ViaData Note: This rule covers increases in civil penalties for several Department of Transportation Administrations. ViaData has included only the sections pertinent to PHMSA's 49 CFR Part 190. Should you wish to read the entire final rule, please Download Federal Register PDF
[Rules and Regulations] [Pages 15839-15873]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 13 and 406
Office of the Secretary
14 CFR Part 383
Great Lakes St. Lawrence Seaway Development Corporation
33 CFR Part 401
Maritime Administration
46 CFR Parts 221, 307, 340, and 356
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, and 190
Federal Railroad Administration
49 CFR Parts 209, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 227, 228, 229, 230, 231, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, and 272
Federal Motor Carrier Safety Administration
49 CFR Part 386
National Highway Traffic Safety Administration
49 CFR Part 578
RIN 2105-AF11
Revisions to Civil Penalty Amounts
AGENCY: Department of Transportation (DOT or the Department).
ACTION: Final rule.
SUMMARY: This final rule provides the statutorily-prescribed 2022 adjustment to civil penalty amounts that may be imposed for violations of certain DOT regulations. In addition, this rule notes new DOT civil penalties authority provided in the Bipartisan Infrastructure Law (BIL, enacted as the Infrastructure Investment and Jobs Act).
DATES: This rule is effective March 21, 2022.
FOR FURTHER INFORMATION CONTACT: Elizabeth Kohl, Attorney-Advisor, Office of the General Counsel, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-7253; elizabeth.kohl@dot.gov.
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 to preserve their deterrent impact. The 2015 Act amended the formula and frequency of the 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.
This rule also notes new DOT authority to assess civil penalties for violations of requirements related to newly manufactured and operating railroad freight cars. The authority to assess these civil penalties was provided in the BIL, enacted as the Infrastructure Investment and Jobs Act, Public Law 117-58 (Nov. 15, 2021) and codified at 49 U.S.C. 20171. 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 the 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.
The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the required annual adjustment no later than December 15 of each year.1 On December 15, 2021, OMB released this required guidance, in OMB Memorandum M22-07, which provides instructions on how to calculate the 2022 annual adjustment. To derive the 2022 adjustment, the Department must multiply the maximum or minimum penalty amount by the percent change between the October 2021 Consumer Price Index for All Urban Consumers (CPI-U) and the October 2020 CPI-U. In this case, as explained in OMB Memorandum M-22-07, the percent change between the October 2021 CPI-U and the October 2020 CPI- U is 1.06222.
II. Issuance of a Final Rule
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.
In addition, as noted previously in the discussion of the authority for this rulemaking, the BIL (Infrastructure Investment and Jobs Act, section 22425) provides authority for DOT to assess civil penalties for violations of requirements related to newly manufactured and operating railroad freight cars. DOT does not have discretion in this rulemaking to change the specified penalties set out in the statute. In addition, the statute directs DOT to issue any necessary implementing regulations and specifies that violations for which penalties may be assessed occur after the issuance of such regulations. As a result, no new civil penalties are being established in this rulemaking.
Accordingly, DOT is publishing this 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. All DOT operating administrations have already finalized their “catch up” IFRs, and this rule makes the annual 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.
F. Pipeline and Hazardous Materials Safety Administration (PHMSA) 2022 Adjustments
PHMSA's civil penalties affected by this rule for hazardous materials violations are located in 49 CFR 107.329, appendix A to subpart D of 49 CFR part 107, and Sec. 171.1. The civil penalties affected by this rule for pipeline safety violations are located in Sec. 190.223. PHMSA's 2022 civil penalty adjustments are summarized in the chart below.
G. Unfunded Mandates Reform Act
The Department analyzed the final rule under the factors in the Unfunded Mandates Reform Act of 1995. The Department considered whether the rule includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The Department has determined that this final rule will not result in such expenditures. Accordingly, no further assessment or analysis is required under the Unfunded Mandates Reform Act.
List of Subjects
49 CFR Part 190
Administrative practice and procedure, Penalties, Pipeline safety.
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PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES
22. The authority citation for part 190 continues to read as follows:
Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.
23. Amend Sec. 190.223 by revising paragraphs (a), (c), and (d) to read as follows:
Sec. 190.223 Maximum penalties.
(a) Any person found to have violated a provision of 49 U.S.C. 60101, et seq., or any regulation in 49 CFR parts 190 through 199, or order issued pursuant to 49 U.S.C. 60101, et seq. or 49 CFR part 190, is subject to an administrative civil penalty not to exceed $239,142 for each violation for each day the violation continues, with a maximum administrative civil penalty not to exceed $2,391,412 for any related series of violations.
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(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 $87,362, 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 $1,388, 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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Signed in Washington, DC, on February 25, 2022.
Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
[FR Doc. 2022-04456 Filed 3-18-22; 8:45 am]
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