[Federal Register Volume 68, Number 61 (Monday, March 31, 2003)]
[Rules and Regulations]
[Pages 15381-15383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7378]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 386

RIN 2126-AA81


Civil Penalties

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

ACTION: Final rule.

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

SUMMARY: This document specifies the civil penalties for violating the 
FMCSA 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. The Federal Civil Penalties Inflation 
Adjustment Act authorizes these amendments to the FMCSA penalty 
regulations.

DATES: The effective date if March 31, 2003.

FOR FURTHER INFORMATION CONTACT: David M. Lehrman, Office of Policy, 
Plans and Regulation, Federal Motor Carrier Safety 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: 

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. 1321-1373), requires Federal agencies to regularly adjust 
certain civil penalties for inflation. These Acts are now codified at 
28 U.S.C. 2461 note. The law requires each agency to make an initial 
inflationary adjustment for all applicable civil penalties, and to make 
further adjustments to these penalty amounts at least once every four 
years.
    The law further stipulates that any resulting increases in a civil 
penalty due to the calculated inflation adjustments: (i) Should apply 
only to violations which occur after the date the increase takes 
effect; and (ii) the first adjustment of a civil monetary penalty made 
pursuant to the Act may not exceed 10 percent of such penalty.
    The FMCSA previously adjusted civil penalties for inflation by 
regulation on March 13, 1998 (63 FR 12413). Subsequent to these 
adjustments, Congress passed the Transportation Equity Act for the 21st 
Century (TEA-21) on June 9, 1998 (Pub. L. 105-178, 112 Stat. 107). TEA-
21 re-set several penalties at the amounts required prior to adjustment 
for inflation and created several new categories of penalties. The 
current penalties are found in 49 CFR part 386, Appendix A and B, 
except for

[[Page 15382]]

those found in paragraph (f) to Appendix B.
    Paragraph (f) was amended on October 2, 2002, by removing 
``$27,500'' and adding in its place ``$10,000'' (67 FR 61818) as 
mandated by TEA-21. The October 2002 notice failed to remove the listed 
minimum penalty of $250. paragraph (f) to Appendix B is re-written 
today to reflect that there are no minimum penalties for these 
violations and to correctly reflect the prohibitions mandated by 49 
U.S.C. 31144 (as amended by TEA-21), which prohibits all unfit motor 
carriers from operating in interstate commerce. Any unsatisfactory 
safety rating, given to motor carriers by FMCSA, is treated by the 
agency as a determination of unfitness (65 FR 50919, August 22, 2000).
    This notice addresses penalties considered to be initial 
adjustments, which are therefore subject to the statutory 10 percent 
maximum. The notice also addresses the previously adjusted penalties, 
amended on March 13, 1998 (63 FR 12413), which are therefore not 
subject to the statutory 10 percent maximum.
    Under 5 U.S.C. 553(b), the FMCSA finds good cause that prior notice 
and opportunity for comment are unnecessary because these inflation 
adjustments required by the Act are ministerial acts over which the 
agency has no discretion. The adjustment simply recognizes that as 
inflation occurs, penalties should keep pace so that the impact of the 
penalty is not diminished with the passage of time.

Method of Calculation

    Under the Act (28 U.S.C. 2461 note) 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 (section 5(b), 28 U.S.C. 2461 note). Any calculated 
increase under this adjustment is subject to a specific rounding 
formula set forth in the Act (section 5(a), 28 U.S.C. 2461 note).
    Under 49 U.S.C. 5123, the FMCSA may assess a fine for violations of 
the Federal Hazardous Materials Regulations (HMR) (49 CFR parts 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. The maximum penalty was adjusted for 
inflation on March 13, 1998 (63 FR 12413), resulting in an adjusted 
penalty of $27,500 (see 49 CFR part 386, Appendix B, paragraph (e)). 
But the minimum penalty was not previously adjusted for inflation. This 
minimum statutory penalty was last set in 1990. The Consumer Price 
Index was 180 in June 2002, and was approximately 130 in June of 1990 
(see U.S. Department of Labor CPI index at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt). Thus the inflation factor is 180/130 
or 1.38. The new minimum penalty amount after the increase and 
statutory rounding would thus be the result of multiplying $250 x 1.38 
= $345. However, after applying the 10 percent limit on an initial 
increase, the new minimum penalty amount per violation is $275.
    The current maximum penalty of $27,500 was adjusted for inflation 
in 1998. The Consumer Price Index was 180 in June 2002, and 163 in June 
1998. Thus the inflation factor is 108/163 or 1.10. The new maximum 
penalty amount after the increase and statutory rounding would thus be 
the result of multiplying $27,500 x 1.10 = $30,250. The Act is 
instructive as to the rounding method to be employed. The increase is 
to be rounded to the nearest multiple of $5,000 in the case of 
penalties greater than $10,000 but less than or equal to $100,000. The 
amount of the increase was $2,750, rounded to the nearest multiple of 
$5,000 equals a $5,000 adjustment to the current maximum penalty, or a 
new penalty of $32,500. The rounding adjustment is also consistent with 
a General Accounting Office (GAO) clarifying letter issued on July 15, 
2002 (see GAO B-290021).
    The following inflation factors were used to adjust penalties in 
this final rule: 180/163 or 1.10 for penalties previously adjusted in 
1998, and new TEA-21 penalties enacted by Congress that same year; 180/
130 or 1.38 for the hazardous materials minimum penalty not previously 
adjusted since 1990; 180/152 or 1.18 for commercial penalties 
established in the ICC Termination Act of 1995 (Pub. L. 104-88, 109 
Stat. 809) (all commercial penalties are being adjusted for the first 
time and are subject to the 10 percent maximum increase); and 180/166 
or 1.08 for penalties enacted in the Motor Carrier Safety Improvement 
Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748 (December 9, 
1999). Appendix A, to 49 CFR part 386, paragraph (h) includes MCSIA 
penalties for operating during a period of suspension for failure to 
pay penalties as outlined in 49 CFR 386.83 and 386.84. The FMCSA 
adjusts these penalties for inflation, even though they are only three 
years old, to place all penalties on the same adjustment schedule. The 
Act allows for more frequent adjustments, so long as agencies adjust at 
least every four years. These penalties are subject to the 10 percent 
maximum adjustment because this is the first adjustment for inflation.
    Appendices A and B are now adjusted for inflation.

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

    The FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of the Department of Transportation's 
regulatory policies and procedures. These inflation adjustments are 
ministerial acts in compliance with the statute over which FMCSA has no 
discretion. The FMCSA finds good cause to adopt the rule without prior 
notice or opportunity for public comment. The agency believes 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, the economic impact 
of this final rule will be minimal because it will not substantially 
change the applicable civil penalty amount, but merely adjust the 
penalty to reflect inflation.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive order 13132, dated August 4, 1999, and 
it has been determined this action does not have sufficient federalism 
implications or limit the policymaking discretion of the States.

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 (PRA) (44 U.S.C. 
3501 et seq.).

National Environmental Policy Act

    The FMCSA is a new Administration within the Department of

[[Page 15383]]

Transportation (DOT). The FMCSA analyzed this rule under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.) 
(NEPA), the Council on Environmental Quality Regulations implementing 
NEPA (40 CFR parts 1500-1508), and DOT Order 5610.1C, Procedures for 
Considering Environmental Impacts. This rule would be categorically 
excluded from further analysis and documentation in an environmental 
assessment or environmental impact statement since this action does not 
have any effect on the quality of the environment.

Unfunded Mandates Reform Act of 1995

    This rule does not impose an unfunded Federal mandate, as defined 
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), 
that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FMCSA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environment risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

List of Subjects in 49 CFR Part 386

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


0
In consideration of the foregoing, the FMCSA amends title 49, Code of 
Federal Regulations, chapter III, part 386 as set forth below:

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT 
FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS

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

    Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502, 
31504; 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; and 49 CFR 
1.73.




APPENDIX A TO PART 386--[AMENDED]0
2. Appendix A to part 386 is amended by revising the figure ``$550'' to 
read as ``$650'', the figure ``$1,100'' to read as ``$2,100'', the 
figure ``$10,000'' to read as ``$11,000'', and the figure ``$11,000'' 
to read as ``$16,000'', whenever they appear throughout the appendix.


APPENDIX B TO PART 386--[AMENDED]0
3. In Appendix B to part 386 the introductory text is amended by 
revising the second sentence to read as follows:
    * * * Pursuant to that authority, the inflation-adjusted civil 
penalties listed in paragraphs (a) through (g) of this appendix 
supersede the corresponding civil penalty amounts listed in title 49, 
United States Code. * * *
* * * * *
0
 Appendix B to part 386 is further amended as follows:
    a. Paragraph (a)(1) is amended by revising the figure ``$500'' to 
read as ``$550'', and the figure ``$5,000'' to read as ``$5,500''.

0
b. Paragraph (a)(2) is amended by revising the figure ``$5,000'' to 
read as ``$5,500''.

0
c. Paragraph (a)(3) is amended by revising the figure ``$10,000'' to 
read as ``$11,000''.

0
d. Paragraph (a)(4) is amended by revising the figure ``$2,500'' to 
read as ``$2,750''.

0
e. Paragraph (a)(5) is amended by revising the figure ``$2,750'' to 
read as ``$3,750''.

0
f. Paragraph (b) is amended by revising the figure ``$2,750'' to read 
as ``$3,750''.

0
g. Paragraph (c) is amended by revising the figure ``$1,100'' to read 
as ``$2,100'', the figure ``$2,750'' to read as ``$3,750'', and the 
figure ``$11,000'' to read as ``$16,000'' whenever they appear 
throughout paragraph (c).

0
h. Paragraph (d) is amended by revising the figure ``$11,000'' to read 
as ``$16,000''.

0
i. Paragraph (e) is amended by revising the figure ``$250'' to read as 
``$275'', and the figure ``$27,500'' to read as ``$32,500'', wherever 
they appear throughout paragraphs (e)(1) through (e)(3).

0
j. Paragraph (f) is revised to read as follows:
    (f) Operating after being declared unfit by assignment of a final 
unsatisfactory safety rating. A motor carrier operating a commercial 
motor vehicle in interstate commerce after receiving a final 
unsatisfactory safety rating is subject to a civil penalty of not more 
than $11,000 (49 CFR 385.13). Each day the transportation continues 
constitutes a separate offense.
* * * * *

0
k. Paragraph (g) is amended by revising the figure ``$200'' to read as 
``$220'' the figure ``$250'' to read as ``$275'', the figure ``$500'' 
to read as ``$550'', the figure ``$1,000'' to read as ``$1,100'', the 
figure ``$2,000'' to read as ``$2,200'', the figure ``$5,000'' to read 
as ``$5,500'', the figure ``$10,000'' to read as ``$11,000'', the 
figure ``$20,000'' to read as ``$22,000'', the figure ``$25,000'' to 
read as ``$27,500'', and the figure ``$100,000'' to read as 
``$110,000'', whenever they appear throughout paragraph (g).

    Issued on: March 20, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-7378 Filed 3-28-03; 8:45 am]
BILLING CODE 4910-EX-M