[Federal Register Volume 63, Number 49 (Friday, March 13, 1998)]
[Rules and Regulations]
[Pages 12413-12415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6523]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 386

RIN 2105-AC63


Civil Penalties

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This document specifies the civil penalties for violating the 
FHWA regulations, as adjusted for inflation in accordance with the 
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by 
the Debt Collection Improvement Act of 1996. The inflation adjustments 
are reflected in this rulemaking. Technical amendments to the 
regulation are required by the statute which mandates that all civil 
penalties within the jurisdiction of a Federal agency be adjusted for 
inflation by regulation.

DATES: The effective date is March 13, 1998.

FOR FURTHER INFORMATION CONTACT: Charles E. Medalen, Office of the 
Chief Counsel, FHWA, telephone (202) 366-1354; or David M. Lehrman, 
Office of Motor Carrier Research and Standards, Federal Highway 
Administration, 400 Seventh Street SW., Washington, DC 20590; (202) 
366-0994, Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Federal Register 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Federal Register's home page at: http://www.nara.gov/nara/
fedreg and the Government Printing Office's database at: http://
www.access.gpo.gov/su__docs.

The Debt Collection Improvement Act of 1996

    In order to preserve the remedial impact of civil penalties and 
foster compliance with the law, the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as amended by 
the Debt Collection Improvement Act of 1996 (the Act) (Pub. L.104-134, 
110 Stat. 1321-358, -373), requires Federal agencies to regularly 
adjust certain civil penalties for inflation. As amended, the law 
requires each agency to make an initial inflationary adjustment for all 
applicable civil penalties, and to make further adjustments at least 
once every four years of these penalty amounts.
    The Debt Collection Improvement Act of 1996 further stipulates that 
any resulting increases in a civil penalty due to the calculated 
inflation adjustments: (i) Should apply only to violations that occur 
after October 23, 1996, the Act's effective date; and (ii) should not 
exceed 10 percent of the penalty indicated in authorizing legislation.

Method of Calculation

    Under the Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended, the inflation adjustment for each applicable civil penalty 
is determined by increasing the maximum civil penalty amount per 
violation by the cost-of-living-adjustment. The ``cost-of-living'' 
adjustment is defined as the amount by which the Consumer Price Index 
(CPI) for the month of June of the calendar year preceding the 
adjustment exceeds the CPI for the month of June of the year in which 
the amount of such civil penalty was last set or adjusted pursuant to 
law. Any calculated increase under this adjustment is subject to a 
specific rounding formula set forth in the Debt Collection Improvement 
Act of 1996.
    For example, pursuant to 49 U.S.C. 5123, the FHWA may assess a fine 
for violation of the Federal Hazardous Materials Regulations (HMR)(49 
CFR 171-180). The driver, motor carrier, or shipper who violates the 
HMR is subject to a civil penalty of not less than $250 and not more 
than $25,000 for each violation.

[[Page 12414]]

    This penalty was last set in 1990. The Consumer Price Index was 
156.7 in June 1996, and was approximately 130 in June of 1990. Thus the 
inflation factor is 156.7/130 or 1.21. The maximum penalty amount after 
the increase and statutory rounding would thus be the result of 
multiplying $25,000  x  1.21 = $30,250. However, after applying the 10 
percent limit on an initial increase, the new maximum penalty amount 
per violation is $25,000 plus $2,500 (i.e., 10 percent of the previous 
fine), or $27,500. Therefore, increasing penalty provisions will be 
limited to 10 percent.
    This final rule will be the first publication by regulation of the 
new penalty structure adjusted for inflation. In the past, Appendix A 
to part 386 was the sole regulatory source for a penalty schedule. 
Appendix A is now adjusted for inflation. A new Appendix B, which 
addresses violations not included in Appendix A, is added with 
violations and maximum monetary penalties adjusted for inflation.

Rulemaking Analyses and Notices

    Because these inflation adjustments are statutorily mandated, the 
FHWA finds that prior notice and opportunity for comment are 
unnecessary under 5 U.S.C. 553(b)). The law requires that Federal 
agencies adjust certain civil penalties for inflation and make further 
adjustments at least once every four years. We consider these 
adjustments to be ministerial acts in compliance with the statute over 
which agencies have no discretion.
    For these reasons, the FHWA has also determined that prior notice 
and opportunity for comment are not required under the Department of 
Transportation's regulatory policies and procedures, as we anticipate 
that such action would not result in the receipt of useful information. 
Thus, the FHWA is proceeding directly to a final rule and waives the 
30-day delay effective date because this action does not require 
carriers to take any action. This rule merely provides notice required 
by law of an inflation adjustment to maximum penalties.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of the Department of Transportation's 
regulatory policies and procedures. This final rule sets forth 
inflationary adjustments that are ministerial acts in compliance with 
the statute over which agencies have no discretion. We believe that 
this rule will not result in a major increase in costs or prices for 
State or local governments. The law is simply designed to preserve the 
remedial impact of civil penalties. Consequently, it is anticipated 
that the economic impact of this final rule will be minimal because it 
will not substantially change the applicable civil penalty amount. This 
regulatory action will merely make inflation adjustments for all 
applicable civil penalties as required by law.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. The ministerial adjustments for inflation published in this 
rule do not interfere with implementation of the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121, 
Title II, 110 Stat. 857) which requires penalties for small businesses 
to be reviewed in a manner designed to provide for waiver and/or 
reduction of civil penalties under appropriate circumstances. The FHWA 
certifies that this action will not have a significant economic impact 
on a substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612 and it has been determined 
this action does not have sufficient federalism implications to warrant 
the preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain information collection requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

    The agency has analyzed this action for the purposes of the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 
et seq.) and has determined that this action will not have any effect 
on the quality of the environment.

Unfunded Mandates Reform Act

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Regulation Identification Number

    A regulation identification number (RIN) is assigned 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. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 386

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Penalties.

    Issued on: March 5, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.

    In consideration of the foregoing, the FHWA amends title 49, Code 
of Federal Regulations, Chapter III, part 386 as set forth below:

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER SAFETY AND HAZARDOUS 
MATERIALS PROCEEDINGS

    1. The authority citation is revised to read as follows:

    Authority: 49 U.S.C. 104(c)(2), 501 et seq., Chapter 51, 31131-
31133, 31135-31139, 31142-31147, Chapter 313, 31501 et seq., Pub. L. 
104-34, title III, chapter 10, Sec. 31001, par. (s), 110 Stat. 1321-
373, and 49 CFR 1.45 and 1.48.

Appendix A to Part 386--[Amended]

    2. Appendix A to part 386 is amended by revising the figure 
``$500'' to read as ``$550'', the figure ``$1,000'' to read as 
``$1,100'', and the figure ``$10,000'' to read as ``$11,000'' whenever 
they appear throughout the appendix.

Appendix B to Part 386--[Added]

    3. Part 386 is amended by adding appendix B to read as follows:

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

    The Debt Collection Improvement Act of 1996 [Public Law 104-134, 
title III, chapter 10, Sec. 31001, par. (s), 110 Stat. 1321-373] 
amended the Federal Civil Penalties Inflation Adjustment Act of 1990 
to require agencies to adjust for inflation ``each civil monetary 
penalty provided by law within the jurisdiction of the Federal 
agency * * *'' and to publish that regulation in the Federal 
Register. Pursuant to that authority, the inflation-adjusted civil 
penalties listed below

[[Page 12415]]

supersede the corresponding civil penalty amounts listed in title 
49, United States Code.
    What are the types of violations and maximum monetary penalties?
    (a) Violations of the Federal Motor Carrier Safety Regulations 
(FMCSRs).
    (1) Recordkeeping. A person or entity that fails to prepare or 
maintain a record required by Parts 385 and 390-399 of this 
subchapter, or prepares or maintains a required record that is 
incomplete, inaccurate, or false, is subject to a maximum civil 
penalty of $550 for each day the violation continues, up to $2,750.
    (2) Serious Pattern of safety violations. These violations of 
Parts 385 and 390-399 of this subchapter constitute a middle range 
of violations. They do not include noncompliance with recordkeeping 
requirements, while substantial health or safety violations are 
subject to heavier civil penalties. Serious patterns of safety 
violations are subject to a maximum civil penalty of $1,100 for each 
violation in a pattern, up to a maximum of $11,000 for each pattern.
    (3) Substantial Health or Safety Violations. These are 
violations of Parts 385 and 390-399 of this subchapter which could 
reasonably lead to, or have resulted in, serious personal injury or 
death. Substantial health or safety violations are subject to a 
maximum civil penalty of $11,000, provided the driver's actions 
constituted gross negligence or reckless disregard for safety.
    (4) Non-recordkeeping violations by drivers. A driver who 
violates Parts 385 or 390-399 of this subchapter, except a 
recordkeeping requirement, is subject to a civil penalty not to 
exceed $1,100, provided the driver's actions constituted gross 
negligence or reckless disregard for safety.
    (5) Violation of 49 CFR 392.5. A driver placed out of service 
for 24 hours for violating the alcohol prohibitions of 49 CFR 
392.5(a) or (b) who drives during that period is subject to a civil 
penalty not to exceed $2,750 for each violation.
    (b) Commercial driver's license (CDL) violations. Any person who 
violates 49 CFR Subparts B, C, E, F, G, or H is subject to a civil 
penalty of $2,750.
    (c) Special penalties pertaining to violations of out-of-service 
orders by CDL-holders. A CDL-holder who is convicted of violating an 
out-of-service order shall be subject to a civil penalty of not less 
than $1,100 nor more than $2,750. An employer of a CDL-holder who 
knowingly allows, requires, permits, or authorizes that 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 $2,750 or more than $11,000.
    (d) Financial responsibility violations. A motor carrier that 
fails to maintain the levels of financial responsibility prescribed 
by Part 387 of this subchapter is subject to a maximum penalty of 
$11,000 for each violation. Each day of a continuing violation 
constitutes a separate offense.
    (e) Violations of the Hazardous Materials Regulations (HMRs). 
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 highways are subject to a civil penalty of not less 
than $250 and not more than $27,500 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, 
regulations, or exemptions issued under the authority of that 
chapter applicable to the manufacture, fabrication, marking, 
maintenance, reconditioning, repair or testing of a packaging or 
container which is represented, marked, certified or sold as being 
qualified for use in the transportation or shipment of hazardous 
materials by commercial motor vehicle on highways, are subject to a 
civil penalty of not less than $250 and not more than $27,500 for 
each violation.
    (3) 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 less 
than $250 and not more than $27,500.
    (f) Operating with an unsatisfactory safety rating. A motor 
carrier knowingly transporting hazardous materials in quantities 
requiring placarding, or passengers in a vehicle designed or used to 
transport more than 15 passengers, on the 46th or any subsequent day 
after receiving an unsatisfactory safety rating, is subject to a 
civil penalty of not less than $250 and not more than $27,500. Each 
day the transportation of hazardous materials continues constitutes 
a separate violation.

[FR Doc. 98-6523 Filed 3-12-98; 8:45 am]
BILLING CODE 4910-22-P