49 U.S.C. § 32912 — Civil penalties

Page 977 TITLE 49—TRANSPORTATION § 32912 § 32911. Compliance (a) GENERAL.—A person commits a violation if the person fails to comply with this chapter and regulations and standards prescribed and orders issued under this chapter (except sections 32902, 32903, 32908(b), 32917(b), and 32918 and regulations and standards prescribed and orders issued under those sections). The Secretary of Transportation shall conduct a proceeding, with an opportunity for a hearing on the record, to decide whether a person has committed a violation. Any inter- ested person may participate in a proceeding under this subsection. (b) AUTOMOBILE MANUFACTURERS.—A manufac- turer of automobiles commits a violation if the manufacturer fails to comply with an applicable average fuel economy standard under section 32902 of this title. Compliance is determined after considering credits available to the manu- facturer under section 32903 of this title. If aver- age fuel economy calculations under section 32904(c) of this title indicate that a manufac- turer has violated this subsection, the Secretary shall conduct a proceeding, with an opportunity for a hearing on the record, to decide whether a violation has been committed. The Secretary may not conduct the proceeding if further meas- urements of fuel economy, further calculations of average fuel economy, or other information indicates a violation has not been committed. The results of the measurements and calcula- tions and the information shall be published in the Federal Register. Any interested person may participate in a proceeding under this sub- section. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1071; Pub. L. 103–429, § 6(40), Oct. 31, 1994, 108 Stat. 4382.) Historical and Revision Notes PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 32911(a) ...... 15:2007(a)(3). Oct. 20, 1972, Pub. L. 92–513, 86 Stat. 947, §§ 507(a), 508(a); added Dec. 22, 1975, Pub. L. 94–163, § 301, 89 Stat. 911; Oct. 10, 1980, Pub. L. 96–425, § 6(a)(1), (c)(1), (2), 94 Stat. 1826, 1827. 15:2008(a)(2). 32911(b) ...... 15:2007(a)(1), (2). 15:2007(b). Oct. 20, 1972, Pub. L. 92–513, 86 Stat. 947, § 507(b); added Oct. 10, 1980, Pub. L. 96–425, § 6(a)(2), 94 Stat. 1826. 15:2008(a). In this section, the words ‘‘commits a violation if the . . . fails’’ are substituted for ‘‘the following conduct is unlawful . . . the failure of any person’’ for clarity and consistency in the revised title. In subsection (a), the reference to 15:2011 is omitted because that provision is not restated in this chapter. The words ‘‘The Secretary of Transportation shall con- duct a proceeding, with an opportunity for a hearing on the record, to decide’’ are substituted for ‘‘If, on the record after opportunity for agency hearing, the Sec- retary determines’’ in 15:2008 for clarity. The words ‘‘the Secretary shall assess the penalties provided for under subsection (b) of this section’’ are omitted as sur- plus. In subsection (b), the words ‘‘Compliance is deter- mined after considering credits available to the manu- facturer under section 32903 of this title’’ are sub- stituted for 15:2007(b) to eliminate unnecessary words. The words ‘‘the Secretary shall conduct a proceeding, with an opportunity for a hearing on the record, to de- cide’’ are substituted for ‘‘the Secretary shall com- mence a proceeding under paragraph (2) of this sub- section’’ in 15:2008(a)(1) and ‘‘If, on the record after op- portunity for agency hearing, the Secretary deter- mines’’ in 15:2008(a)(2) for clarity. The words ‘‘may not conduct’’ are substituted for ‘‘(unless’’ in 15:2008(a)(1) for clarity. PUB. L. 103–429 This makes a conforming amendment necessary be- cause of the restatement of 15:2011 as 49:32918 by section 6(43)(A) of the bill. Editorial Notes AMENDMENTS 1994—Subsec. (a). Pub. L. 103–429 substituted ‘‘, 32917(b), and 32918’’ for ‘‘, and 32917(b)’’. § 32912. Civil penalties (a) GENERAL PENALTY.—A person that violates section 32911(a) of this title is liable to the United States Government for a civil penalty of not more than $10,000 for each violation. A sepa- rate violation occurs for each day the violation continues. (b) PENALTY FOR MANUFACTURER VIOLATIONS OF FUEL ECONOMY STANDARDS.—Except as pro- vided in subsection (c) of this section, a manu- facturer that violates a standard prescribed for a model year under section 32902 of this title is liable to the Government for a civil penalty of $5 multiplied by each .1 of a mile a gallon by which the applicable average fuel economy standard under that section exceeds the average fuel economy— (1) calculated under section 32904(a)(1)(A) or (B) of this title for automobiles to which the standard applies manufactured by the manu- facturer during the model year; (2) multiplied by the number of those auto- mobiles; and (3) reduced by the credits available to the manufacturer under section 32903 of this title for the model year. (c) HIGHER PENALTY AMOUNTS.—(1)(A) The Sec- retary of Transportation shall prescribe by regu- lation a higher amount for each .1 of a mile a gallon to be used in calculating a civil penalty under subsection (b) of this section, if the Sec- retary decides that the increase in the penalty— (i) will result in, or substantially further, substantial energy conservation for auto- mobiles in model years in which the increased penalty may be imposed; and (ii) will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State. (B) The amount prescribed under subpara- graph (A) of this paragraph may not be more than $10 for each .1 of a mile a gallon. (C) The Secretary may make a decision under subparagraph (A)(ii) of this paragraph only when the Secretary decides that it is likely that the increase in the penalty will not— (i) cause a significant increase in unemploy- ment in a State or a region of a State; (ii) adversely affect competition; or Page 978 TITLE 49—TRANSPORTATION § 32912 (iii) cause a significant increase in auto- mobile imports. (D) A higher amount prescribed under sub- paragraph (A) of this paragraph is effective for the model year beginning at least 18 months after the regulation stating the higher amount becomes final. (2) The Secretary shall publish in the Federal Register a proposed regulation under this sub- section and a statement of the basis for the reg- ulation and provide each manufacturer of auto- mobiles a copy of the proposed regulation and the statement. The Secretary shall provide a pe- riod of at least 45 days for written public com- ments on the proposed regulation. The Sec- retary shall submit a copy of the proposed regu- lation to the Federal Trade Commission and re- quest the Commission to comment on the pro- posed regulation within that period. After that period, the Secretary shall give interested per- sons and the Commission an opportunity at a public hearing to present oral information, views, and arguments and to direct questions about disputed issues of material fact to— (A) other interested persons making oral presentations; (B) employees and contractors of the Gov- ernment that made written comments or an oral presentation or participated in the devel- opment or consideration of the proposed regu- lation; and (C) experts and consultants that provided in- formation to a person that the person in- cludes, or refers to, in an oral presentation. (3) The Secretary may restrict the questions of an interested person and the Commission when the Secretary decides that the questions are duplicative or not likely to result in a time- ly and effective resolution of the issues. A tran- script shall be kept of a public hearing under this subsection. A copy of the transcript and written comments shall be available to the pub- lic at the cost of reproduction. (4) The Secretary shall publish a regulation prescribed under this subsection in the Federal Register with the decisions required under para- graph (1) of this subsection. (5) An officer or employee of a department, agency, or instrumentality of the Government violates section 1905 of title 18 by disclosing, ex- cept in an in camera proceeding by the Sec- retary or a court, information— (A) provided to the Secretary or the court during consideration or review of a regulation prescribed under this subsection; and (B) decided by the Secretary to be confiden- tial under section 11(d) of the Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 796(d)). (d) WRITTEN NOTICE REQUIREMENT.—The Sec- retary shall impose a penalty under this section by written notice. (e) USE OF CIVIL PENALTIES.—For fiscal year 2008 and each fiscal year thereafter, from the total amount deposited in the general fund of the Treasury during the preceding fiscal year from fines, penalties, and other funds obtained through enforcement actions conducted pursu- ant to this section (including funds obtained under consent decrees), the Secretary of the Treasury, subject to the availability of appro- priations, shall— (1) transfer 50 percent of such total amount to the account providing appropriations to the Secretary of Transportation for the adminis- tration of this chapter, which shall be used by the Secretary to support rulemaking under this chapter; and (2) transfer 50 percent of such total amount to the account providing appropriations to the Secretary of Transportation for the adminis- tration of this chapter, which shall be used by the Secretary to carry out a program to make grants to manufacturers for retooling, re- equipping, or expanding existing manufac- turing facilities in the United States to produce advanced technology vehicles and components. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1072; Pub. L. 110–140, title I, § 112, Dec. 19, 2007, 121 Stat. 1508.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 32912(a) ...... 15:2008(b)(2). Oct. 20, 1972, Pub. L. 92–513, 86 Stat. 947, § 508(b)(1)–(3) (1st sentence); added Dec. 22, 1975, Pub. L. 94–163, § 301, 89 Stat. 913; Oct. 10, 1980, Pub. L. 96–425, §§ 6(c)(1), (3), 8(f), 94 Stat. 1827, 1828, 1829. 32912(b) ...... 15:2008(b)(1). 32912(c)(1) .. 15:2008(d). Oct. 20, 1972, Pub. L. 92–513, 86 Stat. 947, § 508(d), (e)(1), (2), (4); added Nov. 9, 1978, Pub. L. 95–619, § 402, 92 Stat. 3255, 3256. 32912(c)(2), (3). 15:2008(e)(1). 32912(c)(4) .. 15:2008(e)(2). 32912(c)(5) .. 15:2008(e)(4). 32912(d) ...... 15:2008(b)(3) (1st sen- tence). In this section, the words ‘‘whom the Secretary de- termines under subsection (a) of this section’’ are omit- ted as surplus. In subsection (b), before clause (1)(A), the words ‘‘Ex- cept as provided in subsection (c) of this section’’ are added for clarity. The words ‘‘that violates a standard prescribed for a model year under section 32902 of this title’’ are substituted for ‘‘to have violated a provision of section 2007(a)(1) of this title with respect to any model year’’ and ‘‘to have violated section 2007(a)(2) of this title’’ to avoid referring, as in the source, to one provision that in turn refers to another provision. In clause (1), the words ‘‘calculated under’’ are substituted for ‘‘established under’’ for clarity. The reference to section 32904(a)(1)(A), which is a reference to the provi- sion under which average fuel economy for nonpas- senger automobiles is calculated, is added for clarity. The reference to section 32904(a)(1)(B), which is a ref- erence to the provision under which average fuel econ- omy for passenger automobiles is calculated, is sub- stituted for the reference in the source to 15:2002(a) and (c), which is a reference to the provision under which the average fuel economy standard for those auto- mobiles is established, for clarity. The words ‘‘in which the violation occurs’’ are omitted as surplus. In subsection (c)(1)(A), before clause (i), the words ‘‘shall prescribe by regulation’’ are substituted for ‘‘shall, by rule . . . substitute’’ for consistency in the revised title and because ‘‘rule’’ and ‘‘regulation’’ are synonymous. The words ‘‘in accordance with the provi- sions of this subsection and subsection (e)’’ are omitted as surplus. The words ‘‘be less than $5.00’’ are omitted as surplus because under the subsection the Secretary may only raise the amount imposed to $10, or a $5 in- crease. The words ‘‘in the absence of such rule’’ are Page 979 TITLE 49—TRANSPORTATION § 32913 omitted as surplus. The words ‘‘increase in the pen- alty’’ are substituted for ‘‘additional amount of the civil penalty’’ for clarity. In clause (ii), the words ‘‘sub- ject to subparagraph (B)’’ are omitted as surplus. In subsection (c)(1)(C), the words ‘‘the later of’’ and the text of 15:2008(d)(3)(A) are omitted as obsolete. In subsection (c)(2), before clause (A), the words ‘‘After the Secretary of Transportation develops a pro- posed rule pursuant to subsection (d) of this section’’ are omitted as surplus. In clause (B), the words ‘‘writ- ten comments or an oral presentation’’ are substituted for ‘‘written or oral presentations’’ for consistency in the section. The text of 15:2008(e)(1)(B) (last sentence) and (C) is omitted as surplus because of 5:556(d). In subsection (c)(5), before clause (A), the words ‘‘de- partment, agency, or instrumentality’’ are substituted for ‘‘department or agency’’ for consistency in the re- vised title and with other titles of the United States Code. Editorial Notes AMENDMENTS 2007—Subsec. (e). Pub. L. 110–140 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec- tion 1824 of Title 2, The Congress. § 32913. Compromising and remitting civil pen- alties (a) GENERAL AUTHORITY AND LIMITATIONS.— The Secretary of Transportation may com- promise or remit the amount of a civil penalty imposed under section 32912(a) or (b) of this title. However, the amount of a penalty imposed under section 32912(b) may be compromised or remitted only to the extent— (1) necessary to prevent the insolvency or bankruptcy of the manufacturer of auto- mobiles; (2) the manufacturer shows that the viola- tion was caused by an act of God, a strike, or a fire; or (3) the Federal Trade Commission certifies under subsection (b)(1) of this section that a reduction in the penalty is necessary to pre- vent a substantial lessening of competition. (b) CERTIFICATION BY COMMISSION.—(1) A manu- facturer liable for a civil penalty under section 32912(b) of this title may apply to the Commis- sion for a certification that a reduction in the penalty is necessary to prevent a substantial lessening of competition in the segment of the motor vehicle industry subject to the standard that was violated. The Commission shall make the certification when it finds that reduction is necessary to prevent the lessening. The Commis- sion shall state in the certification the max- imum amount by which the penalty may be re- duced. (2) An application under this subsection must be made not later than 30 days after the Sec- retary decides that the manufacturer has vio- lated section 32911(b) of this title. To the max- imum extent practicable, the Commission shall make a decision on an application by the 90th day after the application is filed. A proceeding under this subsection may not delay the manu- facturer’s liability for the penalty for more than 90 days after the application is filed. (3) When a civil penalty is collected in a civil action under this chapter before a decision of the Commission under this subsection is final, the payment shall be paid to the court in which the action was brought. The court shall deposit the payment in the general fund of the Treasury on the 90th day after the decision of the Com- mission becomes final. When the court is hold- ing payment of a penalty reduced under sub- section (a)(3) of this section, the Secretary shall direct the court to remit the appropriate amount of the penalty to the manufacturer. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1073; Pub. L. 103–429, § 6(41), Oct. 31, 1994, 108 Stat. 4382; Pub. L. 104–287, § 6(d)(1)(A), Oct. 11, 1996, 110 Stat. 3399.) HISTORICAL AND REVISION NOTES PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 32913(a) ...... 15:2008(b)(3) (2d sen- tence). Oct. 20, 1972, Pub. L. 92–513, 86 Stat. 947, § 508(b)(3) (2d sentence), (4), (5); added Dec. 22, 1975, Pub. L. 94–163, § 301, 89 Stat. 913; Oct. 10, 1980, Pub. L. 96–425, § 6(c)(1), 94 Stat. 1827. 32913(b) ...... 15:2008(b)(4), (5). In subsection (a), before clause (1), the words ‘‘com- promise or remit’’ are substituted for ‘‘compromise, modify, or remit, with or without conditions’’ for con- sistency in the revised title. The words ‘‘against any person’’ are omitted as surplus. The reference to sec- tion 32912(b) (a restatement of 15:2008(b)(1)) is used rath- er than a reference to 32911(b) (a restatement of 15:2007(a)(1) or (2)) to avoid referring, as in the source, to one provision that in turn refers to another provi- sion. In clause (3), the word ‘‘reduction’’ is substituted for ‘‘modification’’ for clarity. The words ‘‘as deter- mined under paragraph (4)’’ are omitted as surplus. In subsection (b)(1), the words ‘‘the standard that was violated’’ are substituted for ‘‘the standard with re- spect to which such penalty was assessed’’, and the words ‘‘The Commission shall make the certification when it finds that reduction’’ are substituted for ‘‘If the manufacturer shows and the Federal Trade Com- mission determines that modification of the civil pen- alty for which such manufacturer is otherwise liable . . . the Commission shall so certify’’, to eliminate un- necessary words. In subsection (b)(3), the words ‘‘When a civil penalty is collected in a civil action under this chapter’’ are substituted for ‘‘but any payment made’’ for clarity. The words ‘‘action was brought’’ are substituted for ‘‘the penalty is collected’’ for consistency. The words ‘‘and shall (except as otherwise provided in paragraph (5)), be held by such court’’ are omitted as surplus. The words ‘‘When the court is holding payment of a penalty reduced under subsection (a)(3) of this section’’ are sub- stituted for ‘‘Whenever a civil penalty has been as- sessed and collected from a manufacturer under this section, and is being held by a court in accordance with paragraph (4), and the Secretary subsequently deter- mines to modify such civil penalty pursuant to para- graph (3)(C)’’ to eliminate unnecessary words. PUB. L. 103–429 This amends 49:32913(b)(1) to clarify the restatement of 15:2008(b)(4) and (5) by section 1 of the Act of July 5, 1994 (Public Law 103–272, 108 Stat. 1073).