The Crittenden Automotive Library

Civil Penalty Factors

Civil Penalty Factors

Mark R. Rosekind
National Highway Traffic Safety Administration
1 March 2016

[Federal Register Volume 81, Number 40 (Tuesday, March 1, 2016)]
[Rules and Regulations]
[Pages 10520-10529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04311]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 578

[Docket No. NHTSA-2016-0023]
RIN 2127-AL38

Civil Penalty Factors

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.

ACTION: Final rule.

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SUMMARY: This final rule provides NHTSA's interpretation of the civil
penalty factors for determining the amount of a civil penalty or the
amount of a compromise under the National Traffic and Motor Vehicle
Safety Act (Safety Act). The Moving Ahead for Progress in the 21st
Century Act (MAP-21) states that the Secretary of Transportation shall
determine the amount of civil penalty or compromise under the Safety
Act. MAP-21 identifies mandatory factors that the Secretary must
consider and discretionary factors for the Secretary to consider as
appropriate in making such determinations. MAP-21 directs NHTSA to
issue a rule providing an interpretation of these penalty factors.
This final rule also amends NHTSA's regulation to the increase
penalties and damages for odometer fraud, and to include the statutory
penalty for knowingly and willfully submitting materially false or
misleading information to the Secretary after certifying the same
information as accurate.
In the NPRM, we proposed administrative procedures for NHTSA to
follow when assessing civil penalties against persons who violate the
Safety Act. We are not including those procedures in this final rule.
Instead, NHTSA plans to address those procedures separately, in a rule
to be issued soon.

DATES: Effective date: This final rule is effective May 2, 2016.
Petitions for reconsideration: Petitions for reconsideration of
this final rule must be received not later than April 15, 2016.

ADDRESSES: Any petitions for reconsideration should refer to the docket
number of this document and be submitted to: Administrator, National
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West
Building, Ground Floor, Docket Room W12-140, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Thomas Healy, Office of the Chief
Counsel, NHTSA, 1200 New Jersey Ave. SE., West Building, W41-211,
Washington, DC 20590. Telephone: (202) 366-2992 Fax: (202) 366-3820.

SUPPLEMENTARY INFORMATION:

I. Executive Summary
II. Background and Summary of Notice of Proposed Rulemaking
A. Background
B. Civil Penalties Procedures in NPRM
C. Civil Penalty Factors in the NPRM
III. The Final Rule
A. General Penalty Factors
B. Discretionary Penalty Factors
IV. Codification of Other MAP-21 Penalty Changes in 49 CFR Part 578
V. Rulemaking Analyses and Notices

I. Executive Summary

The Moving Ahead for Progress in the 21st Century Act (MAP-21 or
the Act) was signed into law on July 6, 2012 (Pub. L. 112-141). Section
31203(a) of MAP-21 amends the civil penalty provision of the Safety
Act, as amended and recodified, 49 U.S.C. Chapter 301, by requiring the
Secretary of Transportation to consider various factors in determining
the amount of a civil penalty or compromise. The factors that the
Secretary shall consider in determining the amount of civil penalty or
compromise are codified in amendments to 49 U.S.C. 30165(c). Section
31203(b) of MAP-21 requires the Secretary to issue a final rule, in
accordance with 5 U.S.C. 553, providing an interpretation of the
penalty factors set forth in MAP-21. Pub. L. 112-141, Sec. 31203, 126
Stat. 758 (2012). This rule provides an interpretation of the civil
penalty factors in 49 U.S.C. 30165(c) for NHTSA to consider in
determining the amount of civil penalty or compromise.
NHTSA issued an NPRM that proposed an interpretation of the penalty
factors in Section 31203(b) of MAP-21 on September 21, 2015.\1\ The
NPRM also included administrative procedures for NHTSA to follow when
assessing civil penalties against persons who violate the Safety Act.
We have decided not to include the administrative procedures for
assessing civil penalties in this final rule.
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\1\ 80 FR 56944 (Sept. 21, 2015).
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On December 4, 2015, the Fixing America's Surface Transportation
Act

[[Page 10521]]

(FAST Act), Public Law 114-94, was signed into law. Section 24110 of
the FAST Act requires NHTSA to issue a final rule providing an
interpretation of the penalty factors in Section 31203(b) of MAP-21 in
order for increases in the maximum amount of civil penalties that NHTSA
can collect for violations of the Safety Act to become effective. When
the Secretary of Transportation certifies that NHTSA has issued a final
rule providing an interpretation of the factors in Section 31203(b) of
MAP-21, the maximum amount of civil penalty for each violation of the
Safety Act increases from $7,000 per violation to $21,000 per violation
and the maximum amount of civil penalties that NHTSA can collect for a
related series of violations increases from $35,000,000 to
$105,000,000. This final rule satisfies the requirements in the FAST
Act necessary for the increases in the maximum amount of civil
penalties that NHTSA can collect for violations of the Safety Act to
become effective.

II. Background and Summary of Notice of Proposed Rulemaking

A. Background

NHTSA historically has considered the gravity of the violation when
compromising civil penalties. Consideration of the gravity of the
violation has involved a variety of factors, depending on the case. The
factors that NHTSA has considered have included the nature of the
violation, the nature of a safety-related defect or noncompliance with
Federal Motor Vehicle Safety Standards (``FMVSS''), the safety risk,
the number of motor vehicles or items of motor vehicle equipment
involved, the delay in submitting a defect and noncompliance
information report, the information in the possession of the violator
regarding the violation, other actions by the violator, and the
relationship of the violation to the integrity and administration of
the agency's programs.\2\
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\2\ See, e.g., April 5, 2010 Demand Letter for TQ10-002
available at ftp://ftp.nhtsa.dot.gov/TQ10-002/TQ10-002%20Resumes/TQ10-002%20Closing%20Resume/TQ10-002%20Sticky%20Pedal%20Demand%20Letter%204-5-10%20FINAL%20Signed.pdf
(In discussing the gravity of Toyota's apparent violations as severe
and potentially life-threatening, the agency stated, ``Toyota
determined that the accelerator pedals installed on a significant
number of vehicles sold and leased in the United States contained a
safety-related defect as evidenced by, among other things, its
issuance of a Technical Instruction and production improvement
information on September 29, 2009, in 31 countries across Europe.
Toyota knew or should have known that the same or substantially
similar accelerator pedals were installed on approximately 2.3
million vehicles sold or leased in the United States, and continued
to sell and lease vehicles equipped with a defective accelerator
pedal for months after this determination. Nonetheless, Toyota Motor
Corporation affirmatively-and inexplicably-instructed Toyota Motor
Engineering and Manufacturing North America, Inc. not to implement
an Engineering Change Instruction in the U.S. market. Toyota gave
this instruction despite the fact that it had issued similar or
identical instructions in Canada and Europe and knew that the very
same issues that prompted the European and Canadian actions existed
on a significant number of vehicles in the United States. The result
of these decisions by Toyota was to expose millions of American
drivers, passengers and pedestrians to the dangers of driving with a
defective accelerator pedal that could result, in Toyota's words, in
`sticky accelerator pedals, sudden rpm increase and/or sudden
vehicle acceleration.''').
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In the past, NHTSA also has considered the size of the violator
when compromising civil penalties. With respect to civil penalties
involving small businesses, among the factors that have been considered
are the violator's ability to pay, including its ability to pay over
time, and any effect on the violator's ability to continue to do
business.

B. Civil Penalties Procedures in NPRM

The NPRM stated that Section 31203 of MAP-21confirmed that NHTSA,
through the authority delegated from the Secretary of Transportation
pursuant to 49 CFR 1.95, may impose civil penalties as well as
compromise them. NHTSA stated that the Secretary's authority to impose
civil penalties is confirmed by both the language and the legislative
history of MAP-21. The NPRM also proposed administrative procedures for
NHTSA to follow in exercising the Secretary's authority to impose civil
penalties.
Given the passage of the FAST Act, and its requirements, NHTSA has
decided to finalize the procedures for imposing civil penalties at a
later time in order to allow NHTSA to issue the final rule providing an
interpretation of the penalty factors in Section 31203 of MAP-21 in an
expedited manner and to give the agency additional time to consider the
comments it received regarding the administrative procedures. Issuing
the final rule providing an interpretation of the penalty factors in
MAP-21 in an expedited manner will allow NHTSA to more quickly enforce
the increased maximum civil penalties in the FAST Act against violators
of the Safety Act. Therefore, NHTSA has decided to include only the
interpretation of the civil penalty factors in this final rule.

C. Civil Penalty Factors in the NPRM

The proposed interpretation of the penalty factors in MAP-21 was
based on the language of the statute, informed by NHTSA's years of day-
to-day enforcement experience, and the manner in which NHTSA has
compromised penalties in the past. In the NPRM, we stated that MAP-21
included both general factors and nine discretionary factors for NHTSA
to consider if appropriate. The NPRM provided an interpretation of the
general and discretionary factors. For each of the nine discretionary
penalty factors, we provided an explanation of NHTSA's proposed
interpretation.
We received four comments regarding our proposed interpretation of
the penalty factors in the NPRM.\3\ Generally the commenters were
supportive of NHTSA's proposed interpretation of the penalty factors.
The commenters did comment on how the penalty factors should be applied
and NHTSA's interpretation of some of the nine discretionary factors.
All commenters submitted comments regarding how the agency should
consider the ``knowledge of the person charged with the violation,''
when determining the amount of civil penalty or compromise. The
comments are addressed below.
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\3\ We received comments regarding our proposed interpretation
of the civil penalty factors in MAP-21 from Advocates for Highway
and Auto Safety (``Advocates''), the Association of Global
Automakers, Inc. (``Global''), the Alliance of Automobile
Manufacturers (``the Alliance''), and the National Automobile
Dealers Association (``NADA'').
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III. The Final Rule

The MAP-21 legislation set forth civil penalty factors to be
considered by NHTSA in determining the amount of a civil penalty or
compromise. The general provision in the amended section 30165(c) calls
for consideration of the nature, circumstances, extent and gravity of
the violation. The term ``violation'' refers to any violation addressed
by 49 U.S.C. 30165(a)(1), (2), (3), or (4). The Secretary has the
discretion to consider the totality of the circumstances surrounding a
violation.

Comments

NADA stated that NHTSA should consult with the United States
Department of Justice on the appropriateness of NHTSA's proposed
penalty factors because the Department of Justice understands how these
civil penalty factors should be applied in civil actions. NADA also
stated that NHTSA's interpretation of the penalty factors should
provide both positive and negative impacts that the factors may have on
the amount of a civil penalty sought by NHTSA for violations of the
Safety Act.

[[Page 10522]]

Agency Response
MAP-21 directs NHTSA, by delegation from the Secretary of
Transportation, to issue a rule providing an interpretation of the
civil penalty factors to consider in determining the amount of civil
penalty or compromise. As we stated in the NPRM, NHTSA, through
delegation from the Secretary, has the authority to assess and
compromise civil penalties.
NHTSA has addressed this comment because it works closely with the
Justice Department on a range of civil and criminal enforcement
matters. NHTSA's interpretation of the civil penalty factors is based
on its day-to-day enforcement experience and previous experience
compromising civil penalties for violations of the Safety Act, which
includes its experience and counsel from the Justice Department. This
is more than sufficient to provide the interpretation of the penalty
factors in this final rule.
NHTSA believes the interpretation of the penalty factors in this
final rule provides both aggravating and mitigating factors and that
the interpretation will provide useful information to manufacturers
regarding actions that will help them avoid civil penalties.

A. General Penalty Factors

In the NPRM, NHTSA proposed to interpret the nature of the
violation to mean the essential, fundamental character or constitution
of the violation.\4\ This includes, but is not limited to, the nature
of the defect (in a case involving a safety-related defect) or
noncompliance. It also includes what the violation involves, for
example, a violation of the Early Warning Reporting (``EWR'')
requirements, the failure to provide timely notification of a safety-
related defect or noncompliance, the failure to remedy, the lack of a
reasonable basis for certification to the FMVSS, the sale of unremedied
vehicles, or the failure to respond fully and timely to a request
issued under 49 U.S.C. 30166.
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\4\ See e.g. Webster's Third New International Dictionary
Unabridged, 1507 (defining nature as ``the essential character or
constitution of something''); Black's Law Dictionary (10th ed. 2014)
(defining nature as ``[a] fundamental quality that distinguishes one
thing from another; the essence of something.'').
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Second, we proposed to interpret the circumstances of the violation
to mean the context, facts, and conditions having bearing on the
violation.\5\ This includes whether the manufacturer has been
recalcitrant or shown disregard for its obligations under the Safety
Act.
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\5\ See e.g. Ehlert v. United States, 422 F.2d 332, 335 (9th
Cir. 1970) (Duniway, J. concurring) (stating that Webster's New
International Dictionary, 2d ed. defines ``circumstances'' as
``conditions under which an act or event takes place or with respect
to which a fact is determined.'').
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Third, we proposed to interpret the extent of the violation to mean
the range of inclusiveness over which the violation extends including
the scope, time frame, and/or the degree of the violation.\6\ This
includes the number of violations and whether the violations are
related or unrelated.
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\6\ See e.g. Webster's Third New International Dictionary
Unabridged, 805 (defining extent as the ``range (as of inclusiveness
or application) over which something extends.'').
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Finally, we proposed to interpret the gravity of the violation to
mean the importance, significance, and/or seriousness of the
violation.\7\
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\7\ See e.g. Black's Law Dictionary (10th ed. 2014) (defining
``gravity'' as ``[s]eriousness of harm, an offense, etc., as judged
from an objective, legal standpoint.''); Webster's Third New
International Dictionary Unabridged, 993 (defining gravity as the
importance, significance, or seriousness).
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Comments
Global asserts that a good faith disagreement over whether a safety
defect exists should not be used to show that a manufacturer has been
recalcitrant or shown disregard for its Safety Act obligations.
Agency Response
A disagreement over whether a defect exists, even one in good
faith, is not a mitigating factor in a civil penalty case, and Global's
comments do not support otherwise. Manufacturers are aware that if they
oppose NHTSA's request to conduct a recall because they disagree with
NHTSA over the existence of a defect or non-compliance, they are at
risk of civil penalties.\8\ Therefore, because we do not believe that
disagreement over whether a defect exists is a mitigating factor
regarding a manufacturer's liability for civil penalties and because we
did not receive any other comments regarding the general factors, we
are adopting the interpretation proposed in the NPRM.
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\8\ See United States v. General Motors Corp., 565 F.2d 754,
760-61 (D.C. Cir. 1977) (``One who refuses to pay when the law
requires that he shall, acts at his peril, in the sense that he must
be held to the acceptance of any lawful consequences attached to the
refusal. It is no answer in such circumstances that he has acted in
good faith.'').
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B. Discretionary Penalty Factors

In the NPRM, we stated that the penalty factors listed in 49 U.S.C.
30165(c)(1) through (9) are discretionary factors that NHTSA may apply
in determining the amount of civil penalty or compromise.
Comments
Global asserts that the nine factors listed in 49 U.S.C.
30165(c)(1)-(9) are mandatory and each factor must be considered by
NHTSA if the factor is raised by a person subject to civil penalties
for violations of the Safety Act. Global claims that the phrase
``determination shall include'' indicates the nine penalty factors are
mandatory, not discretionary.
Agency Response
NHTSA continues to hold the position that the nine factors listed
in 49 U.S.C. 30165(c)(1)-(9) are discretionary and Global's comments,
and the record in this rulemaking, do not suggest otherwise. MAP-21
states that NHTSA's ``determination shall include, as appropriate'' the
nine factors. NHTSA contends that by including the words ``as
appropriate,'' Congress intended to provide NHTSA the discretion to
determine which of the nine factors are relevant to a particular civil
penalty case otherwise the phase ``as appropriate'' would be
superfluous.\9\ Thus, the final rule continues to state that the nine
factors in 49 U.S.C. 30165(c)(1)-(9) are discretionary.
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\9\ Clark v. Rameker, 134 S. Ct. 2242, 2248 (2014) (stating that
``a statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous'').
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1. The Nature of the Defect or Noncompliance
We proposed to interpret ``the nature of the defect or
noncompliance,'' 49 U.S.C. 30165(c)(1), to mean the essential,
fundamental characteristic or constitution of the safety-related defect
or noncompliance. This is consistent with the dictionary definition of
``nature.'' \10\ ``Defect'' is defined at 49 U.S.C. 30102(a)(2) as
including ``any defect in performance, construction, a component, or
material or a motor vehicle or motor vehicle equipment.''
``Noncompliance'' under this statutory factor includes a noncompliance
with an FMVSS, as well as other violations subject to penalties under
49 U.S.C. 30165. Noncompliance may include, but is not limited to,
noncompliance(s) with the FMVSS; the manufacture, sale, or importation
of noncomplying motor vehicles and equipment or defective vehicles or
equipment covered by a notice or order regarding the defect; failure to
certify or have a reasonable

[[Page 10523]]

basis to certify that a motor vehicle or item of motor vehicle
equipment complies with applicable motor vehicle safety standards;
failure to maintain records as required; failure to provide timely
notification of defects and noncompliances with the FMVSS; failure to
follow the notification procedures set forth in 49 U.S.C. 30119 and
regulations prescribed thereunder; failure to remedy defects and
noncompliances pursuant to 49 U.S.C. 30120 and regulations prescribed
thereunder; making safety devices and elements inoperative; failure to
comply with regulations relating to school buses and school bus
equipment; failure to comply with Early Warning Reporting requirements;
and/or the failure to respond to an information request, Special Order,
General Order, subpoena or other required reports.\11\
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\10\ See e.g. Webster's Third New International Dictionary
Unabridged, 1507 (defining nature as ``the essential character or
constitution of something''); Black's Law Dictionary (9th ed. 2009)
(defining nature as ``[a] fundamental quality that distinguishes one
thing from another; the essence of something.'').
\11\ The foregoing list is intended to be illustrative only, and
is not exhaustive.
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When considering the nature of a safety-related defect or
noncompliance with an FMVSS in a motor vehicle or motor vehicle
equipment, NHTSA may examine the conditions or circumstances under
which the defect or noncompliance arises, the performance problem, and
actual and probable consequences of the defect or noncompliance. When
considering the nature of the noncompliance with the Safety Act or a
regulation promulgated thereunder, NHTSA may examine the circumstances
surrounding the violation.
For example, NHTSA has a process by which a manufacturer can
petition for an exemption from the notification and remedy requirements
of 49 U.S.C. 30118 and 30120 on the basis that a noncompliance is
inconsequential to motor vehicle safety. 49 U.S.C. 30118(d) and
30120(h), 49 CFR part 556. In the NPRM we stated that if a petition for
inconsequential noncompliance is granted, then it could serve as
mitigation under this factor.
Comments
The Alliance asserts that the fact that a non-compliance is
inconsequential to motor vehicle safety should not be a mitigating
factor in determining the amount of a civil penalty. The Alliance
believes that an inconsequential non-compliance should never be the
subject of a civil penalty proceeding.
NADA asserts that considering the nature of a defect or non-
compliance involves weighing the relative seriousness of the defect or
non-compliance. NADA believes that not all defects and non-compliances
have the same significance to safety.
Agency Response
As a general matter, it is unlikely that NHTSA would grant a
petition for inconsequential noncompliance and then seek a civil
penalty for a violation of the Safety Act. However, NHTSA believes such
a situation would be an example of a situation with a lower degree of
seriousness, where reduced civil penalties would be appropriate.
As stated in the NPRM, when considering the nature of a defect or
noncompliance NHTSA will consider the conditions or circumstances under
which the defect or noncompliance arises, the performance problem, and
actual and probable consequences of the defect or noncompliance. We
believe that these factors will give an indication of the seriousness
of the defect or noncompliance. Therefore, no changes to the final rule
are necessary in response to NADA's comment.
2. Knowledge by the Respondent of Its Obligations Under This Chapter
In the NPRM, we proposed to interpret the ``knowledge by the . . .
[respondent] of its obligations under this chapter,'' 49 U.S.C.
30165(c)(2), as all knowledge, legal and factual, actual, presumed and
constructive, of the respondent of its obligations under 49 U.S.C.
Chapter 301. We proposed that if a respondent is other than an
individual, including but not limited to a corporation or a
partnership, then the knowledge of an employee or employees of that
non-natural person be imputed to that non-natural person. We proposed
to interpret the knowledge of an agent as being imputed to a principal.
We proposed that a non-natural person, such as a corporation, with
multiple employees will be charged with the knowledge of each employee,
regardless of whether the employees have communicated that knowledge
among each other or to a decision maker for the non-natural person.
We stated in the NPRM, that under this proposed interpretation of
``knowledge,'' delays resulting from, or caused by, a manufacturer's
internal reporting processes would not excuse a manufacturer's failure
to report a defect or noncompliance to NHTSA. We stated that NHTSA may
examine such factors as whether the respondent began producing parts to
remedy a particular defect or noncompliance with an FMVSS prior to
reporting the defect or noncompliance with an FMVSS to NHTSA. NHTSA may
also consider communication between the respondent (e.g. a
manufacturer) and other entities such as dealers and owners in
determining its knowledge of a violation. NHTSA may consider the
information NHTSA provided to the respondent, including notification of
apparent noncompliance, information on the recall process, information
on governing regulations, and information on consequences of failure to
comply with regulatory requirements. NHTSA may also consider whether
the respondent has been proactive in discerning other potential safety
issues, and whether it has attempted to mislead the agency or conceal
its full information, including its knowledge of a defect or
noncompliance.
Comments
Advocates supports NHTSA proposal that knowledge of employees be
attributed to the corporation regardless of whether employees have
communicated such knowledge to the corporation.
The Alliance does not believe that it is reasonable to input the
knowledge of employees to the corporation in determining whether a
manufacturer fulfilled its regulatory obligations in a timely matter.
The Alliance states that manufacturers must be allowed to follow
reasonable processes for processing information and given time to
conduct internal investigations. Therefore, in evaluating whether a
company fulfilled its regulatory obligations, NHTSA should evaluate the
reasonableness of the company's internal business process for, and the
circumstances of, each matter at issue.
Global states that there are circumstances when the knowledge of
employees should not be attributed to the corporation such as when an
employee acts illegally or against corporate policy. The extent to
which a manufacturer has received or not received appropriate
information from the supply chain should be a mitigating factor. Global
does not believe that production of parts or communications to the
field should automatically suggest knowledge of a safety defect because
a manufacturer may initiate these activities while still investigating
whether the issue is a safety defect. Global also believes that
legitimate misunderstanding of laws and regulations should be a
mitigating factor.
NADA believes that NHTSA should take into account the fact that a
person's lack of knowledge may be excusable.
Agency Response
NHTSA agrees that in instances in which the significance of a piece
of information, by itself, would not necessarily establish a defect or
noncompliance, an individual

[[Page 10524]]

employee's knowledge of this information is less relevant than the
corporation's processes for gathering information and communicating it
to decision makers within the company. NHTSA agrees with the Alliance
that in assessing the knowledge of a corporation, NHTSA should assess
the corporation's process for gathering information in support of
internal investigations of potential safety issues and making decisions
regarding defects and noncompliances. In making such an assessment,
NHTSA will consider whether the corporation's processes are designed to
gather information and provide it to decision makers in a timely
manner, whether employees are trained on these processes and how to
follow them, whether the corporation conducts periodic reviews of its
processes to ensure that its employees are following the processes, and
whether the process was followed in the instance of the violation of
the Safety Act that gave rise to the civil penalty case at hand.
NHTSA believes that there are cases in which it is appropriate to
impute knowledge to the corporation when an employee has acted
illegally or against corporate policy. Whether NHTSA attributes the
illegal or unauthorized actions of employees to the corporation will
depend on the employee's position within the company, the degree to
which the corporation monitored for illegal or unauthorized activity by
employees, the degree to which employees were made aware of their
regulatory responsibilities, and the seriousness of the defect or
noncompliance at issue.
NHTSA agrees with Global that in assessing the knowledge of a
corporation NHTSA should consider the information that a corporation
received from the supply chain. This includes the extent to which the
corporation has policies that require suppliers to make information
available and the extent that it monitors suppliers' compliance with
these policies.
NHTSA believes that ordering or producing replacement parts and
communications to the field can show that a manufacturer had knowledge
of a defect or noncompliance. Whether this fact, by itself, is
dispositive of a corporation's knowledge of a defect or noncompliance
will depend on the other actions taken by a corporation to investigate
a defect or noncompliance and the timing of those actions.
A corporation's misunderstanding of its regulatory responsibilities
will rarely be a mitigating factor in a civil penalty case. In the
NPRM, however, NHTSA did state that it would consider whether an entity
was a new manufacturer in assessing the entity's knowledge. In the case
of a new manufacturer, a corporation's misunderstanding regarding its
regulatory responsibilities could be a mitigating factor, depending on
the circumstances.
In view of the comments, and on this record, NHTSA is amending the
language in the final rule to clarify that the agency has the
discretion to attribute knowledge of employees to the corporation when
appropriate but is not required to do so.
3. The Severity of the Risk of Injury
We proposed to interpret the ``severity of the risk of injury,'' 49
U.S.C. 30165(c)(3), as the gravity of exposure to potential injury,
including the potential for injury or death of drivers, passengers,
other motorists, pedestrians and others. The severity of the risk
includes the likelihood of an injury occurring and the population group
exposed to that risk. We stated that the severity of the risk of injury
may depend on the component of a motor vehicle that is defective or
noncompliant with an FMVSS.
Comments
Global believes that the absence of injuries should be considered a
mitigating factor in severity of the risk of injury. NADA believes that
when considering ``the severity of the risk of injury'' of a violation
of the Safety Act, NHTSA should take into account whether the violation
is likely to cause a crash that could lead to an injury or death versus
whether the violation is likely to lead to an increase in the
likelihood of injury or death should a crash occur (crash causation
versus reduced injury/death prevention.
Agency Response
NHTSA disagrees that the absence of injury should be a mitigating
factor when considering the risk of injury. NHTSA believes that it is
possible, especially in the case of a defect or noncompliance in a
small number of vehicles, for the risk of injury from a defect or
noncompliance to be high even if the defect or noncompliance has not
yet caused any injuries, and no commenter provided credible evidence,
or applicable law, to suggest otherwise.
NHTSA does not believe that it would be appropriate, when
considering the risk of injury caused by a defect or noncompliance, to
differentiate on the basis of whether a defect or noncompliance
increases the risk of a crash versus whether the defect or
noncompliance increases the likelihood that a death or injury will
occur as a result of a crash. NHTSA contends that both types of defects
or non-compliances have the potential to be equally severe. After
considering the comments we have decided to finalize the proposed
interpretation of this factor.
4. The Occurrence or Absence of Injury
NHTSA proposed to interpret ``the occurrence or absence of
injury,'' 49 U.S.C. 30165(c)(4), as whether injuries or deaths have
occurred as a result of a defect, noncompliance, or other violation of
the Safety Act or implementing regulations. NHTSA proposed also to
consider allegations of death or injury. When appropriate, NHTSA may
consider deaths or injuries that are alleged to have occurred as a
result of a defect, noncompliance, or other violation of the Safety Act
or implementing regulations regardless of whether NHTSA has been able
to establish that the defect, noncompliance, or violation was the
definitive cause of the death or injury.
In evaluating this factor, it is important to emphasize that the
absence of deaths or injuries is not dispositive of the existence of a
defect or noncompliance or a person's liability for civil penalties.
Advocates supports the agency's proposal that the absence of death
or injury is not dispositive of the existence of defect or liability
for civil penalties. In light of the comments we received regarding
this factor, we are finalizing the proposed interpretation.
5. The Number of Motor Vehicles or Items of Motor Vehicle Equipment
Distributed With the Defect or Noncompliance
NHTSA proposed to interpret ``the number of motor vehicles or items
of motor vehicle equipment distributed with the defect or
noncompliance,'' 49 U.S.C. 30165(c)(5), as referring to the total
number of vehicles or items of motor vehicle equipment distributed with
the defect or noncompliance with an FMVSS, or the percentage of the
vehicles or items of motor vehicle equipment of the subject population
with the defect or noncompliance with an FMVSS. We proposed that NHTSA
may look not only at absolute numbers of motor vehicles or items of
motor vehicle equipment. Rather it may also take into account the
portion of a vehicle or equipment population with the defect,
noncompliance, or other violation. In applying this factor, NHTSA may
also consider the portion of motor vehicles that contain the defect or
noncompliance with an FMVSS as a percentage of the manufacturer's total
annual production of vehicles if

[[Page 10525]]

multiple make, model and model years of motor vehicles are affected by
the defect or noncompliance with an FMVSS.
Further, we proposed that NHTSA may choose to make a distinction
between those defective or noncompliant products distributed in
commerce that consumers received, and those defective or noncompliant
products distributed in commerce that consumers have not received.
We did not receive any comments regarding our proposed
interpretation of this factor so we are finalizing the proposed
interpretation of this factor.
6. Actions Taken by the Respondent To Identify, Investigate, or
Mitigate the Condition
In the NPRM, NHTSA proposed to interpret ``actions taken by the . .
. [respondent] to identify, investigate, or mitigate the condition,''
49 U.S.C. 30165(c)(6), as actions actually taken, the time frame when
those actions were taken, what those actions involved and how they
ameliorated or otherwise related to the condition, what remained after
those actions were taken, and the speed with which the actions were
taken. NHTSA proposed that in assessing a respondent's ``actions,'' a
failure to act may also be considered.
We stated that, under this factor, NHTSA may consider whether the
respondent has been diligent in endeavoring to meet the requirements of
the Safety Act and regulations thereunder, including whether it has set
up processes to facilitate timely and accurate reporting, and whether
it has audited such systems. NHTSA may also take into account the
investigative activities the respondent has undertaken relating to the
scope of the issues identified by NHTSA. The agency may also consider
whether the respondent delayed in reporting a safety-related defect or
a noncompliance with an FMVSS (a person is required to file a 49 CFR
part 573 report not more than five working days after a person knew or
should have known of the safety-related defect or noncompliance with an
FMVSS). NHTSA may also consider whether the respondent remedied the
safety-related defect or noncompliance with an FMVSS in a timely
manner. For instance, NHTSA may consider whether a recall remedy is
adequate, whether a new safety-related defect or noncompliance with an
FMVSS arose from an inadequate recall remedy, and whether the scope of
a recall was adequate. NHTSA may also consider the timeliness and
adequacy of the respondent's communications with owners and dealers.
Comments
Global believes that a manufacturer's internal procedures should be
considered when considering ``actions taken to identify investigate, or
mitigate the condition.''
Agency Response
As stated above, when considering the actions taken by the
respondent, NHTSA may consider whether the respondent has set up
systems to facilitate timely and accurate reporting, and whether it has
audited such systems. NHTSA also stated that when considering the
knowledge of the respondent, it will consider whether employees have
been trained on those systems, and whether those systems were followed.
It is equally appropriate to consider the aforementioned factors when
assessing the actions taken to by the respondent to identify,
investigate or mitigate the defect or noncompliance. Therefore, NHTSA
has revising the proposed rule to make clear that we will consider a
corporation's internal processes for reporting information to NHTSA and
investigating potential safety issues under this factor.
7. The Appropriateness of Such Penalty in Relation to the Size of the
Business of the Respondent, Including the Potential for Undue Adverse
Economic Impacts
NHTSA takes the Small Business Regulatory Enforcement Fairness Act
of 1996 (SBREFA) into account prior to setting any final penalty
amount.\12\ This policy will continue in light of the MAP-21 amendments
to 49 U.S.C. 30165(c).
---------------------------------------------------------------------------

\12\ See NHTSA, Civil Penalty Policy Under the Small Business
Regulatory Enforcement Fairness Act, 62 FR 37115 (July 10, 1997).
---------------------------------------------------------------------------

Upon a showing by a violator that it is a small entity, NHTSA will
make appropriate adjustments to the proposed penalty or settlement
amount (although certain exceptions may apply).\13\ If the respondent
asserts it is a ``small business,'' NHTSA expects the respondent to
provide the supporting documentation. Under the Small Business
Administration's standards, an entity is considered ``small'' if it is
independently owned and operated and is not dominant in its field of
operation,\14\ or if its number of employees or the dollar volume of
its business does not exceed specific thresholds.\15\ For example, 13
CFR Section 121.201 specifically identifies as ``small entities''
manufacturers of motor vehicles, passenger car bodies, and motor homes
that employ 1,000 people or less, manufacturers of motor vehicle parts
and accessories that employ 750 people or less, automobile and tire
wholesalers that employ 100 people or less, new car dealers that employ
200 people or less and automotive parts and accessory stores with
annual receipts less than $15 million.
---------------------------------------------------------------------------

\13\ Id. at 37117.
\14\ Id. at 37115.
\15\ Id.
---------------------------------------------------------------------------

We proposed to interpret ``potential for undue adverse economic
impacts,'' 49 U.S.C. 30165(c)(7), as the possibility that payment of a
civil penalty amount would affect the ability of the respondent to
continue to operate. We also stated that NHTSA may consider a
respondent's ability to pay, including in installments over time, and
any effect of a penalty on that person's ability to continue to do
business. The ability of a business to pay a penalty is not dictated by
its size. In some cases for small businesses, however, these two
considerations may relate to one another. NHTSA also may consider
relevant financial factors such as capitalization, liquidity, solvency,
and profitability to determine a small business' ability to pay a
penalty. NHTSA may also consider whether the business has been
deliberately undercapitalized. The burden to present sufficient
evidence relating to a charged business' size and ability to pay rests
on that business. More generally, in cases where the respondent claims
that it is financially unable to pay the civil penalty or that the
penalty would have undue adverse economic impacts, the burden of proof
is on the respondent. In the case of closely-held or privately-held
companies, NHTSA may provide the respondent the opportunity to submit
personal financial documentation for consideration.
Comments
Advocates supports the agency's proposal that the respondent is
responsible for establishing the severity of the impact of the
financial penalty.
Global believes that NHTSA's proposed factor for considering undue
adverse economic impacts only reflects the most extreme economic
impacts. Global believes that for cases involving less severe
violations, NHTSA should consider economic hardship to the company's
competitive position caused by a civil penalty.
Agency Response
NHTSA believes that for less severe violations consideration of
other factors under 49 U.S.C. 30165(c) will reduce the amount of
potential penalty and also the financial impact of the penalty. For

[[Page 10526]]

less serve violations, NHTSA will also still consider whether the
company should be permitted to pay the civil penalty over time. For
these reasons, we are adopting the proposed interpretation of this
factor in the NPRM without changes.
8. Whether the Respondent Has Been Assessed Civil Penalties Under This
Section During the Most Recent 5 Years
We proposed to interpret ``whether the [respondent] has been
assessed civil penalties under this section during the most recent 5
years,'' 49 U.S.C. 30165(c)(8), as including an assessment of civil
penalties, a settlement agreement containing a penalty, or a consent
order or a lawsuit involving a penalty or payment of a civil penalty in
the most recent 5 years from the date of the alleged violation,
regardless of whether there was any admission of a violation or of
liability under 49 U.S.C. 30165.
Comment
Advocates believes that repeated violations of the Safety Act merit
the imposition of the maximum fine permitted by law.
Global requests that NHTSA consider the significance of previous
violations of the Safety Act and whether previous violations are
related to the violation at issue. Global believes that in some
instances prior penalties many have no bearing on whether an enhanced
penalty should be imposed.
Agency Response
NHTSA believes that repeated violations of the Safety Act, even if
they are unrelated, can be indicative of a company's failure to foster
a culture of safety and compliance. Therefore, NHTSA will continue to
take into account all previous civil penalties paid by a company in the
last five years regardless of whether they are related to the present
violation giving rise to liability for civil penalties.
9. Other Appropriate Factors
We proposed to interpret other appropriate factors as factors not
specifically identified in Section 31203(a) of MAP-21 which are
appropriately considered, including both aggravating and mitigating
factors.
Such factors may include, but are not limited to:
a. A history of violations. NHTSA may increase penalties for
repeated violations of the Safety Act or implementing regulations, or
for a pattern or practice of violations.
b. An economic gain from the violation. NHTSA may consider whether
the respondent benefitted economically from a violation, including a
delay in complying with the Safety Act, a failure to comply with the
Safety Act, or a delay or failure to comply with the regulations
thereunder.
c. Effect of the respondent's conduct on the integrity of programs
administered by NHTSA. The Agency's programs depend in large part on
timely and accurate reporting and certification by manufacturers.
Therefore, NHTSA may consider whether a person has been forthright with
the Agency. NHTSA may also consider whether a person has attempted to
mislead the Agency or conceal relevant information. For instance, NHTSA
may consider whether a manufacturer has provided accurate and timely
statements consistent with its Early Warning Reporting obligations.
NHTSA may also consider whether a registered importer has provided
accurate conformity packages and/or other information consistent with
49 U.S.C. 30141-30147 and the implementing regulations.
d. Responding to requests for information or remedial action. NHTSA
may consider a person's failure to respond in a timely and complete
fashion to requests from NHTSA for information or for remedial action.
NHTSA may also consider whether the agency needed to make multiple
requests to receive requested information.
Comments
NADA stated that under this factor NHTSA should include potential
penalty waivers for first time violators and consider the speed with
which a person who has violated the Safety Act acts to remedy the
violation.
Agency Response
NHTSA does not believe that it would be appropriate to establish
penalty waivers for first time violators in the contest of this
rulemaking. Often when NHTSA seeks a civil penalty from an entity for
the first time, it is because a significant violation has occurred or
because the entity has exhibited a pattern of repeated violations.
NHTSA will consider the speed with which a violator has acted to
remedy a violation when considering an entity's response to a request
for remedial action from NHTSA.

IV. Codification of Other MAP-21 Penalty Changes in 49 CFR Part 578

MAP-21 increased the penalties and damages for odometer fraud. MAP-
21 31206, 126 Stat. 761. MAP-21 also established civil penalties for
violations of corporate responsibility provisions in 49 U.S.C. 30166 of
$5,000 per day and a maximum penalty of $1,000,000. MAP-21 31304(b),
126 Stat. 764. These new penalties and increased penalties and damages
are all currently in effect. NHTSA is amending its penalty regulation,
49 CFR 578.6, to conform it to the MAP-21 amendments.

V. Rulemaking Analyses and Notices

Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures

NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This rulemaking
document was not reviewed under Executive Order 12866 or Executive
Order 13563. This action provides an interpretation for how NHTSA will
apply the civil penalty factors in 49 U.S.C. 30165. Because this
rulemaking only seeks to explain the process by which the agency
determines and resolves civil penalties and does not change the number
of entities subject to civil penalties, the impacts of the rule are
limited. Therefore, this rulemaking has been determined to be not
``significant'' under the Department of Transportation's regulatory
policies and procedures and the policies of the Office of Management
and Budget.

Regulatory Flexibility Act

We have also considered the impacts of this notice under the
Regulatory Flexibility Act. I certify that this rule is not expected to
have a significant economic impact on a substantial number of small
entities. The following provides the factual basis for this
certification under 5 U.S.C. 605(b). The amendments almost exclusively
affect manufacturers of motor vehicles and motor vehicle equipment.
SBA uses size standards based on the North American Industry
Classification System (``NAICS''), Subsector 336--Transportation
Equipment Manufacturing, which provides a small business size standard
of 1,000 employees or fewer for automobile manufacturing businesses.
Other motor vehicle-related industries have lower size requirements
that range between 100 and 750 employees.
For example, according to the SBA coding system, businesses that
manufacture truck trailers, travel trailers/campers, and vehicular
lighting equipment, qualify as small businesses if they employ 500 or
fewer employees. Many small businesses are subject to the penalty
provisions of 49 U.S.C. 30165 and therefore may be in some way

[[Page 10527]]

affected by the civil penalty factors in this final rule. However, the
impacts of this rulemaking on small businesses are minimal, as NHTSA
will continue to consider the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA).\16\
---------------------------------------------------------------------------

\16\ See NHTSA, Civil Penalty Policy Under the Small Business
Regulatory Enforcement Fairness Act, 62 FR 37115 (July 10, 1997).
---------------------------------------------------------------------------

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This final rule would not materially affect our civil penalty
policy toward small businesses. Because NHTSA will continue to consider
SBREFA and consider the business' size including the potential that a
civil penalty would have undue adverse economic impacts on a small
business before assessing or compromising a civil penalty, the impacts
of this rulemaking on small businesses are minimal.

Executive Order 13132 (Federalism)

Executive Order 13132 requires NHTSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``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.'' Under Executive Order 13132, the agency may not issue a
regulation with Federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, the agency
consults with State and local governments, or the agency consults with
State and local officials early in the process of developing the
proposed regulation.
This final rule will not have 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, as specified in Executive Order 13132.
This rule generally would apply to private motor vehicle and motor
vehicle equipment manufacturers (including importers), entities that
sell motor vehicles and equipment and motor vehicle repair businesses.
Thus, Executive Order 13132 is not implicated and consultation with
State and local officials is not required.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995, Public Law 104-4,
requires agencies to prepare a written assessment of the cost, benefits
and other effects of proposed or final rules that include a Federal
mandate likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. Because this rulemaking would not have a $100
million effect, no Unfunded Mandates assessment will be prepared.

Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729; Feb. 7, 1996), requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) specifies
whether administrative proceedings are to be required before parties
file suit in court; (6) adequately defines key terms; and (7) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. This document is
consistent with that requirement.
The rule lists the mandatory and discretionary factors for NHTSA to
consider when determining the amount of civil penalty or compromise.
This rule would not have retroactive effect.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1980, we state
that there are no requirements for information collection associated
with this rulemaking action.

Regulatory Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.

Privacy Act

Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).

List of Subjects in 49 CFR Part 578

Administrative practice and procedure, Motor vehicles, Motor
vehicle safety, Imports, Rubber and rubber products, Penalties, Tires.

Regulatory Text

For the reasons set forth in the preamble, NHTSA amends 49 CFR part
578 as follows:

PART 578--CIVIL AND CRIMINAL PENALTIES

0
1. The authority citation for part 578 is revised to read as follows:

Authority: Pub. L. 101-410, Pub. L. 104-134, Pub. L. 112-141, 49
U.S.C. 322, 30165, 30170, 30505, 32308, 32309, 32507, 32709, 32710,
32902, 32912, and 33115 as amended; delegation of authority at 49
CFR 1.81 and 1.95.

0
2. Revise Sec. Sec. 578.1, 578.2 and 578.3 to read as follows:

Sec. 578.1 Scope

This part specifies the civil penalties for violations of statutes
and regulations administered by the National Highway Traffic Safety
Administration (NHTSA), as adjusted for inflation. This part also sets
forth NHTSA's interpretation of the civil penalty factors listed in 49
U.S.C. 30165(c). In addition, this part sets forth the requirements
regarding the reasonable time and the manner of correction for a person
seeking safe harbor protection from criminal liability under 49 U.S.C.
30170(a).

Sec. 578.2 Purpose.

One purpose of this part is to effectuate the remedial impact of
civil penalties and to foster compliance with the law by specifying the
civil penalties for statutory and regulatory violations, as adjusted
for inflation. Another purpose of this part is to set forth NHTSA's
interpretation of the civil penalty factors listed in 49 U.S.C.
30165(c). A third purpose of this part is to set forth the requirements
regarding the reasonable time and the manner of correction for a person
seeking safe harbor protection from criminal liability under 49 U.S.C.
30170(a).

[[Page 10528]]

Sec. 578.3 Applicability.

This part applies to civil penalties for violations of Chapters
301, 305, 323, 325, 327, 329, and 331 of Title 49 of the United States
Code or a regulation prescribed thereunder. This part applies to civil
penalty factors under section 30165(c) of Title 49 of the United States
Code. This part also applies to the criminal penalty safe harbor
provision of section 30170 of Title 49 of the United States Code.

0
3. Amend Sec. 578.4 by adding in alphabetical order definitions of
``person'' and ``respondent'' to read as follows:

Sec. 578.4 Definitions.

* * * * *
Person means any individual, corporation, company, limited
liability company, trust, association, firm, partnership, society,
joint stock company, or any other entity.
Respondent means any person charged with liability for a civil
penalty for a violation of sections 30112, 30115, 30117 through 30122,
30123(a), 30125(c), 30127, 30141 through 30147, or 30166 of Title 49 of
the United States Code or a regulation prescribed under any of those
sections.

0
4. Amend Sec. 578.6 by adding paragraph (a)(4) and revising paragraph
(f) to read as follows:

Sec. 578.6 Civil penalties for violations of specified provisions of
Title 49 of the United States Code.

(a) * * *
(4) Section 30166(o). A person who knowingly and willfully submits
materially false or misleading information to the Secretary, after
certifying the same as accurate under the process established pursuant
to section 30166(o), shall be subject to a civil penalty of not more
than $5,000 per day. The maximum penalty under this paragraph for a
related series of daily violations is $1,000,000.
* * * * *
(f) Odometer tampering and disclosure. (1) A person that violates
49 U.S.C. Chapter 327 or a regulation prescribed or order issued
thereunder is liable to the United States Government for a civil
penalty of not more than $10,000 for each violation. A separate
violation occurs for each motor vehicle or device involved in the
violation. The maximum civil penalty under this paragraph for a related
series of violations is $1,000,000.
(2) A person that violates 49 U.S.C. Chapter 327 or a regulation
prescribed or order issued thereunder, with intent to defraud, is
liable for three times the actual damages or $10,000, whichever is
greater.
* * * * *

0
5. Add Sec. 578.8 to read as follows:

Sec. 578.8 Civil penalty factors under 49 U.S.C. Chapter 301.

(a) General civil penalty factors. This subsection interprets the
terms nature, circumstances, extent, and gravity of the violation
consistent with the factors in 49 U.S.C. 30165(c).
(1) Nature of the violation means the essential, fundamental
character or constitution of the violation. It includes but is not
limited to the nature of a safety-related defect or noncompliance. It
also includes what the violation involves.
(2) Circumstances of the violation means the context, facts, and
conditions having bearing on the violation.
(3) Extent of the violation means the range of inclusiveness over
which the violation extends including the scope, time frame and/or the
degree of the violation. This includes the number of violations and
whether the violations are related or unrelated.
(4) Gravity of the violation means the importance, significance,
and/or seriousness of the violation.
(b) Discretionary civil penalty factors. Paragraph (b) of this
section interprets the nine discretionary factors in 49 U.S.C.
30165(c)(1) through (9) that NHTSA may apply in making civil penalty
amount determinations.
(1) The nature of the defect or noncompliance means the essential,
fundamental characteristic or constitution of the defect or
noncompliance. ``Defect'' is as defined in 49 U.S.C. 30102(a)(2).
``Noncompliance'' under this factor includes a noncompliance with a
Federal Motor Vehicle Safety Standard (``FMVSS''), as well as other
violations subject to penalties under 49 U.S.C. 30165. When considering
the nature of a safety-related defect or noncompliance with an FMVSS,
NHTSA may examine the conditions or circumstances under which the
defect or noncompliance arises, the performance problem, and actual and
probable consequences of the defect or noncompliance. When considering
the nature of the noncompliance with the Safety Act or a regulation
promulgated thereunder, NHTSA may also examine the circumstances
surrounding the violation.
(2) Knowledge by the respondent of its obligations under this
chapter means all knowledge, legal and factual, actual, presumed and
constructive, of the respondent of its obligations under 49 U.S.C.
Chapter 301. If a respondent is other than a natural person, including
but not limited to a corporation or a partnership, then the knowledge
of an employee or employees of that non-natural person may be imputed
to that non-natural person. The knowledge of an agent may be imputed to
a principal. A person, such as a corporation, with multiple employees
may be charged with the knowledge of each employee, regardless of
whether the employees have communicated that knowledge among each
other, or to a decision maker for the non-natural person.
(3) The severity of the risk of injury means the gravity of
exposure to potential injury and includes the potential for injury or
death of drivers, passengers, other motorists, pedestrians, and others.
The severity of the risk includes the likelihood of an injury occurring
and the population group exposed.
(4) The occurrence or absence of injury means whether injuries or
deaths have occurred as a result of a defect, noncompliance, or other
violation of 49 U.S.C. Chapter 301 or Chapter 5 of Title 49 of the Code
of Federal Regulations. NHTSA may also take into consideration
allegations of death or injury. The absence of deaths or injuries shall
not be dispositive of manufacturer's liability for civil penalties.
(5) The number of motor vehicles or items of motor vehicle
equipment distributed with the defect or noncompliance means the total
number of vehicles or items of motor vehicle equipment distributed with
the defect or noncompliance with an FMVSS or the percentage of vehicles
or items of motor vehicle equipment of the subject population with the
defect or noncompliance with an FMVSS. If multiple make, model and
model years of motor vehicles are affected by the defect or
noncompliance with an FMVSS, NHTSA may also consider the percentage of
motor vehicles that contain the defect or noncompliance with an FMVSS
as a percentage of the manufacturer's total annual production of
vehicles. NHTSA may choose to make distinction between those defective
or noncompliant products distributed in commerce that consumers
received, and those defective or noncompliant products distributed in
commerce that consumers have not received.
(6) Actions taken by the respondent to identify, investigate, or
mitigate the condition means actions actually taken, the time frame
when those actions were taken, what those actions involved and how they
ameliorated or otherwise related to the condition, what remained after
those actions were taken, and the

[[Page 10529]]

speed with which the actions were taken. A failure to act may also be
considered. NHTSA may also consider whether the respondent has set up
processes to facilitate timely and accurate reporting and timely
investigation of potential safety issues, whether it has audited such
processes, whether it has provided training to employees on the
processes, and whether such processes were followed.
(7) The appropriateness of such penalty in relation to the size of
the business of the respondent, including the potential for undue
adverse economic impacts. NHTSA takes the Small Business Regulatory
Enforcement Fairness Act of 1996 into account. Upon a showing that a
violator is a small entity, NHTSA may include, but is not limited to,
requiring the small entity to correct the violation within a reasonable
correction period, considering whether the violation was discovered
through the participation by the small entity in a compliance
assistance program sponsored by the agency, considering whether the
small entity has been subject to multiple enforcement actions by the
agency, considering whether the violations involve willful or criminal
conduct, considering whether the violations pose serious health, safety
or environmental threats, and requiring a good faith effort to comply
with the law. NHTSA may also consider the effect of the penalty on
ability of the person to continue to operate. NHTSA may consider a
person's ability to pay, including in installments over time, any
effect of a penalty on the respondent's ability to continue to do
business, and relevant financial factors such as liquidity, solvency,
and profitability. NHTSA may also consider whether the business has
been deliberately undercapitalized.
(8) Whether the respondent has been assessed civil penalties under
this section during the most recent 5 years means whether the
respondent has been assessed civil penalties, including a settlement
agreement containing a penalty, a consent order or a lawsuit involving
a penalty or payment of a civil penalty in the most recent 5 years from
the date of the alleged violation, regardless of whether there was any
admission of a violation or of liability, under 49 U.S.C. 30165.
(9) Other appropriate factors means other factors not identified
above, including but not limited to aggravating and mitigating factors
relating to the violation, such as whether there is a history of
violations, whether a person benefitted economically from a violation,
the effect of the respondent's conduct on the integrity of programs
administered by NHTSA, and whether there was a failure to respond in a
complete and timely manner to requests for information or remedial
action.

Issued in Washington, DC on February 17, 2016 under authority
delegated pursuant to 49 CFR 1.95.
Mark R. Rosekind,
Administrator.
[FR Doc. 2016-04311 Filed 2-29-16; 8:45 am]
BILLING CODE 4910-59-P