Civil Penalties Inflation Adjustments |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
April 3, 2015
[Federal Register Volume 80, Number 64 (Friday, April 3, 2015)]
[Rules and Regulations]
[Pages 18146-18158]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07701]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383, 385, 386 and 387
[Docket Number: FMCSA-2014-0261]
RIN 2126-AB75
Civil Penalties Inflation Adjustments
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA specifies inflation adjustments to civil penalty
amounts assessed to those who violate the Federal Motor Carrier Safety
Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs). Some
of these adjustments are required by the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Adjustment Act), as amended by the
Debt Collection Improvement Act of 1996 (DCIA). Most of the civil
penalties were last adjusted for inflation in 2007, and some have not
been changed since 2003. Other changes to the civil penalties were
mandated by Congress in the Moving Ahead for Progress in the 21st
Century Act (MAP-21). This final rule ensures that FMCSA's civil
penalties are consistent with the applicable statutes.
DATES: Effective June 2, 2015.
FOR FURTHER INFORMATION CONTACT: Ms. Nikki McDavid, Enforcement
Division, by email at nikki.mcdavid@dot.gov or phone at 202-366-0831.
Office hours are from 8:00 a.m. to 4:30 p.m. Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
The Supplementary Information section of this rule is organized as
follows.
Table of Contents
I. Executive Summary
A. Purpose and Summary of Major Provisions
B. Benefits and Costs
II. Legal Basis for the Rulemaking
A. MAP-21
B. The Debt Collection Improvement Act of 1996
C. SAFETEA-LU
D. Other Authorities
III. Background
A. Method of Calculation
IV. Section-by-Section Analysis
V. Rulemaking Analyses and Notices
I. Executive Summary
A. Purpose and Summary of the Major Provisions
This final rule adjusts the amount of FMCSA's civil penalties to
account for inflation as directed by the Adjustment Act, as amended by
the DCIA. The specific inflation adjustment methodology is described
below. This final rule also eliminates existing inconsistencies between
regulatory language in Appendices A and B of 49 U.S.C. part 386 and
other parts of the FMCSRs by removing the penalty amounts from the
regulatory language and listing all penalty amounts in these appendices
only. Finally, this rulemaking addresses changes to the hazardous
material civil penalties violations which were mandated by MAP-21.
B. Benefits and Costs
The changes imposed by this final rule upon the civil penalty
amounts alter only the magnitude of transfer payments; transfer
payments by definition are not considered in the monetization of
societal costs and benefits of rulemakings. Congress has stated in the
Adjustment Act, section 2, that increasing penalties over time will
deter violations. Therefore, with this deterrence, FMCSA infers that
there may be some safety benefits that occur due to this final rule.
The deterrence effect of increasing penalties, which Congress has
recognized, cannot be
[[Page 18147]]
reliably quantified into safety benefits, however.
II. Legal Basis for the Rulemaking
This rulemaking is based primarily on three statutes.
A. The Debt Collection Improvement Act of 1996
To preserve the remedial effect of civil penalties and foster
compliance with applicable regulations, the Adjustment Act (Pub. L.
101-410, 104 Stat. 890, October 5, 1990), as amended by the DCIA, (Pub.
L. 104-134, April 26, 1996, 110 Stat. 1321-1373; 28 U.S.C. 2461),
requires Federal agencies to regularly adjust certain civil penalties
for inflation. The statute requires each agency to make an initial
inflationary adjustment for all applicable civil penalties and to make
further adjustments to these penalty amounts. The detailed methodology
required by statute is discussed in the Background section below.
B. MAP-21
This rule's authority is partly based on MAP-21 (Pub. L. 112-141,
126 Stat. 405, July 6, 2012). Specifically, the authority comes from
Title III of MAP-21, the Hazardous Materials Transportation Safety
Improvement Act of 2012, including section 33010, which amended 49
U.S.C. 5123, a civil penalty provision, effective on October 1, 2012.
Previously, 49 U.S.C. 5123 provided for penalties of not less than
$250 and not more than $50,000 for violations of regulations related to
the transportation of hazardous materials, and not less than $450 and
not more than $50,000 for violations of regulations related to
hazardous materials training. For violations that resulted in death,
serious illness, or severe injury to any person or substantial
destruction of property, section 5123 provided for penalties up to
$100,000. MAP-21 amended section 5123 to remove the minimum penalty for
violations related to the transportation of hazardous materials,
provide for penalties up to $75,000 for violations related to the
transportation of hazardous materials or training, and $175,000 in the
event of death, serious illness, severe injury or substantial
destruction of property. To implement these changes, this final rule
amends 49 CFR part 386, Appendix B (e)(1-5).
Other MAP-21 provisions that are the basis for changes to
additional civil penalties in this final rule include: Section 32108,
Reporting and recordkeeping related to operating authority registration
(49 U.S.C. 14901(a)); section 32108, Passenger carrier operating
without registration (49 U.S.C. 14901(a)); section 32108, Property
carrier operating without registration (49 U.S.C. 14901(a)); section
32108, a motor carrier or broker transporting hazardous waste without
registration (49 U.S.C. 14901(b)); section 32110, Disobedience to a
subpoena (49 U.S.C. 525); section 32503, Operating in violation of an
unsatisfactory/unfit out of service order (49 U.S.C. 521(b)(2)(F));
section 32503, Operating in violation of an imminent hazard order (49
U.S.C. 521(b)(2)(F)); section 32505, Strikes ``knowingly and
willfully'' from 49 U.S.C. 524 (evasion of safety-related regulations);
section 32505, Evasion of commercial regulations (49 U.S.C. 14906););
and section 32919, Unlawful brokering (49 U.S.C. 14916).
C. SAFETEA-LU
Two provisions under the Safe Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119
Stat. 1144, Aug. 10, 2005), (SAFETEA-LU) provides authority to increase
civil penalties. First, section 4102 (b), codified at 49 U.S.C. 31310
(i)(2)(C), addresses an employer of a CDL-holder who knowingly allows,
requires, permits, or authorizes an employee to operate a CMV when the
CDL-holder is subject to an out-of-service order. Second, section 4209
(d)(3), codified at 49 U.S.C. 14901 (d)(3), addresses providing
household good transportation without a registration.
D. Other Authorities
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 Administrative Procedure Act
(5 U.S.C. 551-706) (APA), as provided in 5 U.S.C. 553(b) and (c). The
APA provides a good cause exception from these requirements when notice
and public comment procedures are ``impracticable, unnecessary, or
contrary to the public interest'' (5 U.S.C. 553(b)(3)(B)). However, the
good cause exception requires an agency finding that includes a brief
statement of reasons in the rules issued to dispense with notice and
comment procedures.
In this instance, FMCSA finds that notice and comment is
unnecessary prior to adoption of this final rule because adjustments to
civil penalties are statutorily mandated by Congress and the Agency's
final rule is a nondiscretionary, ministerial act to implement these
statutory obligations. The amendments made in this final rule merely
adjust penalty provisions for inflation and do not impose new
discretionary requirements on the public. For these reasons, the FMCSA
finds good cause that notice and public comment in accordance with the
APA on this final rule is unnecessary. For the same reasons the agency
finds notice and comment procedures unnecessary under 49 U.S.C.
553(b)(3)(B), the agency also finds good cause under 49 U.S.C. 553(d)
that this rule be effective on the date of publication in the Federal
Register.
Finally, 49 U.S.C. 31138 (c)(4) and 49 U.S.C. 31139 (c) are
authorities relied upon to address technical amendments to part 387
regarding factors FMCSA must take into account in assessing penalties,
which includes the ability of parties to pay violations. These changes
to part 387 capture the precise statutory language of those
authorities.
III. Background
This final rule eliminates existing inconsistencies between
regulatory language in Appendices A and B of part 386 and other parts
of the FMCSRs by removing the penalty amounts from the regulatory
language and listing all penalty amounts in these appendices only.
Specifically, for ease of reference, the penalty amounts contained in
sections 383.53 (b) and (c), section 385.111(h), section 387.17, and
section 387.41 are removed and now referenced only in Appendix B.
A. Method of Calculation
Under the DCIA, the inflation adjustment for each civil penalty is
determined by increasing the maximum civil penalty amount per violation
by applying a cost-of-living adjustment. The DCIA specifies the cost-
of-living adjustment as the percentage 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))). Any calculated increase under this adjustment
is subject to a specific rounding formula set forth in the DCIA as
follows:
(1) Multiple of $10 in the case of penalties less than or equal to
$100;
(2) multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;
(4) multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
(5) multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
[[Page 18148]]
(6) multiple of $25,000 in the case of penalties greater than
$200,000.
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 September 28, 2007 (72 FR
55100), resulting in a maximum penalty of $750 per violation. The CPI
was approximately 238 in June 2014, and 208 in June 7, 2007 (see U.S.
Bureau of Labor Statistics at http://www.bls.gov/cpi/). Thus, the
inflation factor is 238/208 or 1.14.\1\ The new penalty amount after
the increase is the result of multiplying $750 x 1.14 = $855. Under the
statute, however, the inflation adjustment 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. In this example, the amount of the
increase in the daily maximum penalty was $105, and when rounded to the
nearest multiple of $100 equals $100, so the new daily maximum penalty
is $850. Therefore, Appendix A, 49 CFR part 386, part IV, paragraph (e)
is revised to provide an adjusted maximum penalty of $850 ($750 + $100)
per violation.
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\1\ For this calculation, FMCSA utilized the unrounded CPI
values and rounded the inflation factor to the nearest tenth. The
exact calculation is (238.343/208.352) = 1.14.
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The 1.14 inflation factor is used to adjust penalties that were
adjusted in 2007, which included penalties: Under the Transportation
Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107);
established in the ICC Termination Act of 1995 (Pub. L. 104-88, 109
Stat. 809); and enacted in the Motor Carrier Safety Improvement Act of
1999 (Pub. L. 106-159, 113 Stat. 1748 (Dec. 9, 1999)).
Some penalties were adjusted in 2003 but not adjusted in 2007. The
adjustment factor used to update those amounts in this final rule uses
the June 2003 CPI value of 184: 238/184 = 1.30. For example, the
penalty for operating a CMV when the driver was placed out of service
(49 CFR part 386, Appendix B, paragraph (b)) was $3,750 per violation.
This penalty has not been adjusted since 2003, so it will be increased
to $4,750, applying the following calculation: The increment of $1,125
($3,750 x 1.30 = $4,875, less the original penalty of $3,750) will be
rounded to the nearest thousand and added to the original value of the
penalty. If the penalty is less than half the rounding amount, no
inflation factor will be added. See the table, Inflation Adjustments
for part 386, in the Section-by-Section discussion, directly below.
However, the statute requires that any penalty being adjusted for
the first time not exceed 10% of such penalty. Each of these are marked
with an asterisk in the following table. For example, the penalty for
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 (part 386, Appendix B (b)(3)) is
$10,000 for each offense. The adjustment would be $3,000 based on the
following calculation: $10,000 x 1.30= $13,000, or an increase of
$3,000. But since its first adjustment would be greater than 10%, the
actual adjustment is capped at $1,000, which means the inflated penalty
amount is now $11,000 ($10,000 + $1,000).
MAP-21 revised several civil penalties under the Federal Hazardous
Materials Regulations (49 CFR parts 171-180), which have been
promulgated by final rule in 78 FR 60226, (October 1, 2013). The FMCSA
is not adjusting these penalties for inflation or any penalties
established in 2011 and 2012, because, given their comparatively recent
establishment, the inflationary adjustments would have, at most, a
minimal impact on these penalties. However, the agency will increase
such penalties in future rulemakings as appropriate.
IV. Section-by-Section Analysis
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 383
The penalty amounts contained in Sections 383.53 (b) and (c) are
removed and now referenced in Appendix B (b)(1), (b)(2), and (b)(3).
Part 385
The penalty amount contained in Section 385.111(h) is removed and
now referenced in Appendix B (f)(1).
Part 386
Part 386 Appendix A has a new introduction to mirror the language
at the beginning of Appendix B. Below is the table with the current
civil penalty amounts in the appendices of part 386 and increases
applied:
Table 1--Inflation Adjustments for Part 386
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Current Inflation Increment Final adjusted
Civil penalty location in Part 386 penalty amount rate applied value: Legal authority
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Appendix A II Subpoena......................... $1,000 0.00 $0 $1,000 MAP-21 Pub. L. 112-141, sec. 32110, 126
Stat. 405, 782, (2012) (49 U.S.C.
525).
Appendix A II Subpoena......................... 10,000 0.00 0 10,000 MAP-21 Pub. L. 112-141, sec. 32110, 126
Stat. 405, 782 (2012) (49 U.S.C. 525).
Appendix A IV (a) Out-of-service order 2,100 1.30 1,000 3,100 Pub. L. 98-554, sec. 213(b), 98 Stat.
(operation of CMV by driver). 2829, 2841-2843 (1984) (49 U.S.C.
521(b)(7)), 55 FR 11224 (March 27,
1990).
Appendix A IV (b) Out-of-service order 16,000 1.30 5,000 21,000 Pub. L. 98-554, sec. 213(a), 98 Stat,
(requiring or permitting operation of CMV by 2829 (1984) (49 U.S.C. 521(b)(7)), 55
driver). FR 11224 (March 27, 1990).
[[Page 18149]]
Appendix A IV (c) Out-of-service order 2,100 1.30 1,000 3,100 Pub. L. 98-554, sec. 213(a), 98 Stat
(operation by driver of CMV or intermodal 2829 (1984) (49 U.S.C. 521(b)(7)), 55
equipment that was placed out of service). FR 11224 (March 27, 1990).
Appendix A IV (d) Out-of-service order 16,000 1.30 5,000 21,000 Pub. L. 98-554, sec. 213(a), 98 Stat
(requiring or permitting operation of CMV or 2829 (1984) (49 U.S.C. 521(b)(7)), 55
intermodal equipment that was placed out of FR 11224 (March 27, 1990).
service).
Appendix A IV (e) Out-of-service order (failure 750 1.14 100 850 49 U.S.C. sec. 521 (b)(2)(B), 49 CFR
to return written certification of correction). 396.9 (d)(3).
Appendix A IV (g) Out-of-service order (failure 25,000 0.00 0 25,000 MAP-21, Pub. L. 112-141, sec. 32503,
to cease operations as ordered). 126 Stat. 405, 803 (2012) (49 U.S.C.
521(b)(2)(F)).
Appendix A IV (h) Out-of-service order 16,000 0.00 0 16,000 Pub. L. 98-554, sec. 213(a), 98 Stat,
(operating in violation of order.). 2829, 2841-2843 (1984) (49 U.S.C.
521(b)(7)).
Appendix A IV (i) Out-of-service order 11,000 1.30 5,000 16,000 TEA-21, Pub. L. 105-178, sec. 4015(b),
(conducting operations during suspension or 112 Stat. 411-12 (1998) (49 U.S.C.
revocation for failure to pay penalties). 521(b)(2)(A)), 521 (b)(7)), 65 FR
56521, 56530 (September 19, 2000).
Appendix A IV (j) (conducting operations during 11,000 0.00 0 11,000 Pub. L. 98-554, sec. 213(a), 98 Stat,
suspension or revocation). 2829, 2841-2843 (1984) (49 U.S.C.
521(b)(7)).
Appendix B (a)(1)* Recordkeeping--maximum 1,000 1.10 100 1,100 SAFETEA-LU, Pub. L. 109-59, sec. 4102
penalty per day. (a), 119 Stat. 1144, 1715 (2005) (49
U.S.C. 521(b)(2)(B)(i)).
Appendix B (a)(1)* Recordkeeping--maximum total 10,000 1.10 1,000 11,000 SAFETEA-LU, Pub. L. 109-59, sec. 4102
penalty. (a), 119 Stat. 1144, 1715 (2005) (49
U.S.C. 521(b)(2)(B)(i)).
Appendix B (a)(2)* Knowing falsification of 10,000 1.10 1,000 11,000 SAFETEA-LU, Pub. L. 109-59, sec. 4102
records. (a), 119 Stat. 1144, 1715 (2005) (49
U.S.C. 521(b)(2)(B)(ii)).
Appendix B (a)(3) Non-recordkeeping violations. 11,000 1.30 5,000 16,000 TEA-21, Pub. L. 105-178, sec. 4015(b),
112 Stat. 107, 411-12 (1998) (49
U.S.C. 521(b)(2)(A)).
Appendix B (a)(4) Non-recordkeeping violations 2,750 1.30 1,000 3,750 TEA-21, Pub. L. 105-178, sec. 4015(b),
by drivers. 112 Stat. 107, 411-12 (1998) (49
U.S.C. 521(b)(2)(A)).
Appendix B (a)(5)* Violation of 49 CFR 392.5... 3,750 1.10 375 4,125 SAFETEA-LU, Pub. L. 109-59, 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 3,750 1.30 1,000 4,750 Pub. L. 99-570,
(CDL) violations. sec. 12012(b), 100 Stat. 3207-184-85
(1986) (49 U.S.C. 521(b)(2)(C)).
Appendix B (b)(1)*\M\ Special penalties 2,500 1.10 250 2,750 SAFETEA-LU, Pub. L. 109-59, sec.
pertaining to violation of out-of-service 4102(b), 119 Stat. 1144, 1715 (2005)
orders (first conviction). (49 U.S.C. 31310 (i)(2)(A)).
Appendix B (b)(1)*\M\ Special penalties 5,000 1.10 500 5,500 SAFETEA-LU, Pub. L. 109-59, 119, sec.
pertaining to violation of out-of-service 4102 (b), Stat. 1144, 1715 (2005) (49
orders (second or subsequent conviction). U.S.C. 31310 (i)(2)(A)).
Appendix B (b)(2)\M\ Employer violations 3,750 1.30 1,000 4,750 Pub. L. 99-570, sec. 12012(b), 100
pertaining to knowingly allowing, authorizing Stat. 3207,184-85 (1986) (49 U.S.C.
employee violations of out-of-service order 521(b)(2)(C)).
(minimum penalty).
Appendix B (b)(2)*\M\ Employer violations 25,000 1.10 2,500 27,500 SAFETEA-LU, Pub. L. 109-59, sec. 4102
pertaining to knowingly allowing, authorizing (b), 119 Stat. 1144, 1715 (2005) (49
employee violations of out-of-service order U.S.C. 31310 (i)(2)(C)).
(maximum penalty).
[[Page 18150]]
Appendix B (b)(3)\M\* Special penalties 10,000 1.10 1,000 11,000 ICC Termination Act of 1995, Pub. L.
pertaining to railroad-highway grade crossing 104-88, sec. 403(a), 109 Stat. 956
violations. (1995) (49 U.S.C. 31310(j)(2)(B)).
Appendix B (d) Financial responsibility 16,000 1.30 5,000 21,000 Pub. L. 103-272, sec. 31139(f), 108
violations. Stat. 745, 1006-1008 (1994) (49 U.S.C.
31139(g)(1)).
Appendix B (e)(1) Violations of Hazardous 75,000 0.00 0 75,000 MAP-21 Pub. L. 112-141, sec. 33010, 126
Materials Regulations (HMRs) and Safety Stat. 405, 837-838 (2012) (49 U.S.C.
Permitting Regulations (transportation or 5123(a)(1)).
shipment of hazardous materials).
Appendix B (e)(2) Violations of Hazardous 450 0.00 0 450 MAP-21 Pub. L. 112-141, sec. 33010, 126
Materials Regulations (HMRs) and Safety Stat. 405, 837 (2012) (49 U.S.C.
Permitting Regulations (training)--minimum 5123(a)(3)).
penalty.
Appendix B (e)(2) Violations of Hazardous 75,000 0.00 0 75,000 MAP-21 Pub. L. 112-141, sec. 33010 126
Materials Regulations (HMRs) and Safety Stat. 405, 837 (2012) (49 U.S.C.
Permitting Regulations (training)--maximum 5123(a)(1)).
penalty.
Appendix B (e)(3) Violations of Hazardous 75,000 0.00 0 75,000 MAP-21 Pub. L. 112-141, sec. 33010, 126
Materials Regulations (HMRs) and Safety Stat. 405, 837, (2012) 49 U.S.C.
Permitting Regulations (packaging or 5123(a)(1)).
container).
Appendix B (e)(4) Violations of Hazardous 75,000 0.00 0 75,000 MAP-21 Pub. L. 112-141, sec. 33010, 126
Materials Regulations (HMRs) and Safety Stat. 405, 837 (2012) (49 U.S.C.
Permitting Regulations (compliance with 5123(a)(1)).
FMCSRs).
Appendix B (e)(5) Violations of Hazardous 175,000 0.00 0 175,000 MAP-21 Pub. L. 112-141, sec. 33010, 126
Materials Regulations (HMRs) and Safety Stat. 405, 837 (2012) (49 U.S.C.
Permitting Regulations (death, serious 5123(a)(2)).
illness, severe injury to persons; destruction
of property).
Appendix B (f)(1) Operating after being 25,000 0.00 0 25,000 MAP-21, Pub. L. 112-141, sec. 32503,
declared unfit by assignment of a final 126 Stat. 405, 803 (2012) (49 U.S.C.
``unsatisfactory'' safety rating (generally). 521(b)(2)(F)).
Appendix B (f)(2) Operating after being 75,000 0.00 0 75,000 MAP-21, Pub. L. 112-141, sec. 33010,
declared unfit by assignment of a final 126 Stat. 405, 837 (49 U.S.C.
``unsatisfactory'' safety rating (hazardous 5123(a)(1)).
materials)--maximum penalty.
Appendix B (f)(2) Operating after being 175,000 0.00 0 175,000 MAP-21, Pub. L. 112-141, sec. 33010,
declared unfit by assignment of a final 126 Stat. 405, 837 (2012) (49 U.S.C.
``unsatisfactory'' safety rating (hazardous 5123(a)(2)).
materials)--maximum penalty if death, serious
illness, severe injury to persons; destruction
of property.
Appendix B (g)(1)\M\ Violations of the 10,000 0.00 0 10,000 MAP-21, Pub. L. 112-141, sec. 32108(a),
commercial regulations (CR) (property 126 Stat. 405, 782 (2012) (49 U.S.C.
carriers). 14901(a)).
Appendix B (g)(2) Violations of the CRs 10,000 0.00 0 10,000 MAP-21 Pub. L. 112-141, sec. 32919(a),
(brokers). 126 Stat. 405, 827 (2012) (49 U.S.C.
Sec. 14916(c)).
Appendix B (g)(3) Violations of the CRs 25,000 0.00 0 25,000 MAP-21, Pub. L. 112-141, sec. 32108(a),
(passenger carriers). 126 Stat. 405, 782 (2012) (49 U.S.C.
Sec. 14901(a)).
Appendix B (g)(4) Violations of the CRs 10,000 0.00 0 10,000 MAP-21, Pub. L. 112-141, sec. 32108(a),
(foreign motor carriers, foreign motor private 126 Stat. 405, 782 (2012) (49 U.S.C.
carriers). 14901(a)).
[[Page 18151]]
Appendix B (g)(5) Violations of the CRs 11,000 1.30 5,000 16,000 MCSIA of 1999, Pub. L. 106-59, sec.
(foreign motor carriers, foreign motor private 219(b), 113 Stat. 1748, 1768 (1999)
carriers before implementation of North (49 U.S.C. 14901 note).
American Free Trade Agreement land
transportation provisions)--maximum penalty
for intentional violation.
Appendix B (g)(5) Violations of the CRs 32,500 1.14 5,000 37,500 MCSIA of 1999, Pub. L. 106-59, sec.
(foreign motor carriers, foreign motor private 219(c), 113 Stat. 1748, 1768 (1999)
carriers before implementation of North (49 U.S.C. 14901 note).
American Free Trade Agreement land
transportation provisions)--maximum penalty
for a pattern of intentional violations.
Appendix B (g)(6) Violations of the CRs (motor 20,000 0.00 0 20,000 MAP-21, Pub. L. 112-141, sec. 32108,
carrier or broker for transportation of 126 Stat. 405, 782 (2012) (49 U.S.C.
hazardous wastes)--minimum penalty. 14901(b)).
Appendix B (g)(6) Violations of the CRs (motor 40,000 0.00 0 40,000 MAP-21 Pub. L. 112-141, sec. 32108, 126
carrier or broker for transportation of Stat. 405,782 (2012) (49 U.S.C.
hazardous wastes)--maximum penalty. 14901(b)).
Appendix B (g)(7) Violations of the CRs (HHG 1,100 1.30 0 1,100 ICC Termination Act of 1995, Pub. L.
carrier or freight forwarder, or their 104-88, sec. 103, 100 Stat. 803, 914
receiver or trustee). (1995) (49 U.S.C. Sec. 14901(d)(1)).
Appendix B (g)(8) Violation of the CRs (weight 2,200 1.30 1,000 3,200 ICC Termination Act of 1995, Pub. L.
of HHG shipment, charging for services)-- 104-88, sec. 103, 100 Stat. 803, 914
minimum penalty for first violation. (1995) (49 U.S.C. Sec. 14901(e)).
Appendix B (g)(8) Violation of the CRs (weight 6,500 1.14 1,000 7,500 ICC Termination Act of 1995, Pub. L.
of HHG shipment, charging for services)-- 104-88, sec. 103, 100 Stat. 803, 914
subsequent violations. (1995) (49 U.S.C. 14901(e)).
Appendix B (g)(10) Tariff violations........... 120,000 1.14 20,000 140,000 ICC Termination Act of 1995, 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 violations 220 1.30 100 320 ICC Termination Act of 1995, Pub. L.
(rebates or concessions)--first violation. 104-88, sec. 103, 100 Stat. 803, 915-
916 (1995) (49 U.S.C. 14904(a)).
Appendix B (g)(11) Additional tariff violations 275 1.30 100 375 ICC Termination Act of 1995, Pub. L.
(rebates or concessions)--subsequent 104-88, sec. 103, 100 Stat. 803, 915-
violations. 916 (1995) (49 U.S.C. 14904(a)).
Appendix B (g)(12) Tariff violations (freight 650 1.14 100 750 ICC Termination Act of 1995, Pub. L.
forwarders)--maximum penalty for first 104-88, sec. 103, 100 Stat. 803, 916
violation. (49 U.S.C. 14904(b)(1)).
Appendix B (g)(12) Tariff violations (freight 2,200 1.30 1,000 3,200 ICC Termination Act of 1995, Pub. L.
forwarders)--maximum penalty for subsequent 104-88, sec. 103, 100 Stat. 803, 916
violations. (1995) (49 U.S.C. Sec. 14904(b)(1)).
Appendix B (g)(13) service from freight 650 1.14 100 750 ICC Termination Act of 1995, Pub. L.
forwarder at less than rate in effect--maximum 104-88, sec. 103, 100 Stat. 803, 916
penalty for first violation. (1995) (49 U.S.C. 14904(b)(2)).
Appendix B (g)(13) service from freight 2,200 1.30 1,000 3,200 ICC Termination Act of 1995, Pub. L.
forwarder at less than rate in effect--maximum 104-88, sec. 103, 100 Stat. 803, 916
penalty for subsequent violation(s). (1995) (49 U.S.C. 14904(b)(2)).
Appendix B (g)(14) Violations related to 11,000 1.30 5,000 16,000 ICC Termination Act of 1995, Pub. L.
loading and unloading motor vehicles. 104-88, sec. 103, 100 Stat. 803, 916
(1995) (49 U.S.C. 14905).
Appendix B (g)(16) Reporting and recordkeeping 1,000 0.00 0 1,000 MAP-21, Pub. L. 112-141, sec. 32108,
under 49 U.S.C. subtitle IV, part B (except 126 Stat. 405, 782 (2012) (49 U.S.C.
13901 and 13902(c)--minimum penalty. 14901).
[[Page 18152]]
Appendix B (g)(16) Reporting and recordkeeping 6,500 1.14 1,000 7,500 ICC Termination Act of 1995, Pub. L.
under 49 U.S.C. subtitle IV, part B--maximum 104-88, sec. 103, 100 Stat. 803, 916-
penalty. 917 (1995) (49 U.S.C. 14907).
Appendix B (g)(17) Unauthorized disclosure of 2,200 1.30 1,000 3,200 ICC Termination Act of 1995, Pub. L.
information. 104-88, sec. 103, 100 Stat. 803, 917
(1995) (49 U.S.C. 14908).
Appendix B (g)(18) Violation of 49 U.S.C. 650 1.14 100 750 ICC Termination Act of 1995, Pub. L.
subtitle IV, part B, or condition of 104-88, sec. 103, 100 Stat. 803, 917
registration. (1995) (49 U.S.C. 14910).
Appendix B (g)(21)(i)*\M\: Knowingly and 10,000 1.10 1,000 11,000 ICC Termination Act of 1995, Pub. L.
willfully fails to deliver or unload HHG at 104-88, sec. 103, 100 Stat. 803, 916
destination. (1995) (49 U.S.C. 14905).
Appendix B (g)(22)* HHG broker estimate before 10,000 1.09 900 10,900 SAFETEA-LU, Pub. L. 109-59, sec.
entering into an agreement with a motor 4209(2), 119 Stat. 1144, 1758, (2005)
carrier. (49 U.S.C. 14901(d)(2)).
Appendix B (g)(23)* HHG transportation or 25,000 1.09 2,250 27,250 SAFETEA-LU, Pub. L. 109-59, sec.
broker services--registration requirement. 4209(d)(3), 119 Stat. 1144, 1758
(2005) (49 U.S.C. 14901 (d)(3)).
Appendix B (h)* Copying of records and access 1,000 1.10 100 1,100 SAFETEA-LU, Pub. L. 109-59, sec.
to equipment, lands, and buildings--maximum 4103(2), 119 Stat. 1144, 1716 (2005)
penalty per day. (49 U.S.C. 521(b)(2)(E)).
Appendix B (h)* Copying of records and access 10,000 1.10 1,000 11,000 SAFETEA-LU, Pub. L. 109-59, sec.
to equipment, lands, and buildings--maximum 4103(2), 119 Stat. 1716 (2005) (49
total penalty. U.S.C. 521(b)(2)(E)).
Appendix B (i)(1)\M\ Evasion of regulations 2,000 0.00 0 2,000 MAP-21 Pub. L. 112-141, sec. 32505, 126
under 49 U.S.C. ch. 5, 51, subchapter III of Stat. 405, 804 (2012) (49 U.S.C. 524).
311 (except 31138 and 31139), 31302-31304,
31305(b), 31310(g)(1)(A), 31502--minimum
penalty for first violation.
Appendix B (i)(1)\M\ Evasion of regulations 5,000 0.00 0 5,000 MAP-21 Pub. L. 112-141, Sec. sec.
under 49 U.S.C. ch. 5, 51, subchapter III of 32505, 126 Stat. 405, 804 (2012) (49
311 (except 31138 and 31139), 31302-31304, U.S.C. 524).
31305(b), 31310(g)(1)(A), 31502--maximum
penalty for first violation.
Appendix B (i)(1)\M\ Evasion of regulations 2,500 0.00 0 2,500 MAP-21 Pub. L. 112-141, sec. 32505, 126
under 49 U.S.C. ch. 5, 51, subchapter III of Stat. 405, 804 (2012) (49 U.S.C. 524).
311 (except 31138 and 31139), 31302-31304, MAP-21 Pub. L. 112-141, Sec. 32505,
31305(b), 31310(g)(1)(A), 31502--minimum 126 Stat. 405, 804 (2012) (49 U.S.C.
penalty for subsequent violation(s). 524).
Appendix B (i)(1)\M\ Evasion of regulations 7,500 0.00 0 7,500 MAP-21 Pub. L. 112-141, sec. 32505, 126
under 49 U.S.C. ch. 5, 51, subchapter III of Stat. 405, 804 (2012) (49 U.S.C. 524).
311 (except 31138 and 31139), 31302-31304,
31305(b), 31310(g)(1)(A), 31502--maximum
penalty for subsequent violation(s).
Appendix B (i)(2)\M\ Evasion of regulations 2,000 0.00 0 2,000 MAP-21 Pub. L. 112-141, sec. 32505, 126
under 49 U.S.C. subtitle IV, part B--minimum Stat. 405, 804 (2012) (49 U.S.C.
penalty for first violation. 14906).
Appendix B (i)(2)\M\ Evasion of regulations 5,000 0.00 0 5,000 MAP-21 Pub. L. 112-141, sec. 32505, 126
under 49 U.S.C. subtitle IV, part B--minimum Stat. 405, 804 (2012) (49 U.S.C.
penalty for subsequent violation(s). 14906).
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 18153]]
The provisions that are being updated for the first time here are
marked with an asterisk. Their adjustment is capped at 10%. There are
two penalties from 2010 that will be updated for the first time in this
rule and will have an inflation rate of 1.09 (238/218). Penalties that
were established recently will not be adjusted and are marked with an
n/a for not applicable. Penalties marked with an ``\M\'' were moved
from other locations in Appendix B or other regulatory provisions, as
noted in this section. Of these moved provisions, two contain no
penalty amounts because they were reserved for future use. Penalties
that were last adjusted in 2003 have an inflation rate of 1.30, and
those that were adjusted for inflation in 2007 have an inflation rate
of 1.14.
In Appendix B subsection (c), Special penalties pertaining to
violations of out-of-service orders by CDL holders, was reserved, and
its former provisions were placed into two subsections Appendix B
(b)(1) and (2) in the same order they appeared in subsection (c). The
first provision relates to a CDL holder, while the second relates to an
employer of a CDL holder. This change clarifies Appendix B by placing
all penalties related to commercial driver license programs into one
section for ease of use. To implement this change, the reserved
subsection (c) title, ``Special penalties pertaining to violations of
out-of-service orders by CDL holders,'' was deleted. Second, the phrase
``except: (1)'' Was inserted before the new provision beginning with
the phrase ``A CDL holder.'' Third, the word ``and'' was added between
new subsections (b)(1) and (b)(2) to properly mark them as separate
provisions.
Appendix B subsection (g)(1) is deleted and moved to current
subsection (g)(16) in order that both the minimum and maximum penalties
appear in one consolidated provision.
Former Appendix B subsection (g)(2) is now divided into two
separate subsections, the first regarding motor carriers and the second
addressing brokers. Specifically, former subsection (g)(2) is renamed
subsection (g)(1) and the term ``broker'' is deleted and the term
``motor'' added before the term ``carrier'' to clarify its application
to motor carriers only. In addition, a new subsection (g)(2) is amended
based on a statutory provision in MAP-21, sec. 32919(a), 49 U.S.C.
14916, which contains penalties associated with knowingly violating
registration (49 U.S.C. 13904) and financial security requirements (49
U.S.C. 13906) for brokers.
Subsection (g)(15), regarding evasion of commercial regulations was
reserved. And its provisions were moved to section (i) in a new
paragraph (2). Existing paragraph (1) regarding evasion of safety
regulations remains in place.
Part 387
The penalty amounts contained in Sections 387.17 and 387.41 are
removed and now referenced in Appendix B (d) only. This also corrects a
discrepancy between the Appendix B penalty amount, that had been
properly inflated, and the amount in the regulatory text, which had not
been properly inflated. In addition, the phrase ``ability to pay and
any'' was added before the phrase ``effect on ability'' in both
sections 387.17 and 387.41 to capture the precise statutory language in
49 U.S.C. 31138 (c)(4) and 49 U.S.C. 31139 (c) regarding factors FMCSA
must consider before assessing penalties.
V. Rulemaking Analyses and Notices
Regulatory Planning and Review (Executive Order (E.O.) 12866) 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, as
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011) or within the
meaning of Department of Transportation Regulatory Policies and
Procedures. The Office of Management and Budget (OMB) did not review
this document. The changes imposed by this final rule upon the civil
penalty amounts alter only the magnitude of transfer payments, which by
definition are not considered in the monetization of societal costs and
benefits of rulemakings. Congress has stated in the Adjustment Act,
section 2, that increasing penalties over time will deter violations.
Therefore, FMCSA infers that there may be some safety benefits that
occur due to this final rule. The deterrence effect of increasing
penalties that Congress has recognized, however, cannot be quantified
into safety benefits. The Agency expects 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.
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 final rule so that they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the 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. Nikki McDavid, listed in the FOR FURTHER INFORMATION
CONTACT section of this 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.
Unfunded Mandates Reform Act of 1995
The final rule will 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 $151
million (which is the value equivalent of $100,000,000 in 1995,
adjusted for inflation to 2012 levels) or more in any 1 year.
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 rule does not
have sufficient federalism implications to warrant the preparation of a
federalism assessment.
Civil Justice Reform (E.O. 12988)
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminates ambiguity, and reduce burden.
[[Page 18154]]
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, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined that this final rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
Taking of Private Property (E.O. 12630)
FMCSA reviewed this 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.
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).
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.
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 and Clean Air Act
FMCSA analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1(69 FR 9680, March 1, 2004),
Appendix 2, paragraph (6)(b). The Categorical Exclusion (CE) in
paragraph 6(b) covers technical or minor amendments to existing FMCSRs.
The content in this rule is covered by this CE. The CE determination is
available for inspection or copying in the Regulations.gov Web site
listed under ADDRESSES.
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.
Environmental Justice (E.O. 12898)
Under E.O. 12898, 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 evaluated the environmental
justice effects of this rule in accordance with the E.O., and has
determined that no environmental justice issue is associated with this
rule, nor is there any collective environmental impact that would
result from its promulgation.
Energy Supply, Distribution, or Use (E.O. 13211)
FMCSA has 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.
Indian Tribal Governments (E.O. 13175)
This rule does not have tribal implications under E.O. 13175,
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.
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.
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 386
Administrative procedures, Commercial motor vehicle safety,
Highways and roads, Motor carriers, Penalties.
49 CFR Part 387
Buses, Freight, Freight forwarders, Hazardous materials
transportation, Highway safety, Insurance, Intergovernmental relations,
Motor carriers, Motor vehicle safety, Moving of household goods,
Penalties, Reporting and recordkeeping requirements, Surety bonds.
For the reasons stated in the preamble, FMCSA is amending title 49
CFR parts 383, 385, 386, and 387 to read as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
1. The authority citation for part 383 continues to read as follows:
Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502;
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767;
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of
Pub. L. 109-59, 119 Stat. 1144, 1746; and 49 CFR 1.87.
[[Page 18155]]
0
2. Revise Sec. 383.53 to read as follows:
Sec. 383.53 Penalties.
(a) General rule. Any person who violates the rules set forth in
subparts B and C of this part may be subject to civil or criminal
penalties under 49 U.S.C. 521(b), as provided in part 386, Appendix B,
of this chapter.
(b) Special penalties pertaining to violation of out-of-service
orders--(1) Driver violations. A driver who is convicted of violating
an out-of-service order shall be subject to a civil penalty as stated
in part 386 Appendix B, in addition to disqualification under Sec.
383.51(e).
(2) Employer violations. An employer who is convicted of a
violation of Sec. 383.37(d) shall be subject to a civil penalty as
stated in part 386, appendix B, of this chapter.
(c) Special penalties pertaining to railroad-highway grade crossing
violations. An employer who is convicted of a violation of Sec.
383.37(e) shall be subject to a civil penalty stated in part 386,
appendix B, of this chapter.
PART 385--SAFETY FITNESS PROCEDURES
0
3. The authority citation for part 385 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5123,
13901-13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502;
Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of
Pub. L. 107-87; and 49 CFR 1.87.
0
4. Amend Sec. 385.111 by revising paragraph (h) to read as follows:
Sec. 385.111 Suspension and revocation of Mexico-domiciled carrier
registration.
* * * * *
(h) If a Mexico-domiciled motor carrier operates a commercial motor
vehicle in violation of a suspension or out-of-service order, it shall
be subject to the penalty provisions in 49 U.S.C. 521(b) and the amount
as stated in part 386, appendix B, of this chapter.
* * * * *
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS
PROCEEDINGS
0
5. 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; and 49 CFR 1.81 and 1.87.
0
6. Revise Appendix A to part 386 to read as follows:
Appendix A to Part 386--Penalty Schedule: Violations of Notices and
Orders
The Debt Collection Improvement Act of 1996 [Pub. L. 104-134,
title III, chapter 10, sec. 31001, par. (s), 110 Stat. 1321-1373]
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
to require agencies to adjust for inflation ``each civil monetary
penalty provided by law within the jurisdiction of the Federal
agency . . .'' and to publish that regulation in the Federal
Register. 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.
I. Notice to Abate
Violation--Failure to cease violations of the regulations in the
time prescribed in the notice. (The time within which to comply with a
notice to abate shall not begin to run with respect to contested
violations, i.e., where there are material issues in dispute under
Sec. 386.14, until such time as the violation has been established.)
Penalty--Reinstatement of any deferred assessment or payment of a
penalty or portion thereof.
II. Subpoena
Violation--Failure to respond to Agency subpoena to appear and
testify or produce records.
Penalty--minimum of $1,000 but not more than $10,000 per violation.
III. Final Order
Violation--Failure to comply with Final Agency Order.
Penalty--Automatic reinstatement of any penalty previously reduced
or held in abeyance and restoration of the full amount assessed in the
Notice of Claim less any payments previously made.
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 $3,100 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 $21,000 per violation. (This violation applies to
motor carriers including an independent contractor who is not a
``driver,'' as defined under paragraph IV(a) of this appendix.)
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--$3,100 each time the vehicle or intermodal equipment is so
operated. (This violation applies to drivers as defined in paragraph
IV(a) of this appendix.)
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 $21,000 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 paragraph IV(a) of this appendix.)
e. Violation--Failure to return written certification of correction
as required by the out-of-service order.
Penalty--Up to $850 per violation.
f. Violation--Knowingly falsifies written certification of
correction required by the out of service order.
Penalty--Considered the same as the violations described in
paragraphs IV(c) and IV(d) of this appendix, and subject to the same
penalties.
Note: Falsification of certification may also result in criminal
prosecution under 18 U.S.C.1001.
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 $25,000 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 $16,000 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 $16,000 for each day that operations are conducted
during the suspension or revocation period.
j. Violation--Conducting operations during a period of suspension
or
[[Page 18156]]
revocation under Sec. Sec. 385.911, 385.913, 385.1009 or 385.1011.
Penalty--Up to $11,000 for each day that operations are conducted
during the suspension or revocation period.
0
7. Revise Appendix B to part 386 to read as follows:
Appendix B to Part 386--Penalty Schedule: Violations and Monetary
Penalties
The Debt Collection Improvement Act of 1996 [Pub. L. 104-134,
title III, chapter 10, sec. 31001, par. (s), 110 Stat. 1321-1373]
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
to require agencies to adjust for inflation ``each civil monetary
penalty provided by law within the jurisdiction of the Federal
agency . . .'' and to publish that regulation in the Federal
Register. Pursuant to that authority, the inflation-adjusted civil
penalties listed in this appendix supersede the corresponding civil
penalty amounts listed 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 $1,100 for each day the violation continues, up to $11,000.
(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 $11,000 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 $16,000 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 $3,750.
(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 $4,125 for each violation.
(6) Egregious violations of driving-time limits in 49 CFR part 395.
A driver who exceeds, and a motor carrier that requires or permits a
driver to exceed, by more than 3 hours the driving-time limit in 49 CFR
395.3(a) or 395.5(a), as applicable, shall be deemed to have committed
an egregious driving-time limit violation. In instances of an egregious
driving-time violation, the Agency will consider the ``gravity of the
violation,'' for purposes of 49 U.S.C. 521(b)(2)(D), sufficient to
warrant imposition of penalties up to the maximum permitted by law.
(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 $4,750; 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 $2,750 for a
first conviction and not less than $5,500 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 $4,750 or more than
$27,500; 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
$11,000.
(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 $21,000. 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 person 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 $75,000 for each violation. Each day of 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 $450 and not more than $75,000 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 $75,000 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
$75,000.
(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 $175,000 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
$25,000 (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
[[Page 18157]]
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 $75,000 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 $175,000 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 $10,000 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
$10,000 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 $25,000 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 $10,000 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 $16,000 for an
intentional violation and a maximum penalty of $37,500 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 liable for a minimum penalty of
$20,000 and a maximum penalty of $40,000 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 $1,100 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 $3,200 for the first violation and
$7,500 for each subsequent violation.
(9) A person who knowingly accepts or receives from a carrier a
rebate or offset against the rate specified in a tariff required under
49 U.S.C. 13702 for the transportation of property delivered to the
carrier commits a violation for which the penalty is equal to three
times the amount accepted as a rebate or offset and three times the
value of other consideration accepted or received as a rebate or offset
for the six-year period before the action is begun.
(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
$140,000 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 and 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 $320 for the first violation and $375 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 $750 for the first violation
and up to $3,200 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 $750
for the first violation and up to $3,200 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 $16,000 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 $1,000 and for a
maximum penalty of $7,500 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 $3,200.
(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 or 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 $750 for each violation if another penalty is not provided
in 49 U.S.C. Chapter 149.
(19) A violation of Part B, Subtitle IV, Title 49, U.S.C.,
committed by a director, officer, receiver, trustee, lessee, agent, or
employee of a carrier that is a corporation is also a violation by the
corporation to which the penalties of Chapter 149 apply. Acts and
omissions of individuals acting in the scope of their employment with a
carrier are considered to be the actions and omissions of the carrier
as well as the individual.
(20) In a proceeding begun under 49 U.S.C. 14902 or 14903, the rate
that a
[[Page 18158]]
carrier publishes, files, or participates in under section 13702 is
conclusive proof against the carrier, its officers, and agents that it
is the legal rate for the transportation or service. Departing, or
offering to depart, from that published or filed rate is a violation of
49 U.S.C. 14902 and 14903.
(21) A person--
(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 $11,000 for
each violation. Each day of a continuing violation constitutes a
separate offense.
(ii) Who is a carrier or broker and is found to be subject to the
civil penalties in paragraph (i) of this appendix may also have his or
her carrier and/or broker registration suspended for not less than 12
months and not more than 36 months under 49 U.S.C. chapter 139. Such
suspension of a carrier or broker shall extend to and include any
carrier or broker having the same ownership or operational control as
the suspended carrier or broker.
(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 $10,900 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 $27,250 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 $1,100 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 $11,000.
(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 section 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 $2,000
but not more than $5,000 for the first violation and at least $2,500
but not more than $7,500 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 $2,000 for the first violation of at least $5,000 for a
subsequent violation.
PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR
CARRIERS
0
8. The authority citation for part 387 continues to read as follows:
Authority: 49 U.S.C. 13101, 13301, 13906, 14701, 31138, 31139,
and 31144; and 49 CFR 1.87.
0
9. Revise Sec. 387.17 to read as follows:
Sec. 387.17 Violation and penalty.
Any person (except an employee who acts without knowledge) who
knowingly violates the rules of this subpart shall be liable to the
United States for a civil penalty as stated in part 386, appendix B, of
this chapter, and if any such violation is a continuing one, each day
of violation will constitute a separate offense. The amount of any such
penalty shall be assessed by FMCSA's Administrator, by written notice.
In determining the amount of such penalty, the Administrator, or his/
her authorized delegate shall take into account the nature,
circumstances, extent, the gravity of the violation committed and, with
respect to the person found to have committed such violation, the
degree of culpability, any history of prior violations, ability to pay,
and any effect on ability to continue to do business, and such other
matters as justice may require.
0
10. Revise Sec. 387.41 to read as follows:
Sec. 387.41 Violation and penalty.
(a) Any person (except an employee who acts without knowledge) who
knowingly violates the rules of this subpart shall be liable to the
United States for a civil penalty as stated in part 386, appendix B, of
this chapter, and if any such violation is a continuing one, each day
of violation will constitute a separate offense. The amount of any such
penalty shall be assessed by the Administrator or his/her designee, by
written notice.
(b) In determining the amount of such penalty, the Administrator or
his/her designee shall take into account the nature, circumstances,
extent, the gravity of the violation committed and, with respect to the
person found to have committed such violation, the degree of
culpability, any history of prior violations, the ability to pay, and
any effect on ability to continue to do business, and such other
matters as justice may require.
Issued under the authority of delegation in 49 CFR 1.87 on March
26, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-07701 Filed 4-2-15; 8:45 am]
BILLING CODE 4910-EX-P