous    MAP-21 Pub. L. 112-141, sec.           450          450         2012      1.02819          463          463
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837
 Permitting Regulations (training)--minimum   (2012) (49 U.S.C.
 penalty.                                     5123(a)(3)).

[[Page 41458]]

 
Appendix B (e)(2): Violations of Hazardous   MAP-21 Pub. L. 112-141, sec.        75,000       75,000         2012      1.02819       77,114       77,114
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837
 Permitting Regulations (training)--maximum   (2012) (49 U.S.C.
 penalty.                                     5123(a)(1)).
Appendix B (e)(3) Violations of Hazardous    MAP-21 Pub. L. 112-141, sec.        75,000       75,000         2012      1.02819       77,114       77,114
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837,
 Permitting Regulations (packaging or         (2012) (49 U.S.C.
 container).                                  5123(a)(1)).
Appendix B (e)(4): Violations of Hazardous   MAP-21 Pub. L. 112-141, sec.        75,000       75,000         2012      1.02819       77,114       77,114
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837
 Permitting Regulations (compliance with      (2012) (49 U.S.C.
 FMCSRs).                                     5123(a)(1)).
Appendix B (e)(5) Violations of Hazardous    MAP-21 Pub. L. 112-141, sec.       175,000      175,000         2012      1.02819      179,933      179,933
 Materials Regulations (HMRs) and Safety      33010, 126 Stat. 405, 837
 Permitting Regulations (death, serious       (2012) (49 U.S.C.
 illness, severe injury to persons;           5123(a)(2)).
 destruction of property).
Appendix B (f)(1) Operating after being      MAP-21, Pub. L. 112-141, sec.       25,000       25,000         2012      1.02819       25,705       25,705
 declared unfit by assignment of a final      32503, 126 Stat. 405, 803
 ``unsatisfactory'' safety rating             (2012) (49 U.S.C.
 (generally).                                 521(b)(2)(F)).
Appendix B (f)(2) Operating after being      MAP-21, Pub. L. 112-141, sec.       75,000       75,000         2012      1.02819       77,114       77,114
 declared unfit by assignment of a final      33010, 126 Stat. 405, 837
 ``unsatisfactory'' safety rating             (49 U.S.C. 5123(a)(1)).
 (hazardous materials)--maximum penalty.
Appendix B (f)(2): Operating after being     MAP-21, Pub. L. 112-141, sec.      175,000      175,000         2012      1.02819      179,933      179,933
 declared unfit by assignment of a final      33010, 126 Stat. 405, 837
 ``unsatisfactory'' safety rating             (2012) (49 U.S.C.
 (hazardous materials)--maximum penalty if    5123(a)(2)).
 death, serious illness, severe injury to
 persons; destruction of property.
Appendix B (g)(1) New Appendix B (g)(1):     MAP-21, Pub. L. 112-141, sec.       10,000       10,000         2012      1.02819       10,282       10,282
 Violations of the commercial regulations     32108(a), 126 Stat. 405, 782
 (CR) (property carriers).                    (2012) (49 U.S.C. 14901(a)).
Appendix B (g)(2) Violations of the CRs      MAP-21 Pub. L. 112-141, sec.        10,000       10,000         2012      1.02819       10,282       10,282
 (brokers).                                   32919(a), 126 Stat. 405, 827
                                              (2012) (49 U.S.C. 14916(c)).
Appendix B (g)(3) Violations of the CRs      MAP-21, Pub. L. 112-141, sec.       25,000       25,000         2012      1.02819       25,705       25,705
 (passenger carriers).                        32108(a), 126 Stat. 405, 782
                                              (2012) (49 U.S.C. 14901(a)).

[[Page 41459]]

 
Appendix B (g)(4) Violations of the CRs      MAP-21, Pub. L. 112-141, sec.       10,000       10,000         2012      1.02819       10,282       10,282
 (foreign motor carriers, foreign motor       32108(a), 126 Stat. 405, 782
 private carriers).                           (2012) (49 U.S.C. 14901(a)).
Appendix B (g)(5) Violations of the CRs      MCSIA of 1999, Pub. L. 106-         16,000       10,000         1999      1.41402       14,140       14,140
 (foreign motor carriers, foreign motor       59, sec. 219(b), 113 Stat.
 private carriers before implementation of    1748, 1768 (1999) (49 U.S.C.
 North American Free Trade Agreement land     14901 note).
 transportation provisions)--maximum
 penalty for intentional violation.
Appendix B (g)(5) Violations of the CRs      MCSIA of 1999, Pub. L. 106-         37,500       25,000         1999      1.41402       35,351       35,351
 (foreign motor carriers, foreign motor       59, sec. 219(c), 113 Stat.
 private carriers before implementation of    1748, 1768 (1999) (49 U.S.C.
 North American Free Trade Agreement land     14901 note).
 transportation provisions)--maximum
 penalty for a pattern of intentional
 violations.
Appendix B (g)(6) Violations of the CRs      MAP-21, Pub. L. 112-141, sec.       20,000       20,000         2012      1.02819       20,564       20,564
 (motor carrier or broker for                 32108, 126 Stat. 405, 782
 transportation of hazardous wastes)--        (2012) (49 U.S.C. 14901(b)).
 minimum penalty.
Appendix B (g)(6) Violations of the CRs      MAP-21 Pub. L. 112-141, sec.        40,000       40,000         2012      1.02819       41,128       41,128
 (motor carrier or broker for                 32108, 126 Stat. 405,782
 transportation of hazardous wastes)--        (2012) (49 U.S.C. 14901(b)).
 maximum penalty.
Appendix B (g)(7): Violations of the CRs     ICC Termination Act of 1995,         1,100        1,000         1995      1.54742        1,547        1,547
 (HHG carrier or freight forwarder, or        Pub. L. 104-88, sec. 103,
 their receiver or trustee).                  100 Stat. 803, 914 (1995)
                                              (49 U.S.C. 14901(d)(1)).
Appendix B (g)(8) Violation of the CRs       ICC Termination Act of 1995,         3,200        2,000         1995      1.54742        3,095        3,095
 (weight of HHG shipment, charging for        Pub. L. 104-88, sec. 103,
 services)--minimum penalty for first         100 Stat. 803, 914 (1995)
 violation.                                   (49 U.S.C. 14901(e)).
Appendix B (g)(8) Violation of the CRs       ICC Termination Act of 1995,         7,500        5,000         1995      1.54742        7,737        7,737
 (weight of HHG shipment, charging for        Pub. L. 104-88, sec. 103,
 services).                                   100 Stat. 803, 914 (1995)
                                              (49 U.S.C. 14901(e)).
Appendix B (g)(10) Tariff violations.......  ICC Termination Act of 1995,       140,000      100,000         1995      1.54742      154,742      154,742
                                              Pub. L. 104-88, sec. 103,
                                              100 Stat. 803, 868-869, 915
                                              (1995) (49 U.S.C. 13702,
                                              14903).
Appendix B (g)(11) Additional tariff         ICC Termination Act of 1995,           320          200         1995      1.54742          309          309
 violations (rebates or concessions)--first   Pub. L. 104-88, sec. 103,
 violation.                                   100 Stat. 803, 915-916
                                              (1995) (49 U.S.C. 14904(a)).

[[Page 41460]]

 
Appendix B (g)(11) Additional tariff         ICC Termination Act of 1995,           375          250         1995      1.54742          387          387
 violations (rebates or concessions)--        Pub. L. 104-88, sec. 103,
 subsequent violations.                       100 Stat. 803, 915-916
                                              (1995) (49 U.S.C. 14904(a)).
Appendix B (g)(12): Tariff violations        ICC Termination Act of 1995,           750          500         1995      1.54742          774          774
 (freight forwarders)--maximum penalty for    Pub. L. 104-88, sec. 103,
 first violation.                             100 Stat. 803, 916 (49
                                              U.S.C. 14904(b)(1)).
Appendix B (g)(12): Tariff violations        ICC Termination Act of 1995,         3,200        2,000         1995      1.54742        3,095        3,095
 (freight forwarders)--maximum penalty for    Pub. L. 104-88, sec. 103,
 subsequent violations.                       100 Stat. 803, 916 (1995)
                                              (49 U.S.C. 14904(b)(1)).
Appendix B (g)(13): Service from freight     ICC Termination Act of 1995,           750          500         1995      1.54742          774          774
 forwarder at less than rate in effect--      Pub. L. 104-88, sec. 103,
 maximum penalty for first violation.         100 Stat. 803, 916 (1995)
                                              (49 U.S.C. 14904(b)(2)).
Appendix B (g)(13): Service from freight     ICC Termination Act of 1995,         3,200        2,000         1995      1.54742        3,095        3,095
 forwarder at less than rate in effect--      Pub. L. 104-88, sec. 103,
 maximum penalty for subsequent               100 Stat. 803, 916 (1995)
 violation(s).                                (49 U.S.C. 14904(b)(2)).
Appendix B (g)(14): Violations related to    ICC Termination Act of 1995,        16,000       10,000         1995      1.54742       15,474       15,474
 loading and unloading motor vehicles.        Pub. L. 104-88, sec. 103,
                                              100 Stat. 803, 916 (1995)
                                              (49 U.S.C. 14905).
Appendix B (g)(16): Reporting and            MAP-21, Pub. L. 112-141, sec.        1,000        1,000         2012      1.02819        1,028        1,028
 recordkeeping under 49 U.S.C. subtitle IV,   32108, 126 Stat. 405, 782
 part B (except 13901 and 13902(c))--         (2012) (49 U.S.C. 14901).
 minimum penalty.
Appendix B (g)(16): Reporting and            ICC Termination Act of 1995,         7,500        5,000         1995      1.54742        7,737        7,737
 recordkeeping under 49 U.S.C. subtitle IV,   Pub. L. 104-88, sec. 103,
 part B--maximum penalty.                     100 Stat. 803, 916-917
                                              (1995) (49 U.S.C. 14907).
Appendix B (g)(17): Unauthorized disclosure  ICC Termination Act of 1995,         3,200        2,000         1995      1.54742        3,095        3,095
 of information.                              Pub. L. 104-88, sec. 103,
                                              100 Stat. 803, 917 (1995)
                                              (49 U.S.C. 14908).
Appendix B (g)(18): Violation of 49 U.S.C.   ICC Termination Act of 1995,           750          500         1995      1.54742          774          774
 subtitle IV, part B, or condition of         Pub. L. 104-88, sec. 103,
 registration.                                100 Stat. 803, 917 (1995)
                                              (49 U.S.C. 14910).
Appendix B (g)(21)(i): Knowingly and         ICC Termination Act of 1995,        11,000       10,000         1995      1.54742       15,474       15,474
 willfully fails to deliver or unload HHG     Pub. L. 104-88, sec. 103,
 at destination.                              100 Stat. 803, 916 (1995)
                                              (49 U.S.C. 14905).
Appendix B (g)(22): HHG broker estimate      SAFETEA-LU, Pub. L. 109-59,         10,900       10,000         2005      1.19397       11,940       11,940
 before entering into an agreement with a     sec. 4209(2), 119 Stat.
 motor carrier.                               1144, 1758, (2005) (49
                                              U.S.C. 14901(d)(2)).

[[Page 41461]]

 
Appendix B (g)(23): HHG transportation or    SAFETEA-LU, Pub. L. 109-59,         27,250       25,000         2005      1.19397       29,849       29,849
 broker services--registration requirement.   sec. 4209(d)(3), 119 Stat.
                                              1144, 1758 (2005) (49 U.S.C.
                                              14901(d)(3)).
Appendix B (h): Copying of records and       SAFETEA-LU, Pub. L. 109-59,          1,100        1,000         2005      1.19397        1,194        1,194
 access to equipment, lands, and buildings--  sec. 4103(2), 119 Stat.
 maximum penalty per day.                     1144, 1716 (2005) (49 U.S.C.
                                              521(b)(2)(E)).
Appendix B (h): Copying of records and       SAFETEA-LU, Pub. L. 109-59,         11,000       10,000         2005      1.19397       11,940       11,940
 access to equipment, lands, and buildings--  sec. 4103(2), 119 Stat. 1716
 maximum total penalty.                       (2005) (49 U.S.C.
                                              521(b)(2)(E)).
Appendix B (i)(1): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         2,000        2,000         2012      1.02819        2,056        2,056
 under 49 U.S.C. ch. 5, 51, subchapter III    32505, 126 Stat. 405, 804
 of 311 (except 31138 and 31139), 31302-      (2012) (49 U.S.C. 524).
 31304, 31305(b), 31310(g)(1)(A), 31502--
 minimum penalty for first violation.
Appendix B (i)(1): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         5,000        5,000         2012      1.02819        5,141        5,141
 under 49 U.S.C. ch. 5, 51, subchapter III    32505, 126 Stat. 405, 804
 of 311 (except 31138 and 31139), 31302-      (2012) (49 U.S.C. 524).
 31304, 31305(b), 31310(g)(1)(A), 31502--
 maximum penalty for first violation.
Appendix B (i)(1): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         2,500        2,500         2012      1.02819        2,570        2,570
 under 49 U.S.C. ch. 5, 51, subchapter III    32505, 126 Stat. 405, 804
 of 311 (except 31138 and 31139), 31302-      (2012) (49 U.S.C. 524). MAP-
 31304, 31305(b), 31310(g)(1)(A), 31502--     21 Pub. L. 112-141, sec.
 minimum penalty for subsequent               32505, 126 Stat. 405, 804
 violation(s).                                (2012) (49 U.S.C. 524).
Appendix B (i)(1): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         7,500        7,500         2012      1.02819        7,711        7,711
 under 49 U.S.C. ch. 5, 51, subchapter III    32505, 126 Stat. 405, 804
 of 311 (except 31138 and 31139), 31302-      (2012) (49 U.S.C. 524).
 31304, 31305(b), 31310(g)(1)(A), 31502--
 maximum penalty for subsequent
 violation(s).
Appendix B (i)(2): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         2,000        2,000         2012      1.02819        2,056        2,056
 under 49 U.S.C. subtitle IV, part B--        32505, 126 Stat. 405, 804
 minimum penalty for first violation.         (2012) (49 U.S.C. 14906).
Appendix B (i)(2): Evasion of regulations    MAP-21 Pub. L. 112-141, sec.         5,000        5,000         2012      1.02819        5,141        5,141
 under 49 U.S.C. subtitle IV, part B--        32505, 126 Stat. 405, 804
 minimum penalty for subsequent               (2012) (49 U.S.C. 14906).
 violation(s).
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 41462]]

V. Section-By-Section Analysis

    FMCSA updates the civil penalties in Appendices A and B of Part 386 
as outlined in Table 1 above and makes minor editorial changes.

VI. Rulemaking Analysis and Notices

A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory 
Policies and Procedures as Supplemented by E.O. 13563)

    This IFR is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also 
not significant within the meaning of DOT regulatory policies and 
procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 
26, 1979) and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that Order. Historically, the Agency 
has never assessed civil penalties that approach $100 million in any 
given year.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), 
FMCSA is not required to complete a regulatory flexibility analysis, 
because, as discussed earlier in the legal basis section, this action 
is not subject to prior notice and comment under section 553(b) of the 
Administrative Procedure Act.

C. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this interim final rule so that they can better 
evaluate its effects on themselves and participate in the rulemaking 
initiative. If the interim final rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance please consult the 
FMCSA point of contact, Ms. LaTonya Mimms, listed in the FOR FURTHER 
INFORMATION CONTACT section of this interim final rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $155 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2014 levels) or more in any one year. This interim final rule will not 
result in such an expenditure.

E. Paperwork Reduction Act

    This interim final rule calls for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. Federalism (E.O. 13132)

    A rule has implications for Federalism under Section 1(a) of 
Executive Order 13132 if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' FMCSA has determined that this rule 
would not have substantial direct costs on or for States, nor would it 
limit the policymaking discretion of States. Nothing in this document 
preempts any State law or regulation. Therefore, this interim final 
rule does not have federalism implications.

G. Civil Justice Reform (E.O. 12988)

    This interim final rule meets applicable standards in sections 3(a) 
and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

H. Protection of Children (E.O. 13045)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules to include an evaluation of 
the regulation's environmental health and safety effects on children if 
an agency has reason to believe the rule may disproportionately affect 
children. The Agency determined that this interim final rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, this regulatory action could not 
pose an environmental or safety risk to children.

I. Taking of Private Property (E.O. 12630)

    FMCSA reviewed this interim final rule in accordance with E.O. 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights, and has determined it will not effect a 
taking of private property or otherwise have taking implications.

J. Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. This rule does not require the 
collection of personally identifiable information (PII).
    The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 
2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA 
for new or substantially changed technology that collects, maintains, 
or disseminates information in an identifiable form. No new or 
substantially changed technology would collect, maintain, or 
disseminate information as a result of this rule. Accordingly, FMCSA 
has not conducted a privacy impact assessment.

K. Intergovernmental Review (E.O. 12372)

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

L. Energy Supply, Distribution, or Use (E.O. 13211)

    FMCSA analyzed this rule under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. The Agency has determined that it is not a ``significant energy 
action'' under that order because it is not a ``significant regulatory 
action'' likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, it does not require a 
Statement of Energy Effects under E.O. 13211.

M. Indian Tribal Governments (E.O. 13175)

    This rule does not have tribal implications under E.O. 13175,

[[Page 41463]]

Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

N. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

O. Environmental Review (National Environmental Policy Act, Clean Air 
Act, Environmental Justice)

    FMCSA analyzed this rule in accordance with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and 
FMCSA's NEPA Implementing Procedures and Policy for Considering 
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to 
withhold or condition an action if the action is taken in accordance 
with specific statutory criteria and FMCSA lacks control and 
responsibility over the effects of an action, that action is not 
subject to this Order.'' Id. at chapter 1.D. Because Congress specifies 
the Agency's precise action here, thus leaving the Agency no discretion 
over such action, and since the Agency lacks jurisdiction and therefore 
control and responsibility over the effects of this action, this 
rulemaking falls under chapter 1.D. Therefore, no further analysis is 
considered.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it does not affect direct or indirect emissions of 
criteria pollutants.
    Under E.O. 12898 (Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations), each Federal agency 
must identify and address, as appropriate, ``disproportionately high 
and adverse human health or environmental effects of its programs, 
policies, and activities on minority populations and low-income 
populations'' in the United States, its possessions, and territories. 
FMCSA has determined that this interim final rule would have no 
environmental justice effects, nor would its promulgation have any 
collective environmental impact.

List of Subjects in 49 CFR Part 386

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

    For the reasons stated in the preamble, FMCSA is amending 49 CFR 
part 386 as follows:

PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS

0
1. The authority citation for part 386 is revised to read as follows:

    Authority:  49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 
311, 313, and 315; 49 U.S.C. 5123; 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; Sec. 206, Pub. L. 106-159, 113 Stat. 1763; 
subtitle B, title IV of Pub. L. 109-59; Sec. 701 of Pub. L. 114-74, 
129 Stat. 584, 599; and 49 CFR 1.81 and 1.87.


0
2. Amend Appendix A to part 386 by revising the introductory text and 
sections II, IV.a through e., and IV.g. through j. to read as follows:

Appendix A to Part 386--Penalty Schedule: Violations of Notices and 
Orders

    The Civil Penalties Inflation Adjustment Act Improvements Act of 
2015 [Public Law 114-74, sec. 701, 129 Stat. 584, 599] amended the 
Federal Civil Penalties Inflation Adjustment Act of 1990 to require 
agencies to adjust civil penalties for inflation. Pursuant to that 
authority, the inflation adjusted civil penalties identified in this 
appendix supersede the corresponding civil penalty amounts 
identified in title 49, United States Code.
* * * * *

II. Subpoena

    Violation--Failure to respond to Agency subpoena to appear and 
testify or produce records.
    Penalty--minimum of $1,028 but not more than $10,282 per 
violation.
* * * * *

IV. Out-of-Service Order

    a. Violation--Operation of a commercial vehicle by a driver 
during the period the driver was placed out of service.
    Penalty--Up to $1,782 per violation.
    (For purposes of this violation, the term ``driver'' means an 
operator of a commercial motor vehicle, including an independent 
contractor who, while in the course of operating a commercial motor 
vehicle, is employed or used by another person.)
    b. Violation--Requiring or permitting a driver to operate a 
commercial vehicle during the period the driver was placed out of 
service.
    Penalty--Up to $17,816 per violation.
    (This violation applies to motor carriers including an 
independent contractor who is not a ``driver,'' as defined under 
paragraph IV(a) above.)
    c. Violation--Operation of a commercial motor vehicle or 
intermodal equipment by a driver after the vehicle or intermodal 
equipment was placed out-of-service and before the required repairs 
are made.
    Penalty--$1,782 each time the vehicle or intermodal equipment is 
so operated.
    (This violation applies to drivers as defined in IV(a) above.)
    d. Violation--Requiring or permitting the operation of a 
commercial motor vehicle or intermodal equipment placed out-of-
service before the required repairs are made.
    Penalty--Up to $17,816 each time the vehicle or intermodal 
equipment is so operated after notice of the defect is received.
    (This violation applies to intermodal equipment providers and 
motor carriers, including an independent owner operator who is not a 
``driver,'' as defined in IV(a) above.)
    e. Violation--Failure to return written certification of 
correction as required by the out-of-service order.
    Penalty--Up to $891 per violation.
* * * * *
    g. Violation--Operating in violation of an order issued under 
Sec.  386.72(b) to cease all or part of the employer's commercial 
motor vehicle operations or to cease part of an intermodal equipment 
provider's operations, i.e., failure to cease operations as ordered.
    Penalty--Up to $25,705 per day the operation continues after the 
effective date and time of the order to cease.
    h. Violation--Operating in violation of an order issued under 
Sec.  386.73.
    Penalty--Up to $22,587 per day the operation continues after the 
effective date and time of the out-of-service order.
    i. Violation--Conducting operations during a period of 
suspension under Sec.  386.83 or Sec.  386.84 for failure to pay 
penalties.
    Penalty--Up to $14,502 for each day that operations are 
conducted during the suspension or revocation period.
    j. Violation--Conducting operations during a period of 
suspension or revocation under Sec. Sec.  385.911, 385.913, 385.1009 
or 385.1011.
    Penalty--Up to $22,587 for each day that operations are 
conducted during the suspension or revocation period.


0
3. Amend Appendix B to part 386 by revising the introductory text and 
paragraphs (a)(1) through (5), (b), (c),

[[Page 41464]]

(d), (e), (f), (g) introductory text, (g)(1) through (8), (g)(10) 
through (18), (g)(21)(i), (g)(22) and (23), (h), and (i) to read as 
follows:

Appendix B to Part 386--Penalty Schedule: Violations and Monetary 
Penalties

    The Civil Penalties Inflation Adjustment Act Improvements Act of 
2015 [Public Law 114-74, sec. 701, 129 Stat. 584, 599] amended the 
Federal Civil Penalties Inflation Adjustment Act of 1990 to require 
agencies to adjust civil penalties for inflation. Pursuant to that 
authority, the inflation adjusted civil penalties identified in this 
appendix supersede the corresponding civil penalty amounts 
identified in title 49, United States Code.
    What are the types of violations and maximum monetary penalties?
    (a) Violations of the Federal Motor Carrier Safety Regulations 
(FMCSRs):
    (1) Recordkeeping. A person or entity that fails to prepare or 
maintain a record required by parts 40, 382, 385, and 390-99 of this 
subchapter, or prepares or maintains a required record that is 
incomplete, inaccurate, or false, is subject to a maximum civil 
penalty of $1,194 for each day the violation continues, up to 
$11,940.
    (2) Knowing falsification of records. A person or entity that 
knowingly falsifies, destroys, mutilates, or changes a report or 
record required by parts 382, 385, and 390-99 of this subchapter, 
knowingly makes or causes to be made a false or incomplete record 
about an operation or business fact or transaction, or knowingly 
makes, prepares, or preserves a record in violation of a regulation 
order of the Secretary is subject to a maximum civil penalty of 
$11,940 if such action misrepresents a fact that constitutes a 
violation other than a reporting or recordkeeping violation.
    (3) Non-recordkeeping violations. A person or entity that 
violates parts 382, 385, or 390-99 of this subchapter, except a 
recordkeeping requirement, is subject to a civil penalty not to 
exceed $14,502 for each violation.
    (4) Non-recordkeeping violations by drivers. A driver who 
violates parts 382, 385, and 390-99 of this subchapter, except a 
recordkeeping violation, is subject to a civil penalty not to exceed 
$3,626.
    (5) Violation of 49 CFR 392.5. A driver placed out of service 
for 24 hours for violating the alcohol prohibitions of 49 CFR 
392.5(a) or (b) who drives during that period is subject to a civil 
penalty not to exceed $2,985 for a first conviction and not less 
than $5,970 for a second or subsequent conviction.
* * * * *
    (b) Commercial driver's license (CDL) violations. Any person who 
violates 49 CFR part 383, subparts B, C, E, F, G, or H is subject to 
a civil penalty not to exceed $5,391; except:
    (1) A CDL-holder who is convicted of violating an out-of-service 
order shall be subject to a civil penalty of not less than $2,985 
for a first conviction and not less than $5,970 for a second or 
subsequent conviction;
    (2) An employer of a CDL-holder who knowingly allows, requires, 
permits, or authorizes an employee to operate a CMV during any 
period in which the CDL-holder is subject to an out-of-service 
order, is subject to a civil penalty of not less than $5,391 or more 
than $29,849; and
    (3) An employer of a CDL-holder who knowingly allows, requires, 
permits, or authorizes that CDL-holder to operate a CMV in violation 
of a Federal, State, or local law or regulation pertaining to 
railroad-highway grade crossings is subject to a civil penalty of 
not more than $15,474.
    (c) [Reserved]
    (d) Financial responsibility violations. A motor carrier that 
fails to maintain the levels of financial responsibility prescribed 
by part 387 of this subchapter or any person (except an employee who 
acts without knowledge) who knowingly violates the rules of part 387 
subparts A and B is subject to a maximum penalty of $15,909. Each 
day of a continuing violation constitutes a separate offense.
    (e) Violations of the Hazardous Materials Regulations (HMRs) and 
Safety Permitting Regulations found in Subpart E of Part 385. This 
paragraph applies to violations by motor carriers, drivers, shippers 
and other persons who transport hazardous materials on the highway 
in commercial motor vehicles or cause hazardous materials to be so 
transported.
    (1) All knowing violations of 49 U.S.C. chapter 51 or orders or 
regulations issued under the authority of that chapter applicable to 
the transportation or shipment of hazardous materials by commercial 
motor vehicle on the highways are subject to a civil penalty of not 
more than $77,114 for each violation. Each day of a continuing 
violation constitutes a separate offense.
    (2) All knowing violations of 49 U.S.C. chapter 51 or orders or 
regulations issued under the authority of that chapter applicable to 
training related to the transportation or shipment of hazardous 
materials by commercial motor vehicle on highways are subject to a 
civil penalty of not less than $463 and not more than $77,114 for 
each violation.
    (3) All knowing violations of 49 U.S.C. chapter 51 or orders, 
regulations or exemptions under the authority of that chapter 
applicable to the manufacture, fabrication, marking, maintenance, 
reconditioning, repair, or testing of a packaging or container that 
is represented, marked, certified, or sold as being qualified for 
use in the transportation or shipment of hazardous materials by 
commercial motor vehicle on highways are subject to a civil penalty 
of not more than $77,114 for each violation.
    (4) Whenever regulations issued under the authority of 49 U.S.C. 
chapter 51 require compliance with the FMCSRs while transporting 
hazardous materials, any violations of the FMCSRs will be considered 
a violation of the HMRs and subject to a civil penalty of not more 
than $77,114.
    (5) If any violation subject to the civil penalties set out in 
paragraphs (e)(1) through (4) of this appendix results in death, 
serious illness, or severe injury to any person or in substantial 
destruction of property, the civil penalty may be increased to not 
more than $179,933 for each offense.
    (f) Operating after being declared unfit by assignment of a 
final ``unsatisfactory'' safety rating. (1) A motor carrier 
operating a commercial motor vehicle in interstate commerce (except 
owners or operators of commercial motor vehicles designed or used to 
transport hazardous materials for which placarding of a motor 
vehicle is required under regulations prescribed under 49 U.S.C. 
chapter 51) is subject, after being placed out of service because of 
receiving a final ``unsatisfactory'' safety rating, to a civil 
penalty of not more than $25,705 (49 CFR 385.13). Each day the 
transportation continues in violation of a final ``unsatisfactory'' 
safety rating constitutes a separate offense.
    (2) A motor carrier operating a commercial motor vehicle 
designed or used to transport hazardous materials for which 
placarding of a motor vehicle is required under regulations 
prescribed under 49 U.S.C. chapter 51 is subject, after being placed 
out of service because of receiving a final ``unsatisfactory'' 
safety rating, to a civil penalty of not more than $77,114 for each 
offense. If the violation results in death, serious illness, or 
severe injury to any person or in substantial destruction of 
property, the civil penalty may be increased to not more than 
$179,933 for each offense. Each day the transportation continues in 
violation of a final ``unsatisfactory'' safety rating constitutes a 
separate offense.
    (g) Violations of the commercial regulations (CRs). Penalties 
for violations of the CRs are specified in 49 U.S.C. chapter 149. 
These penalties relate to transportation subject to the Secretary's 
jurisdiction under 49 U.S.C. chapter 135. Unless otherwise noted, a 
separate violation occurs for each day the violation continues.
    (1) A person who operates as a motor carrier for the 
transportation of property in violation of the registration 
requirements of 49 U.S.C. 13901 is liable for a minimum penalty of 
$10,282 per violation.
    (2) A person who knowingly operates as a broker in violation of 
registration requirements of 49 U.S.C. 13904 or financial security 
requirements of 49 U.S.C. 13906 is liable for a penalty not to 
exceed $10,282 for each violation.
    (3) A person who operates as a motor carrier of passengers in 
violation of the registration requirements of 49 U.S.C. 13901 is 
liable for a minimum penalty of $25,705 per violation.
    (4) A person who operates as a foreign motor carrier or foreign 
motor private carrier of property in violation of the provisions of 
49 U.S.C. 13902(c) is liable for a minimum penalty of $10,282 per 
violation.
    (5) A person who operates as a foreign motor carrier or foreign 
motor private carrier without authority, before the implementation 
of the land transportation provisions of the North American Free 
Trade Agreement, outside the boundaries of a commercial zone along 
the United States-Mexico border, is liable for a maximum penalty of 
$14,140 for an intentional violation and a maximum penalty of 
$35,351 for a pattern of intentional violations.
    (6) A person who operates as a motor carrier or broker for the 
transportation of hazardous wastes in violation of the registration 
provisions of 49 U.S.C. 13901 is

[[Page 41465]]

liable for a minimum penalty of $20,564 and a maximum penalty of 
$41,128 per violation.
    (7) A motor carrier or freight forwarder of household goods, or 
their receiver or trustee, that does not comply with any regulation 
relating to the protection of individual shippers, is liable for a 
minimum penalty of $1,547 per violation.
    (8) A person--
    (i) Who falsifies, or authorizes an agent or other person to 
falsify, documents used in the transportation of household goods by 
motor carrier or freight forwarder to evidence the weight of a 
shipment or
    (ii) Who charges for services which are not performed or are not 
reasonably necessary in the safe and adequate movement of the 
shipment is liable for a minimum penalty of $3,095 for the first 
violation and $7,737 for each subsequent violation.
* * * * *
    (10) A person who offers, gives, solicits, or receives 
transportation of property by a carrier at a different rate than the 
rate in effect under 49 U.S.C. 13702 is liable for a maximum penalty 
of $154,742 per violation. When acting in the scope of his/her 
employment, the acts or omissions of a person acting for or employed 
by a carrier or shipper are considered to be the acts or omissions 
of that carrier or shipper, as well as that person.
    (11) Any person who offers, gives, solicits, or receives a 
rebate or concession related to motor carrier transportation subject 
to jurisdiction under subchapter I of 49 U.S.C. chapter 135, or who 
assists or permits another person to get that transportation at less 
than the rate in effect under 49 U.S.C. 13702, commits a violation 
for which the penalty is $309 for the first violation and $387 for 
each subsequent violation.
    (12) A freight forwarder, its officer, agent, or employee, that 
assists or willingly permits a person to get service under 49 U.S.C. 
13531 at less than the rate in effect under 49 U.S.C. 13702 commits 
a violation for which the penalty is up to $774 for the first 
violation and up to $3,095 for each subsequent violation.
    (13) A person who gets or attempts to get service from a freight 
forwarder under 49 U.S.C. 13531 at less than the rate in effect 
under 49 U.S.C. 13702 commits a violation for which the penalty is 
up to $774 for the first violation and up to $3,095 for each 
subsequent violation.
    (14) A person who knowingly authorizes, consents to, or permits 
a violation of 49 U.S.C. 14103 relating to loading and unloading 
motor vehicles or who knowingly violates subsection (a) of 49 U.S.C. 
14103 is liable for a penalty of not more than $15,474 per 
violation.
    (15) [Reserved]
    (16) A person required to make a report to the Secretary, answer 
a question, or make, prepare, or preserve a record under part B of 
subtitle IV, title 49, U.S.C., or an officer, agent, or employee of 
that person, is liable for a minimum penalty of $1,028 and for a 
maximum penalty of $7,737 per violation if it does not make the 
report, does not completely and truthfully answer the question 
within 30 days from the date the Secretary requires the answer, does 
not make or preserve the record in the form and manner prescribed, 
falsifies, destroys, or changes the report or record, files a false 
report or record, makes a false or incomplete entry in the record 
about a business-related fact, or prepares or preserves a record in 
violation of a regulation or order of the Secretary.
    (17) A motor carrier, water carrier, freight forwarder, or 
broker, or their officer, receiver, trustee, lessee, employee, or 
other person authorized to receive information from them, who 
discloses information identified in 49 U.S.C. 14908 without the 
permission of the shipper or consignee is liable for a maximum 
penalty of $3,095.
    (18) A person who violates a provision of part B, subtitle IV, 
title 49, U.S.C., or a regulation or order under Part B, or who 
violates a condition of registration related to transportation that 
is subject to jurisdiction under subchapter I or III of chapter 135, 
or who violates a condition of registration of a foreign motor 
carrier or foreign motor private carrier under section 13902, is 
liable for a penalty of $774 for each violation if another penalty 
is not provided in 49 U.S.C. chapter 149.
* * * * *
    (21) * * *
    (i) Who knowingly and willfully fails, in violation of a 
contract, to deliver to, or unload at, the destination of a shipment 
of household goods in interstate commerce for which charges have 
been estimated by the motor carrier transporting such goods, and for 
which the shipper has tendered a payment in accordance with part 
375, subpart G of this chapter, is liable for a civil penalty of not 
less than $15,474 for each violation. Each day of a continuing 
violation constitutes a separate offense.
* * * * *
    (22) A broker for transportation of household goods who makes an 
estimate of the cost of transporting any such goods before entering 
into an agreement with a motor carrier to provide transportation of 
household goods subject to FMCSA jurisdiction is liable to the 
United States for a civil penalty of not less than $11,940 for each 
violation.
    (23) A person who provides transportation of household goods 
subject to jurisdiction under 49 U.S.C. chapter 135, subchapter I, 
or provides broker services for such transportation, without being 
registered under 49 U.S.C. chapter 139 to provide such 
transportation or services as a motor carrier or broker, as the case 
may be, is liable to the United States for a civil penalty of not 
less than $29,849 for each violation.
    (h) Copying of records and access to equipment, lands, and 
buildings. A person subject to 49 U.S.C. chapter 51 or a motor 
carrier, broker, freight forwarder, or owner or operator of a 
commercial motor vehicle subject to part B of subtitle VI of title 
49 U.S.C. who fails to allow promptly, upon demand in person or in 
writing, the Federal Motor Carrier Safety Administration, an 
employee designated by the Federal Motor Carrier Safety 
Administration, or an employee of a MCSAP grant recipient to inspect 
and copy any record or inspect and examine equipment, lands, 
buildings, and other property, in accordance with 49 U.S.C. 504(c), 
5121(c), and 14122(b), is subject to a civil penalty of not more 
than $1,194 for each offense. Each day of a continuing violation 
constitutes a separate offense, except that the total of all civil 
penalties against any violator for all offenses related to a single 
violation shall not exceed $11,940.
    (i) Evasion. A person, or an officer, employee, or agent of that 
person:
    (1) Who by any means tries to evade regulation of motor carriers 
under title 49, United States Code, chapter 5, chapter 51, 
subchapter III of chapter 311 (except sections 31138 and 31139) or 
sections 31302, 31303, 31304, 31305(b), 31310(g)(1)(A), or 31502, or 
a regulation issued under any of those provisions, shall be fined at 
least $2,056 but not more than $5,141 for the first violation and at 
least $2,570 but not more than $7,711 for a subsequent violation.
    (2) Who tries to evade regulation under part B of subtitle IV, 
title 49, U.S.C., for carriers or brokers is liable for a penalty of 
at least $2,056 for the first violation or at least $5,141 for a 
subsequent violation.

    Issued under the authority of delegation in 49 CFR 1.87 on: June 
17, 2016.
T.F. Scott Darling III,
Acting Administrator.
[FR Doc. 2016-14973 Filed 6-24-16; 8:45 am]
BILLING CODE 4910-EX-P

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