Civil Penalties
Federal Register: February 25, 2008 (Volume 73, Number 37)
Rules and Regulations
Page 9955-9957
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr25fe08-8
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration 49 CFR Part 578
Docket No. NHTSA-2007-28445; Notice 2
RIN 2127-AK07
Civil Penalties
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule.
SUMMARY: This document increases the maximum civil penalties for violations of the odometer tampering and disclosure requirements and certain administrative provisions of the Energy Policy and Conservation
Act. This action is taken pursuant to the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, as amended by the Debt
Collection Improvement Act of 1996, which requires us to review and, as warranted, adjust penalties based on inflation at least every four years.
DATES: This final rule is effective March 26, 2008.
ADDRESSES: Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue, SE., West Building,
Fourth Floor, Washington, DC 20590, with a copy to the DOT docket.
Copies to the docket may be submitted electronically through the
Federal E-Rulemaking Portal at http://www.regulations.gov. Follow the online instructions for submitting comments.
You may call Docket Management at 202-366-9324. The Docket room
(Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.), hours are from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.
Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).
FOR FURTHER INFORMATION CONTACT: Michael Kido, Office of Chief Counsel,
NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION: This rule adjusts for inflation certain maximum available penalty amounts and codifies the new amounts in 49
CFR part 578 Civil and Criminal Penalties. In order to preserve the remedial impact of civil penalties and to foster compliance with the law, the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990 (28 U.S.C. 2461 Notes, Pub. L. 101-410), as amended by the Debt
Collection Improvement Act of 1996, (Pub. L. 104-134) (referred to collectively as the ``Adjustment Act'' or, in context, the ``Act''), requires us and other Federal agencies to regularly adjust civil penalties for inflation. Under the Adjustment Act, following an initial adjustment that was capped by the Act, these agencies must make further adjustments, as warranted, to the amounts of penalties in statutes they administer at least once every four years.\1\
\1\ As we indicated in our September 2007 notice of proposed rulemaking, since this rule will become effective in 2008, we used the 2007 consumer price index (CPI) rather than the 2006 CPI in calculating the projected adjustment. Applying the 2007 CPI to our calculations did not alter the final increased amounts that we previously proposed.
The changes to certain maximum penalties for violations of the odometer laws, regulations and orders and for violations of certain administrative procedures of the Energy Policy and Conservation Act of 1975 as amended and recodified (EPCA) in today's rule were proposed and explained in our September 26, 2007 Notice of Proposed Rulemaking
(NPRM). 72 FR 54635. The discussion in that notice is incorporated by reference. We received no comments to that notice.
NHTSA is adjusting the maximum penalty for a single violation of the odometer tampering and disclosure requirements in 49 U.S.C. Chapter 327 or a regulation or order thereunder. The maximum penalty is codified at 49 CFR 578.6(f)(1). The agency last published a rule adjusting the maximum civil penalty for a single violation under 49
U.S.C. Chapter 327 in a rule published on February 4, 1997. 62 FR 5167.
In today's rule, NHTSA is adjusting this amount from $2,200 to $3,200 based on the Adjustment Act, for the reasons set forth in the NPRM.
Additionally, the agency is adjusting the maximum penalty amount for a single violation of certain administrative provisions of the EPCA found at 49 U.S.C. 32911(a). The maximum penalty is codified at 49 CFR 578.6(h)(1). This amount was last adjusted in a rule published on
February 4, 1997. 62 FR 5167. After applying the statutory formulation described in the NPRM, the maximum civil penalty amount for a single violation is being adjusted from $11,000 to $16,000. The basis for this adjustment is set forth in the NPRM.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
We have considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866, ``Regulatory Planning and Review.'' This action is limited to the adoption of adjustments of civil penalties under statutes that the agency enforces, and has been determined to be not ``significant'' under the Department of Transportation's regulatory policies and procedures.
Regulatory Flexibility Act
We have also considered the impacts of this notice under the
Regulatory Flexibility Act. I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The following
Page 9956
provides the factual basis for this certification under 5 U.S.C. 605(b). The amendments potentially affect entities involved with odometers and manufacturers of motor vehicles.
The Small Business Administration's regulations define a small business in part as a business entity ``which operates primarily within the United States.'' 13 CFR 121.105(a). SBA's size standards were previously organized according to Standard Industrial Classification
(SIC) Codes. SIC Code 336211 ``Motor Vehicle Body Manufacturing'' applied a small business size standard of 1,000 employees or fewer. SBA now uses size standards based on the North American Industry
Classification System (NAICS), Subsector 336--Transportation Equipment
Manufacturing, which provides a small business size standard of 1,000 employees or fewer for automobile manufacturing businesses. Other motor vehicle-related industries have lower size requirements that range between 500 and 750 employees.
Many small businesses are subject to the penalty provisions of the odometer laws in 49 U.S.C. Chapter 327. Some small businesses are subject to the EPCA provisions in 49 U.S.C. 32911(a) and therefore may be affected by the adjustments that this final rule makes. As noted in this preamble, this rule increases only the maximum penalty amounts that the agency could obtain for a single violation of the odometer tampering and disclosure provisions and administrative provisions of
EPCA. The rule does not set the amount of penalties for any particular violation or series of violations. Under the odometer laws, the applicable penalty provision requires the agency to take into account the ability to pay and any effect on the ability to continue doing business when determining the appropriate civil penalty in an individual case. See 49 U.S.C. 32709(a)(3)(B). Although EPCA does not provide for consideration of business size, it contains a provision for the compromise or remittitur of penalties for violations of 49 U.S.C. 32911(a). See 49 U.S.C. 32912(a) and 32913(a). The agency would also consider the size of a business under its civil penalty policy when determining the appropriate civil penalty amount for violations of 49
U.S.C. 32701 et seq. or 49 U.S.C. 32911(a). See 62 FR 37115 (July 10, 1997) (NHTSA's civil penalty policy under the Small Business Regulatory
Enforcement Fairness Act (SBREFA)). The penalty adjustments that are promulgated by this rule do not affect our civil penalty policy under
SBREFA.
Since this regulation does not establish penalty amounts, this rule will not have a significant economic impact on small businesses.
Small organizations and governmental jurisdictions are not significantly affected as the price of motor vehicles and equipment ought not to change as a result of this rule. As explained above, this action is limited to the adoption of a statutory directive, and has been determined to be not ``significant'' under the Department of
Transportation's regulatory policies and procedures.
Executive Order 13132 (Federalism)
Executive Order 13132 requires NHTSA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.'' Under Executive Order 13132, the agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs, and that is not required by statute, unless the
Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with
State and local officials early in the process of developing the regulation.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this rule applies to motor vehicle manufacturers, and not to the States or local governments. Thus, the requirements of Section 6 of the Executive Order do not apply.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than
$100 million annually. Because this rule will not have a $100 million effect, no Unfunded Mandates assessment will be prepared.
National Environmental Policy Act
We have also analyzed this rulemaking action under the National
Environmental Policy Act and determined that it will have no significant impact on the human environment.
Executive Order 12778 (Civil Justice Reform)
This rule does not have a retroactive or preemptive effect.
Judicial review of this rule may be obtained pursuant to 5 U.S.C. 702.
That section does not require that a petition for reconsideration be filed prior to seeking judicial review.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, we state that there are no requirements for information collection associated with this rulemaking action.
List of Subjects in 49 CFR Part 578
Motor vehicle safety, Penalties. 0
In consideration of the foregoing, 49 CFR part 578 is amended as set forth below.
PART 578--CIVIL AND CRIMINAL PENALTIES 0 1. The authority citation for part 578 continues to read as follows:
Authority: Pub. L. 101-410, Pub. L. 104-134, Pub. L. 106-414,
Pub. L. 109-59, 49 U.S.C. 30165, 30170, 30505, 32308, 32309, 32507, 32709, 32710, 32912, and 33115; delegation of authority at 49 CFR 1.50. 0 2. Section 578.6 of title 49, Code of Federal Regulations, is amended by revising paragraphs (f)(1) as (h)(1) to read as follows:
Sec. 578.6 Civil penalties for violations of specified provisions of
Title 49 of the United States Code.
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(f) Odometer tampering and disclosure. (1) A person that violates 49 U.S.C. Chapter 327 or a regulation prescribed or order issued thereunder is liable to the United States Government for a civil penalty of not more than $3,200 for each violation. A separate violation occurs for each motor vehicle or device involved in the violation. The maximum civil penalty under this paragraph for a related series of violations is $130,000.
* * * * *
(h) Automobile fuel economy. (1) A person that violates 49 U.S.C. 32911(a)
Page 9957
is liable to the United States Government for a civil penalty of not more than $16,000 for each violation. A separate violation occurs for each day the violation continues.
* * * * *
Issued on: February 7, 2008.
Nicole R. Nason,
Administrator.
FR Doc. E8-3518 Filed 2-22-08; 8:45 am
BILLING CODE 4910-59-P
