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Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
To comply with the Federal Civil Penalties Inflation Adjustment Act of 1990, FRA is adjusting the minimum and maximum civil monetary penalties that it will apply when assessing a civil penalty for a violation of railroad safety statutes and regulations under its authority. In particular, FRA is increasing the minimum civil penalty from $500 to $550 and the maximum civil penalty where a grossly negligent violation or pattern of repeated violations has created an imminent hazard of death or injury or has actually caused death or injury (“grossly negligent violation”) from $22,000 to $27,000.
Effective Date: This final rule is effective June 28, 2004, except for the amendments to part 222, which are effective December 18, 2004.
Melissa L. Porter, Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone 202-493-6034).
The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Act) requires that an agency adjust by regulation each maximum civil monetary penalty (CMP), or range of minimum and maximum CMPs, within that agency's jurisdiction by October 23, 1996 and adjust those penalty amounts once every four years thereafter to reflect inflation. (Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996 Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996.) Congress recognized the important role that CMPs play in deterring violations of Federal law and regulations and realized that inflation has diminished the impact of these penalties. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the CMPs by having the agencies charged with enforcement responsibility administratively adjust the CMPs.
Under the Inflation Act, the inflation adjustment is to be calculated by increasing the maximum CMP, or the range of minimum and maximum CMPs, by the percentage that the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment (here, June 2003) exceeds the CPI for the month of June of the last calendar year in which the amount of such penalty was last set or adjusted (here, June 1992 for the minimum CMP of $500 and June 1998 for maximum CMP of $22,000 for a grossly negligent violation.) The Inflation Act also specifies that amount of the adjustment must be rounded to the nearest multiple of $100 for a penalty between $100 and $1,000, or to the nearest multiple of $5,000 for a penalty between $10,000 and $100,000. The first adjustment may not exceed an increase of ten percent. FRA utilized Bureau of Labor Statistics data to calculate adjusted CMP amounts.
FRA is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes and regulations, including the civil penalty provisions at 49 U.S.C. ch. 213. 49 CFR 1.49; 49 U.S.C. ch. 201-213. FRA currently has 27 regulations that contain provisions that reference its authority to impose civil penalties if a person violates any requirement in the pertinent portion of a statute or the Code of Federal Regulations. In this final rule, FRA is amending each of those separate regulatory provisions and the corresponding footnotes in each Schedule of Civil Penalties to raise the minimum CMP to $550 and maximum CMP for a grossly negligent violation to $27,000. In some instances, FRA is amending the corresponding appendices to these regulatory provisions, which outline FRA enforcement policy, as well.
With the exception of the penalties relating to the hours of service laws (49 U.S.C. ch. 211), the maximum CMP for ( printed page 30592) a violation of the rail safety laws and regulations was established by the Rail Safety Improvement Act of 1988, which set a $10,000 limit for a CMP imposed for any single violation other than a grossly negligent violation, and a $20,000 limit for a grossly negligent violation. In 1998, after applying the adjustment calculation in the Inflation Act, FRA determined that the maximum CMP for any single violation needed to be increased to $11,000 and that the maximum CMP for grossly negligent violations needed to be increased to $22,000. FRA amended each of its regulations by final rule to reflect the increased CMPs. 63 FR 11618.
The Rail Safety Enforcement and Review Act (RSERA) in 1992 increased the range of the minimum and maximum civil penalty from $1,000 to $10,000 and $20,000, respectively, for a violation of the hours of service laws, making these minimum and maximum penalty amounts uniform with those of FRA's other regulatory provisions. By applying the same adjustment calculation using the 1992 CPI, the maximum penalties for violations of the hours of service laws were raised to equal those of the other rail safety laws and regulations: $11,000 and $22,000.
RSERA also increased the minimum CMP for all of the rail safety statutes and regulations from $250 to $500. In 1998, FRA had applied the adjustment calculation in the Inflation Act to the minimum CMP and had determined that it would not need to be increased. Now, applying the adjustment calculation using the June 2003 CPI, FRA has determined that the minimum CMP should be increased from $500 to $550, as the next calculations show.
The June 2003 CPI of 550.4 divided by the June 1992 CPI of 419.9 equals a 1.31 inflation factor; $500 times 1.31 equals $655, or an increase of $155, which is rounded to $200. The required ten percent cap is applied to that increase. Therefore, the legal increase is $50.
Because this is the first time that the minimum CMP has been adjusted under the Inflation Act, the ten-percent cap on the increase was applied. This final rule adjusts the minimum CMP for all of the rail safety statutes and regulations.
As required by the Inflation Act, FRA recently reevaluated the ordinary maximum CMP and the maximum CMP for grossly negligent violations using the June 2003 CPI, and determined that the maximum CMP for grossly negligent violations should be increased to $27,000, but that the maximum CMP for ordinary violations should remain at $11,000, as the next calculations show.
The June 2003 CPI of 550.4 divided by the June 1998 CPI of 488.2 equals a 1.13 inflation factor; $11,000 times 1.13 equals $12,430, or an increase of $1,430, which is rounded down to $0; $22,000 times 1.13 equals $24,860, or an increase of $2,860, which is rounded up to $5,000.
Because this is the second time that the maximum CMP for grossly negligent violations has been adjusted under the Act, the ten-percent cap on the increase does not apply.
These new FRA maximum penalties will apply to violations that occur on or after June 28, 2004.
FRA is proceeding to a final rule without providing a notice of proposed rulemaking or an opportunity for public comment. The adjustments required by the Act are ministerial acts over which FRA has no discretion, making public comment unnecessary. FRA is issuing these amendments as a final rule applicable to all future cases under its authority.
This rule has been evaluated in accordance with existing policies and procedures. It is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034) because it is limited to a ministerial act on which the agency has no discretion. The economic impact of the final rule is minimal to the extent that preparation of a regulatory evaluation is not warranted.
FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Although this rule will apply to railroads and others who are considered small entities, there is no economic impact on any person who complies with the Federal railroad safety laws and the regulations and orders issued under those laws.
This final rule will not have a substantial effect on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Thus, in accordance with Executive Order 13132, preparation of a Federalism assessment is not warranted.
There are no new information collection requirements in this final rule.
The final rule issued today will not result in the expenditure, in the aggregate, of $120,700,000 or more in any one year by State, local, or Indian Tribal governments, or the private sector, and thus preparation of a statement is not required.
There are no significant environmental impacts associated with this final rule.
According to definitions set forth in Executive Order 13211, there will be no significant energy action as a result of the issuance of this final rule.
In consideration of the foregoing, parts 209, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 225, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 240, 241, and 244, of subtitle B, chapter II of title 49 of the Code of Federal Regulations are amended as follows:
1. The authority citation for part 209 is revised to read as follows:
2. Section 209.409 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
3. Appendix A to part 209 is amended by:
a. Removing the numerical amount “$500” in the third paragraph below the heading “Penalty Schedules; Assessment of Maximum Penalties,” and replacing it with the numerical amount “$550”; and
b. Removing both references to the numerical amount “$22,000” in the sixth ( printed page 30593) paragraph below the heading “Penalty Schedules; Assessment of Maximum Penalties,” and replacing them with the numerical amount “$27,000”.
4. The authority citation for part 213 is revised to read as follows:
5. Paragraph (a) of § 213.15 is amended by:
a. Removing the numerical amount “$500”; and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
6. Footnote 1 to appendix B of part 213 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
7. The authority citation for part 214 is revised to read as follows:
8. Section 214.5 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
9. Footnote 1 to appendix A of part 214 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
10. The authority citation for part 215 continues to read as follows:
11. Section 215.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
12. Footnote 1 to appendix B of part 215 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
13. The authority citation for part 216 continues to read as follows:
14. Section 216.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
15. The authority citation for part 217 is revised to read as follows:
16. Section 217.5 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
17. Footnote 1 to appendix A of part 217 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
18. The authority citation for part 218 is revised to read as follows:
19. Section 218.9 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
20. Footnote 1 to appendix A of part 218 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
21. The authority citation for part 219 continues to read as follows:
22. Section 219.9(a) is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
23. Footnote 1 to appendix A of part 219 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
24. The authority citation for part 220 continues to read as follows:
25. Section 220.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
26. Footnote 1 to appendix C of part 220 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
27. The authority citation for part 221 is revised to read as follows:
28. Section 221.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
29. Footnote 1 to appendix A of part 221 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
30. The authority citation for part 222 is revised to read as follows:
31. Section 222.11 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
32. Footnote 1 to appendix G of part 222 is amended by: removing the numerical amount “20,000” and adding in its place the numerical amount “27,000”.
33. The authority citation for part 223 is revised to read as follows:
34. Section 223.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
35. Footnote 1 to appendix B of part 223 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
36. The authority citation for part 225 continues to read as follows:
37. Section 225.29 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
38. Footnote 1 to appendix A of part 225 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
39. The authority citation for part 228 is revised to read as follows:
40. Section 228.21 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
41. In appendix A to part 228, the ninth paragraph below the heading “General Provisions,” which is entitled “Penalty” is amended by adding the following two sentences at the end of the paragraph:
Penalty. * * * According to the same law, in 2004, the minimum penalty of $500 was raised to $550, and the maximum penalty for a grossly negligent violation or a pattern of repeated violations that has caused an imminent hazard of death or injury to individuals or has caused death or injury, was increased from $22,000 to $27,000. The $11,000 maximum penalty was not adjusted.
42. Footnote 1 to appendix B of part 228 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
43. The authority citation for part 229 is revised to read as follows:
44. Paragraph (b) of § 229.7 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
45. Footnote 1 to appendix B of part 229 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
46. The authority citation for part 230 is revised to read as follows:
47. Paragraph (a) of § 230.4 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
48. The authority citation for part 231 is revised to read as follows:
49. Paragraph (f) of § 231.0 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
50. Footnote 1 to appendix A of part 231 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
51. The authority citation for part 232 is revised to read as follows:
52. Paragraph (a) of § 232.11 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
53. Footnote 1 to appendix A of part 232 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
54. The authority citation for Part 233 is revised to read as follows:
55. Section 233.11 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
56. Footnote 1 to appendix A of part 233 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
57. The authority citation for part 234 is revised to read as follows:
58. Paragraph (a) of § 234.6 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
59. Footnote 1 to appendix A of part 234 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
60. The authority citation for part 235 is revised to read as follows:
61. Section 235.9 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
62. Footnote 1 to appendix A of part 235 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$22,000”.
63. The authority citation for part 236 is revised to read as follows:
64. Paragraph (f) of § 236.0 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
65. Footnote 1 to appendix A of part 236 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
66. The authority citation for part 238 continues to read as follows:
67. Section 238.11(a) is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
68. Footnote 1 to appendix A to part 238 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
69. The authority citation for part 239 is revised to read as follows:
70. Section 239.11 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
71. Footnote 1 to appendix A to part 239 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
72. The authority citation for part 240 continues to read as follows:
73. Paragraph (a) of § 240.11 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
74. Footnote 1 to appendix A of part 240 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
75. The authority citation for part 241 continues to read as follows:
76. Paragraph (a) of § 241.15 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
77. Footnote 1 to appendix A of part 241 is amended by removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
78. The authority citation for part 244 is revised to read as follows:
79. Paragraph (a) of § 244.5 is amended by:
a. Removing the numerical amount “$500” and adding in its place the numerical amount “$550”; and ( printed page 30596)
b. Removing the numerical amount “$22,000” and adding in its place the numerical amount “$27,000”.
Issued in Washington, DC, on May 18, 2004.
Allan Rutter,
Administrator, Federal Railroad Administration.
[FR Doc. 04-11965 Filed 5-27-04; 8:45 am]
BILLING CODE 4910-06-P