FR Doc 03-7378
FR Doc 03-7378
[Federal Register: March 31, 2003 (Volume 68, Number 61)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 386
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: This document specifies the civil penalties for violating the
FMCSA regulations, as adjusted for inflation in accordance with the
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of 1996. The inflation adjustments
are reflected in this rulemaking. The Federal Civil Penalties Inflation
Adjustment Act authorizes these amendments to the FMCSA penalty
DATES: The effective date if March 31, 2003.
FOR FURTHER INFORMATION CONTACT: David M. Lehrman, Office of Policy,
Plans and Regulation, Federal Motor Carrier Safety Administration, 400
Seventh Street, SW., Washington, DC 20590; (202) 366-0994, Office hours
are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except
The Debt Collection Improvement Act of 1996
In order to preserve the remedial impact of civil penalties and
foster compliance with the law, the Federal Civil Penalties Inflation
Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as amended by
the Debt Collection Improvement Act of 1996 (the Act) (Pub. L. 104-134,
110 Stat. 1321-1373), requires Federal agencies to regularly adjust
certain civil penalties for inflation. These Acts are now codified at
28 U.S.C. 2461 note. The law requires each agency to make an initial
inflationary adjustment for all applicable civil penalties, and to make
further adjustments to these penalty amounts at least once every four
The law further stipulates that any resulting increases in a civil
penalty due to the calculated inflation adjustments: (i) Should apply
only to violations which occur after the date the increase takes
effect; and (ii) the first adjustment of a civil monetary penalty made
pursuant to the Act may not exceed 10 percent of such penalty.
The FMCSA previously adjusted civil penalties for inflation by
regulation on March 13, 1998 (63 FR 12413). Subsequent to these
adjustments, Congress passed the Transportation Equity Act for the 21st
Century (TEA-21) on June 9, 1998 (Pub. L. 105-178, 112 Stat. 107). TEA-
21 re-set several penalties at the amounts required prior to adjustment
for inflation and created several new categories of penalties. The
current penalties are found in 49 CFR part 386, Appendix A and B,
those found in paragraph (f) to Appendix B.
Paragraph (f) was amended on October 2, 2002, by removing
``$27,500'' and adding in its place ``$10,000'' (67 FR 61818) as
mandated by TEA-21. The October 2002 notice failed to remove the listed
minimum penalty of $250. paragraph (f) to Appendix B is re-written
today to reflect that there are no minimum penalties for these
violations and to correctly reflect the prohibitions mandated by 49
U.S.C. 31144 (as amended by TEA-21), which prohibits all unfit motor
carriers from operating in interstate commerce. Any unsatisfactory
safety rating, given to motor carriers by FMCSA, is treated by the
agency as a determination of unfitness (65 FR 50919, August 22, 2000).
This notice addresses penalties considered to be initial
adjustments, which are therefore subject to the statutory 10 percent
maximum. The notice also addresses the previously adjusted penalties,
amended on March 13, 1998 (63 FR 12413), which are therefore not
subject to the statutory 10 percent maximum.
Under 5 U.S.C. 553(b), the FMCSA finds good cause that prior notice
and opportunity for comment are unnecessary because these inflation
adjustments required by the Act are ministerial acts over which the
agency has no discretion. The adjustment simply recognizes that as
inflation occurs, penalties should keep pace so that the impact of the
penalty is not diminished with the passage of time.
Method of Calculation
Under the Act (28 U.S.C. 2461 note) the inflation adjustment for
each applicable civil penalty is determined by increasing the maximum
civil penalty amount per violation by the cost-of-living adjustment.
The cost-of-living adjustment is defined as the amount by which the
Consumer Price Index (CPI) for the month of June of the calendar year
preceding the adjustment exceeds the CPI for the month of June of the
year in which the amount of such civil penalty was last set or adjusted
pursuant to law (section 5(b), 28 U.S.C. 2461 note). Any calculated
increase under this adjustment is subject to a specific rounding
formula set forth in the Act (section 5(a), 28 U.S.C. 2461 note).
Under 49 U.S.C. 5123, the FMCSA may assess a fine for violations of
the Federal Hazardous Materials Regulations (HMR) (49 CFR parts 171-
180). The driver, motor carrier, or shipper who violates the HMR is
subject to a civil penalty of not less than $250 and not more than
$25,000 for each violation. The maximum penalty was adjusted for
inflation on March 13, 1998 (63 FR 12413), resulting in an adjusted
penalty of $27,500 (see 49 CFR part 386, Appendix B, paragraph (e)).
But the minimum penalty was not previously adjusted for inflation. This
minimum statutory penalty was last set in 1990. The Consumer Price
Index was 180 in June 2002, and was approximately 130 in June of 1990
(see U.S. Department of Labor CPI index at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt
). Thus the inflation factor is 180/130
or 1.38. The new minimum penalty amount after the increase and
statutory rounding would thus be the result of multiplying $250 x 1.38
= $345. However, after applying the 10 percent limit on an initial
increase, the new minimum penalty amount per violation is $275.
The current maximum penalty of $27,500 was adjusted for inflation
in 1998. The Consumer Price Index was 180 in June 2002, and 163 in June
1998. Thus the inflation factor is 108/163 or 1.10. The new maximum
penalty amount after the increase and statutory rounding would thus be
the result of multiplying $27,500 x 1.10 = $30,250. The Act is
instructive as to the rounding method to be employed. The increase is
to be rounded to the nearest multiple of $5,000 in the case of
penalties greater than $10,000 but less than or equal to $100,000. The
amount of the increase was $2,750, rounded to the nearest multiple of
$5,000 equals a $5,000 adjustment to the current maximum penalty, or a
new penalty of $32,500. The rounding adjustment is also consistent with
a General Accounting Office (GAO) clarifying letter issued on July 15,
2002 (see GAO B-290021).
The following inflation factors were used to adjust penalties in
this final rule: 180/163 or 1.10 for penalties previously adjusted in
1998, and new TEA-21 penalties enacted by Congress that same year; 180/
130 or 1.38 for the hazardous materials minimum penalty not previously
adjusted since 1990; 180/152 or 1.18 for commercial penalties
established in the ICC Termination Act of 1995 (Pub. L. 104-88, 109
Stat. 809) (all commercial penalties are being adjusted for the first
time and are subject to the 10 percent maximum increase); and 180/166
or 1.08 for penalties enacted in the Motor Carrier Safety Improvement
Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748 (December 9,
1999). Appendix A, to 49 CFR part 386, paragraph (h) includes MCSIA
penalties for operating during a period of suspension for failure to
pay penalties as outlined in 49 CFR 386.83 and 386.84. The FMCSA
adjusts these penalties for inflation, even though they are only three
years old, to place all penalties on the same adjustment schedule. The
Act allows for more frequent adjustments, so long as agencies adjust at
least every four years. These penalties are subject to the 10 percent
maximum adjustment because this is the first adjustment for inflation.
Appendices A and B are now adjusted for inflation.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of the Department of Transportation's
regulatory policies and procedures. These inflation adjustments are
ministerial acts in compliance with the statute over which FMCSA has no
discretion. The FMCSA finds good cause to adopt the rule without prior
notice or opportunity for public comment. The agency believes that this
rule will not result in a major increase in costs or prices for State
or local governments. The law is simply designed to preserve the
remedial impact of civil penalties. Consequently, the economic impact
of this final rule will be minimal because it will not substantially
change the applicable civil penalty amount, but merely adjust the
penalty to reflect inflation.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive order 13132, dated August 4, 1999, and
it has been determined this action does not have sufficient federalism
implications or limit the policymaking discretion of the States.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This action does not contain information collection requirements
for purposes of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3501 et seq.).
National Environmental Policy Act
The FMCSA is a new Administration within the Department of
Transportation (DOT). The FMCSA analyzed this rule under the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.)
(NEPA), the Council on Environmental Quality Regulations implementing
NEPA (40 CFR parts 1500-1508), and DOT Order 5610.1C, Procedures for
Considering Environmental Impacts. This rule would be categorically
excluded from further analysis and documentation in an environmental
assessment or environmental impact statement since this action does not
have any effect on the quality of the environment.
Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.),
that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FMCSA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environment risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
List of Subjects in 49 CFR Part 386
Administrative procedures, Commercial motor vehicle safety,
Highways and roads, Motor carriers, Penalties.
In consideration of the foregoing, the FMCSA amends title 49, Code of
Federal Regulations, chapter III, part 386 as set forth below:
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT
FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS
1. The authority citation for part 386 continues to read as follows:
Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502,
31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701
note); sec. 217, Pub. L. 105-159, 113 stat. 1748, 1767; and 49 CFR
APPENDIX A TO PART 386--[AMENDED]0
2. Appendix A to part 386 is amended by revising the figure ``$550'' to
read as ``$650'', the figure ``$1,100'' to read as ``$2,100'', the
figure ``$10,000'' to read as ``$11,000'', and the figure ``$11,000''
to read as ``$16,000'', whenever they appear throughout the appendix.
APPENDIX B TO PART 386--[AMENDED]0
3. In Appendix B to part 386 the introductory text is amended by
revising the second sentence to read as follows:
* * * Pursuant to that authority, the inflation-adjusted civil
penalties listed in paragraphs (a) through (g) of this appendix
supersede the corresponding civil penalty amounts listed in title 49,
United States Code. * * *
* * * * *
Appendix B to part 386 is further amended as follows:
a. Paragraph (a)(1) is amended by revising the figure ``$500'' to
read as ``$550'', and the figure ``$5,000'' to read as ``$5,500''.
b. Paragraph (a)(2) is amended by revising the figure ``$5,000'' to
read as ``$5,500''.
c. Paragraph (a)(3) is amended by revising the figure ``$10,000'' to
read as ``$11,000''.
d. Paragraph (a)(4) is amended by revising the figure ``$2,500'' to
read as ``$2,750''.
e. Paragraph (a)(5) is amended by revising the figure ``$2,750'' to
read as ``$3,750''.
f. Paragraph (b) is amended by revising the figure ``$2,750'' to read
g. Paragraph (c) is amended by revising the figure ``$1,100'' to read
as ``$2,100'', the figure ``$2,750'' to read as ``$3,750'', and the
figure ``$11,000'' to read as ``$16,000'' whenever they appear
throughout paragraph (c).
h. Paragraph (d) is amended by revising the figure ``$11,000'' to read
i. Paragraph (e) is amended by revising the figure ``$250'' to read as
``$275'', and the figure ``$27,500'' to read as ``$32,500'', wherever
they appear throughout paragraphs (e)(1) through (e)(3).
j. Paragraph (f) is revised to read as follows:
(f) Operating after being declared unfit by assignment of a final
unsatisfactory safety rating. A motor carrier operating a commercial
motor vehicle in interstate commerce after receiving a final
unsatisfactory safety rating is subject to a civil penalty of not more
than $11,000 (49 CFR 385.13). Each day the transportation continues
constitutes a separate offense.
* * * * *
k. Paragraph (g) is amended by revising the figure ``$200'' to read as
``$220'' the figure ``$250'' to read as ``$275'', the figure ``$500''
to read as ``$550'', the figure ``$1,000'' to read as ``$1,100'', the
figure ``$2,000'' to read as ``$2,200'', the figure ``$5,000'' to read
as ``$5,500'', the figure ``$10,000'' to read as ``$11,000'', the
figure ``$20,000'' to read as ``$22,000'', the figure ``$25,000'' to
read as ``$27,500'', and the figure ``$100,000'' to read as
``$110,000'', whenever they appear throughout paragraph (g).
Issued on: March 20, 2003.
Annette M. Sandberg,
[FR Doc. 03-7378 Filed 3-28-03; 8:45 am]