[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Proposed Rules]
[Pages 32963-32966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13056]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 578
[Docket No. NHTSA-04-17571; Notice 1]
RIN 2127-AJ32
Civil Penalties
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This document proposes to increase the maximum aggregate civil
penalties for violations of statutes and regulations administered by
NHTSA pertaining to motor vehicle safety, bumper standards, and
consumer information. This action would be 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: Comments on the proposal are due August 13, 2004.
ADDRESSES: All comments on this document should refer to the docket and
notice number set forth above and be submitted to Docket Management,
Room PL-401, 400 Seventh St., SW., Washington, DC 20590. The docket
room hours are from 9 a.m. to 5 p.m., Monday through Friday. Comments
may also be submitted to the docket electronically. Documents may be
filed electronically by logging onto the Docket Management System Web
site at http://dms.dot.gov. Click on ``Help'' to obtain instructions
for filing the document electronically. You may also visit the Federal
E-Rulemaking Portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Michael Kido, Office of Chief Counsel,
NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 400 Seventh
Street, SW., Washington, DC 20590.
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, consumer group, etc.). You may review
DOT's complete Privacy Act Statement in the Federal Register published
on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may
visit http://dms.dot.gov.
SUPPLEMENTARY INFORMATION:
Background
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, Public Law 101-
410), as amended by the Debt Collection Improvement Act of 1996, Public
Law 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.
NHTSA's initial adjustment of civil penalties under the Adjustment
Act was published on February 4, 1997. 62 FR 5167. At that time, we
codified the adjustments in 49 CFR Part 578, Civil Penalties. On July
14, 1999, we further adjusted certain penalties involving odometer
requirements and disclosure, consumer information, motor vehicle
safety, and bumper standards. 64 FR 37876.On August 7, 2001, we also
adjusted certain penalty amounts pertaining to odometer requirements
and disclosure and vehicle theft prevention. 66 FR 41149. In addition
to increases in authorized penalties under the Adjustment Act, the
Transportation Recall Enhancement, Accountability, and Documentation
(``TREAD'') Act increased penalties under the National Traffic and
Motor Vehicle Safety Act as amended (sometimes referred to as the
``Motor Vehicle Safety Act''). We codified those amendments on November
14, 2000. 65 FR 68108.
We have reviewed the amounts of civil penalties authorized in Part
578 and propose in this notice to adjust those penalties where
warranted under the Adjustment Act. Those civil penalties that we are
proposing to adjust address violations pertaining to motor vehicle
safety, bumper standards, and consumer information regarding
crashworthiness and damage susceptibility.
Method of Calculation
Under the Adjustment Act, we determine the inflation adjustment for
each applicable civil penalty by increasing the maximum civil penalty
amount per violation by a cost-of-living adjustment, and then applying
a rounding factor. Section 5(b) of the Adjustment Act defines the
``cost-of-living'' adjustment as:
The percentage (if any) for each civil monetary penalty by which--
(1) The Consumer Price Index for the month of June of the calendar
year preceding the adjustment exceeds
(2) The Consumer Price Index for the month of June of the calendar
year in which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
Since the proposed adjustment is intended to be effective before
December 31, 2004, the ``Consumer Price Index [CPI] for the month of
June of the calendar year preceding the adjustment'' would be the CPI
for June 2003. This figure, based on the Adjustment Act's requirement
of using the CPI ``for all-urban consumers published by the Department
of Labor'' is 550.4.\1\ The penalty amounts that NHTSA seeks to adjust
based on the Act's requirements were last adjusted in 1999 for
violations related to bumper standards and consumer information
regarding crashworthiness and damage susceptibility and in 2000 for
violations
[[Page 32964]]
related to motor vehicle safety. The CPI figures for June 1999 and June
2000 were 497.9 and 516.5, respectively. Accordingly, the factors that
we are using in calculating the increase, are 1.10 (550.4/497.9) for
adjustments to the bumper standard and consumer information penalties
and 1.07 (550.4/516.5) for adjustments to the motor vehicle safety
penalties. Using 1.10 and 1.07 as the inflation factors, calculated
increases under these adjustments are then subject to a specific
rounding formula set forth in section 5(a) of the Adjustment Act. 28
U.S.C. 2461, notes. Under that formula:
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\1\ Individuals interested in deriving the CPI figures used by
the agency may visit the Department of Labor's Consumer Price Index
Home Page at http://www.bls.gov/cpi/home.htm. Select ``US ALL ITEMS
1967=100--CUUR0000AA0'', select the appropriate time frame covering
the information sought, and select ``Retrieve Data'' from the menu.
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Any increase shall be rounded to the nearest
(1) Multiple of $10 in the case of penalties less than or equal to
$100;
(2) Multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) Multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;
(4) Multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than
$200,000.
Review of Civil Penalties Prescribed by Section 578.6
Section 578.6 contains the civil penalties authorized for the
statutes that we enforce. We have reviewed these penalties, applied the
formula using the appropriate CPI figures, considered the nearest
higher multiple specified in the rounding provisions, and tentatively
concluded that only the penalties discussed below may be increased.
Motor Vehicle Safety Act, 49 U.S.C. Chapter 301 (49 CFR 578.6(a))
The maximum civil penalty for a related series of violations of
sections 30112, 30115, 30117 through 30122, 30123(d), 30125(c), 30127,
or 30141 through 30147 of title 49 of the United States Code or a
regulation thereunder is $15,000,000, as specified in 49 CFR
578.6(a)(1). Likewise, the maximum penalty for a related series of
daily violations of 49 U.S.C. 30166 or a regulation thereunder is
$15,000,000, as specified in 49 CFR 578.6(a)(2). The agency has not
adjusted these penalty amounts since the enactment of the TREAD Act.
Under the rounding formula set by the Adjustment Act, any increase in a
penalty shall be rounded to the nearest multiple of $25,000 in the case
of penalties greater than $200,000. Applying the formula using the
appropriate inflation factor (1.07) and the accompanying rounding
rules, the increase in the penalty amounts would be $1,050,000.
Accordingly, we propose that 49 CFR 578.6(a)(1) and (a)(2) be amended
to increase the maximum civil penalty to $16,050,000 for a related
series of motor vehicle safety violations. However, the maximum civil
penalties for a single violation would remain at $5,000 under 49 CFR
578.6(a) because the inflation-adjusted figures are not yet at a level
to be increased under the Adjustment Act.
Bumper Standards, 49 U.S.C. Chapter 325 (49 CFR 578.6(c)(2))
The agency last adjusted its civil penalties for violations of
bumper requirements under 49 U.S.C. chapter 325 in 1999. The maximum
civil penalty for a related series of violations of 49 U.S.C. 32506(a)
is $925,000, as specified in 49 CFR 578.6(c)(2). Applying the
appropriate inflation factor (1.10) to the calculation raises this
figure to $1,017,500, an increase of $92,500. Under the rounding
formula, any increase in a penalty's amount shall be rounded to the
nearest multiple of $25,000 in the case of penalties greater than
$200,000. In this case, the increase would be $100,000. Accordingly, we
propose that section 576.8(c)(2) be amended to increase the maximum
civil penalty to $1,025,000 for a related series of violations of the
bumper standard provisions. However, the maximum civil penalty for a
single violation remains at $1,100 because the inflation-adjusted
figure is not yet at a level to be increased.
Consumer Information, 49 U.S.C. Chapter 323 (Crashworthiness and Damage
Susceptibility (Section 578.6(d))
The civil penalties related to consumer information regarding
crashworthiness and damage susceptibility were last adjusted in 1999.
Under 49 CFR 578.6(d), the maximum civil penalty for a related series
of violations of 49 U.S.C. 32308(a) is $450,000. Applying the
appropriate inflation factor (1.10) raises this figure to $495,000,
which is an increase of $45,000. Under the formula, any increase in a
penalty's amount shall be rounded to the nearest multiple of $25,000 in
the case of penalties greater than $200,000. In this instance, the
rounding rules provide for an increase of $50,000. Accordingly, we
propose that section 576.8(d) be amended to increase the maximum civil
penalty to $500,000 for a related series of violations that pertain to
NHTSA's crashworthiness and damage susceptibility consumer information
provisions. However, the maximum penalty for a single violation remains
at $1,100 because the inflation-adjusted figure is not yet at a level
to be increased.
Effective Date
The amendments would be effective 30 days after publication of the
final rule in the Federal Register. The adjusted penalties would apply
to violations occurring on and after the effective date.
Request for Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Please submit two copies of your comments, including the
attachments, to Docket Management at the beginning of this document,
under ADDRESSES. You may also submit your comments electronically to
the docket following the steps outlined under ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit the following to the Chief Counsel
(NCC-110) at the address given at the beginning of this document under
the heading FOR FURTHER INFORMATION CONTACT: (1) A complete copy of the
submission; (2) a redacted copy of the submission with the confidential
information removed; and (3) either a second complete copy or those
portions of the submission containing the material for which
confidential treatment is claimed and any additional information that
you deem important to the Chief Counsel's consideration of
[[Page 32965]]
your confidentiality claim. A request for confidential treatment that
complies with 49 CFR part 512 must accompany the complete submission
provided to the Chief Counsel. For further information, submitters who
plan to request confidential treatment for any portion of their
submissions are advised to review 49 CFR part 512, particularly those
sections relating to document submission requirements. Failure to
adhere to the requirements of Part 512 may result in the release of
confidential information to the public docket. In addition, you should
submit two copies from which you have deleted the claimed confidential
business information, to Docket Management at the address given at the
beginning of this document under ADDRESSES.
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated at
the beginning of this notice under DATES. In accordance with our
policies, to the extent possible, we will also consider comments that
Docket Management receives after the specified comment closing date. If
Docket Management receives a comment too late for us to consider in
developing the proposed rule, we will consider that comment as an
informal suggestion for future rulemaking action.
How Can I Read the Comments Submitted by Other People?
You may read the comments received by Docket Management at the
address and times given near the beginning of this document under
ADDRESSES.
You may also see the comments on the Internet. To read the comments
on the Internet, take the following steps:
(1) Go to the Docket Management System (DMS) Web page of the
Department of Transportation (http://dms.dot.gov/).
(2) On that page, click on ``search.''
(3) On the next page (http://dms.dot.gov/search/), type in the
four-digit docket number shown at the heading of this document.
Example: if the docket number were ``NHTSA-2001-1234,'' you would type
``1234.''
(4) After typing the docket number, click on ``search.''
(5) The next page contains docket summary information for the
docket you selected. Click on the comments you wish to see.
You may download the comments. The comments are imaged documents,
in either TIFF or PDF format. Please note that even after the comment
closing date, we will continue to file relevant information in the
Docket as it becomes available. Further, some people may submit late
comments. Accordingly, we recommend that you periodically search the
Docket for new material.
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 proposed 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 a final rule based on this
proposal will not have a significant economic impact on a substantial
number of small entities. The following provides the factual basis for
this certification under 5 U.S.C. 605(b). The proposed amendments
almost entirely potentially affect manufacturers of motor vehicles and
motor vehicle equipment.
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
Codes (``SIC''), SIC Code 3711 ``Motor Vehicles and Passenger Car
Bodies,'' which used 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.\2\
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\2\ For example, according to the new SBA coding system,
businesses that manufacture truck trailers, travel trailers/campers,
carburetors, pistons, piston rings, valves, vehicular lighting
equipment, motor vehicle seating/interior trim, and motor vehicle
stamping qualify as small businesses if they employ 500 or fewer
employees. Similarly, businesses that manufacture gasoline engines,
engine parts, electrical and electronic equipment (non-vehicle
lighting), motor vehicle steering/suspension components (excluding
springs), motor vehicle brake systems, transmissions/power train
parts, motor vehicle air-conditioning, and all other motor vehicle
parts qualify as small businesses if they employ 750 or fewer
employees. See http://www.sba.gov/size/sizetable.pdf for further
details.
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Many small businesses are subject to the penalty provisions of 49
U.S.C. chapters 301 (motor vehicle safety), 325 (bumpers) or 323
(consumer information) and therefore may be affected by the adjustments
that this NPRM proposes to make. For example, based on comprehensive
reporting pursuant to the early warning reporting (EWR) rule under the
Motor Vehicle Safety Act, 49 CFR part 579, out of 72 reporting we are
aware of approximately 50 light vehicle manufacturers that are small
businesses. In addition, there are other, relatively low production
light vehicle manufacturers that are not subject to comprehensive EWR
reporting. Additionally, many of the more than 70 manufacturers of
medium-heavy medium heavy vehicles and buses, the more than 150 trailer
manufacturers, and the 12 motorcycle manufacturers providing
comprehensive EWR reports are small businesses and there are numerous
others that are below the production threshold for comprehensive
reporting. There are over 6 manufacturers of child restraints and 18
tire manufacturers that are reporting pursuant to the EWR rule. Also,
there are numerous other low-volume specialty tire manufacturers that
do not provide comprehensive EWR reports. Furthermore, there are about
160 registered importers. Equipment manufacturers are also subject to
penalties under 49 U.S.C. 30165.
The bumper and consumer information statutes addressed by this
proposal cover passenger motor vehicles, which are within the compass
of the Motor Vehicle Safety Act. As a result, the discussion of the
numbers and sizes of light vehicle manufacturers above also covers
those statutes.
As noted throughout this preamble, this proposed rule would only
increase the maximum penalty amounts that the agency could obtain for
violations of provisions related to motor vehicle safety, bumper
standards, and certain consumer information. The proposed rule does not
set the amount of penalties for any particular violation or series of
violations. Under the motor vehicle safety and consumer information
statutes, the penalty provisions require the agency to take into
account the size of a business when determining the appropriate penalty
in an individual case. See 49 U.S.C. 30165(b) (motor
[[Page 32966]]
vehicle safety) and 49 U.S.C. 32308(b)(3) (consumer information). While
the bumper standards penalty provision does not specifically require
the agency to consider the size of the business, the agency would
consider business size under its civil penalty policy when determining
the appropriate civil penalty amount. 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 being proposed would not affect our civil penalty policy under
SBREFA. As a matter of policy, we intend to continue to consider the
appropriateness of the penalty amount to the size of the business
charged.
Since this regulation would not establish penalty amounts, this
proposal will not have a significant economic impact on small
businesses.
Further, small organizations and governmental jurisdictions would
not be significantly affected as the price of motor vehicles and
equipment ought not to change as the result of this proposed rule. As
explained above, this action is limited to the proposed adoption of a
statutory directive, and has been determined to be not ``significant''
under the Department of Transportation's regulatory policies and
procedures.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, Public Law
96-511, we state that there are no requirements for information
collection associated with this rulemaking action.
National Environmental Policy Act
We have also analyzed this rulemaking action under the National
Environmental Policy Act and determined that it has no significant
impact on the human environment.
Executive Order 12612 (Federalism)
We have analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 12612, and have
determined that it has no significant federalism implications to
warrant the preparation of a Federalism Assessment.
Civil Justice Reform
This proposed rule does not have a retroactive or preemptive
effect. Judicial review of a rule based on this proposal 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.
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.
List of Subjects in 49 CFR Part 578
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires, Penalties.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR
part 578 as follows:
PART 578--CIVIL AND CRIMINAL PENALTIES
1. The authority citation for 49 CFR part 578 would continue to
read as follows:
Authority: Pub. L 101-410, Pub. L. 104-134, 49 U.S.C. 30165,
30170, 30505, 32308, 32309, 32507, 32709, 32710, 32912, and 33115;
delegation of authority at 49 CFR 1.50.
2. Section 578.6 would be amended by revising paragraphs (a)(1),
(a)(2), (c)(2), and (d) to read as follows:
* * * * *
Sec. 578.6 Civil penalties for violations of specified provisions of
title 49 of the United States Code.
(a)(1) Motor vehicle safety. A person who violates any of sections
30112, 30115, 30117 through 30122, 30123(d), 30125(c), 30127, or 30141
through 30147 of title 49 of the United States Code or a regulation
prescribed under any of those sections is liable to the United States
Government for a civil penalty of not more than $5,000 for each
violation. A separate violation occurs for each motor vehicle or item
of motor vehicle equipment and for each failure or refusal to allow or
perform an act required by any of those sections. The maximum civil
penalty under this paragraph for a related series of violations is
$16,050,000.
(2) Section 30166. A person who violates section 30166 of title 49
of the United States Code or a regulation prescribed under that section
is liable to the United States Government for a civil penalty for
failing or refusing to allow or perform an act required under that
section or regulation. The maximum penalty under this paragraph is
$5,000 per violation per day. The maximum penalty under this paragraph
for a related series of violations is $16,050,000.
* * * * *
(c) Bumper standards. (1) * * *
(2) The maximum civil penalty under this paragraph (c) for a
related series of violations is $1,025,000.
(d) Consumer information regarding crashworthiness and damage
susceptibility. A person that violates 49 U.S.C. 32308(a) is liable to
the United States Government for a civil penalty of not more than
$1,100 for each violation. Each failure to provide information or
comply with a regulation in violation of 49 U.S.C. 32308(a) is a
separate violation. The maximum penalty under this paragraph for a
related series of violations is $500,000.
* * * * *
Issued on: June 4, 2004.
Jacqueline Glassman,
Chief Counsel.
[FR Doc. 04-13056 Filed 6-10-04; 8:45 am]
BILLING CODE 4910-59-P