Federal Civil Penalties Inflation Adjustment of 2015 |
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Daphne Y. Jefferson
Federal Motor Carrier Safety Administration
12 April 2017
[Federal Register Volume 82, Number 69 (Wednesday, April 12, 2017)]
[Rules and Regulations]
[Pages 17584-17593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07316]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 386
[Docket Number: FMCSA-2016-0128]
RIN 2126-AB93
Federal Civil Penalties Inflation Adjustment of 2015
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA amends the civil penalties listed in its regulations to
ensure that the civil penalties assessed or enforced by the Agency
reflect the statutorily mandated ranges as adjusted for inflation.
Pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (2015 Act), FMCSA is required to promulgate
annual adjustments each year by January 15th. Pursuant to the
Administrative Procedure Act, FMCSA finds that good cause exists for
immediate implementation of this final rule because prior notice and
comment are unnecessary, per the specific provisions of the 2015 Act.
DATES: This rule is effective April 24, 2017.
FOR FURTHER INFORMATION CONTACT: Ms. LaTonya Mimms, Enforcement
Division, by email at civilpenalty@dot.gov or phone at 202-366-0991.
Office hours are from 8:00 a.m. to 4:30 p.m. Monday through Friday,
except Federal holidays. If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Summary of the Major Provisions
This final rule adjusts the amount of FMCSA's civil penalties to
account for inflation as directed by the 2015 Act. The final rule
implements the 2017 annual adjustments, which will update the
adjustments made by interim final rule on June 27, 2016 (81 FR 41453).
The specific inflation adjustment methodology is described later in
this document.
B. Benefits and Costs
The changes imposed by this final rule affect civil penalty
amounts, which are considered by the Office of Management and Budget
(OMB) Circular A-4, Regulatory Analysis,\1\ as transfer payments, not
costs. Transfer payments are payments from one group to another that do
not affect total resources available to society. By definition they are
not considered in the monetization of societal costs and benefits of
rulemakings.
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\1\ Office of Management and Budget (OMB). Circular A-4.
Regulatory Analysis. September 17, 2003. Available at: https://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf (accessed January 5, 2017).
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Congress stated in the Federal Civil Penalties Inflation Adjustment
Act of 1990 (1990 Act) that increasing penalties over time will
``maintain the deterrent effect of civil monetary penalties and promote
compliance with the law.'' \2\ Therefore, with this continued
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 reliably quantified
into safety benefits.
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\2\ 28 U.S.C. 2461 note (Pub. L. 101-410, Oct. 5, 1990, 104
Stat. 890.).
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II. Legal Basis for the Rulemaking
A. Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015
This rulemaking is based primarily on the 2015 Act, Public Law 114-
74, title VII, sec. 701, 129 Stat. 599, 28 U.S.C. 2461 note (Nov. 2,
2015). The 2015 Act amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 (1990 Act) (28 U.S.C. 2461 note). The basic
findings and purpose of the amended 1990 Act remain unchanged and
include supporting the role civil penalties play in Federal law and
regulations in deterring violations by allowing for regulatory
adjustments to account for inflation.
OMB must provide annual guidance by December of each year on
implementing the 2015 Act. In response to this provision, OMB has
provided guidance to agencies regarding the methodology to implement
the 2017 annual adjustment required under the 2015 Act,\3\ as further
discussed in the Background section, below.
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\3\ OMB Memorandum for the Heads of Executive Departments and
Agencies; Implementation of the 2017 annual adjustment pursuant to
the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015: https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf.
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B. Administrative Procedure Act (APA)
Generally, agencies may promulgate final rules only after issuing a
notice of proposed rulemaking and providing an opportunity for public
comment under
[[Page 17585]]
procedures required by the APA, as provided in 5 U.S.C. 553(b) and (c).
The APA, in 5 U.S.C. 553(b)(3)(B), provides an exception from these
requirements when notice and public comment procedures are
``impracticable, unnecessary, or contrary to the public interest.''
FMCSA finds that prior notice and comment is unnecessary because
section 4 of the 2015 Act specifically requires the annual adjustments
to be accomplished through final rule without notice and comment.
Also pursuant to the APA (5 U.S.C. 553 (d)(3)), the rule will be
effective April 24, 2017. Delaying the effective date for 30 days after
publication would be contrary to the direction provided in the 2015
Act, which states that annual adjustments be made by January 15th of
each year. As this final rule is already past that deadline, further
delay would be contrary to the public interest.
III. Background
A. Regulatory History
On June 27, 2016, FMCSA published an interim final rule using an
initial ``catch up'' adjustment, as required by section 4 of the 2015
Act (81 FR 41453). That interim final rule included an explanation of
how FMCSA would apply adjusted civil penalty amounts to ongoing
enforcement cases. As stated in that rule:
FMCSA has concluded that, for those open enforcement matters in
which a penalty was proposed before the date of the ``catch-up''
adjustment or an annual adjustment but in which a Final Agency
Action has not been issued, recalculating the amount of the proposed
penalty would not induce further compliance, and would thus be
contrary to the goal of 49 U.S.C. 521(b)(2)(D). Moreover, the length
of time between the date that a person is notified of the amount of
the proposed penalty and the issuance of the Final Agency Action can
vary, but is sometimes several years, depending on litigation
schedules and other factors. Applying an inflation adjustment to
proposed penalties in cases long awaiting administrative review
could raise questions of equity. FMCSA therefore will not
retroactively adjust the proposed penalty amounts in notices of
claim issued prior to the effective date. Otherwise, the 2015 Act
applies prospectively, and does not retroactively change previously
assessed or enforced penalties an agency is actively collecting or
has collected.\4\
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\4\ 81 FR 41453, 41454, June 27, 2016.
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B. Method of Calculation
OMB published a memorandum on December 16, 2016 (see footnote 3),
providing guidance to the Agencies for implementation of the 2017
annual adjustment under the 2015 Act (OMB implementation guidance). The
OMB implementation guidance detailed a cost-of-living adjustment
multiplier of 1.01636 for 2017. This adjustment applies to all civil
monetary penalties covered by the Inflation Adjustment Act. OMB
guidance requires the multiplier to be applied to the most recent
penalty amount, i.e., the catch-up adjustment that the 2015 Act
required agencies to issue not later than July 1, 2016. FMCSA,
therefore, bases these adjustments on the changes contained in the
interim final rule published June 27, 2016 (81 FR 41453).
IV. Discussion of Comments and Responses
On June 27, 2016, FMCSA published an interim final rule using an
initial ``catch up'' adjustment. While that interim final rule was
issued without notice and comment, FMCSA did request comments on any
errors or discrepancies that the public might find. No comments were
received on the interim final rule.
V. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply to foreign
entities operating within the United States (and, in some cases, United
States territories). Motor carriers and drivers are subject to the laws
and regulations of the countries in which they operate, unless an
international agreement states otherwise. Drivers and carriers should
be aware of the regulatory differences among nations.
VI. Section-by-Section Analysis
Today's amendments to part 386 finalize the changes made to the
introductory text of the Appendices A and B to Part 386 in the interim
final rule published on June 27, 2016 (81 FR 41453). The amendments
also revise the penalty amounts found within Appendices A and B. Below
are two tables describing the changes to the civil penalty amounts in
Appendices A and B. The first and second columns show the location of
the change in the appendices and the legal authority. Column three
shows the current penalty as adjusted by the interim final rule. The
fourth column presents the ``Annually Adjusted Penalty,'' which is the
current penalty adjusted using the OMB-prescribed multiplier of
1.01636. 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.
A. Appendix A to Part 386--Penalty Schedule: Violations of Notices and
Orders
The introduction to Appendix A is republished, but is unchanged
from the interim final rule. Table 1, below, describes the changes in
the penalties in Appendix A made by today's final rule.
Table 1--Inflation Adjustments for Appendix A to Part 386
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Annually
adjusted
Current penalty
Civil penalty location Legal authority penalty (current
penalty x
1.01636)
(1) (2)............................. (3) (4)
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Appendix A II Subpoena........................ MAP-21 Public Law 112-141, 32110 $1,028 $1,045
126 Stat. 405, 782, (2012) (49
U.S.C. 525).
Appendix A II Subpoena........................ MAP-21 Public Law 112-141, 10,282 10,450
32110, 126 Stat. 405, 782
(2012) (49 U.S.C. 525).
Appendix A IV (a) Out-of-service order Public Law 98-554, 213(b), 98 1,782 1,811
(operation of CMV by driver). Stat. 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 Public Law 98-554, 213(a), 98 17,816 18,107
(requiring or permitting operation of CMV by Stat. 2829 (1984) (49 U.S.C.
driver). 521(b)(7)), 55 FR 11224 (March
27, 1990).
[[Page 17586]]
Appendix A IV (c) Out-of-service order Public Law 98-554, 213(a), 98 1,782 1,811
(operation by driver of CMV or intermodal Stat 2829 (1984) (49 U.S.C.
equipment that was placed out of service). 521(b)(7)), FR 11224 (March 27,
1990).
Appendix A IV (d) Out-of-service order Public Law 98-554, 213(a), 98 17,816 18,107
(requiring or permitting operation of CMV or Stat 2829 (1984) (49 U.S.C.
intermodal equipment that was placed out of 521(b)(7)); 55 FR 11224 (March
service). 27, 1990).
Appendix A IV (e) Out-of-service order 49 U.S.C. 521(b)(2)(B), 49 CFR 891 906
(failure to return written certification of 396.9(d)(3).
correction).
Appendix A IV (g) Out-of-service order MAP-21, Public Law 112-141, 25,705 26,126
(failure to cease operations as ordered). 32503, 126 Stat. 405, 803
(2012) (49 U.S.C. 521(b)(2)(F)).
Appendix A IV (h) Out-of-service order Public Law 98-554, 213(a), 98 22,587 22,957
(operating in violation of order). Stat, 2829, 2841-2843 (1984)
(49 U.S.C. 521(b)(7)).
Appendix A IV (i) Out-of-service order TEA-21, Public Law 105-178, 14,502 14,739
(conducting operations during suspension or 4015(b), 112 Stat. 411-12
revocation for failure to pay penalties). (1998) (49 U.S.C. Sec.
521(b)(2)(A)), 521(b)(7)); 65
FR 56521, 56530 (September 19,
2000).
Appendix A IV (j) (conducting operations Public Law 98-554, 213(a), 98 22,587 22,957
during suspension or revocation). Stat, 2829, 2841-2843 (1984)
(49 U.S.C. 521(b)(7)).
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B. Appendix B to Part 386--Penalty Schedule: Violations and Monetary
Penalties
The introduction to Appendix B is republished, but is unchanged
from the interim final rule. Table 2, below, describes the changes in
the penalties in Appendix B made by today's final rule.
Table 2--Inflation Adjustments for Appendix B to Part 386
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Annually
adjusted
Current penalty
Civil penalty location Legal authority penalty (current
penalty x
1.01636)
(1) (2)............................. (3) (4)
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Appendix B (a)(1) Recordkeeping--maximum SAFETEA-LU, Public Law 109-59, $1,194 $1,214
penalty per day. 4102(a), 119 Stat. 1144, 1715
(2005) (49 U.S.C.
521(b)(2)(B)(i)).
Appendix B (a)(1) Recordkeeping--maximum total SAFETEA-LU, Public Law 109-59, 11,940 12,135
penalty. 4102(a), 119 Stat. 1144, 1715
(2005) (49 U.S.C.
521(b)(2)(B)(i)).
Appendix B (a)(2) Knowing falsification of SAFETEA-LU, Public Law 109-59, 11,940 12,135
records. 4102(a), 119 Stat. 1144, 1715
(2005) (49 U.S.C.
521(b)(2)(B)(ii)).
Appendix B (a)(3) Non-recordkeeping violations TEA-21, Public Law 105-178, 14,502 14,739
4015(b), 112 Stat. 107, 411-12
(1998) (49 U.S.C. 521(b)(2)(A)).
Appendix B (a)(4) Non-recordkeeping violations TEA-21, Public Law 105-178, 3,626 3,685
by drivers. 4015(b), 112 Stat. 107, 411-12
(1998) (49 U.S.C. 521(b)(2)(A)).
Appendix B (a)(5) Violation of 49 CFR 392.5 SAFETEA-LU, Public Law 109-59, 2,985 3,034
(first offense). 119 Stat. 1144, 1715; 4102(b),
119 Stat. 1715-16 (2005) (49
U.S.C. 31310(i)(2)(A)).
Appendix B (a)(5) Violation of 49 CFR 392.5 SAFETEA-LU, Public Law 109-59, 5,970 6,068
(second or subsequent conviction). 119 Stat. 1144, 1715; 4102(b),
119 Stat. 1715-16 (2005) (49
U.S.C. 31310(i)(2)(A)).
Appendix B (b) Commercial driver's license Public Law 99-570, 12012(b), 100 5,391 5,479
(CDL) violations. Stat. 3207-184-85 (1986) (49
U.S.C. 521(b)(2)(C)).
Appendix B (b)(1): Special penalties SAFETEA-LU, Public Law 109-59, 2,985 3,034
pertaining to violation of out-of-service 4102(b), 119 Stat. 1144, 1715
orders (first conviction). (2005) (49 U.S.C.
31310(i)(2)(A)).
Appendix B (b)(1) Special penalties pertaining SAFETEA-LU, Public Law 109-59, 5,970 6,068
to violation of out-of-service orders (second 119, 4102(b), Stat. 1144, 1715
or subsequent conviction). (2005) (49 U.S.C.
31310(i)(2)(A)).
Appendix B (b)(2) Employer violations Public Law 99-570, 12012(b), 100 5,391 5,479
pertaining to knowingly allowing, authorizing Stat. 3207-184-85 (1986) (49
employee violations of out-of-service order U.S.C. 521(b)(2)(C)).
(minimum penalty).
[[Page 17587]]
Appendix B (b)(2) Employer violations SAFETEA-LU, Public Law 109-59, 29,849 30,337
pertaining to knowingly allowing, authorizing 4102(b), 119 Stat. 1144, 1715
employee violations of out-of-service order (2005) (49 U.S.C. 31310
(maximum penalty). (i)(2)(C)).
Appendix B (b)(3) Special penalties pertaining ICC Termination Act of 1995, 15,474 15,727
to railroad-highway grade crossing violations. Public Law 104-88, 403(a), 109
Stat. 956 (1995) (49 U.S.C.
31310(j)(2)(B)).
Appendix B (d) Financial responsibility Public Law 103-272, 31139(f), 15,909 16,169
violations. 108 Stat. 745, 1006-1008 (1994)
(49 U.S.C. 31139(g)(1)).
Appendix B (e)(1) Violations of Hazardous MAP-21 Public Law 112-141, 77,114 78,376
Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837-838
Permitting Regulations (transportation or (2012) (49 U.S.C. 5123(a)(1)).
shipment of hazardous materials).
Appendix B (e)(2) Violations of Hazardous MAP-21 Public Law 112-141, 463 471
Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837
Permitting Regulations (training)--minimum (2012) (49 U.S.C. 5123(a)(3)).
penalty.
Appendix B (e)(2): Violations of Hazardous MAP-21 Public Law 112-141, 33010 77,114 78,376
Materials Regulations (HMRs) and Safety 126 Stat. 405, 837 (2012) (49
Permitting Regulations (training)--maximum U.S.C. 5123(a)(1)).
penalty.
Appendix B (e)(3) Violations of Hazardous MAP-21 Public Law 112-141, 77,114 78,376
Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837,
Permitting Regulations (packaging or (2012) 49 U.S.C. 5123(a)(1)).
container).
Appendix B (e)(4): Violations of Hazardous MAP-21 Public Law 112-141, 77,114 78,376
Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837
Permitting Regulations (compliance with (2012) (49 U.S.C. 5123(a)(1)).
FMCSRs).
Appendix B (e)(5) Violations of Hazardous MAP-21 Public Law 112-141, 179,933 182,877
Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837
Permitting Regulations (death, serious (2012) (49 U.S.C. 5123(a)(2)).
illness, severe injury to persons;
destruction of property).
Appendix B (f)(1) Operating after being MAP-21, Public Law 112-141, 25,705 26,126
declared unfit by assignment of a final 32503, 126 Stat. 405, 803
``unsatisfactory'' safety rating (generally). (2012) (49 U.S.C. 521(b)(2)(F)).
Appendix B (f)(2) Operating after being MAP-21, Public Law 112-141, 77,114 78,376
declared unfit by assignment of a final 33010, 126 Stat. 405, 837 (49
``unsatisfactory'' safety rating (hazardous U.S.C. 5123(a)(1)).
materials)--maximum penalty.
Appendix B (f)(2): Operating after being MAP-21, Public Law 112-141, 179,933 182,877
declared unfit by assignment of a final 33010, 126 Stat. 405, 837
``unsatisfactory'' safety rating (hazardous (2012) (49 U.S.C. 5123(a)(2)).
materials)--maximum penalty if death, serious
illness, severe injury to persons;
destruction of property.
Appendix B (g)(1) New Appendix B (g)(1): MAP-21, Public Law 112-141, 10,282 10,450
Violations of the commercial regulations (CR) 32108(a), 126 Stat. 405, 782
(property carriers). (2012) (49 U.S.C. 14901(a)).
Appendix B (g)(2) Violations of the CRs MAP-21 Public Law 112-141, 10,282 10,450
(brokers). 32919(a), 126 Stat. 405, 827
(2012) (49 U.S.C. 14916(c)).
Appendix B (g)(3) Violations of the CRs MAP-21, Public Law 112-141, 25,705 26,126
(passenger carriers). 32108(a), 126 Stat. 405, 782
(2012) (49 U.S.C. 14901(a)).
Appendix B (g)(4) Violations of the CRs MAP-21, Public Law 112-141, 10,282 10,450
(foreign motor carriers, foreign motor 32108(a), 126 Stat. 405, 782
private carriers). (2012) (49 U.S.C. 14901(a)).
Appendix B (g)(5) Violations of the CRs MCSIA of 1999, Public Law 106- 14,140 14,371
(foreign motor carriers, foreign motor 59, 219(b), 113 Stat. 1748,
private carriers before implementation of 1768 (1999) (49 U.S.C. 14901
North American Free Trade Agreement land note).
transportation provisions)--maximum penalty
for intentional violation.
Appendix B (g)(5) Violations of the CRs MCSIA of 1999, Public Law 106- 35,351 35,929
(foreign motor carriers, foreign motor 59, 219(c), 113 Stat. 1748,
private carriers before implementation of 1768 (1999) (49 U.S.C. 14901
North American Free Trade Agreement land note).
transportation provisions)--maximum penalty
for a pattern of intentional violations.
Appendix B (g)(6) Violations of the CRs (motor MAP-21, Public Law 112-141, 20,564 20,900
carrier or broker for transportation of 32108, 126 Stat. 405, 782
hazardous wastes)--minimum penalty. (2012) (49 U.S.C. 14901(b)).
Appendix B (g)(6) Violations of the CRs (motor MAP-21 Public Law 112-141, 41,128 41,801
carrier or broker for transportation of 32108, 126 Stat. 405,782 (2012)
hazardous wastes)--maximum penalty. (49 U.S.C. 14901(b)).
[[Page 17588]]
Appendix B (g)(7): Violations of the CRs (HHG ICC Termination Act of 1995, 1,547 1,572
carrier or freight forwarder, or their Public Law 104-88, 103, 100
receiver or trustee). Stat. 803, 914 (1995) (49
U.S.C. 14901(d)(1)).
Appendix B (g)(8) Violation of the CRs (weight ICC Termination Act of 1995, 3,095 3,146
of HHG shipment, charging for services)-- Public Law 104-88, 103, 100
minimum penalty for first violation. Stat. 803, 914 (1995) (49
U.S.C. 14901(e)).
Appendix B (g)(8) Violation of the CRs (weight ICC Termination Act of 1995, 7,737 7,864
of HHG shipment, charging for services) Public Law 104-88, 103, 100
subsequent violation. Stat. 803, 914 (1995) (49
U.S.C. 14901(e)).
Appendix B (g)(10) Tariff violations.......... ICC Termination Act of 1995, 154,742 157,274
Public Law 104-88, 103, 100
Stat. 803, 868-869, 915 (1995)
(49 U.S.C. Sec. 13702, 14903).
Appendix B (g)(11) Additional tariff ICC Termination Act of 1995, 309 314
violations (rebates or concessions)--first Public Law 104-88, 103, 100
violation. Stat. 803, 915-916 (1995) (49
U.S.C. 14904(a)).
Appendix B (g)(11) Additional tariff ICC Termination Act of 1995, 387 393
violations (rebates or concessions)-- Public Law 104-88, 103, 100
subsequent violations. Stat. 803, 915-916 (1995) (49
U.S.C. 14904(a)).
Appendix B (g)(12): Tariff violations (freight ICC Termination Act of 1995, 774 787
forwarders)--maximum penalty for first Public Law 104-88, 103, 100
violation. Stat. 803, 916 (49 U.S.C.
14904(b)(1)).
Appendix B (g)(12): Tariff violations (freight ICC Termination Act of 1995, 3,095 3,146
forwarders)--maximum penalty for subsequent Public Law 104-88, 103, 100
violations. Stat. 803, 916 (1995) (49
U.S.C. 14904(b)(1)).
Appendix B (g)(13): Service from freight ICC Termination Act of 1995, 774 787
forwarder at less than rate in effect-- Public Law 104-88, 103, 100
maximum penalty for first violation. Stat. 803, 916 (1995) (49
U.S.C. 14904(b)(2)).
Appendix B (g)(13): Service from freight ICC Termination Act of 1995, 3,095 3,146
forwarder at less than rate in effect-- Public Law 104-88, 103, 100
maximum penalty for subsequent violation(s). Stat. 803, 916 (1995) (49
U.S.C. 14904(b)(2)).
Appendix B (g)(14): Violations related to ICC Termination Act of 1995, 15,474 15,727
loading and unloading motor vehicles. Public Law 104-88, 103, 100
Stat. 803, 916 (1995) (49
U.S.C. 14905).
Appendix B (g)(16): Reporting and MAP-21, Public Law 112-141, 1,028 1,045
recordkeeping under 49 U.S.C. subtitle IV, 32108, 126 Stat. 405, 782
part B (except 13901 and 13902(c)--minimum (2012) (49 U.S.C. 14901).
penalty.
Appendix B (g)(16): Reporting and ICC Termination Act of 1995, 7,737 7,864
recordkeeping under 49 U.S.C. subtitle IV, Public Law 104-88, 103, 100
part B--maximum penalty. Stat. 803, 916-917 (1995) (49
U.S.C. 14907).
Appendix B (g)(17): Unauthorized disclosure of ICC Termination Act of 1995, 3,095 3,146
information. Public Law 104-88, 103, 100
Stat. 803, 917 (1995) (49
U.S.C. 14908).
Appendix B (g)(18): Violation of 49 U.S.C. ICC Termination Act of 1995, 774 787
subtitle IV, part B, or condition of Public Law 104-88, 103, 100
registration. Stat. 803, 917 (1995) (49
U.S.C. 14910).
Appendix B (g)(21)(i): Knowingly and willfully ICC Termination Act of 1995, 15,474 15,727
fails to deliver or unload HHG at destination. Public Law 104-88, 103, 100
Stat. 803, 916 (1995) (49
U.S.C. 14905).
Appendix B (g)(22): HHG broker estimate before SAFETEA-LU, Public Law 109-59, 11,940 12,135
entering into an agreement with a motor 4209(2), 119 Stat. 1144, 1758,
carrier. (2005) (49 U.S.C. 14901(d)(2)).
Appendix B (g)(23): HHG transportation or SAFETEA-LU, Public Law 109-59, 29,849 30,337
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 SAFETEA-LU, Public Law 109-59, 1,194 1,214
to equipment, lands, and buildings--maximum 4103(2), 119 Stat. 1144, 1716
penalty per day. (2005) (49 U.S.C. 521(b)(2)(E)).
Appendix B (h): Copying of records and access SAFETEA-LU, Public Law 109-59, 11,940 12,135
to equipment, lands, and buildings--maximum 4103(2), 119 Stat. 1716 (2005)
total penalty. (49 U.S.C. 521(b)(2)(E)).
Appendix B (i)(1): Evasion of regulations MAP-21 Public Law 112-141, 2,056 2,090
under 49 U.S.C. ch. 5, 51, subchapter III of 32505, 126 Stat. 405, 804
311 (except 31138 and 31139), 31302-31304, (2012) (49 U.S.C. 524).
31305(b), 31310(g)(1)(A), 31502--minimum
penalty for first violation.
Appendix B (i)(1): Evasion of regulations MAP-21 Public Law 112-141, 5,141 5,225
under 49 U.S.C. ch. 5, 51, subchapter III of 32505, 126 Stat. 405, 804
311 (except 31138 and 31139), 31302-31304, (2012) (49 U.S.C. 524).
31305(b), 31310(g)(1)(A), 31502--maximum
penalty for first violation.
[[Page 17589]]
Appendix B (i)(1): Evasion of regulations MAP-21 Public Law 112-141, 2,570 2,612
under 49 U.S.C. ch. 5, 51, subchapter III of 32505, 126 Stat. 405, 804
311 (except 31138 and 31139), 31302-31304, (2012) (49 U.S.C. 524). MAP-21
31305(b), 31310(g)(1)(A), 31502--minimum Public Law 112-141, 32505, 126
penalty for subsequent violation(s). Stat. 405, 804 (2012) (49
U.S.C. 524).
Appendix B (i)(1): Evasion of regulations MAP-21 Public Law 112-141, 7,711 7,837
under 49 U.S.C. ch. 5, 51, subchapter III of 32505, 126 Stat. 405, 804
311 (except 31138 and 31139), 31302-31304, (2012) (49 U.S.C. 524).
31305(b), 31310(g)(1)(A), 31502--maximum
penalty for subsequent violation(s).
Appendix B (i)(2): Evasion of regulations MAP-21 Public Law 112-141, 2,056 2,090
under 49 U.S.C. subtitle IV, part B--minimum 32505, 126 Stat. 405, 804
penalty for first violation. (2012) (49 U.S.C. 14906).
Appendix B (i)(2): Evasion of regulations MAP-21 Public Law 112-141, 5,141 5,225
under 49 U.S.C. subtitle IV, part B--minimum 32505, 126 Stat. 405, 804
penalty for subsequent violation(s). (2012) (49 U.S.C. 14906).
----------------------------------------------------------------------------------------------------------------
VII. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures as Supplemented by E.O. 13563)
This final rule is not a significant regulatory action under
section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning and
Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011),
and is also not significant within the meaning of DOT regulatory
policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR
11034, February 26, 1979) and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
This final rule would not have an annual effect on the economy of $100
million or more because transfer payments, by definition, do not affect
total resources available to society. Historically, the Agency has
never assessed civil penalties that approach $100 million in any given
year.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612),
FMCSA is not required to complete a regulatory flexibility analysis,
because, as discussed earlier in the legal basis section, this action
is not subject to prior notice and comment under section 553(b) of the
Administrative Procedure Act.
C. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this 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. LaTonya Mimms, 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.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $156 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2015 levels) or more in any 1 year. This final rule will not result in
such an expenditure.
E. Paperwork Reduction Act
This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
F. Federalism (E.O. 13132)
A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' FMCSA has determined that this rule
would not have substantial direct costs on or for States, nor would it
limit the policymaking discretion of States. Nothing in this rule
preempts any State law or regulation. Therefore, this rule does not
have sufficient Federalism implications to warrant the preparation of a
Federalism Impact Statement.
G. 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
[[Page 17590]]
minimize litigation, eliminate ambiguity, and reduce burden.
H. Protection of Children (E.O. 13045)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules to include an evaluation of
the regulation's environmental health and safety effects on children if
an agency has reason to believe the rule may disproportionately affect
children. The Agency determined that this 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.
I. 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.
J. Privacy Impact Assessment
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rule does not require the
collection of personally identifiable information (PII).
The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a
privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a privacy impact assessment.
K. Intergovernmental Review (E.O. 12372)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.
L. Energy Supply, Distribution, or Use (E.O. 13211)
FMCSA 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.
M. 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.
N. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This rule does not use
technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
O. Environmental Review (National Environmental Policy Act, Clean Air
Act, Environmental Justice)
FMCSA analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and
FMCSA's NEPA Implementing Procedures and Policy for Considering
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to
withhold or condition an action if the action is taken in accordance
with specific statutory criteria and FMCSA lacks control and
responsibility over the effects of an action, that action is not
subject to this Order.'' Id. at chapter 1.D. Because Congress specifies
the Agency's precise action here, thus leaving the Agency no discretion
over such action, and since the Agency lacks control and responsibility
over the effects of this action, this rulemaking falls under chapter
1.D. Therefore, no further analysis is considered.
FMCSA also analyzed this rule under the Clean Air Act, as amended
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it does not affect direct or indirect emissions of
criteria pollutants.
Under E.O. 12898 (Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations), each Federal agency
must identify and address, as appropriate, ``disproportionately high
and adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations'' in the United States, its possessions, and territories.
FMCSA has determined that this final rule would have no environmental
justice effects, nor would its promulgation have any collective
environmental impact.
List of Subjects in 49 CFR Part 386
Administrative procedures, Commercial motor vehicle safety,
Highways and roads, Motor carriers, Penalties.
For the reasons stated in the preamble, FMCSA is amending title 49
CFR part 386 to read as follows:
PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS
0
1. The authority citation for part 386 continues to read as follows:
Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149,
311, 313, and 315; 49 U.S.C. 5123; Sec. 204, Pub. L. 104-88, 109
Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113
Stat. 1748, 1767; Sec. 206, Pub. L. 106-159, 113 Stat. 1763;
subtitle B, title IV of Pub. L. 109-59; Sec. 701 of Pub. L. 114-74,
129 Stat. 584, 599; and 49 CFR 1.81 and 1.87.
0
2. Amend Appendix A to part 386 by revising the introductory text and
sections II, IV. a. through e., and IV. g. through j. to read as
follows:
Appendix A to Part 386--Penalty Schedule: Violations of Notices and
Orders
The Civil Penalties Inflation Adjustment Act Improvements Act of
2015 [Pub. L. 114-74, sec. 701, 129 Stat. 584, 599] amended the
Federal Civil Penalties Inflation Adjustment
[[Page 17591]]
Act of 1990 to require agencies to adjust civil penalties for
inflation. Pursuant to that authority, the inflation adjusted civil
penalties identified in this appendix supersede the corresponding
civil penalty amounts identified in title 49, United States Code.
* * * * *
II. Subpoena
Violation--Failure to respond to Agency subpoena to appear and
testify or produce records.
Penalty--minimum of $1,045 but not more than $10,450 per
violation.
* * * * *
IV. Out-of-Service Order
a. Violation--Operation of a commercial vehicle by a driver
during the period the driver was placed out of service.
Penalty--Up to $1,811 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 $18,107 per violation.
(This violation applies to motor carriers including an
independent contractor who is not a ``driver,'' as defined under
paragraph IV(a) above.)
c. Violation--Operation of a commercial motor vehicle or
intermodal equipment by a driver after the vehicle or intermodal
equipment was placed out-of-service and before the required repairs
are made.
Penalty--$1,811 each time the vehicle or intermodal equipment is
so operated.
(This violation applies to drivers as defined in IV(a) above.)
d. Violation--Requiring or permitting the operation of a
commercial motor vehicle or intermodal equipment placed out-of-
service before the required repairs are made.
Penalty--Up to $18,107 each time the vehicle or intermodal
equipment is so operated after notice of the defect is received.
(This violation applies to intermodal equipment providers and
motor carriers, including an independent owner operator who is not a
``driver,'' as defined in IV(a) above.)
e. Violation--Failure to return written certification of
correction as required by the out-of-service order.
Penalty--Up to $906 per violation.
* * * * *
g. Violation--Operating in violation of an order issued under
Sec. 386.72(b) to cease all or part of the employer's commercial
motor vehicle operations or to cease part of an intermodal equipment
provider's operations, i.e., failure to cease operations as ordered.
Penalty--Up to $26,126 per day the operation continues after the
effective date and time of the order to cease.
h. Violation--Operating in violation of an order issued under
Sec. 386.73.
Penalty--Up to $22,957 per day the operation continues after the
effective date and time of the out-of-service order.
i. Violation--Conducting operations during a period of
suspension under Sec. 386.83 or Sec. 386.84 for failure to pay
penalties.
Penalty--Up to $14,739 for each day that operations are
conducted during the suspension or revocation period.
j. Violation--Conducting operations during a period of
suspension or revocation under Sec. Sec. 385.911, 385.913, 385.1009
or 385.1011.
Penalty--Up to $22,957 for each day that operations are
conducted during the suspension or revocation period.
0
3. Amend Appendix B to part 386 by revising the introductory text and
paragraphs (a)(1) through (5), (b), (c), (d), (e), (f), (g)
introductory text, (g)(1) through (8), (g)(10) through (18),
(g)(21)(i), (g)(22) and (23), (h), and (i) to read as follows:
Appendix B to Part 386--Penalty Schedule: Violations and Monetary
Penalties
The Civil Penalties Inflation Adjustment Act Improvements Act of
2015 [Public Law 114-74, sec. 701, 129 Stat. 584, 599] amended the
Federal Civil Penalties Inflation Adjustment Act of 1990 to require
agencies to adjust civil penalties for inflation. Pursuant to that
authority, the inflation adjusted civil penalties identified in this
appendix supersede the corresponding civil penalty amounts
identified in title 49, United States Code.
What are the types of violations and maximum monetary penalties?
(a) Violations of the Federal Motor Carrier Safety Regulations
(FMCSRs):
(1) Recordkeeping. A person or entity that fails to prepare or
maintain a record required by parts 40, 382, 385, and 390-99 of this
subchapter, or prepares or maintains a required record that is
incomplete, inaccurate, or false, is subject to a maximum civil
penalty of $1,214 for each day the violation continues, up to
$12,135.
(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
$12,135 if such action misrepresents a fact that constitutes a
violation other than a reporting or recordkeeping violation.
(3) Non-recordkeeping violations. A person or entity that
violates parts 382, 385, or 390-99 of this subchapter, except a
recordkeeping requirement, is subject to a civil penalty not to
exceed $14,739 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
$3,685.
(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 $3,034 for a first conviction and not less
than $6,068 for a second or subsequent conviction.
* * * * *
(b) Commercial driver's license (CDL) violations. Any person who
violates 49 CFR part 383, subparts B, C, E, F, G, or H, is subject
to a civil penalty not to exceed $5,479; 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 $3,034 for a first
conviction and not less than $6,068 for a second or subsequent
conviction;
(2) An employer of a CDL-holder who knowingly allows, requires,
permits, or authorizes an employee to operate a CMV during any
period in which the CDL-holder is subject to an out-of-service
order, is subject to a civil penalty of not less than $5,479 or more
than $30,337; and
(3) An employer of a CDL-holder who knowingly allows, requires,
permits, or authorizes that CDL-holder to operate a CMV in violation
of a Federal, State, or local law or regulation pertaining to
railroad-highway grade crossings is subject to a civil penalty of
not more than $15,727.
(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 $16,169. Each
day of a continuing violation constitutes a separate offense.
(e) Violations of the Hazardous Materials Regulations (HMRs) and
Safety Permitting Regulations found in Subpart E of Part 385. This
paragraph applies to violations by motor carriers, drivers, shippers
and other persons who transport hazardous materials on the highway
in commercial motor vehicles or cause hazardous materials to be so
transported.
(1) All knowing violations of 49 U.S.C. chapter 51 or orders or
regulations issued under the authority of that chapter applicable to
the transportation or shipment of hazardous materials by commercial
motor vehicle on the highways are subject to a civil penalty of not
more than $78,376 for each violation. Each day of a continuing
violation constitutes a separate offense.
(2) All knowing violations of 49 U.S.C. chapter 51 or orders or
regulations issued under the authority of that chapter applicable to
training related to the transportation or shipment of hazardous
materials by commercial motor vehicle on the highways are subject to
a civil penalty of not less than $471 and not more than $78,376 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
[[Page 17592]]
hazardous materials by commercial motor vehicle on the highways are
subject to a civil penalty of not more than $78,376 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 $78,376.
(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 $182,877 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 $26,126 (49 CFR 385.13). Each day the
transportation continues in violation of a final ``unsatisfactory''
safety rating constitutes a separate offense.
(2) A motor carrier operating a commercial motor vehicle
designed or used to transport hazardous materials for which
placarding of a motor vehicle is required under regulations
prescribed under 49 U.S.C. chapter 51 is subject, after being placed
out of service because of receiving a final ``unsatisfactory''
safety rating, to a civil penalty of not more than $78,376 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
$182,877 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
$10,450 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
$10,450 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 $26,126 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 $10,450 per
violation.
(5) A person who operates as a foreign motor carrier or foreign
motor private carrier without authority, before the implementation
of the land transportation provisions of the North American Free
Trade Agreement, outside the boundaries of a commercial zone along
the United States-Mexico border, is liable for a maximum penalty of
$14,371 for an intentional violation and a maximum penalty of
$35,929 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
$20,900 and a maximum penalty of $41,801 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 $1,572 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 $3,146 for the first
violation and $7,864 for each subsequent violation.
* * * * *
(10) A person who offers, gives, solicits, or receives
transportation of property by a carrier at a different rate than the
rate in effect under 49 U.S.C. 13702 is liable for a maximum penalty
of $157,274 per violation. When acting in the scope of his/her
employment, the acts or omissions of a person acting for or employed
by a carrier or shipper are considered to be the acts or omissions
of that carrier or shipper, as well as that person.
(11) Any person who offers, gives, solicits, or receives a
rebate or concession related to motor carrier transportation subject
to jurisdiction under subchapter I of 49 U.S.C. chapter 135, or who
assists or permits another person to get that transportation at less
than the rate in effect under 49 U.S.C. 13702, commits a violation
for which the penalty is $314 for the first violation and $393 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 $787 for the first
violation and up to $3,146 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 $787 for the first violation and up to $3,146 for each
subsequent violation.
(14) A person who knowingly authorizes, consents to, or permits
a violation of 49 U.S.C. 14103 relating to loading and unloading
motor vehicles or who knowingly violates subsection (a) of 49 U.S.C.
14103 is liable for a penalty of not more than $15,727 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 $1,045 and for a
maximum penalty of $7,864 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 $3,146.
(18) A person who violates a provision of part B, subtitle IV,
title 49, U.S.C., or a regulation or order under Part B, or who
violates a condition of registration related to transportation that
is subject to jurisdiction under subchapter I or III of chapter 135,
or who violates a condition of registration of a foreign motor
carrier or foreign motor private carrier under section 13902, is
liable for a penalty of $787 for each violation if another penalty
is not provided in 49 U.S.C. chapter 149.
* * * * *
(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 $15,727 for each violation. Each day of a continuing
violation constitutes a separate offense.
* * * * *
(22) A broker for transportation of household goods who makes an
estimate of the cost of transporting any such goods before entering
into an agreement with a motor carrier to provide transportation of
household goods subject to FMCSA jurisdiction is liable to the
United States for a civil penalty of not less than $12,135 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
[[Page 17593]]
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 $30,337
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 $1,214 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 $12,135.
(i) Evasion. A person, or an officer, employee, or agent of that
person:
(1) Who by any means tries to evade regulation of motor carriers
under title 49, United States Code, chapter 5, chapter 51,
subchapter III of chapter 311 (except sections 31138 and 31139) or
sections 31302, 31303, 31304, 31305(b), 31310(g)(1)(A), or 31502, or
a regulation issued under any of those provisions, shall be fined at
least $2,090 but not more than $5,225 for the first violation and at
least $2,612 but not more than $7,837 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 $2,090 for the first violation or at least $5,225 for a
subsequent violation.
Issued under the authority of delegation in 49 CFR 1.87 on:
April 5, 2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-07316 Filed 4-11-17; 8:45 am]
BILLING CODE 4910-EX-P