81 FR 41453 - Federal Civil Penalties Inflation Adjustment of 2015
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 81, Issue 123 (June 27, 2016)
Federal Motor Carrier Safety Administration
Federal Register Volume 81, Issue 123 (June 27, 2016)
| Page Range | 41453-41465 | |
| FR Document | 2016-14973 |
[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)] [Rules and Regulations] [Pages 41453-41465] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14973] ======================================================================= ----------------------------------------------------------------------- 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: Interim final rule. ----------------------------------------------------------------------- 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 a catch-up adjustment through an interim final rule. Pursuant to the Administrative Procedure Act, FMCSA finds that good cause exists for immediate implementation of this interim final rule because prior notice and comment are unnecessary, per the specific provisions of the 2015 Act. DATES: This interim rule is effective on August 1, 2016. FOR FURTHER INFORMATION CONTACT: Ms. LaTonya Mimms, Enforcement Division, by email at [email protected] 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 interim final rule (IFR) adjusts the amount of FMCSA's civil penalties to account for inflation as directed by the 2015 Act. The specific inflation adjustment methodology is described later in this document. B. Benefits and Costs The changes imposed by this IFR affect the civil penalty amounts, which are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis, 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. 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.'' \1\ Therefore, with this continued deterrence, FMCSA infers that there may be some safety benefits that occur due to this IFR. The deterrence effect of increasing penalties, which Congress has recognized, cannot be reliably quantified into safety benefits, however. --------------------------------------------------------------------------- \1\ 28 U.S.C. 2461 note (Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890). --------------------------------------------------------------------------- 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. The changes based on the 2015 Act amend sections four, five, six, and also add a new section seven. The effective provisions relevant to this rulemaking will be discussed in turn. Under section four, agencies must adjust their civil monetary penalties and publish such adjusted penalties in the Federal Register by July 1, 2016, while utilizing an initial ``catch-up'' [[Page 41454]] adjustment through an IFR to be effective no later than August 1, 2016. This IFR satisfies the catch-up requirement. Subsequent annual adjustments are also required. Agencies can determine that a provision or provisions be exempt from these adjustments based on certain criteria through a notice and comment rulemaking, though OMB must concur in the determination (Id. at subsection (c)). FMCSA is not seeking an exemption under section 4(c).There is also a provision to account for a situation where other adjustments are made that go above those required by the 2015 Act. If this is the case, then no adjustments are needed that year (Id. at subsection (d)). Section five outlines the procedure for applying cost of living increases to adjust penalties. As with section four, section five addresses both initial and subsequent adjustments based on the definition of cost of living adjustment (COLA). For initial adjustments, COLA is defined as the difference between the consumer price index (CPI) for October 2015 and the CPI for October of the year the penalty was ``adjusted or established under a provision of law, other than the 2015 Act'' (Id. at subsection 5(b)(2)). FMCSA interprets the phrase ``under a provision of law'' to include both statutorily mandated adjustments prior to the 2015 Act and those penalties initially promulgated through rulemaking. This is a reasonable interpretation, as many penalties are initially prescribed by statute and subsequently adjusted over time through the regulatory process. In addition, such a reading is consistent with the interpretation contained in guidance provided by OMB as further discussed in the Background section, below. Subsequent adjustments are based on increasing the civil penalty or range of penalties by the COLA using the difference in the CPI between the month of October preceding the date of adjustment and the month of October one year previously (Id. at subsection (a) and (b)(1)). The 2015 Act also amended provisions of the Debt Collection Improvement Act of 1996 (DCIA) Public Law 104-134, 110 Stat 1321, 28 U.S.C. 2461 note (April 26, 1996), which amended the 1990 Act. Most importantly, the DCIA had previously provided that the first adjustment of a civil monetary penalty may not exceed 10 percent of such penalty. This 10 percent cap provision was rescinded by the 2015 Act (Id. at subsection (c)). Under section six of the 1990 Act, the period of time covered by increases to civil penalties has been revised. Previously, adjustments to civil penalties were applied only to violations that occurred after the date the increases took effect. The 2015 Act revised section six to read, ``Any increase under this Act in a civil monetary penalty shall apply only to the civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.'' By adding the phrase ``including those [penalties] whose associated violation predated such increase,'' if a violation took place before the effective date of the adjusted penalty, and the agency then issued a notice of claim proposing a penalty after the effective date, the new adjusted penalty level would be assessed. In previous enforcement cases on administrative review, the FMCSA Assistant Administrator has stated that, for various purposes, a penalty will not be deemed ``assessed'' until the date that the Agency issues its Final Agency Action. In re Mittlestadt Trucking, LLC, FMCSA- 2007-0058, at page 3 (Second Interim Order, May 4, 2012); In re America Express, Inc. d/b/a Mid America Express, FMCSA-2001-9836, at footnote 24 (Final Order, May 23, 2005). Before the issuance of the Final Agency Action, the penalty is merely a proposed penalty. The question therefore arises whether section six of the 1990 Act, as amended by the 2015 Act, requires that proposed penalties in open cases, in which a notice of claim has been issued but which have not been formally reduced to an ``assessment'' through order of the Assistant Administrator or other Final Agency Order, must be adjusted. Section 521(b)(2)(D) of Title 49, U.S. Code, requires FMCSA to calculate each civil penalty assessment to induce further compliance. 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. While the statutory language speaks to only increases in penalty amounts, FMCSA will assess the new penalty both in cases where the penalty increases and where it decreases. This aligns with the intent of the statute, which is to ensure penalty amounts properly reflect inflation. Congress likely did not envision a scenario where penalty amounts would be decreased pursuant to the 2015 Act, which explains the use of the term ``increases'' in the statutory language. Based on new section seven, oversight and reporting requirements apply. First, OMB must provide annual guidance by December of each year on implementing the 2015 Act (Id. at subsection (a)). In response to this provision, OMB has provided guidance to agencies regarding the methodology to follow to implement adjustments required under the 2015 Act, as further discussed in the Background section, below. Agencies must report civil penalty adjustments through their Agency Financial Report required under OMB Circular A-136 or its successor (Id. at subsection (b)). Last, the Comptroller General is required to report to Congress regarding compliance with the 2015 Act (Id. at subsection (c)). 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 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 initial catch-up adjustment to be accomplished through an IFR. While prior notice and comment is not required, FMCSA will accept comments on any errors that may be found in this document. We note, however, that the penalty adjustments, and the methodology used to determine the adjustments, are set by the terms of the 2015 Act, and FMCSA has no discretion to make changes in those areas. [[Page 41455]] III. Background A. Method of Calculation OMB published a memorandum on February 24th, 2016, providing guidance to the Agencies for implementation of the 2015 Act (OMB implementation guidance, https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf). The OMB implementation guidance detailed a method of calculating inflation adjustments that differs substantially from the methods used in past inflation adjustments under the 1990 Act. Previous adjustments were conducted under rules that required significant rounding of figures. For example, in the case of penalties greater than $1,000 but less than or equal to $10,000, the penalty inflation increment would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that penalties would often not be increased at all if the inflation increment was not large enough. Furthermore, first-time increases to penalties were capped at 10 percent. Over time, this approach caused some penalties to lose value relative to total inflation. Alternatively, in some instances the prescribed approach resulted in the rounding up of the inflation increment, thus causing the total penalty amount to increase in value relative to total inflation. The 2015 Act has removed these rounding rules; now, penalties are simply rounded to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that penalties will be increased each year to a figure commensurate with the actual calculated inflation. Furthermore, the 2015 Act ``resets'' the inflation calculations by excluding prior inflationary adjustments under the 1990 Act, which contributed to a change in the real value of penalty levels. This means the inflationary adjustments made by FMCSA in 2015,\2\ 2007,\3\ and 2003 \4\ have been disregarded for purposes of determining the baseline year to perform the calculations for this interim final rule. As a result of the new approach required by the 2015 Act, some of the penalty amounts will increase in value relative to the current codified amount, and some penalty amounts will decrease in value. The 2015 Act requires agencies to identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (i.e., originally enacted by Congress) or last adjusted other than pursuant to the 1990 Act. --------------------------------------------------------------------------- \2\ 80 FR 19146, April 3, 2015. \3\ 72 FR 55100, September 28, 2007. \4\ 68 FR 15381, March 31, 2003. --------------------------------------------------------------------------- The FMCSA thoroughly reviewed its civil penalties. This IFR sets forth the initial ``catch-up'' adjustment required by the 2015 Act, as shown in the table below. The first column provides a description of the penalty and its location in 49 CFR part 386. The second column (``Legal Authority'') provides the United States Code (U.S.C.) statutory citation. In the third column (``Current Penalty''), FMCSA lists the existing codified penalty. The fourth column (``Baseline Penalty'') provides the penalty amount as enacted by Congress or changed through a mechanism other than the 1990 Act. The fifth column (``Baseline Penalty Year'') lists the year in which the baseline penalty was enacted by Congress or changed through a mechanism other than the 1990 Act. The sixth column (``Multiplier'') lists the multiplier used to adjust the CPI for all urban consumers (CPI-U) of the baseline penalty year to the CPI-U for the current year. The OMB prescribes, in Table A of the OMB implementation guidance the multiplier for agencies to use. Adjusting the baseline penalty with the multiplier provides the ``Preliminary New Penalty'' listed in column seven. The preliminary new penalty is then compared with the current penalty from column three to find the Final Adjusted Penalty in column eight. The adjusted penalty is the lesser of either the preliminary new penalty or an amount equal to 250% of the current penalty. As no preliminary new penalties are greater than 250% of the current penalty, columns seven and eight are identical. IV. Today's Interim Final Rule Summary of Penalty Adjustments 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. Part 386 The introductions to Part 386, Appendices A and B, have been revised to refer to the 2015 Act. Below is the table with the current civil penalty amounts in the appendices of Part 386 and new civil penalties following the inflation adjustments required by the 2015 Act: Table 1--Inflation Adjustments for Part 386 -------------------------------------------------------------------------------------------------------------------------------------------------------- Final Current Baseline Baseline OMB Preliminary adjusted Civil penalty location Legal authority penalty ($) penalty ($) penalty prescribed new penalty penalty in year multiplier ($) 2016 ($) (1) (2).......................... (3) (4) (5) (6) (7) (8) -------------------------------------------------------------------------------------------------------------------------------------------------------- Appendix A II Subpoena..................... MAP-21 Pub. L. 112-141, sec. $1,000 $1,000 2012 1.02819 $1,028 $1,028 32110, 126 Stat. 405, 782, (2012) (49 U.S.C. 525). Appendix A II Subpoena..................... MAP-21 Pub. L. 112-141, sec. 10,000 10,000 2012 1.02819 10,282 10,282 32110, 126 Stat. 405, 782 (2012) (49 U.S.C. 525). Appendix A IV (a) Out-of-service order Pub. L. 98-554, sec. 213(b), 3,100 1,000 1990 1.78156 1,782 1,782 (operation of CMV by driver). 98 Stat. 2829, 2841-2843 (1984) (49 U.S.C. 521(b)(7)), 55 FR 11224 (March 27, 1990). [[Page 41456]] Appendix A IV (b) Out-of-service order Pub. L. 98-554, sec. 213(a), 21,000 10,000 1990 1.78156 17,816 17,816 (requiring or permitting operation of CMV 98 Stat, 2829 (1984) (49 by driver). U.S.C. 521(b)(7)), 55 FR 11224 (March 27, 1990). Appendix A IV (c) Out-of-service order Pub. L. 98-554, sec. 213(a), 3,100 1,000 1990 1.78156 1,782 1,782 (operation by driver of CMV or intermodal 98 Stat 2829 (1984) (49 equipment that was placed out of service). U.S.C. 521(b)(7)), FR 11224 (March 27, 1990). Appendix A IV (d) Out-of-service order Pub. L. 98-554, sec. 213(a), 21,000 10,000 1990 1.78156 17,816 17,816 (requiring or permitting operation of CMV 98 Stat 2829 (1984) (49 or intermodal equipment that was placed U.S.C. 521(b)(7)); 55 FR out of service). 11224 (March 27, 1990). Appendix A IV (e) Out-of-service order 49 U.S.C. 521(b)(2)(B), 49 850 500 1990 1.78156 891 891 (failure to return written certification CFR 396.9(d)(3). of correction). Appendix A IV (g) Out-of-service order MAP-21, Pub. L. 112-141, sec. 25,000 25,000 2012 1.02819 25,705 25,705 (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 Pub. L. 98-554, sec. 213(a), 16,000 10,000 1984 2.25867 22,587 22,587 (operating in violation of order). 98 Stat, 2829, 2841-2843 (1984) (49 U.S.C. 521(b)(7)). Appendix A IV (i) Out-of-service order TEA-21, Pub. L. 105-178, sec. 16,000 10,000 1998 1.45023 14,502 14,502 (conducting operations during suspension 4015(b), 112 Stat. 411-12 or revocation for failure to pay (1998) (49 U.S.C. penalties). 521(b)(2)(A), 521(b)(7)); 65 FR 56521, 56530 (September 19, 2000). Appendix A IV (j) (conducting operations Pub. L. 98-554, sec. 213(a), 11,000 10,000 1984 2.25867 22,587 22,587 during suspension or revocation). 98 Stat, 2829, 2841-2843 (1984) (49 U.S.C. 521(b)(7)). Appendix B (a)(1) Recordkeeping--maximum SAFETEA-LU, Pub. L. 109-59, 1,100 1,000 2005 1.19397 1,194 1,194 penalty per day. sec. 4102(a), 119 Stat. 1144, 1715 (2005) (49 U.S.C. 521(b)(2)(B)(i)). Appendix B (a)(1) Recordkeeping--maximum SAFETEA-LU, Pub. L. 109-59, 11,000 10,000 2005 1.19397 11,940 11,940 total penalty. sec. 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, Pub. L. 109-59, 11,000 10,000 2005 1.19397 11,940 11,940 records. sec. 4102(a), 119 Stat. 1144, 1715 (2005) (49 U.S.C. 521(b)(2)(B)(ii)). Appendix B (a)(3) Non-recordkeeping TEA-21, Pub. L. 105-178, sec. 16,000 10,000 1998 1.45023 14,502 14,502 violations. 4015(b), 112 Stat. 107, 411- 12 (1998) (49 U.S.C. 521(b)(2)(A)). Appendix B (a)(4) Non-recordkeeping TEA-21, Pub. L. 105-178, sec. 3,750 2,500 1998 1.45023 3,626 3,626 violations by drivers. 4015(b), 112 Stat. 107, 411- 12 (1998) (49 U.S.C. 521(b)(2)(A)). [[Page 41457]] Appendix B (a)(5) Violation of 49 CFR 392.5 SAFETEA-LU, Pub. L. 109-59, 4,125 2,500 2005 1.19397 2,985 2,985 (first offense). 119 Stat. 1144, 1715; sec. 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, Pub. L. 109-59, 4,125 5,000 2005 1.19397 5,970 5,970 (second or subsequent conviction). 119 Stat. 1144, 1715; sec. 4102(b), 119 Stat. 1715-16 (2005) (49 U.S.C. 31310(i)(2)(A)). Appendix B (b) Commercial driver's license Pub. L. 99-570, sec. 4,750 2,500 1986 2.15628 5,391 5,391 (CDL) violations. 12012(b), 100 Stat. 3207-184- 85 (1986) (49 U.S.C. 521(b)(2)(C)). Appendix B (b)(1): Special penalties SAFETEA-LU, Pub. L. 109-59, 2,750 2,500 2005 1.19397 2,985 2,985 pertaining to violation of out-of-service sec. 4102(b), 119 Stat. orders (first conviction). 1144, 1715 (2005) (49 U.S.C. 31310(i)(2)(A)). Appendix B (b)(1) Special penalties SAFETEA-LU, Pub. L. 109-59, 5,500 5,000 2005 1.19397 5,970 5,970 pertaining to violation of out-of-service 119, sec. 4102(b), Stat. orders (second or subsequent conviction). 1144, 1715 (2005) (49 U.S.C. 31310(i)(2)(A)). Appendix B (b)(2) Employer violations Pub. L. 99-570, sec. 4,750 2,500 1986 2.15628 5,391 5,391 pertaining to knowingly allowing, 12012(b), 100 Stat. 3207-184- authorizing employee violations of out-of- 85 (1986) (49 U.S.C. service order (minimum penalty). 521(b)(2)(C)). Appendix B (b)(2) Employer violations SAFETEA-LU, Pub. L. 109-59, 27,500 25,000 2005 1.19397 29,849 29,849 pertaining to knowingly allowing, sec. 4102(b), 119 Stat. authorizing employee violations of out-of- 1144, 1715 (2005) (49 U.S.C. service order (maximum penalty). 31310(i)(2)(C)). Appendix B (b)(3) Special penalties ICC Termination Act of 1995, 11,000 10,000 1995 1.54742 15,474 15,474 pertaining to railroad-highway grade Pub. L. 104-88, sec. 403(a), crossing violations. 109 Stat. 956 (1995) (49 U.S.C. 31310(j)(2)(B)). Appendix B (d) Financial responsibility Pub. L. 103-272, sec. 21,000 10,000 1994 1.59089 15,909 15,909 violations. 31139(f), 108 Stat. 745, 1006-1008 (1994) (49 U.S.C. 31139(g)(1)). Appendix B (e)(1) Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 75,000 75,000 2012 1.02819 77,114 77,114 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837- Permitting Regulations (transportation or 838 (2012) (49 U.S.C. shipment of hazardous materials). 5123(a)(1)). Appendix B (e)(2) Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 450 450 2012 1.02819 463 463 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837 Permitting Regulations (training)--minimum (2012) (49 U.S.C. penalty. 5123(a)(3)). [[Page 41458]] Appendix B (e)(2): Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 75,000 75,000 2012 1.02819 77,114 77,114 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837 Permitting Regulations (training)--maximum (2012) (49 U.S.C. penalty. 5123(a)(1)). Appendix B (e)(3) Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 75,000 75,000 2012 1.02819 77,114 77,114 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837, Permitting Regulations (packaging or (2012) (49 U.S.C. container). 5123(a)(1)). Appendix B (e)(4): Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 75,000 75,000 2012 1.02819 77,114 77,114 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837 Permitting Regulations (compliance with (2012) (49 U.S.C. FMCSRs). 5123(a)(1)). Appendix B (e)(5) Violations of Hazardous MAP-21 Pub. L. 112-141, sec. 175,000 175,000 2012 1.02819 179,933 179,933 Materials Regulations (HMRs) and Safety 33010, 126 Stat. 405, 837 Permitting Regulations (death, serious (2012) (49 U.S.C. illness, severe injury to persons; 5123(a)(2)). destruction of property). Appendix B (f)(1) Operating after being MAP-21, Pub. L. 112-141, sec. 25,000 25,000 2012 1.02819 25,705 25,705 declared unfit by assignment of a final 32503, 126 Stat. 405, 803 ``unsatisfactory'' safety rating (2012) (49 U.S.C. (generally). 521(b)(2)(F)). Appendix B (f)(2) Operating after being MAP-21, Pub. L. 112-141, sec. 75,000 75,000 2012 1.02819 77,114 77,114 declared unfit by assignment of a final 33010, 126 Stat. 405, 837 ``unsatisfactory'' safety rating (49 U.S.C. 5123(a)(1)). (hazardous materials)--maximum penalty. Appendix B (f)(2): Operating after being MAP-21, Pub. L. 112-141, sec. 175,000 175,000 2012 1.02819 179,933 179,933 declared unfit by assignment of a final 33010, 126 Stat. 405, 837 ``unsatisfactory'' safety rating (2012) (49 U.S.C. (hazardous materials)--maximum penalty if 5123(a)(2)). death, serious illness, severe injury to persons; destruction of property. Appendix B (g)(1) New Appendix B (g)(1): MAP-21, Pub. L. 112-141, sec. 10,000 10,000 2012 1.02819 10,282 10,282 Violations of the commercial regulations 32108(a), 126 Stat. 405, 782 (CR) (property carriers). (2012) (49 U.S.C. 14901(a)). Appendix B (g)(2) Violations of the CRs MAP-21 Pub. L. 112-141, sec. 10,000 10,000 2012 1.02819 10,282 10,282 (brokers). 32919(a), 126 Stat. 405, 827 (2012) (49 U.S.C. 14916(c)). Appendix B (g)(3) Violations of the CRs MAP-21, Pub. L. 112-141, sec. 25,000 25,000 2012 1.02819 25,705 25,705 (passenger carriers). 32108(a), 126 Stat. 405, 782 (2012) (49 U.S.C. 14901(a)). [[Page 41459]] Appendix B (g)(4) Violations of the CRs MAP-21, Pub. L. 112-141, sec. 10,000 10,000 2012 1.02819 10,282 10,282 (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, Pub. L. 106- 16,000 10,000 1999 1.41402 14,140 14,140 (foreign motor carriers, foreign motor 59, sec. 219(b), 113 Stat. private carriers before implementation of 1748, 1768 (1999) (49 U.S.C. North American Free Trade Agreement land 14901 note). transportation provisions)--maximum penalty for intentional violation. Appendix B (g)(5) Violations of the CRs MCSIA of 1999, Pub. L. 106- 37,500 25,000 1999 1.41402 35,351 35,351 (foreign motor carriers, foreign motor 59, sec. 219(c), 113 Stat. private carriers before implementation of 1748, 1768 (1999) (49 U.S.C. North American Free Trade Agreement land 14901 note). transportation provisions)--maximum penalty for a pattern of intentional violations. Appendix B (g)(6) Violations of the CRs MAP-21, Pub. L. 112-141, sec. 20,000 20,000 2012 1.02819 20,564 20,564 (motor carrier or broker for 32108, 126 Stat. 405, 782 transportation of hazardous wastes)-- (2012) (49 U.S.C. 14901(b)). minimum penalty. Appendix B (g)(6) Violations of the CRs MAP-21 Pub. L. 112-141, sec. 40,000 40,000 2012 1.02819 41,128 41,128 (motor carrier or broker for 32108, 126 Stat. 405,782 transportation of hazardous wastes)-- (2012) (49 U.S.C. 14901(b)). maximum penalty. Appendix B (g)(7): Violations of the CRs ICC Termination Act of 1995, 1,100 1,000 1995 1.54742 1,547 1,547 (HHG carrier or freight forwarder, or Pub. L. 104-88, sec. 103, their receiver or trustee). 100 Stat. 803, 914 (1995) (49 U.S.C. 14901(d)(1)). Appendix B (g)(8) Violation of the CRs ICC Termination Act of 1995, 3,200 2,000 1995 1.54742 3,095 3,095 (weight of HHG shipment, charging for Pub. L. 104-88, sec. 103, services)--minimum penalty for first 100 Stat. 803, 914 (1995) violation. (49 U.S.C. 14901(e)). Appendix B (g)(8) Violation of the CRs ICC Termination Act of 1995, 7,500 5,000 1995 1.54742 7,737 7,737 (weight of HHG shipment, charging for Pub. L. 104-88, sec. 103, services). 100 Stat. 803, 914 (1995) (49 U.S.C. 14901(e)). Appendix B (g)(10) Tariff violations....... ICC Termination Act of 1995, 140,000 100,000 1995 1.54742 154,742 154,742 Pub. L. 104-88, sec. 103, 100 Stat. 803, 868-869, 915 (1995) (49 U.S.C. 13702, 14903). Appendix B (g)(11) Additional tariff ICC Termination Act of 1995, 320 200 1995 1.54742 309 309 violations (rebates or concessions)--first Pub. L. 104-88, sec. 103, violation. 100 Stat. 803, 915-916 (1995) (49 U.S.C. 14904(a)). [[Page 41460]] Appendix B (g)(11) Additional tariff ICC Termination Act of 1995, 375 250 1995 1.54742 387 387 violations (rebates or concessions)-- Pub. L. 104-88, sec. 103, subsequent violations. 100 Stat. 803, 915-916 (1995) (49 U.S.C. 14904(a)). Appendix B (g)(12): Tariff violations ICC Termination Act of 1995, 750 500 1995 1.54742 774 774 (freight forwarders)--maximum penalty for Pub. L. 104-88, sec. 103, first violation. 100 Stat. 803, 916 (49 U.S.C. 14904(b)(1)). Appendix B (g)(12): Tariff violations ICC Termination Act of 1995, 3,200 2,000 1995 1.54742 3,095 3,095 (freight forwarders)--maximum penalty for Pub. L. 104-88, sec. 103, subsequent violations. 100 Stat. 803, 916 (1995) (49 U.S.C. 14904(b)(1)). Appendix B (g)(13): Service from freight ICC Termination Act of 1995, 750 500 1995 1.54742 774 774 forwarder at less than rate in effect-- Pub. L. 104-88, sec. 103, maximum penalty for first violation. 100 Stat. 803, 916 (1995) (49 U.S.C. 14904(b)(2)). Appendix B (g)(13): Service from freight ICC Termination Act of 1995, 3,200 2,000 1995 1.54742 3,095 3,095 forwarder at less than rate in effect-- Pub. L. 104-88, sec. 103, maximum penalty for subsequent 100 Stat. 803, 916 (1995) violation(s). (49 U.S.C. 14904(b)(2)). Appendix B (g)(14): Violations related to ICC Termination Act of 1995, 16,000 10,000 1995 1.54742 15,474 15,474 loading and unloading motor vehicles. Pub. L. 104-88, sec. 103, 100 Stat. 803, 916 (1995) (49 U.S.C. 14905). Appendix B (g)(16): Reporting and MAP-21, Pub. L. 112-141, sec. 1,000 1,000 2012 1.02819 1,028 1,028 recordkeeping under 49 U.S.C. subtitle IV, 32108, 126 Stat. 405, 782 part B (except 13901 and 13902(c))-- (2012) (49 U.S.C. 14901). minimum penalty. Appendix B (g)(16): Reporting and ICC Termination Act of 1995, 7,500 5,000 1995 1.54742 7,737 7,737 recordkeeping under 49 U.S.C. subtitle IV, Pub. L. 104-88, sec. 103, part B--maximum penalty. 100 Stat. 803, 916-917 (1995) (49 U.S.C. 14907). Appendix B (g)(17): Unauthorized disclosure ICC Termination Act of 1995, 3,200 2,000 1995 1.54742 3,095 3,095 of information. Pub. L. 104-88, sec. 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, 750 500 1995 1.54742 774 774 subtitle IV, part B, or condition of Pub. L. 104-88, sec. 103, registration. 100 Stat. 803, 917 (1995) (49 U.S.C. 14910). Appendix B (g)(21)(i): Knowingly and ICC Termination Act of 1995, 11,000 10,000 1995 1.54742 15,474 15,474 willfully fails to deliver or unload HHG Pub. L. 104-88, sec. 103, at destination. 100 Stat. 803, 916 (1995) (49 U.S.C. 14905). Appendix B (g)(22): HHG broker estimate SAFETEA-LU, Pub. L. 109-59, 10,900 10,000 2005 1.19397 11,940 11,940 before entering into an agreement with a sec. 4209(2), 119 Stat. motor carrier. 1144, 1758, (2005) (49 U.S.C. 14901(d)(2)). [[Page 41461]] Appendix B (g)(23): HHG transportation or SAFETEA-LU, Pub. L. 109-59, 27,250 25,000 2005 1.19397 29,849 29,849 broker services--registration requirement. sec. 4209(d)(3), 119 Stat. 1144, 1758 (2005) (49 U.S.C. 14901(d)(3)). Appendix B (h): Copying of records and SAFETEA-LU, Pub. L. 109-59, 1,100 1,000 2005 1.19397 1,194 1,194 access to equipment, lands, and buildings-- sec. 4103(2), 119 Stat. maximum penalty per day. 1144, 1716 (2005) (49 U.S.C. 521(b)(2)(E)). Appendix B (h): Copying of records and SAFETEA-LU, Pub. L. 109-59, 11,000 10,000 2005 1.19397 11,940 11,940 access to equipment, lands, and buildings-- sec. 4103(2), 119 Stat. 1716 maximum total penalty. (2005) (49 U.S.C. 521(b)(2)(E)). Appendix B (i)(1): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 2,000 2,000 2012 1.02819 2,056 2,056 under 49 U.S.C. ch. 5, 51, subchapter III 32505, 126 Stat. 405, 804 of 311 (except 31138 and 31139), 31302- (2012) (49 U.S.C. 524). 31304, 31305(b), 31310(g)(1)(A), 31502-- minimum penalty for first violation. Appendix B (i)(1): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 5,000 5,000 2012 1.02819 5,141 5,141 under 49 U.S.C. ch. 5, 51, subchapter III 32505, 126 Stat. 405, 804 of 311 (except 31138 and 31139), 31302- (2012) (49 U.S.C. 524). 31304, 31305(b), 31310(g)(1)(A), 31502-- maximum penalty for first violation. Appendix B (i)(1): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 2,500 2,500 2012 1.02819 2,570 2,570 under 49 U.S.C. ch. 5, 51, subchapter III 32505, 126 Stat. 405, 804 of 311 (except 31138 and 31139), 31302- (2012) (49 U.S.C. 524). MAP- 31304, 31305(b), 31310(g)(1)(A), 31502-- 21 Pub. L. 112-141, sec. minimum penalty for subsequent 32505, 126 Stat. 405, 804 violation(s). (2012) (49 U.S.C. 524). Appendix B (i)(1): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 7,500 7,500 2012 1.02819 7,711 7,711 under 49 U.S.C. ch. 5, 51, subchapter III 32505, 126 Stat. 405, 804 of 311 (except 31138 and 31139), 31302- (2012) (49 U.S.C. 524). 31304, 31305(b), 31310(g)(1)(A), 31502-- maximum penalty for subsequent violation(s). Appendix B (i)(2): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 2,000 2,000 2012 1.02819 2,056 2,056 under 49 U.S.C. subtitle IV, part B-- 32505, 126 Stat. 405, 804 minimum penalty for first violation. (2012) (49 U.S.C. 14906). Appendix B (i)(2): Evasion of regulations MAP-21 Pub. L. 112-141, sec. 5,000 5,000 2012 1.02819 5,141 5,141 under 49 U.S.C. subtitle IV, part B-- 32505, 126 Stat. 405, 804 minimum penalty for subsequent (2012) (49 U.S.C. 14906). violation(s). -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 41462]] V. Section-By-Section Analysis FMCSA updates the civil penalties in Appendices A and B of Part 386 as outlined in Table 1 above and makes minor editorial changes. VI. Rulemaking Analysis and Notices A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563) This IFR is not a significant regulatory action under section 3(f) of Executive Order 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. 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 interim final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the interim 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 interim 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 $155 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2014 levels) or more in any one year. This interim final rule will not result in such an expenditure. E. Paperwork Reduction Act This interim 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 document preempts any State law or regulation. Therefore, this interim final rule does not have federalism implications. G. Civil Justice Reform (E.O. 12988) This interim final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to 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 interim final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not pose an environmental or safety risk to children. I. Taking of Private Property (E.O. 12630) FMCSA reviewed this interim 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 PIA 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 Executive Order 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 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, [[Page 41463]] 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 jurisdiction and therefore 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 interim 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 49 CFR part 386 as follows: PART 386--RULES OF PRACTICE FOR FMCSA PROCEEDINGS 0 1. The authority citation for part 386 is revised 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 [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. * * * * * II. Subpoena Violation--Failure to respond to Agency subpoena to appear and testify or produce records. Penalty--minimum of $1,028 but not more than $10,282 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 $1,782 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 $17,816 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--$1,782 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 $17,816 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 $891 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 $25,705 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 $22,587 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 $14,502 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 $22,587 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), [[Page 41464]] (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 $1,194 for each day the violation continues, up to $11,940. (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 $11,940 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 $14,502 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 $3,626. (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 $2,985 for a first conviction and not less than $5,970 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 $5,391; 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 $2,985 for a first conviction and not less than $5,970 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 $5,391 or more than $29,849; 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 $15,474. (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 $15,909. 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 $77,114 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 highways are subject to a civil penalty of not less than $463 and not more than $77,114 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 hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not more than $77,114 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 $77,114. (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 $179,933 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 $25,705 (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 $77,114 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 $179,933 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 $10,282 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 $10,282 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 $25,705 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 $10,282 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 $14,140 for an intentional violation and a maximum penalty of $35,351 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 [[Page 41465]] liable for a minimum penalty of $20,564 and a maximum penalty of $41,128 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 $1,547 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 $3,095 for the first violation and $7,737 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 $154,742 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 $309 for the first violation and $387 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 $774 for the first violation and up to $3,095 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 $774 for the first violation and up to $3,095 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 $15,474 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 $1,028 and for a maximum penalty of $7,737 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 $3,095. (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 $774 for each violation if another penalty is not provided in 49 U.S.C. chapter 149. * * * * * (21) * * * (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 $15,474 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 $11,940 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 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 $29,849 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 $1,194 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 $11,940. (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 $2,056 but not more than $5,141 for the first violation and at least $2,570 but not more than $7,711 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 $2,056 for the first violation or at least $5,141 for a subsequent violation. Issued under the authority of delegation in 49 CFR 1.87 on: June 17, 2016. T.F. Scott Darling III, Acting Administrator. [FR Doc. 2016-14973 Filed 6-24-16; 8:45 am] BILLING CODE 4910-EX-P
![Federal Register / Vol. 81, No. 123 / Monday, June 27, 2016 / Rules and Regulations 41453
FEDERAL COMMUNICATIONS PART 73—RADIO BROADCAST I. Executive Summary
COMMISSION SERVICES A. Purpose and Summary of the Major
47 CFR Part 73 ■ 1. The authority citation for part 73 Provisions
continues to read as follows: This interim final rule (IFR) adjusts
[DA 16–648; MB Docket No. 14–236; RM– Authority: 47 U.S.C. 154, 303, 334, 336,
the amount of FMCSA’s civil penalties
11739 and MB Docket No. 14–257; RM– and 339. to account for inflation as directed by
11743] the 2015 Act. The specific inflation
§ 73.202 [Amended] adjustment methodology is described
Radio Broadcasting Services; Bogata, ■ 2. Section 73.202(b), the Table of FM later in this document.
Texas and Wright City, Oklahoma Allotments, is amended by: B. Benefits and Costs
■ a. Under Oklahoma, adding, in
AGENCY:Federal Communications The changes imposed by this IFR
alphabetical order, Wright City, Channel affect the civil penalty amounts, which
Commission.
295A. are considered by the Office of
ACTION: Final rule. ■ b. Under Texas, adding, in
Management and Budget (OMB)
alphabetical order, Bogata, Channel Circular A–4, Regulatory Analysis, as
SUMMARY: At the request of Charles 247A.
Crawford, the Audio Division amends transfer payments, not costs. Transfer
[FR Doc. 2016–14934 Filed 6–24–16; 8:45 am] payments are payments from one group
the FM Table of Allotments, by allotting
BILLING CODE 6712–01–P to another that do not affect total
Channel 247A at Bogata, Texas and
resources available to society. By
Channel 295A at Wright City,
definition they are not considered in the
Oklahoma. A staff engineering analysis
DEPARTMENT OF TRANSPORTATION monetization of societal costs and
indicates that FM Channel 247A can be
benefits of rulemakings. Congress stated
allotted at Bogata, Texas at the following Federal Motor Carrier Safety in the Federal Civil Penalties Inflation
reference coordinates: 33–33–21 NL and Administration Adjustment Act of 1990 (1990 Act) that
95–18–28 WL. FM Channel 295A can be
increasing penalties over time will
allotted at Wright City, Oklahoma, at the 49 CFR Part 386 ‘‘maintain the deterrent effect of civil
following reference coordinates: 34–04–
[Docket Number: FMCSA–2016–0128]
monetary penalties and promote
44 NL and 94–51–15 WL. compliance with the law.’’ 1 Therefore,
DATES: Effective July 25, 2016. RIN 2126–AB93 with this continued deterrence, FMCSA
FOR FURTHER INFORMATION CONTACT:
infers that there may be some safety
Federal Civil Penalties Inflation benefits that occur due to this IFR. The
Nazifa Sawez, Media Bureau, (202) 418– Adjustment of 2015
2700. deterrence effect of increasing penalties,
AGENCY: Federal Motor Carrier Safety which Congress has recognized, cannot
SUPPLEMENTARY INFORMATION: This is a be reliably quantified into safety
Administration (FMCSA), DOT.
synopsis of the Commission’s Report benefits, however.
and Order, MB Docket Nos. 14–236 and ACTION: Interim final rule.
14–257, adopted July 9, 2016, and II. Legal Basis for the Rulemaking
SUMMARY: FMCSA amends the civil
released July 10, 2016. The full text of penalties listed in its regulations to A. Federal Civil Penalties Inflation
this Commission decision is available ensure that the civil penalties assessed Adjustment Act Improvements Act of
for inspection and copying during or enforced by the Agency reflect the 2015
normal business hours in the FCC’s statutorily mandated ranges as adjusted This rulemaking is based primarily on
Reference Information Center at Portals for inflation. Pursuant to the Federal the 2015 Act, Public Law 114–74, title
II, CY–A257, 445 12th Street SW., Civil Penalties Inflation Adjustment Act VII, § 701, 129 Stat. 599, 28 U.S.C. 2461
Washington, DC 20554. The full text is Improvements Act of 2015 (2015 Act), note (Nov. 2, 2015). The 2015 Act
also available online at http:// FMCSA is required to promulgate a amended the Federal Civil Penalties
apps.fcc.gov/ecfs/. This document does catch-up adjustment through an interim Inflation Adjustment Act of 1990 (1990
not contain information collection final rule. Pursuant to the Act) (28 U.S.C. 2461 note). The basic
requirements subject to the Paperwork Administrative Procedure Act, FMCSA findings and purpose of the amended
Reduction Act of 1995, Public Law 104– finds that good cause exists for 1990 Act remain unchanged and
13. The Commission will send a copy of immediate implementation of this include supporting the role civil
the Report and Order in a report to be interim final rule because prior notice penalties play in federal law and
sent to Congress and the Government and comment are unnecessary, per the regulations in deterring violations by
Accountability Office pursuant to the specific provisions of the 2015 Act. allowing for regulatory adjustments to
Congressional Review Act, see 5 U.S.C. account for inflation. The changes based
DATES: This interim rule is effective on
801(a)(1)(A). on the 2015 Act amend sections four,
August 1, 2016.
List of Subjects in 47 CFR Part 73 five, six, and also add a new section
FOR FURTHER INFORMATION CONTACT: Ms.
seven. The effective provisions relevant
Radio, Radio broadcasting. LaTonya Mimms, Enforcement Division,
to this rulemaking will be discussed in
by email at civilpenalty@dot.gov or
Federal Communications Commission. turn.
phone at 202–366–0991. Office hours Under section four, agencies must
Nazifa Sawez, are from 8:00 a.m. to 4:30 p.m. Monday adjust their civil monetary penalties and
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Assistant Chief, Audio Division, Media through Friday, except Federal holidays.
Bureau. publish such adjusted penalties in the
If you have questions on viewing or Federal Register by July 1, 2016, while
For the reasons discussed in the submitting material to the docket, utilizing an initial ‘‘catch-up’’
preamble, the Federal Communications contact Docket Services, telephone (202)
Commission amends 47 CFR part 73 as 366–9826. 1 28 U.S.C. 2461 note (Pub. L. 101–410, Oct. 5,
follows: SUPPLEMENTARY INFORMATION: 1990, 104 Stat. 890).
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![41454 Federal Register / Vol. 81, No. 123 / Monday, June 27, 2016 / Rules and Regulations
adjustment through an IFR to be Previously, adjustments to civil therefore will not retroactively adjust
effective no later than August 1, 2016. penalties were applied only to the proposed penalty amounts in
This IFR satisfies the catch-up violations that occurred after the date notices of claim issued prior to the
requirement. Subsequent annual the increases took effect. The 2015 Act effective date. Otherwise, the 2015 Act
adjustments are also required. Agencies revised section six to read, ‘‘Any applies prospectively, and does not
can determine that a provision or increase under this Act in a civil retroactively change previously assessed
provisions be exempt from these monetary penalty shall apply only to the or enforced penalties an agency is
adjustments based on certain criteria civil monetary penalties, including actively collecting or has collected.
through a notice and comment those whose associated violation
rulemaking, though OMB must concur predated such increase, which are While the statutory language speaks to
in the determination (Id. at subsection assessed after the date the increase takes only increases in penalty amounts,
(c)). FMCSA is not seeking an effect.’’ By adding the phrase ‘‘including FMCSA will assess the new penalty
exemption under section 4(c).There is those [penalties] whose associated both in cases where the penalty
also a provision to account for a violation predated such increase,’’ if a increases and where it decreases. This
situation where other adjustments are violation took place before the effective aligns with the intent of the statute,
made that go above those required by date of the adjusted penalty, and the which is to ensure penalty amounts
the 2015 Act. If this is the case, then no agency then issued a notice of claim properly reflect inflation. Congress
adjustments are needed that year (Id. at proposing a penalty after the effective likely did not envision a scenario where
subsection (d)). date, the new adjusted penalty level penalty amounts would be decreased
Section five outlines the procedure for would be assessed. pursuant to the 2015 Act, which
applying cost of living increases to In previous enforcement cases on explains the use of the term ‘‘increases’’
adjust penalties. As with section four, administrative review, the FMCSA in the statutory language.
section five addresses both initial and Assistant Administrator has stated that, Based on new section seven, oversight
subsequent adjustments based on the for various purposes, a penalty will not and reporting requirements apply. First,
definition of cost of living adjustment be deemed ‘‘assessed’’ until the date OMB must provide annual guidance by
(COLA). For initial adjustments, COLA that the Agency issues its Final Agency
December of each year on implementing
is defined as the difference between the Action. In re Mittlestadt Trucking, LLC,
the 2015 Act (Id. at subsection (a)). In
consumer price index (CPI) for October FMCSA–2007–0058, at page 3 (Second
response to this provision, OMB has
2015 and the CPI for October of the year Interim Order, May 4, 2012); In re
the penalty was ‘‘adjusted or established America Express, Inc. d/b/a Mid provided guidance to agencies regarding
under a provision of law, other than the America Express, FMCSA–2001–9836, the methodology to follow to implement
2015 Act’’ (Id. at subsection 5(b)(2)). at footnote 24 (Final Order, May 23, adjustments required under the 2015
FMCSA interprets the phrase ‘‘under a 2005). Before the issuance of the Final Act, as further discussed in the
provision of law’’ to include both Agency Action, the penalty is merely a Background section, below. Agencies
statutorily mandated adjustments prior proposed penalty. The question must report civil penalty adjustments
to the 2015 Act and those penalties therefore arises whether section six of through their Agency Financial Report
initially promulgated through the 1990 Act, as amended by the 2015 required under OMB Circular A–136 or
rulemaking. This is a reasonable Act, requires that proposed penalties in its successor (Id. at subsection (b)). Last,
interpretation, as many penalties are open cases, in which a notice of claim the Comptroller General is required to
initially prescribed by statute and has been issued but which have not report to Congress regarding compliance
subsequently adjusted over time been formally reduced to an with the 2015 Act (Id. at subsection (c)).
through the regulatory process. In ‘‘assessment’’ through order of the
B. Administrative Procedure Act (APA)
addition, such a reading is consistent Assistant Administrator or other Final
with the interpretation contained in Agency Order, must be adjusted. Generally, agencies may promulgate
guidance provided by OMB as further Section 521(b)(2)(D) of Title 49, U.S. final rules only after issuing a notice of
discussed in the Background section, Code, requires FMCSA to calculate each proposed rulemaking and providing an
below. Subsequent adjustments are civil penalty assessment to induce opportunity for public comment under
based on increasing the civil penalty or further compliance. FMCSA has procedures required by the APA, as
range of penalties by the COLA using concluded that, for those open provided in 5 U.S.C. 553(b) and (c). The
the difference in the CPI between the enforcement matters in which a penalty
APA, in 5 U.S.C. 553(b)(3)(B), provides
month of October preceding the date of was proposed before the date of the
an exception from these requirements
adjustment and the month of October ‘‘catch-up’’ adjustment or an annual
when notice and public comment
one year previously (Id. at subsection (a) adjustment but in which a Final Agency
Action has not been issued, procedures are ‘‘impracticable,
and (b)(1)).
The 2015 Act also amended recalculating the amount of the unnecessary, or contrary to the public
provisions of the Debt Collection proposed penalty would not induce interest.’’ FMCSA finds that prior notice
Improvement Act of 1996 (DCIA) Public further compliance, and would thus be and comment is unnecessary because
Law 104–134, 110 Stat 1321, 28 U.S.C. contrary to the goal of 49 U.S.C. section 4 of the 2015 Act specifically
2461 note (April 26, 1996), which 521(b)(2)(D). Moreover, the length of requires the initial catch-up adjustment
amended the 1990 Act. Most time between the date that a person is to be accomplished through an IFR.
importantly, the DCIA had previously notified of the amount of the proposed While prior notice and comment is not
provided that the first adjustment of a penalty and the issuance of the Final required, FMCSA will accept comments
civil monetary penalty may not exceed Agency Action can vary, but is on any errors that may be found in this
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10 percent of such penalty. This 10 sometimes several years, depending on document. We note, however, that the
percent cap provision was rescinded by litigation schedules and other factors. penalty adjustments, and the
the 2015 Act (Id. at subsection (c)). Applying an inflation adjustment to methodology used to determine the
Under section six of the 1990 Act, the proposed penalties in cases long adjustments, are set by the terms of the
period of time covered by increases to awaiting administrative review could 2015 Act, and FMCSA has no discretion
civil penalties has been revised. raise questions of equity. FMCSA to make changes in those areas.
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![Federal Register / Vol. 81, No. 123 / Monday, June 27, 2016 / Rules and Regulations 41463
Consultation and Coordination with conformity requirement since it does IV. Out-of-Service Order
Indian Tribal Governments, because it not affect direct or indirect emissions of a. Violation—Operation of a commercial
does not have a substantial direct effect criteria pollutants. vehicle by a driver during the period the
on one or more Indian tribes, on the Under E.O. 12898 (Actions to Address driver was placed out of service.
relationship between the Federal Environmental Justice in Minority Penalty—Up to $1,782 per violation.
Government and Indian tribes, or on the Populations and Low-Income (For purposes of this violation, the term
Populations), each Federal agency must ‘‘driver’’ means an operator of a commercial
distribution of power and
motor vehicle, including an independent
responsibilities between the Federal identify and address, as appropriate, contractor who, while in the course of
Government and Indian tribes. ‘‘disproportionately high and adverse operating a commercial motor vehicle, is
human health or environmental effects employed or used by another person.)
N. National Technology Transfer and
of its programs, policies, and activities b. Violation—Requiring or permitting a
Advancement Act (Technical
on minority populations and low- driver to operate a commercial vehicle during
Standards) the period the driver was placed out of
income populations’’ in the United
The National Technology Transfer States, its possessions, and territories. service.
and Advancement Act (NTTAA) (15 FMCSA has determined that this Penalty—Up to $17,816 per violation.
U.S.C. 272 note) directs agencies to use (This violation applies to motor carriers
interim final rule would have no including an independent contractor who is
voluntary consensus standards in their environmental justice effects, nor would not a ‘‘driver,’’ as defined under paragraph
regulatory activities unless the agency its promulgation have any collective IV(a) above.)
provides Congress, through OMB, with environmental impact. c. Violation—Operation of a commercial
an explanation of why using these motor vehicle or intermodal equipment by a
standards would be inconsistent with List of Subjects in 49 CFR Part 386 driver after the vehicle or intermodal
applicable law or otherwise impractical. Administrative procedures, equipment was placed out-of-service and
Voluntary consensus standards (e.g., Commercial motor vehicle safety, before the required repairs are made.
specifications of materials, performance, Highways and roads, Motor carriers, Penalty—$1,782 each time the vehicle or
design, or operation; test methods; Penalties. intermodal equipment is so operated.
sampling procedures; and related (This violation applies to drivers as
For the reasons stated in the defined in IV(a) above.)
management systems practices) are preamble, FMCSA is amending 49 CFR d. Violation—Requiring or permitting the
standards that are developed or adopted part 386 as follows: operation of a commercial motor vehicle or
by voluntary consensus standards intermodal equipment placed out-of-service
bodies. This rule does not use technical PART 386—RULES OF PRACTICE FOR before the required repairs are made.
standards. Therefore, we did not FMCSA PROCEEDINGS Penalty—Up to $17,816 each time the
consider the use of voluntary consensus vehicle or intermodal equipment is so
standards. ■ 1. The authority citation for part 386 operated after notice of the defect is received.
is revised to read as follows: (This violation applies to intermodal
O. Environmental Review (National equipment providers and motor carriers,
Environmental Policy Act, Clean Air Authority: 49 U.S.C. 113, chapters 5, 51, including an independent owner operator
59, 131–141, 145–149, 311, 313, and 315; 49 who is not a ‘‘driver,’’ as defined in IV(a)
Act, Environmental Justice) U.S.C. 5123; Sec. 204, Pub. L. 104–88, 109 above.)
FMCSA analyzed this rule in Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217,
e. Violation—Failure to return written
accordance with the National Pub. L. 105–159, 113 Stat. 1748, 1767; Sec.
certification of correction as required by the
Environmental Policy Act of 1969 206, Pub. L. 106–159, 113 Stat. 1763; subtitle
out-of-service order.
(NEPA) (42 U.S.C. 4321, et seq.) and B, title IV of Pub. L. 109–59; Sec. 701 of Pub.
Penalty—Up to $891 per violation.
L. 114–74, 129 Stat. 584, 599; and 49 CFR
FMCSA’s NEPA Implementing 1.81 and 1.87. * * * * *
Procedures and Policy for Considering g. Violation—Operating in violation of an
Environmental Impacts, Order 5610.1 ■ 2. Amend Appendix A to part 386 by order issued under § 386.72(b) to cease all or
(FMCSA Order), March 1, 2004 (69 FR revising the introductory text and part of the employer’s commercial motor
9680). FMCSA’s Order states that sections II, IV.a through e., and IV.g. vehicle operations or to cease part of an
‘‘[w]here FMCSA has no discretion to through j. to read as follows: intermodal equipment provider’s operations,
i.e., failure to cease operations as ordered.
withhold or condition an action if the Appendix A to Part 386—Penalty Penalty—Up to $25,705 per day the
action is taken in accordance with Schedule: Violations of Notices and operation continues after the effective date
specific statutory criteria and FMCSA Orders and time of the order to cease.
lacks control and responsibility over the h. Violation—Operating in violation of an
The Civil Penalties Inflation Adjustment
effects of an action, that action is not Act Improvements Act of 2015 [Public Law order issued under § 386.73.
subject to this Order.’’ Id. at chapter 1.D. 114–74, sec. 701, 129 Stat. 584, 599] Penalty—Up to $22,587 per day the
Because Congress specifies the Agency’s amended the Federal Civil Penalties Inflation operation continues after the effective date
precise action here, thus leaving the Adjustment Act of 1990 to require agencies and time of the out-of-service order.
Agency no discretion over such action, to adjust civil penalties for inflation. i. Violation—Conducting operations during
Pursuant to that authority, the inflation a period of suspension under § 386.83 or
and since the Agency lacks jurisdiction § 386.84 for failure to pay penalties.
and therefore control and responsibility adjusted civil penalties identified in this
appendix supersede the corresponding civil Penalty—Up to $14,502 for each day that
over the effects of this action, this operations are conducted during the
penalty amounts identified in title 49, United
rulemaking falls under chapter 1.D. States Code. suspension or revocation period.
Therefore, no further analysis is j. Violation—Conducting operations during
considered. * * * * * a period of suspension or revocation under
FMCSA also analyzed this rule under II. Subpoena §§ 385.911, 385.913, 385.1009 or 385.1011.
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the Clean Air Act, as amended (CAA), Penalty—Up to $22,587 for each day that
Violation—Failure to respond to Agency operations are conducted during the
section 176(c) (42 U.S.C. 7401 et seq.), subpoena to appear and testify or produce suspension or revocation period.
and implementing regulations records.
promulgated by the Environmental Penalty—minimum of $1,028 but not more ■ 3. Amend Appendix B to part 386 by
Protection Agency. Approval of this than $10,282 per violation. revising the introductory text and
action is exempt from the CAA’s general * * * * * paragraphs (a)(1) through (5), (b), (c),
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![41464 Federal Register / Vol. 81, No. 123 / Monday, June 27, 2016 / Rules and Regulations
(d), (e), (f), (g) introductory text, (g)(1) authorizes an employee to operate a CMV rating. (1) A motor carrier operating a
through (8), (g)(10) through (18), during any period in which the CDL-holder commercial motor vehicle in interstate
(g)(21)(i), (g)(22) and (23), (h), and (i) to is subject to an out-of-service order, is subject commerce (except owners or operators of
to a civil penalty of not less than $5,391 or commercial motor vehicles designed or used
read as follows: more than $29,849; and to transport hazardous materials for which
Appendix B to Part 386—Penalty (3) An employer of a CDL-holder who placarding of a motor vehicle is required
Schedule: Violations and Monetary knowingly allows, requires, permits, or under regulations prescribed under 49 U.S.C.
authorizes that CDL-holder to operate a CMV chapter 51) is subject, after being placed out
Penalties
in violation of a Federal, State, or local law of service because of receiving a final
or regulation pertaining to railroad-highway ‘‘unsatisfactory’’ safety rating, to a civil
The Civil Penalties Inflation Adjustment
grade crossings is subject to a civil penalty penalty of not more than $25,705 (49 CFR
Act Improvements Act of 2015 [Public Law
of not more than $15,474. 385.13). Each day the transportation
114–74, sec. 701, 129 Stat. 584, 599]
(c) [Reserved] continues in violation of a final
amended the Federal Civil Penalties Inflation
(d) Financial responsibility violations. A ‘‘unsatisfactory’’ safety rating constitutes a
Adjustment Act of 1990 to require agencies
motor carrier that fails to maintain the levels separate offense.
to adjust civil penalties for inflation.
of financial responsibility prescribed by part (2) A motor carrier operating a commercial
Pursuant to that authority, the inflation
387 of this subchapter or any person (except motor vehicle designed or used to transport
adjusted civil penalties identified in this
an employee who acts without knowledge) hazardous materials for which placarding of
appendix supersede the corresponding civil
who knowingly violates the rules of part 387 a motor vehicle is required under regulations
penalty amounts identified in title 49, United
subparts A and B is subject to a maximum prescribed under 49 U.S.C. chapter 51 is
States Code.
penalty of $15,909. Each day of a continuing subject, after being placed out of service
What are the types of violations and
violation constitutes a separate offense. because of receiving a final ‘‘unsatisfactory’’
maximum monetary penalties?
(e) Violations of the Hazardous Materials safety rating, to a civil penalty of not more
(a) Violations of the Federal Motor Carrier
Regulations (HMRs) and Safety Permitting than $77,114 for each offense. If the violation
Safety Regulations (FMCSRs): Regulations found in Subpart E of Part 385.
(1) Recordkeeping. A person or entity that results in death, serious illness, or severe
This paragraph applies to violations by motor injury to any person or in substantial
fails to prepare or maintain a record required carriers, drivers, shippers and other persons
by parts 40, 382, 385, and 390–99 of this destruction of property, the civil penalty may
who transport hazardous materials on the be increased to not more than $179,933 for
subchapter, or prepares or maintains a highway in commercial motor vehicles or
required record that is incomplete, each offense. Each day the transportation
cause hazardous materials to be so continues in violation of a final
inaccurate, or false, is subject to a maximum transported.
civil penalty of $1,194 for each day the ‘‘unsatisfactory’’ safety rating constitutes a
(1) All knowing violations of 49 U.S.C. separate offense.
violation continues, up to $11,940. chapter 51 or orders or regulations issued
(2) Knowing falsification of records. A (g) Violations of the commercial
under the authority of that chapter applicable
person or entity that knowingly falsifies, regulations (CRs). Penalties for violations of
to the transportation or shipment of
destroys, mutilates, or changes a report or the CRs are specified in 49 U.S.C. chapter
hazardous materials by commercial motor
record required by parts 382, 385, and 390– 149. These penalties relate to transportation
vehicle on the highways are subject to a civil
99 of this subchapter, knowingly makes or subject to the Secretary’s jurisdiction under
penalty of not more than $77,114 for each
causes to be made a false or incomplete 49 U.S.C. chapter 135. Unless otherwise
violation. Each day of a continuing violation
record about an operation or business fact or constitutes a separate offense. noted, a separate violation occurs for each
transaction, or knowingly makes, prepares, or (2) All knowing violations of 49 U.S.C. day the violation continues.
preserves a record in violation of a regulation chapter 51 or orders or regulations issued (1) A person who operates as a motor
order of the Secretary is subject to a under the authority of that chapter applicable carrier for the transportation of property in
maximum civil penalty of $11,940 if such to training related to the transportation or violation of the registration requirements of
action misrepresents a fact that constitutes a shipment of hazardous materials by 49 U.S.C. 13901 is liable for a minimum
violation other than a reporting or commercial motor vehicle on highways are penalty of $10,282 per violation.
recordkeeping violation. subject to a civil penalty of not less than $463 (2) A person who knowingly operates as a
(3) Non-recordkeeping violations. A person and not more than $77,114 for each violation. broker in violation of registration
or entity that violates parts 382, 385, or 390– (3) All knowing violations of 49 U.S.C. requirements of 49 U.S.C. 13904 or financial
99 of this subchapter, except a recordkeeping chapter 51 or orders, regulations or security requirements of 49 U.S.C. 13906 is
requirement, is subject to a civil penalty not exemptions under the authority of that liable for a penalty not to exceed $10,282 for
to exceed $14,502 for each violation. chapter applicable to the manufacture, each violation.
(4) Non-recordkeeping violations by fabrication, marking, maintenance, (3) A person who operates as a motor
drivers. A driver who violates parts 382, 385, reconditioning, repair, or testing of a carrier of passengers in violation of the
and 390–99 of this subchapter, except a packaging or container that is represented, registration requirements of 49 U.S.C. 13901
recordkeeping violation, is subject to a civil marked, certified, or sold as being qualified is liable for a minimum penalty of $25,705
penalty not to exceed $3,626. for use in the transportation or shipment of per violation.
(5) Violation of 49 CFR 392.5. A driver hazardous materials by commercial motor (4) A person who operates as a foreign
placed out of service for 24 hours for vehicle on highways are subject to a civil motor carrier or foreign motor private carrier
violating the alcohol prohibitions of 49 CFR penalty of not more than $77,114 for each of property in violation of the provisions of
392.5(a) or (b) who drives during that period violation. 49 U.S.C. 13902(c) is liable for a minimum
is subject to a civil penalty not to exceed (4) Whenever regulations issued under the penalty of $10,282 per violation.
$2,985 for a first conviction and not less than authority of 49 U.S.C. chapter 51 require (5) A person who operates as a foreign
$5,970 for a second or subsequent conviction. compliance with the FMCSRs while motor carrier or foreign motor private carrier
* * * * * transporting hazardous materials, any without authority, before the implementation
(b) Commercial driver’s license (CDL) violations of the FMCSRs will be considered of the land transportation provisions of the
violations. Any person who violates 49 CFR a violation of the HMRs and subject to a civil North American Free Trade Agreement,
part 383, subparts B, C, E, F, G, or H is penalty of not more than $77,114. outside the boundaries of a commercial zone
subject to a civil penalty not to exceed (5) If any violation subject to the civil along the United States-Mexico border, is
$5,391; except: penalties set out in paragraphs (e)(1) through liable for a maximum penalty of $14,140 for
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(1) A CDL-holder who is convicted of (4) of this appendix results in death, serious an intentional violation and a maximum
violating an out-of-service order shall be illness, or severe injury to any person or in penalty of $35,351 for a pattern of intentional
subject to a civil penalty of not less than substantial destruction of property, the civil violations.
$2,985 for a first conviction and not less than penalty may be increased to not more than (6) A person who operates as a motor
$5,970 for a second or subsequent conviction; $179,933 for each offense. carrier or broker for the transportation of
(2) An employer of a CDL-holder who (f) Operating after being declared unfit by hazardous wastes in violation of the
knowingly allows, requires, permits, or assignment of a final ‘‘unsatisfactory’’ safety registration provisions of 49 U.S.C. 13901 is
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![Federal Register / Vol. 81, No. 123 / Monday, June 27, 2016 / Rules and Regulations 41465
liable for a minimum penalty of $20,564 and liable for a penalty of not more than $15,474 household goods subject to FMCSA
a maximum penalty of $41,128 per violation. per violation. jurisdiction is liable to the United States for
(7) A motor carrier or freight forwarder of (15) [Reserved] a civil penalty of not less than $11,940 for
household goods, or their receiver or trustee, (16) A person required to make a report to each violation.
that does not comply with any regulation the Secretary, answer a question, or make, (23) A person who provides transportation
relating to the protection of individual prepare, or preserve a record under part B of of household goods subject to jurisdiction
shippers, is liable for a minimum penalty of subtitle IV, title 49, U.S.C., or an officer, under 49 U.S.C. chapter 135, subchapter I, or
$1,547 per violation. agent, or employee of that person, is liable for provides broker services for such
(8) A person— a minimum penalty of $1,028 and for a transportation, without being registered
(i) Who falsifies, or authorizes an agent or maximum penalty of $7,737 per violation if under 49 U.S.C. chapter 139 to provide such
other person to falsify, documents used in it does not make the report, does not transportation or services as a motor carrier
the transportation of household goods by completely and truthfully answer the or broker, as the case may be, is liable to the
motor carrier or freight forwarder to evidence question within 30 days from the date the United States for a civil penalty of not less
the weight of a shipment or Secretary requires the answer, does not make than $29,849 for each violation.
(ii) Who charges for services which are not or preserve the record in the form and
(h) Copying of records and access to
performed or are not reasonably necessary in manner prescribed, falsifies, destroys, or
equipment, lands, and buildings. A person
the safe and adequate movement of the changes the report or record, files a false
subject to 49 U.S.C. chapter 51 or a motor
shipment is liable for a minimum penalty of report or record, makes a false or incomplete
carrier, broker, freight forwarder, or owner or
$3,095 for the first violation and $7,737 for entry in the record about a business-related
operator of a commercial motor vehicle
each subsequent violation. fact, or prepares or preserves a record in
violation of a regulation or order of the subject to part B of subtitle VI of title 49
* * * * * U.S.C. who fails to allow promptly, upon
(10) A person who offers, gives, solicits, or Secretary.
(17) A motor carrier, water carrier, freight demand in person or in writing, the Federal
receives transportation of property by a Motor Carrier Safety Administration, an
carrier at a different rate than the rate in forwarder, or broker, or their officer, receiver,
trustee, lessee, employee, or other person employee designated by the Federal Motor
effect under 49 U.S.C. 13702 is liable for a Carrier Safety Administration, or an
maximum penalty of $154,742 per violation. authorized to receive information from them,
who discloses information identified in 49 employee of a MCSAP grant recipient to
When acting in the scope of his/her inspect and copy any record or inspect and
employment, the acts or omissions of a U.S.C. 14908 without the permission of the
shipper or consignee is liable for a maximum examine equipment, lands, buildings, and
person acting for or employed by a carrier or other property, in accordance with 49 U.S.C.
penalty of $3,095.
shipper are considered to be the acts or 504(c), 5121(c), and 14122(b), is subject to a
(18) A person who violates a provision of
omissions of that carrier or shipper, as well civil penalty of not more than $1,194 for each
part B, subtitle IV, title 49, U.S.C., or a
as that person. offense. Each day of a continuing violation
regulation or order under Part B, or who
(11) Any person who offers, gives, solicits, constitutes a separate offense, except that the
violates a condition of registration related to
or receives a rebate or concession related to total of all civil penalties against any violator
transportation that is subject to jurisdiction
motor carrier transportation subject to for all offenses related to a single violation
under subchapter I or III of chapter 135, or
jurisdiction under subchapter I of 49 U.S.C. shall not exceed $11,940.
who violates a condition of registration of a
chapter 135, or who assists or permits (i) Evasion. A person, or an officer,
foreign motor carrier or foreign motor private
another person to get that transportation at employee, or agent of that person:
carrier under section 13902, is liable for a
less than the rate in effect under 49 U.S.C. penalty of $774 for each violation if another (1) Who by any means tries to evade
13702, commits a violation for which the penalty is not provided in 49 U.S.C. chapter regulation of motor carriers under title 49,
penalty is $309 for the first violation and 149. United States Code, chapter 5, chapter 51,
$387 for each subsequent violation.
* * * * * subchapter III of chapter 311 (except sections
(12) A freight forwarder, its officer, agent,
(21) * * * 31138 and 31139) or sections 31302, 31303,
or employee, that assists or willingly permits
(i) Who knowingly and willfully fails, in 31304, 31305(b), 31310(g)(1)(A), or 31502, or
a person to get service under 49 U.S.C. 13531
violation of a contract, to deliver to, or a regulation issued under any of those
at less than the rate in effect under 49 U.S.C.
unload at, the destination of a shipment of provisions, shall be fined at least $2,056 but
13702 commits a violation for which the
household goods in interstate commerce for not more than $5,141 for the first violation
penalty is up to $774 for the first violation
which charges have been estimated by the and at least $2,570 but not more than $7,711
and up to $3,095 for each subsequent
motor carrier transporting such goods, and for a subsequent violation.
violation.
for which the shipper has tendered a (2) Who tries to evade regulation under
(13) A person who gets or attempts to get
service from a freight forwarder under 49 payment in accordance with part 375, part B of subtitle IV, title 49, U.S.C., for
U.S.C. 13531 at less than the rate in effect subpart G of this chapter, is liable for a civil carriers or brokers is liable for a penalty of
under 49 U.S.C. 13702 commits a violation penalty of not less than $15,474 for each at least $2,056 for the first violation or at
for which the penalty is up to $774 for the violation. Each day of a continuing violation least $5,141 for a subsequent violation.
first violation and up to $3,095 for each constitutes a separate offense. Issued under the authority of delegation in
subsequent violation. * * * * * 49 CFR 1.87 on: June 17, 2016.
(14) A person who knowingly authorizes, (22) A broker for transportation of T.F. Scott Darling III,
consents to, or permits a violation of 49 household goods who makes an estimate of
Acting Administrator.
U.S.C. 14103 relating to loading and the cost of transporting any such goods
unloading motor vehicles or who knowingly before entering into an agreement with a [FR Doc. 2016–14973 Filed 6–24–16; 8:45 am]
violates subsection (a) of 49 U.S.C. 14103 is motor carrier to provide transportation of BILLING CODE 4910–EX–P
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Document Created: 2016-06-25 02:06:46
Document Modified: 2016-06-25 02:06:46
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule. | |
| Dates | This interim rule is effective on August 1, 2016. | |
| Contact | Ms. LaTonya Mimms, Enforcement Division, by email at [email protected] 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. | |
| FR Citation | 81 FR 41453 | |
| RIN Number | 2126-AB93 | |
| CFR Associated | Administrative Procedures; Commercial Motor Vehicle Safety; Highways and Roads; Motor Carriers and Penalties |
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