[Rules and Regulations] [Pages 60732-60754]
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Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, and 190
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RIN 2105-AE70
Revisions to Civil Penalty Amounts
AGENCY: Department of Transportation (DOT or the Department).
ACTION: Final rule.
SUMMARY: In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, this final rule provides the 2018 inflation adjustment to civil penalty amounts that may be imposed for violations of certain DOT regulations. This rule also finalizes the National Highway Traffic Safety Administration's and the Office of the Secretary's catch-up inflation adjustment interim final rules required by the same Act.
DATES: Effective November 27, 2018.
FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney-Advisor, Office of the General Counsel, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-9301, alexander.zektser@dot.gov (email).
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note. The FCPIAA and the 2015 Act require federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. Section 4(b)(2) of the 2015 Act specifically directs that the annual adjustment be accomplished through final rule without notice and comment. This rule is effective immediately.
The Department's authorities over the specific civil penalty regulations being amended by this rule are provided in the preamble discussion below.
I. Background
On November 2, 2015, the President signed into law the 2015 Act, which amended FCPIAA, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires federal agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation.
The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the required annual inflation adjustment no later than December 15 of each year.\1\ On December 15, 2017, OMB released this required guidance, in OMB Memorandum M-18-03, which provides instructions on how to calculate the 2018 annual adjustment. To derive the 2018 adjustment, the Department must multiply the maximum or minimum penalty amount by the percent change between the October 2017 Consumer Price Index for All Urban Consumers (CPI-U) and the October 2016 CPI-U. In this case, as explained in OMB Memorandum M-18- 03, the percent change between the October 2017 CPI-U (246.663) and the October 2016 CPI-U (241.729) is 1.02041.
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\1\ 28 U.S.C. 2461 note.
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II. Dispensing With Notice and Comment
This final rule is being published without notice and comment and with an immediate effective date.
The 2015 Act provides clear direction for how to adjust the civil penalties, and clearly states at section 4(b)(2) that this adjustment shall be made “notwithstanding section 553 of title 5, United States Code.” By operation of the 2015 Act, DOT must publish an annual adjustment by January 15 of every year, and the new levels take effect upon publication of the rule. NHTSA and OST are finalizing their “catch-up” adjustment interim final rules in this annual adjustment. Pursuant to the 2015 Act and notwithstanding 5 U.S.C. 553, NHTSA and OST adopt their interim final rules as final and superseded by this rule. Accordingly, DOT is publishing this final rule without prior notice and comment, and with an immediate effective date.
Additionally, the Act clearly prescribes the frequency with which civil monetary penalties must be reviewed and adjusted. NHTSA's regulations at 49 CFR 578.5 stating that the Administrator will review and, if necessary, adjust its civil penalties every four years is superseded by the Act. NHTSA has no discretion to review and adjust its civil penalties at different intervals, and is therefore conforming its regulations to the requirements of the Act, as discussed in section IV below. Accordingly, and pursuant to 5 U.S.C. 553(b)(3)(B), 553(d)(3), DOT finds that good cause exists for immediate implementation of this provision of the final rule without prior notice and comment, and with an immediate effective date.
III. Discussion of the Final Rule
In 2016, OST and DOT's operating administrations with civil monetary penalties promulgated the “catch up” IFR required by the 2015 Act. OST and NHTSA have not yet finalized their IFRs, and accordingly, this rule both finalizes OST and NHTSA's “catch up” IFRs and makes the annual inflation adjustment required by the 2015 Act. All other DOT operating administrations have already finalized their “catch up” IFRs and for those operating administrations, this rule makes the annual inflation adjustment required by the 2015 Act.
The Department emphasizes that this rule adjusts penalties prospectively, and therefore the penalty adjustments made by this rule will apply only to violations that take place after this rule becomes effective. This rule also does not change previously assessed or enforced penalties that DOT is actively collecting or has collected.
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F. PHMSA 2018 Annual Adjustment
PHMSA's 2018 civil penalty adjustments are summarized in the chart below.
Description |
Citation |
Existing penalty |
New penalty (existing penalty × 1.02041) |
Maximum penalty for hazardous materials violation |
49 U.S.C. 5123 |
$78,376 |
$79,976 |
Maximum penalty for hazardous materials violation that results in death, serious illness, or severe injury to any person or substantial destruction of property. |
49 U.S.C. 5123 |
182,877 |
186,610 |
Minimum penalty for hazardous materials training violations |
49 U.S.C. 5123 |
471 |
481 |
Maximum penalty for each pipeline safety violation |
49 U.S.C. 60122(a)(1) |
209,002 |
213,268 |
Maximum penalty for a related series of pipeline safety violations |
49 U.S.C. 60122(a)(1) |
2,090,022 |
2,132,679 |
Maximum penalty for liquefied natural gas pipeline safety violation |
49 U.S.C. 60122(a)(2) |
76,352 |
77,910 |
Maximum penalty for discrimination against employees providing pipeline safety information. |
49 U.S.C. 60122(a)(3) |
1,214 |
1,239 |
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PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES
§. 190.223 Maximum penalties.
(a) Any person found to have violated a provision of 49 U.S.C. 60101, et seq., or any regulation or order issued thereunder, is subject to an administrative civil penalty not to exceed $213,268 for each violation for each day the violation continues, with a maximum administrative civil penalty not to exceed $2,132,679 for any related series of violations.
(b) Any person found to have violated a provision of 33 U.S.C. 1321(j), or any regulation or order issued thereunder, is subject to an administrative civil penalty under 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 19.4.
(c) Any person found to have violated any standard or order under 49 U.S.C. 60103 is subject to an administrative civil penalty not to exceed $77,910, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.
(d) Any person who is determined to have violated any standard or order under 49 U.S.C. 60129 is subject to an administrative civil penalty not to exceed $1,239, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.
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Issued in Washington, DC, under authority delegated at 49 CFR 1.27(n).
Steven G. Bradbury,
General Counsel.
[FR Doc. 2018-24930 Filed 11-26-18; 8:45 am]
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