On March 27, 2018, NHTSA announced that it is proposing to retain the current civil penalty rate in 49 U.S.C. 32912(b) of $5.50 per tenth of a mile per gallon for automobile manufacturers that do not meet applicable CAFE standards and are unable to offset such a deficit with compliance credits. NHTSA’s proposal is based on its tentative determination that the CAFE civil penalty rate is not a “civil monetary penalty,” as defined by the 2015 Act, that must be adjusted for inflation. NHTSA’s previous Federal Register notices on its inflation adjustments under the 2015 Act did not consider whether the CAFE civil penalty rate fit the definition of a “civil monetary penalty” subject to adjustment under the 2015 Act, instead proceeding—without analysis—as if the 2015 Act applied to the CAFE civil penalty rate. After taking the opportunity to fully analyze the issue, NHTSA tentatively concludes that the CAFE civil penalty rate is not covered by the 2015 Act and seeks comment on four ways that the provisions of the 2015 Act could be best approached.
Comments on the notice will be due 30 days after the notice is published in the Federal Register. A draft version is available here.