[Federal Register Volume 73, Number 37 (Monday, February 25, 2008)]
[Rules and Regulations]
[Pages 9955-9957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3518]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 578

[Docket No. NHTSA-2007-28445; Notice 2]
RIN 2127-AK07


Civil Penalties

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Final rule.

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SUMMARY: This document increases the maximum civil penalties for 
violations of the odometer tampering and disclosure requirements and 
certain administrative provisions of the Energy Policy and Conservation 
Act. This action is taken pursuant to the Federal Civil Monetary 
Penalty Inflation Adjustment Act of 1990, as amended by the Debt 
Collection Improvement Act of 1996, which requires us to review and, as 
warranted, adjust penalties based on inflation at least every four 
years.

DATES: This final rule is effective March 26, 2008.

ADDRESSES: Petitions for reconsideration should refer to the docket 
number and be submitted to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., West Building, 
Fourth Floor, Washington, DC 20590, with a copy to the DOT docket. 
Copies to the docket may be submitted electronically through the 
Federal E-Rulemaking Portal at http://www.regulations.gov. Follow the 
online instructions for submitting comments.
    You may call Docket Management at 202-366-9324. The Docket room 
(Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.), hours are 
from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act heading below.
    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).

FOR FURTHER INFORMATION CONTACT: Michael Kido, Office of Chief Counsel, 
NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: This rule adjusts for inflation certain 
maximum available penalty amounts and codifies the new amounts in 49 
CFR part 578 Civil and Criminal Penalties. In order to preserve the 
remedial impact of civil penalties and to foster compliance with the 
law, the Federal Civil Monetary Penalty Inflation Adjustment Act of 
1990 (28 U.S.C. 2461 Notes, Pub. L. 101-410), as amended by the Debt 
Collection Improvement Act of 1996, (Pub. L. 104-134) (referred to 
collectively as the ``Adjustment Act'' or, in context, the ``Act''), 
requires us and other Federal agencies to regularly adjust civil 
penalties for inflation. Under the Adjustment Act, following an initial 
adjustment that was capped by the Act, these agencies must make further 
adjustments, as warranted, to the amounts of penalties in statutes they 
administer at least once every four years.\1\
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    \1\ As we indicated in our September 2007 notice of proposed 
rulemaking, since this rule will become effective in 2008, we used 
the 2007 consumer price index (CPI) rather than the 2006 CPI in 
calculating the projected adjustment. Applying the 2007 CPI to our 
calculations did not alter the final increased amounts that we 
previously proposed.
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    The changes to certain maximum penalties for violations of the 
odometer laws, regulations and orders and for violations of certain 
administrative procedures of the Energy Policy and Conservation Act of 
1975 as amended and recodified (EPCA) in today's rule were proposed and 
explained in our September 26, 2007 Notice of Proposed Rulemaking 
(NPRM). 72 FR 54635. The discussion in that notice is incorporated by 
reference. We received no comments to that notice.
    NHTSA is adjusting the maximum penalty for a single violation of 
the odometer tampering and disclosure requirements in 49 U.S.C. Chapter 
327 or a regulation or order thereunder. The maximum penalty is 
codified at 49 CFR 578.6(f)(1). The agency last published a rule 
adjusting the maximum civil penalty for a single violation under 49 
U.S.C. Chapter 327 in a rule published on February 4, 1997. 62 FR 5167. 
In today's rule, NHTSA is adjusting this amount from $2,200 to $3,200 
based on the Adjustment Act, for the reasons set forth in the NPRM.
    Additionally, the agency is adjusting the maximum penalty amount 
for a single violation of certain administrative provisions of the EPCA 
found at 49 U.S.C. 32911(a). The maximum penalty is codified at 49 CFR 
578.6(h)(1). This amount was last adjusted in a rule published on 
February 4, 1997. 62 FR 5167. After applying the statutory formulation 
described in the NPRM, the maximum civil penalty amount for a single 
violation is being adjusted from $11,000 to $16,000. The basis for this 
adjustment is set forth in the NPRM.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    We have considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed 
under Executive Order 12866, ``Regulatory Planning and Review.'' This 
action is limited to the adoption of adjustments of civil penalties 
under statutes that the agency enforces, and has been determined to be 
not ``significant'' under the Department of Transportation's regulatory 
policies and procedures.

Regulatory Flexibility Act

    We have also considered the impacts of this notice under the 
Regulatory Flexibility Act. I certify that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. The following

[[Page 9956]]

provides the factual basis for this certification under 5 U.S.C. 
605(b). The amendments potentially affect entities involved with 
odometers and manufacturers of motor vehicles.
    The Small Business Administration's regulations define a small 
business in part as a business entity ``which operates primarily within 
the United States.'' 13 CFR 121.105(a). SBA's size standards were 
previously organized according to Standard Industrial Classification 
(SIC) Codes. SIC Code 336211 ``Motor Vehicle Body Manufacturing'' 
applied a small business size standard of 1,000 employees or fewer. SBA 
now 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 500 and 750 employees.
    Many small businesses are subject to the penalty provisions of the 
odometer laws in 49 U.S.C. Chapter 327. Some small businesses are 
subject to the EPCA provisions in 49 U.S.C. 32911(a) and therefore may 
be affected by the adjustments that this final rule makes. As noted in 
this preamble, this rule increases only the maximum penalty amounts 
that the agency could obtain for a single violation of the odometer 
tampering and disclosure provisions and administrative provisions of 
EPCA. The rule does not set the amount of penalties for any particular 
violation or series of violations. Under the odometer laws, the 
applicable penalty provision requires the agency to take into account 
the ability to pay and any effect on the ability to continue doing 
business when determining the appropriate civil penalty in an 
individual case. See 49 U.S.C. 32709(a)(3)(B). Although EPCA does not 
provide for consideration of business size, it contains a provision for 
the compromise or remittitur of penalties for violations of 49 U.S.C. 
32911(a). See 49 U.S.C. 32912(a) and 32913(a). The agency would also 
consider the size of a business under its civil penalty policy when 
determining the appropriate civil penalty amount for violations of 49 
U.S.C. 32701 et seq. or 49 U.S.C. 32911(a). See 62 FR 37115 (July 10, 
1997) (NHTSA's civil penalty policy under the Small Business Regulatory 
Enforcement Fairness Act (SBREFA)). The penalty adjustments that are 
promulgated by this rule do not affect our civil penalty policy under 
SBREFA.
    Since this regulation does not establish penalty amounts, this rule 
will not have a significant economic impact on small businesses.
    Small organizations and governmental jurisdictions are not 
significantly affected as the price of motor vehicles and equipment 
ought not to change as a result of this rule. As explained above, this 
action is limited to the adoption of a statutory directive, and has 
been determined to be not ``significant'' under the Department of 
Transportation's regulatory policies and procedures.

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 
regulation.
    This 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. The reason 
is that this rule applies to motor vehicle manufacturers, and not to 
the States or local governments. Thus, the requirements of Section 6 of 
the Executive Order do not apply.

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 rule will not have a $100 million 
effect, no Unfunded Mandates assessment will be prepared.

National Environmental Policy Act

    We have also analyzed this rulemaking action under the National 
Environmental Policy Act and determined that it will have no 
significant impact on the human environment.

Executive Order 12778 (Civil Justice Reform)

    This rule does not have a retroactive or preemptive effect. 
Judicial review of this rule may be obtained pursuant to 5 U.S.C. 702. 
That section does not require that a petition for reconsideration be 
filed prior to seeking judicial review.

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.

List of Subjects in 49 CFR Part 578

    Motor vehicle safety, Penalties.

0
In consideration of the foregoing, 49 CFR part 578 is amended as set 
forth below.

PART 578--CIVIL AND CRIMINAL PENALTIES

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

    Authority: Pub. L. 101-410, Pub. L. 104-134, Pub. L. 106-414, 
Pub. L. 109-59, 49 U.S.C. 30165, 30170, 30505, 32308, 32309, 32507, 
32709, 32710, 32912, and 33115; delegation of authority at 49 CFR 
1.50.


0
2. Section 578.6 of title 49, Code of Federal Regulations, is amended 
by revising paragraphs (f)(1) as (h)(1) to read as follows:


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

* * * * *
    (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 $3,200 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 $130,000.
* * * * *
    (h) Automobile fuel economy. (1) A person that violates 49 U.S.C. 
32911(a)

[[Page 9957]]

is liable to the United States Government for a civil penalty of not 
more than $16,000 for each violation. A separate violation occurs for 
each day the violation continues.
* * * * *

     Issued on: February 7, 2008.
Nicole R. Nason,
Administrator.
 [FR Doc. E8-3518 Filed 2-22-08; 8:45 am]
BILLING CODE 4910-59-P