Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24415 

BILLING CODE 4120–01–C 

8. On page 226, in the first column, 

in instruction 11, revise ‘‘0.9477’’ to 

read ‘‘0.9481’’. 

B. Corrections to the Final Rule with 

Comment Period 

In FR Doc. 2011–26812 of November 

30, 2011 (76 FR 74122), make the 

following corrections: 

1. On page 74303, in third column, 

end of the first paragraph, remove the 

last two sentences in the paragraph that 

begins at the bottom of the second 

column. 

2. On page 74303, in third column, in 

the last paragraph, delete the following 

portion of the first sentence: ‘‘With the 

exception of the changed status 

indicators for HCPCS J1642 and J1644,’’ 

and capitalize the first letter of the new 

sentence. 

3. On page 74304, in the third column 

of the table, in the data cells associated 

with J1642 and J1644, revise ‘‘K’’ to read 

‘‘N’’. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: April 18, 2012. 

Jennifer Cannistra, 

Executive Secretary to the Department. 

[FR Doc. 2012–9837 Filed 4–23–12; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF TRANSPORTATION 

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, 232, 233, 

234, 235, 236, 237, 238, 239, 240, 241, 

242, and 244 

[Docket No. FRA–2004–17529; Notice No. 

8] 

RIN 2130–AB94 

Inflation Adjustment of the Aggravated 

Maximum Civil Monetary Penalty for a 

Violation of a Federal Railroad Safety 

Law or Federal Railroad Administration 

Safety Regulation or Order 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: To comply with the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, FRA is adjusting the aggravated 

maximum penalty that it will apply 

when assessing a civil penalty for a 

violation of a railroad safety statute, 

regulation, or order under its authority. 

In particular, FRA is increasing the 

aggravated maximum civil penalty (i.e., 

the maximum civil penalty per violation 

where a grossly negligent violation or a 

pattern of repeated violations has 

created an imminent hazard of death or 

injury or has caused death or injury) 

from $100,000 to $105,000. The current 

minimum civil penalty per violation of 

$650 and the current ordinary 

maximum civil penalty per violation of 

$25,000 remain the same. 

DATES: This final rule is effective June 

25, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Veronica Chittim, Trial Attorney, Office 

of Chief Counsel, FRA, 1200 New Jersey 

Avenue SE., Mail Stop 10, Washington, 

DC 20590 (telephone 202–493–0273), 

veronica.chittim@dot.gov. 

SUPPLEMENTARY INFORMATION: 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. Public Law 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, Public Law 104–134, 110 Stat. 

1321–373, April 26, 1996. Congress 

recognized the important role that CMPs 

play in deterring violations of Federal 

laws, regulations, and orders 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. 

FRA is authorized as the delegate of 

the Secretary of Transportation to 

enforce the Federal railroad safety 

statutes, regulations, and orders, 

including the civil penalty provisions 

codified primarily at 49 U.S.C. chapter 

213. See 49 U.S.C. 103 and 49 CFR 1.49; 

49 U.S.C. chapter 201–213. FRA 

currently has safety regulations in 31 

parts of the Code of Federal Regulations 

that contain provisions referencing the 

agency’s 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 appended to 

those regulations, in order to raise the 

aggravated maximum CMP to $105,000. 

Where applicable, FRA is amending the 

corresponding appendices to those 

regulatory provisions which outline 

FRA enforcement policy. See 49 CFR 

part 209, app. A; 49 CFR part 228, app. 

A. FRA is also amending several 

sections in the civil penalty schedules 

to reflect FRA’s existing practice, which 

is to increase the guideline penalty 

amount from the statutory, inflationadjusted minimum of $650 (or for some 

line items, $500) to $1,000 for an 

ordinary violation, and $2,000 for a 

willful violation, to allow room for 

downward negotiation during the 


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24416 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

1 72 FR 51194 (Sept. 6, 2007). 

2 69 FR 30591 (May 28, 2004); 69 FR 62817 (Oct. 

28, 2004). 

settlement process. These select changes 

to the penalty guidelines do not modify 

the statutory minimum penalty (which 

remains at $650), but simply 

memorialize FRA’s policy. See 49 CFR 

228.9; 49 CFR 228.11; 49 CFR 228.17; 49 

CFR 231.146.A; 49 CFR 240.215(b); 49 

CFR 240.223(a), (b). 

Further, FRA is revising language in 

49 CFR part 209, appendix A, 

‘‘Statement of Agency Policy 

Concerning Enforcement of the Federal 

Railroad Safety Laws,’’ to better reflect 

the proper statutory history and 

authorities, particularly as the original 

version of the statement was written in 

1988 and has not been fully updated to 

reflect the recodification of the Federal 

railroad safety statutes, effective July 5, 

1994, Public Law 103–272, 108 Stat. 

745, or the enactment on October 16, 

2008, of the Rail Safety Improvement 

Act of 2008 (RSIA of 2008), Public Law 

110–432, Div. A, 122 Stat. 4848. These 

changes include the updated statutory 

citations that resulted from the 1994 

recodification. Finally, FRA is adding 

the language ‘‘or orders’’ in two places 

within part 209, appendix A, ‘‘Penalty 

Schedules: Assessment of Maximum 

Penalties,’’ to reflect FRA’s already 

existing policy of establishing civil 

penalty schedules and recommended 

civil penalty amounts applicable to 

violations of various orders issued by 

FRA (such as emergency orders under 

49 U.S.C. 20104) when necessary to 

advance the agency’s safety mission. 

Description of the Calculation of the 

Adjustment and of FRA’s Recent 

Actions to Comply With the Inflation 

Act and the Rail Safety Improvement 

Act of 2008 

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 2011) 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 2009 for the minimum CMP 

of $650, the ordinary maximum of 

$25,000, and the aggravated maximum 

CMP of $100,000). See 73 FR 79698 

(Dec. 30, 2008), the final rule that made 

those CMP changes, effective March 2, 

2009. The Inflation Act also specifies 

that the 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 of more than 

$10,000 and less than or equal to 

$100,000. The first CMP adjustment 

may not exceed an increase of ten 

percent. FRA utilizes Bureau of Labor 

Statistics data to calculate adjusted CMP 

amounts. As will be described, FRA has 

adjusted its CMPs for inflation over the 

years since the 1996 amendment to the 

Inflation Act requiring such inflation 

adjustments. 

In addition, FRA has revised its CMPs 

pursuant to the Rail Safety Improvement 

Act of 2008 (RSIA of 2008), Public Law 

110–342, Div. A, 122 Stat. 4848, enacted 

October 16, 2008, which raised the 

ordinary maximum civil penalty to 

$25,000 and raised the aggravated 

maximum civil penalty (for a grossly 

negligent violation or a pattern of 

repeated violations that has created an 

imminent hazard of death or injury or 

caused death or injury) to $100,000. See 

sec. 302, which amended 49 U.S.C. 

21301(a)(2), 21302(a)(2), and 

21303(a)(2). The RSIA of 2008 did not 

amend the minimum civil penalty, 

which at the time of its enactment 

remained, pursuant to the Inflation Act, 

at an inflation-adjusted $550. 69 FR 

30591 (May 28, 2004) and 69 FR 62817 

(Oct. 28, 2004). (In 2004, FRA had 

determined, by applying the adjustment 

calculation using the June 2003 CPI, that 

the minimum CMP should be increased 

from $500 to $550, effective June 28, 

2004, except for the amendments to part 

222, which became effective December 

18, 2004.) 

Prior to the enactment of the RSIA of 

2008, FRA had been evaluating the need 

to make inflation adjustments to its 

CMP amounts under the requirements of 

the Inflation Act; however, because the 

RSIA of 2008 increased the authorized 

amounts for ordinary maximum CMPs 

(from $16,000 1 to $25,000) and 

aggravated maximum CMPs (from 

$27,000 2 to $100,000), FRA amended 

the regulations, civil penalty schedules, 

and some related guidance in the Code 

of Federal Regulations to reflect this 

change in statutory authority for 

ordinary maximum and aggravated 

maximum CMPs, which temporarily 

alleviated the need to perform inflation 

adjustment calculations for FRA’s 

ordinary maximum and aggravated 

maximum CMPs. As discussed, 

although the RSIA of 2008 increased the 

authority for maximum penalties, it did 

not address the minimum CMP amount; 

therefore, FRA calculated whether an 

inflation adjustment was necessary with 

respect to the minimum CMP. Applying 

the inflation adjustment calculation, 

FRA determined that the $550 

minimum CMP should be increased to 

$650. 73 FR 79698 (Dec. 30, 2008). In 

2009, FRA also published a correcting 

amendment to correct an error relating 

to the total ordinary maximum civil 

monetary penalty amount in 49 CFR 

part 232, app. A. 74 FR 15387 (Apr. 6, 

2009). 

In 2012, four years after the 2008 

adjustment, FRA has again evaluated 

whether inflation adjustments to its 

CMP amounts are necessary under the 

requirements of the Inflation Act. 

Applying the inflation adjustment 

calculation, FRA has determined that 

the minimum CMP of $650 and the 

ordinary maximum CMP of $25,000 

should remain the same but that the 

aggravated maximum CMP should be 

increased to $105,000, as the following 

calculations show. 

Calculations to Determine Civil 

Monetary Penalty Updates for 2012 

1. Minimum CMP of $650 Unchanged 

As required, this year, FRA 

reevaluated the minimum CMP and 

concluded that it should remain the 

same ($650), as the next calculations 

show. The June 2011 CPI of 676.162 

divided by the CPI for June 2009 of 

646.12 (since the last update was in 

2009) equals an inflation factor of 

1.046494387; $650 times 1.046494387 

equals $680. The raw inflation 

adjustment amount of $30 is rounded to 

the nearest multiple of $100, which is 

$0. The inflation adjusted minimum 

penalty is $650 plus $0, or $650, and is 

applicable to all of the rail safety 

statutes, regulations, and orders. See 

appendix to this final rule. Thus, the 

FRA minimum CMP stays the same, at 

$650. 

2. Ordinary Maximum CMP of $25,000 

Unchanged 

Applying the adjustment calculation 

using the June 2011 CPI, FRA has 

determined that the ordinary maximum 

CMP should remain the same ($25,000), 

as the following calculations show. The 

June 2011 CPI of 676.162 divided by the 

June 2009 CPI of 646.12 (since the last 

update was in 2009) equals an inflation 

factor of 1.046494387; $25,000 times 

1.046494387 equals $26,162, or a raw 

inflation adjustment amount of $1,162, 

which is rounded to the nearest 

multiple of $5,000, which is $0. See 

appendix to this final rule. Therefore, 

the ordinary maximum CMP should 

remain at $25,000. 

3. Aggravated Maximum CMP of 

$100,000 Raised to $105,000 

FRA also reevaluated the CMP for an 

aggravated violation and determined 

that it should be increased to $105,000, 

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Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24417 

as the following calculations show. The 

June 2011 CPI of 676.162 divided by the 

CPI for June 2009 of 646.12 (since the 

last update was in 2009) equals an 

inflation factor of 1.046494387; 

$100,000 times 1.046494387 equals 

$104,649. The raw inflation adjustment 

amount of $4,649 is rounded to the 

nearest multiple of $5,000, which is 

$5,000. The inflation-adjusted 

aggravated maximum penalty is 

$100,000 plus $5,000 (the rounded raw 

inflation adjustment amount), or 

$105,000, and is applicable to all of the 

rail safety statutes, regulations, and 

orders. See appendix to this final rule. 

The aggravated maximum CMP has been 

adjusted previously according to the 

Inflation Act. However, the RSIA of 

2008 significantly raised the aggravated 

maximum penalty from $27,000 to 

$100,000. Public Law 110–342, Div. A, 

122 Stat. 4848. In this way, the RSIA of 

2008 ‘‘reset’’ the aggravated maximum 

penalty, and this review may be 

considered the first one conducted 

under the Inflation Act of the new, 

statutory aggravated maximum CMP. 

Thus, the ten-percent cap for first time 

adjustments does apply, and the new 

maximum penalty amount must not 

exceed $110,000. However, the increase 

due to inflation rounds to $5,000, and 

therefore the ten-percent cap does not 

constrain the increase. This new FRA 

aggravated maximum penalty will apply 

to violations that occur on or after June 

25, 2012. 

Public Participation 

FRA is proceeding to a final rule 

without providing a notice of proposed 

rulemaking or an opportunity for public 

comment. Public comment is 

unnecessary because FRA is not 

exercising discretion in a way that could 

be informed by public comment. As 

such, notice and comment procedures 

are ‘‘impracticable, unnecessary, or 

contrary to the public interest’’ within 

the meaning of the Administrative 

Procedure Act, 5 U.S.C. 553(b)(3)(B). 

Likewise, the adjustments required by 

the Inflation 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 rail 

safety civil penalty cases under its 

authority to cite for violations that occur 

on or after the effective date of this final 

rule. 

Regulatory Impact 

A. Executive Orders 12866 and 13563 

and DOT Regulatory Policies and 

Procedures 

This final rule has been evaluated in 

accordance with existing policies and 

procedures and determined to be nonsignificant under both Executive Orders 

12866 and 13563 and DOT policies and 

procedures. See 44 FR 11034; February 

26, 1979. 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. 

B. Regulatory Flexibility Determination 

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 that 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. 

C. Federalism 

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. 

D. Paperwork Reduction Act 

There are no new information 

collection requirements in this final 

rule. 

E. Compliance With the Unfunded 

Mandates Reform Act of 1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$140,800,000 or more in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. The final rule issued today will 

not result in the expenditure, in the 

aggregate, of $140,800,000 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. 

F. Environmental Assessment 

There are no significant 

environmental impacts associated with 

this final rule. 

G. Energy Impact 

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. 

List of Subjects 

49 CFR Part 209 

Administrative practice and 

procedure, Hazardous materials 

transportation, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR Part 213 

Hazardous materials transportation, 

Penalties, Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 214 

Bridges, Incorporation by reference, 

Occupational safety and health, 

Penalties, Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 215 

Freight, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 216 

Administrative practice and 

procedures, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 217 

Incorporation by reference, Penalties, 

Railroad safety, Reporting and 

recordkeeping requirements. 

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24418 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

49 CFR Part 218 

Occupational safety and health, 

Penalties, Railroad employees, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR Part 219 

Alcohol abuse, Drug abuse, Drug 

testing, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements, Safety, Transportation. 

49 CFR Part 220 

Communications, Penalties, Radio, 

Railroad safety, Reporting and 

recordkeeping requirements, Telephone. 

49 CFR Part 221 

Incorporation by reference, Penalties, 

Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 222 

Administrative practice and 

procedure, Highway safety, Penalties, 

Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 223 

Glass and glass products, 

Incorporation by reference, Penalties, 

Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 224 

Incorporation by reference, Penalties, 

Railroad locomotive safety, Railroad 

safety, and Reporting and recordkeeping 

requirements. 

49 CFR Part 225 

Investigations, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements, Whistleblowing. 

49 CFR Part 227 

Incorporation by reference, 

Locomotive noise control, Occupational 

safety and health, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR Part 228 

Administrative practice and 

procedure, Buildings and facilities, 

Hazardous materials transportation, 

Noise control, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements, 

Sanitation. 

49 CFR Part 229 

Accident investigation, Data 

preservation, Event recorders, 

Incorporation by reference, Locomotive 

noise control, Locomotives, 

Occupational safety and health, 

Penalties, Railroad locomotive safety, 

Railroad safety, Reporting and 

recordkeeping requirements, Sanitation. 

49 CFR Part 230 

Locomotives, Penalties, Railroad 

locomotive safety, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 231 

Penalties, Railroad safety. 

49 CFR Part 232 

Incorporation by reference, 

Locomotives, Penalties, Railroad 

locomotive safety, Railroad power 

brakes, Railroad safety, Reporting and 

recordkeeping requirements, Two-way 

end-of-train devices. 

49 CFR Part 233 

Accident reporting, Penalties, 

Railroad safety, Railroad signals, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 234 

Highway safety, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements, State and local 

governments. 

49 CFR Part 235 

Administrative practice and 

procedure, Penalties, Railroad safety, 

Railroad signals, Reporting and 

recordkeeping requirements. 

49 CFR Part 236 

Incorporation by reference, Penalties, 

Positive train control, Railroad safety, 

Railroad signals, Reporting and 

recordkeeping requirements. 

49 CFR Part 237 

Bridge safety, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR Part 238 

Fire prevention, Incorporation by 

reference, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 239 

Penalties, Railroad safety, Reporting 

and recordkeeping requirements, 

Security measures. 

49 CFR Part 240 

Administrative practice and 

procedure, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements. 

49 CFR Part 241 

Communications, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements. 

49 CFR Part 242 

Administrative practice and 

procedure, Conductor, Penalties, 

Railroad employees, Railroad operating 

procedures, Railroad safety, Reporting 

and recordkeeping requirements. 

49 CFR Part 244 

Administrative practice and 

procedure, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

The Final Rule 

In consideration of the foregoing, 

parts 209, 213, 214, 215, 216, 217, 218, 

219, 220, 221, 222, 223, 224, 225, 227, 

228, 229, 230, 231, 232, 233, 234, 235, 

236, 237, 238, 239, 240, 241, 242, and 

244, of subtitle B, chapter II of title 49 

of the Code of Federal Regulations are 

amended as follows: 

PART 209—[AMENDED] 

■ 1. The authority citation for part 209 

continues to read as follows: 

Authority: 49 U.S.C. 5123, 5124, 20103, 

20107, 20111, 20112, 20114; 28 U.S.C. 2461, 

note; and 49 CFR 1.49. 

§ 209.409 [Amended] 

■ 2. Section 209.409 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

■ 3. Appendix A to part 209 is 

amended: 

■ a. By revising the introductory text; 

and 

■ b. In the ‘‘Penalty Schedules: 

Assessment of Maximum Penalties’’ 

section by: 

■ i. Revising the first, second, and third 

paragraphs; 

■ ii. Adding new fourth, fifth, and sixth 

paragraphs; and 

■ iii. Revising the last paragraph. 

The revisions and additions read as 

follows: 

Appendix A to Part 209—Statement of 

Agency Policy Concerning Enforcement 

of the Federal Railroad Safety Laws 

The Federal Railroad Administration 

(‘‘FRA’’) enforces the Federal railroad safety 

statutes under delegation from the Secretary 

of Transportation. See 49 CFR 1.49(c), (d), (f), 

(g), (m), and (oo). Those statutes include 49 

U.S.C. ch. 201–213 and uncodified 

provisions of the Rail Safety Improvement 

Act of 2008 (Pub. L. 110–432, Div. A, 122 

Stat. 4848). On July 4, 1994, the day before 

the enactment of Public Law 103–272, 108 

Stat. 745, the Federal railroad safety statutes 

included the Federal Railroad Safety Act of 

1970 (‘‘Safety Act’’) (then codified at 45 

U.S.C. 421 et seq.), and a group of statutes 

enacted prior to 1970 referred to collectively 

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Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24419 

herein as the ‘‘older safety statutes’’: the 

Safety Appliance Acts (then codified at 45 

U.S.C. 1–16); the Locomotive Inspection Act 

(then codified at 45 U.S.C. 22–34); the 

Accident Reports Act (then codified at 45 

U.S.C. 38–43); the Hours of Service Act (then 

codified at 45 U.S.C. 61–64b); and the Signal 

Inspection Act (then codified at 49 App. 

U.S.C. 26). Effective July 5, 1994, Public Law 

103–272 repealed certain general and 

permanent laws related to transportation, 

including these rail safety laws (the Safety 

Act and the older safety statutes), and 

reenacted them as revised by that law but 

without substantive change in title 49 of the 

U.S. Code, ch. 201–213. Regulations 

implementing the Federal rail safety laws are 

found at 49 CFR parts 209–244. The Rail 

Safety Improvement Act of 1988 (Pub. L. 

100–342, enacted June 22, 1988) (‘‘RSIA’’) 

raised the maximum civil penalties available 

under the railroad safety laws and made 

individuals liable for willful violations of 

those laws. FRA also enforces the hazardous 

materials transportation laws (49 U.S.C. ch. 

51 and uncodified provisions) (formerly the 

Hazardous Materials Transportation Act, 49 

App. U.S.C. 1801 et seq., which was also 

repealed by Public Law 103–272, July 5, 

1994, and reenacted as revised but without 

substantive change) as it pertains to the 

shipment or transportation of hazardous 

materials by rail. 

* * * * * 

Penalty Schedules: Assessment of 

Maximum Penalties 

As recommended by the Department of 

Transportation in its initial proposal for rail 

safety legislative revisions in 1987, the RSIA 

raised the maximum civil penalties for 

violations of the Federal rail safety laws, 

regulations, or orders. Id., secs. 3, 13–15, 17. 

Pursuant to sec. 16 of RSIA, the penalty for 

a violation of the Hours of Service Act was 

changed from a flat $500 to a penalty of ‘‘up 

to $1,000, as the Secretary of Transportation 

deems reasonable.’’ Under all the other 

statutes, and regulations and orders under 

those statutes, the maximum penalty was 

raised from $2,500 to $10,000 per violation, 

except that ‘‘where a grossly negligent 

violation or a pattern of repeated violations 

has created an imminent hazard of death or 

injury to persons, or has caused death or 

injury,’’ the penalty was raised to a 

maximum of $20,000 per violation (‘‘the 

aggravated maximum penalty’’). 

The Rail Safety Enforcement and Review 

Act (RSERA), Public Law 102–365, 106 Stat. 

972, enacted in 1992, increased the 

maximum penalty from $1,000 to $10,000, 

and provided for an aggravated maximum 

penalty of $20,000 for a violation of the 

Hours of Service Act, making these penalty 

amounts uniform with those of FRA’s other 

safety laws, regulations, and orders. RSERA 

also increased the minimum civil monetary 

penalty from $250 to $500 for all of FRA’s 

safety regulatory provisions and orders. Id., 

sec. 4(a). 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990, Public Law 101– 

410, 104 Stat. 890, 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) (Inflation 

Act) required that agencies adjust by 

regulation each minimum and maximum 

civil monetary penalty within the agency’s 

jurisdiction for inflation and make 

subsequent adjustments once every four 

years after the initial adjustment. 

Accordingly, FRA’s minimum and maximum 

civil monetary penalties have been 

periodically adjusted, pursuant to the 

Inflation Act, through rulemaking. 

The Rail Safety Improvement Act of 2008 

(‘‘RSIA of 2008’’), enacted October 16, 2008, 

raised FRA’s civil monetary ordinary and 

aggravated maximum penalties to $25,000 

and $100,000 respectively. FRA amended the 

civil penalty provisions in its regulations so 

as to make $25,000 the ordinary maximum 

penalty per violation and $100,000 the 

aggravated maximum penalty per violation, 

as authorized by the RSIA of 2008, in a final 

rule published on December 30, 2008 in the 

Federal Register. 73 FR 79700. The 

December 30, 2008 final rule also adjusted 

the minimum civil penalty from $550 to $650 

pursuant to Inflation Act requirements. Id. A 

correcting amendment to the civil penalty 

provisions in 49 CFR part 232 was published 

on April 6, 2009. 74 FR 15388. 

Effective June 25, 2012, the aggravated 

maximum penalty was raised from $100,000 

to $105,000 pursuant to the Inflation Act. 

FRA’s traditional practice has been to issue 

penalty schedules assigning to each 

particular regulation or order specific dollar 

amounts for initial penalty assessments. The 

schedule (except where issued after notice 

and an opportunity for comment) constitutes 

a statement of agency policy, and is 

ordinarily issued as an appendix to the 

relevant part of the Code of Federal 

Regulations. For each regulation or order, the 

schedule shows two amounts within the 

$650 to $25,000 range in separate columns, 

the first for ordinary violations, the second 

for willful violations (whether committed by 

railroads or individuals). In one instance— 

part 231—the schedule refers to sections of 

the relevant FRA defect code rather than to 

sections of the CFR text. Of course, the defect 

code, which is simply a reorganized version 

of the CFR text used by FRA to facilitate 

computerization of inspection data, is 

substantively identical to the CFR text. 

* * * * * 

Accordingly, under each of the schedules 

(ordinarily in a footnote), and regardless of 

the fact that a lesser amount might be shown 

in both columns of the schedule, FRA 

reserves the right to assess the statutory 

maximum penalty of up to $105,000 per 

violation where a pattern of repeated 

violations or a grossly negligent violation has 

created an imminent hazard of death or 

injury or has caused death or injury. This 

authority to assess a penalty for a single 

violation above $25,000 and up to $105,000 

is used only in very exceptional cases to 

penalize egregious behavior. FRA indicates 

in the penalty demand letter when it uses the 

higher penalty amount instead of the penalty 

amount listed in the schedule. 

* * * * * 

Appendix B to Part 209—[Amended] 

■ 4. Footnote 1 to appendix B to part 

209 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 213—[AMENDED] 

■ 5. The authority citation for part 213 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20114 and 

20142; Sec. 403, Div. A, Public Law 110–432, 

122 Stat. 4885; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

§ 213.15 [Amended] 

■ 6. In § 213.15, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix B to Part 213—[Amended] 

■ 7. Footnote 1 to appendix B of part 

213 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 214—[AMENDED] 

■ 8. The authority citation for part 214 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21301, 

21304; 28 U.S.C. 2461, note; and 49 CFR 

1.49. 

§ 214.5 [Amended] 

■ 9. Section 214.5 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 214—[Amended] 

■ 10. Footnote 1 to appendix A of part 

214 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 215—[AMENDED] 

■ 11. The authority citation for part 215 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 215.7 [Amended] 

■ 12. Section 215.7 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix B to Part 215—[Amended] 

■ 13. Footnote 1 to appendix B of part 

215 is amended by removing the 

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24420 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 216—[AMENDED] 

■ 14. The authority citation for part 216 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20104, 20107, 

20111, 20133, 20701–20702, 21301–21302, 

21304; 28 U.S.C. 2461, note; and 49 CFR 

1.49. 

§ 216.7 [Amended] 

■ 15. Section 216.7 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

PART 217—[AMENDED] 

■ 16. The authority citation for part 217 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 217.5 [Amended] 

■ 17. Section 217.5 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 217—[Amended] 

■ 18. Footnote 1 to appendix A of part 

217 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 218—[AMENDED] 

■ 19. The authority citation for part 218 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 218.9 [Amended] 

■ 20. Section 218.9 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 218—[Amended] 

■ 21. Footnote 1 of appendix A to part 

218 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 219—[AMENDED] 

■ 22. The authority citation for part 219 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20140, 

21301, 21304, 21311; 28 U.S.C. 2461, note; 

and 49 CFR 1.49(m). 

§ 219.9 [Amended] 

■ 23. In § 219.9, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 219—[Amended] 

■ 24–26. Appendix A of part 219 is 

amended by: 

■ a. Removing the numerical amount ‘‘- 

5,000’’ from the entry at 219.701(a) and 

adding in its place the numerical 

amount ‘‘5,000’’; 

■ b. Removing the numerical amount ‘‘- 

7,500’’ from the entry at 219.701(a) and 

adding in its place the numerical 

amount ‘‘7,500’’; and 

■ c. Removing from footnote 1 the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 220—[AMENDED] 

■ 27. The authority citation for part 220 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20103, 

note, 20107, 21301–21302, 20701–20703, 

21304, 21311; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

§ 220.7 [Amended] 

■ 28. Section 220.7 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix C to Part 220—[Amended] 

■ 29. Footnote 1 to appendix C of part 

220 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 221—[AMENDED] 

■ 30. The authority citation for part 221 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 221.7 [Amended] 

■ 31. Section 221.7 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix C to Part 221—[Amended] 

■ 32. Footnote 1 to appendix C of part 

221 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 222—[AMENDED] 

■ 33. The authority citation for part 222 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20153, 

21301, 21304; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

§ 222.11 [Amended] 

■ 34. Section 222.11 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix H to Part 222—[Amended] 

■ 35. Footnote 1 to appendix H of part 

222 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 223—[AMENDED] 

■ 36. The authority citation for part 223 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20133, 

20701–20702, 21301–21302, 21304; 28 U.S.C. 

2461, note; and 49 CFR 1.49. 

§ 223.7 [Amended] 

■ 37. Section 223.7 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix B to Part 223—[Amended] 

■ 38–39. Appendix B is amended by: 

■ a. Removing the numerical amount 

‘‘1,500’’ from the entry at 223.17 and 

adding in its place the numerical 

amount ‘‘2,000’’; and 

■ b. Removing from footnote 1the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 224—[AMENDED] 

■ 40. The authority citation for part 224 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20148 

and 21301; 28 U.S.C. 2461, note; and 49 CFR 

1.49. 

§ 224.11 [Amended] 

■ 41. Paragraph (a) of § 224.11 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 224—[Amended] 

■ 42. Appendix A of part 224 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

PART 225—[AMENDED] 

■ 43. The authority citation for part 225 

continues to read as follows: 

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Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24421 

Authority: 49 U.S.C. 103, 322(a), 20103, 

20107, 20901–20902, 21301, 21302, 21311; 

28 U.S.C. 2461, note; and 49 CFR 1.49. 

§ 225.29 [Amended] 

■ 44. Section 225.29 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 225—[Amended] 

■ 45. Footnote 1 to appendix A of part 

225 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 227—[AMENDED] 

■ 46. The authority citation for part 227 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20103, note, 

20701–20702; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

§ 227.9 [Amended] 

■ 47. Paragraph (a) of § 227.9 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix G to Part 227—[Amended] 

■ 48. Footnote 1 to appendix G of part 

227 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 228—[AMENDED] 

■ 49. The authority citation for part 228 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21101– 

21109; Sec. 108, Div. A, Pub. L. 110–432, 122 

Stat. 4860–4866; 49 U.S.C. 21301, 21303, 

21304, 21311; 28 U.S.C. 2461, note; 49 U.S.C. 

103; and 49 CFR 1.49. 

§ 228.21 [Amended] 

■ 50. Section 228.21 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

■ 51. In appendix A to part 228, below 

the heading ‘‘GENERAL PROVISIONS,’’ 

the ‘‘Penalty’’ paragraph is amended by 

adding three sentences to read as 

follows: 

Appendix A to Part 228—Requirements 

of the Hours of Service Act: Statement 

of Agency Policy and Interpretation 

* * * * * 

GENERAL PROVISIONS 

* * * * * 

Penalty. * * * Meanwhile, the ordinary 

maximum penalty was increased from 

$16,000 to $25,000 and the aggravated 

maximum was increased from $27,000 to 

$100,000 in accordance with the authority 

provided under the Rail Safety Improvement 

Act of 2008. See sec. 302, Div. A, Public Law 

110–432, 122 Stat. 4848, 4878, Oct. 16, 2008; 

49 U.S.C. 21301–21303. Effective June 25, 

2012, the aggravated maximum penalty was 

raised from $100,000 to $105,000 pursuant to 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990. Public Law 101– 

410, 104 Stat. 890, 28 U.S.C. 2461, note, as 

amended by Sec. 31001(s)(1) of the Debt 

Collection Improvement Act of 1996, Public 

Law 104–134, 110 Stat. 1321–373, Apr. 16, 

1996. 

* * * * * 

Appendix B to Part 228—[Amended] 

■ 52–58. Appendix B is amended by: 

■ a. Removing the numerical amount 

‘‘$650’’ from the entry at 228.9 and 

adding in its place the numerical 

amount ‘‘$1,000’’; 

■ b. Removing the numerical amount 

‘‘$1,000’’ from the entry at 228.9 and 

adding in its place the numerical 

amount ‘‘$2,000’’; 

■ c. Removing the numerical amount 

‘‘650’’ from the entry at 228.11 and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ d. Removing the numerical amount 

‘‘1,000’’ from the entry at 228.11 and 

adding in its place the numerical 

amount ‘‘2,000’’; 

■ e. Removing the numerical amount 

‘‘650’’ from the entry at 228.17 and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ f. Removing the numerical amount 

‘‘1,000’’ from the entry at 228.17 and 

adding in its place the numerical 

amount ‘‘2,000’’; and 

■ g. Removing from footnote 1 the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 229—[AMENDED] 

■ 59. The authority citation for part 229 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20133, 

20137–20138, 20143, 20701–20703, 21301– 

21302, 21304; 28 U.S.C. 2461, note; and 49 

CFR 1.49 (c), (m). 

§ 229.7 [Amended] 

■ 60. Paragraph (b) of § 229.7 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix B to Part 229—[Amended] 

■ 61. Footnote 1 to appendix B of part 

229 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 230—[AMENDED] 

■ 62. The authority citation for part 230 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20702; 

28 U.S.C. 2461, note; and 49 CFR 1.49. 

§ 230.4 [Amended] 

■ 63. Paragraph (a) of § 230.4 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

PART 231—[AMENDED] 

■ 64. The authority citation for part 231 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20131, 20301–20303, 21301–21302, 21304; 

28 U.S.C. 2461, note; and 49 CFR 1.49. 

§ 231.0 [Amended] 

■ 65. Paragraph (f) of § 231.0 is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 231—[Amended] 

■ 66–68. Appendix A is amended by: 

■ a. Removing the numerical amount 

‘‘650’’ from the entry at 213.146.A and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ b. Removing the numerical amount 

‘‘1,000’’ from the entry at 213.146.A and 

adding in its place the numerical 

amount ‘‘2,000’’; and 

■ c. Removing from footnote 1 the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 232—[AMENDED] 

■ 69. The authority citation for part 232 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20133, 20141, 20301–20303, 20306, 21301– 

21302, 21304; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

§ 232.11 [Amended] 

■ 70. In § 232.11, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 232—[Amended] 

■ 71. Footnote 1 to appendix A of part 

232 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

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24422 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

PART 233—[AMENDED] 

■ 72. The authority citation for part 233 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 233.11 [Amended] 

■ 73. Section 233.11 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 233—[Amended] 

■ 74. Footnote 1 to appendix A of part 

233 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 234—[AMENDED] 

■ 75. The authority citation for part 234 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; Pub. L. 110–432, Div. A, 

§ 202; and 49 CFR 1.49. 

§ 234.6 [Amended] 

■ 76. In § 234.6, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 234—[Amended] 

■ 77. Footnote 1 to appendix A of part 

234 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 235—[AMENDED] 

■ 78. The authority citation for part 235 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

§ 235.9 [Amended] 

■ 79. Section 235.9 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 235—[Amended] 

■ 80. Footnote 1 to appendix A of part 

235 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 236—[AMENDED] 

■ 81. The authority citation for part 236 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20133, 20141, 20157, 20301–20303, 20306, 

20501–20505, 20701–20703, 21301–21302, 

21304; 28 U.S.C. 2461, note; and 49 CFR 

1.49. 

§ 236.0 [Amended] 

■ 82. In § 236.0, paragraph (f) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 236—[Amended] 

■ 83. Footnote 1 to appendix A of part 

236 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 237—[AMENDED] 

■ 84. The authority citation for part 237 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20114; Pub. L. 

110–432, division A, section 417; 28 U.S.C. 

2461, note; and 49 CFR 1.49. 

§ 237.7 [Amended] 

■ 85. In § 237.7, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix B to Part 237—[Amended] 

■ 86. Footnote 1 to appendix B of part 

237 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 238—[AMENDED] 

■ 87. The authority citation for part 238 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20133, 

20141, 20302–20303, 20306, 20701–20702, 

21301–21302, 21304; 28 U.S.C. 2461, note; 49 

CFR 1.49. 

§ 238.11 [Amended] 

■ 88. In § 238.11, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 238—[Amended] 

■ 89. Footnote 1 to appendix A to part 

238 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 239—[AMENDED] 

■ 90. The authority citation for part 239 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20105– 

20114, 20133, 21301, 21304, and 21311; 28 

U.S.C. 2461, note; and 49 CFR 1.49(c), (g), 

(m). 

§ 239.11 [Amended] 

■ 91. Section 239.11 is amended by 

removing the numerical amount 

‘‘$100,000’’ and adding in its place the 

numerical amount ‘‘$105,000’’. 

Appendix A to Part 239—[Amended] 

■ 92. Footnote 1 to appendix A to part 

239 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 240—[AMENDED] 

■ 93. The authority citation for part 240 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20135, 

21301, 21304, 21311; 28 U.S.C. 2461, note; 

and 49 CFR 1.49. 

§ 240.11 [Amended] 

■ 94. In § 240.11, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 240—[Amended] 

■ 95–101. Appendix A is amended by: 

■ a. Removing the numerical amount 

‘‘500’’ from the entry at 240.215(b) and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ b. Removing the numerical amount 

‘‘1,000’’ from the entry at 240.215(b) and 

adding in its place the numerical 

amount ‘‘2,000’’; 

■ c. Removing the numerical amount 

‘‘500’’ from the entry at 240.223(a) and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ d. Removing the numerical amount 

‘‘1,000’’ from the entry at 240.223(a) and 

adding in its place the numerical 

amount ‘‘2,000’’; 

■ e. Removing the numerical amount 

‘‘500’’ from the entry at 240.223(b) and 

adding in its place the numerical 

amount ‘‘1,000’’; 

■ f. Removing the numerical amount 

‘‘1,000’’ from the entry at 240.223(b) and 

adding in its place the numerical 

amount ‘‘2,000’’; and 

■ g. Removing from footnote 1 the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 241—[AMENDED] 

■ 102. The authority citation for part 

241 continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21301, 

21304, 21311; 28 U.S.C. 2461, note; 49 CFR 

1.49. 

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Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24423 

§ 241.15 [Amended] 

■ 103. In § 241.15, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix B to Part 241—[Amended] 

■ 104. Footnote 1 to appendix B of part 

241 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 242—[AMENDED] 

■ 105. The authority citation for part 

242 continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20135, 

20138, 20162, 20163, 21301, 21304, 21311; 

28 U.S.C. 2461, note; 49 CFR 1.49. 

§ 242.11 [Amended] 

■ 106. In § 242.11, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Appendix A to Part 242—[Amended] 

■ 107. Footnote 1 to appendix A of part 

242 is amended by removing the 

numerical amount ‘‘$100,000’’ and 

adding in its place the numerical 

amount ‘‘$105,000’’. 

PART 244—[AMENDED] 

■ 108. The authority citation for part 

244 continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21301; 

5 U.S.C. 553 and 559; 28 U.S.C. 2461, note; 

and 49 CFR 1.49. 

§ 244.5 [Amended] 

■ 109. In § 244.5, paragraph (a) is 

amended by removing the numerical 

amount ‘‘$100,000’’ and adding in its 

place the numerical amount 

‘‘$105,000’’. 

Issued in Washington, DC on April 18, 

2012. 

Joseph C. Szabo, 

Administrator, Federal Railroad 

Administration. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix: Step-by-Step Calculations to 

Determine Civil Monetary Penalty 

Updates: 2012 

These calculations follow guidance by the 

U.S. Department of Transportation and the 

Government Accountability Office (GAO, 

which was formerly the General Accounting 

Office) to determine if the civil monetary 

penalties (CMPs) should be updated 

according to the Inflation Act. (Sources for 

guidance: (1) GAO attachment to 

memorandum with subject ‘‘Annual Review 

of Department of Transportation’s (DOT) 

Civil Penalties Inflation Adjustment,’’ dated 

July 10, 2003; (2) policy paper entitled 

‘‘Federal Civil Penalties Inflation Adjustment 

Act of 1990’’). In brief, the minimum stays 

the same at $650, the ordinary maximum 

stays the same at $25,000, but the aggravated 

maximum rises from $100,000 to $105,000 

under the Inflation Act. 

Minimum CMP 

The current minimum CMP is $650, last 

updated on December 30, 2008, effective 

March 2, 2009. See 73 FR 79698. 

Step 1: Find the Consumer Price Index (CPI). 

(Bureau of Labor Statistics (BLS), 1967 

Base, U.S. City Average) 

The CPI for June of the preceding year, i.e., 

CPI for June 2011 = 676.162. 

The CPI for June of the year the CMP was 

last set or adjusted under the Inflation 

Act, i.e., CPI for June 2009 = 646.12. 

Step 2: Calculate the Cost of Living 

Adjustment (COLA), or the Inflation 

Factor. 

Step 3: Find the Raw Inflation Adjustment or 

Inflation Adjustment Before Rounding. 

Raw Inflation Adjustment = CMP × COLA 

= $650 × 1.046494387 = $680.122 ≈ $680. 

Step 4: Round the Raw Inflation Adjustment 

Amount. 

Recall that the increase in the CMP is 

rounded, according to the rounding 

rules. Increase = Raw Inflation 

Adjustment—Original CMP = $680 ¥ 

$650 = $30. 

Use the following rounding rule: ‘‘If the 

current unadjusted penalty is greater 

than $100 and less than or equal to 

$1,000, round the increase to the nearest 

multiple of $100.’’ (Federal Civil 

Penalties Inflation Adjustment Act of 

1990, (DOT guidance, p.4)) Multiples of 

$100 are ($0, $100, $200, * * *). The 

nearest multiple of $100 is therefore $0. 

Rounded, the $30 increase = $0. 

Step 5: Find the Inflation Adjusted Penalty 

After Rounding. 

CMP after rounding = Original CMP + 

Rounded Increase = $650 + $0 = $650. 

Step 6: Apply a 10% Ceiling if Necessary. 

As the minimum CMP has been adjusted 

previously according to the Inflation Act 

(effective March 2009), the 10% cap for 

first time adjustments does not apply. 

Also, the RSIA of 2008 did not affect the 

minimum statutory penalty. 

Step 7: Determine New Penalty. 

The new minimum CMP = $650. 

For 2012, the minimum CMP stays the 

same. 

Ordinary Maximum CMP 

The current ordinary maximum CMP is 

$25,000, last updated on December 30, 2008, 

effective March 2, 2009. See 73 FR 79698. 

Step 1: Find the Consumer Price Index (CPI). 

(BLS, 1967 Base, U.S. City Average.) 

The CPI for June of the preceding year, i.e., 

CPI for June 2011 = 676.162. 

The CPI for June of the year the CMP was 

last set or adjusted under the Inflation 

Act, i.e., CPI for June 2009 = 646.121. 

Step 2: Calculate the Cost of Living 

Adjustment (COLA), or the Inflation 

Factor. 

Step 3: Find the Raw Inflation Adjustment or 

Inflation Adjustment Before Rounding. 

Raw Inflation Adjustment = CMP × COLA 

= $25,000 × 1.046494387 = $26,162.36 ≈ 

$26,162. 

Step 4: Round the Raw Inflation Adjustment 

Amount. 

Recall that the increase in the CMP is 

rounded, according to the rounding 

rules. Increase = Raw Inflation 

Adjustment—Original CMP = $26,162 ¥ 

$25,000 = $1,162. 

Use the following rounding rule: ‘‘If the 

current unadjusted penalty is greater 

than $10,000 and less than or equal to 

$100,000, round the increase to the 

nearest multiple of $5,000;’’ (Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, (DOT guidance, p.4)) Multiples 

of $5,000 are ($0, $5,000, $10,000, 

* * *). The nearest multiple of $5,000 is 

therefore $0. Rounded, the $1,162 

increase = $0. 

Step 5: Find the Inflation Adjusted Penalty 

After Rounding. 


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24424 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

CMP after rounding = Original CMP + 

Rounded Increase = $25,000 + $0 = 

$25,000. 

Step 6: Apply a 10% Ceiling if Necessary. 

The maximum CMP has been adjusted 

previously according to the Inflation Act 

(effective March 2009). However, the 

RSIA of 2008 significantly raised the 

maximum penalty from $16,000 to 

$25,000. In this way, the RSIA of 2008 

‘‘reset’’ the maximum penalty, and this 

review may be considered the first one 

conducted under the Inflation Act of the 

new statutory maximum CMP. 

The 10% cap for first time adjustments 

does apply. 

The new maximum penalty amount cannot 

exceed: $25,000 + (10% × $25,000) = 

$27,500. 

Step 7: Determine New Penalty. 

The new maximum CMP = $25,000. 

For 2012, the maximum CMP stays the 

same. The increase due to inflation 

rounds to $0, and therefore the 10% cap 

is not a constraining factor either. 

Aggravated Maximum CMP 

The current aggravated maximum CMP is 

$100,000, last updated on December 30, 

2008, effective March 2, 2009. See 73 FR 

79698. 

Step 1: Find the Consumer Price Index (CPI). 

(BLS, 1967 Base, U.S. City Average.) 

The CPI for June of the preceding year, i.e., 

CPI for June 2011 = 676.162. 

The CPI for June of the year the CMP was 

last set or adjusted under the Inflation 

Act, i.e., CPI for June 2009 = 646.121. 

Step 2: Calculate the Cost of Living 

Adjustment (COLA), or the Inflation Factor. 

Step 3: Find the Raw Inflation Adjustment or 

Inflation Adjustment Before Rounding. 

Raw Inflation Adjustment = CMP × COLA 

= $100,000 × 1.046494387 = $104,649.44 

≈ $104,649. 

Step 4: Round the Raw Inflation Adjustment 

Amount. 

Recall that the increase in the CMP is 

rounded, according to the rounding 

rules. Increase = Raw Inflation 

Adjustment—Original CMP = $104,649 

¥ $100,000 = $4,649. 

Use the following rounding rule: ‘‘If the 

current unadjusted penalty is greater 

than $10,000 and less than or equal to 

$100,000, round the increase to the 

nearest multiple of $5,000;’’ (Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, (DOT guidance, p.4)) Multiples 

of $5,000 are ($0, $5,000, $10,000, 

* * *). The nearest multiple of $5,000 is 

therefore $5,000. Rounded, the $4,649 

increase = $5,000. 

Step 5: Find the Inflation Adjusted Penalty 

After Rounding. 

CMP after rounding = Original CMP + 

Rounded Increase = $100,000 + $5,000 = 

$105,000. 

Step 6: Apply a 10% Ceiling if Necessary. 

The aggravated maximum CMP has been 

adjusted previously according to the 

Inflation Act (effective March 2009). 

However, the RSIA of 2008 significantly 

raised the aggravated maximum penalty 

from $27,000 to $100,000. In this way, 

the RSIA statute ‘‘reset’’ the aggravated 

maximum penalty, and this review may 

be considered the first one conducted 

under the Inflation Act of the new, 

statutory aggravated maximum CMP. 

The 10% cap for first time adjustments 

does apply. 

The new maximum penalty amount cannot 

exceed: $100,000 + (10% × $100,000) = 

$110,000. 

Step 7: Determine New Penalty. 

The new maximum CMP = $105,000. 

For 2012, the aggravated maximum CMP 

should increase. The increase due to 

inflation rounds to $5,000, and therefore 

the 10% cap does not constrain the 

increase. 

[FR Doc. 2012–9709 Filed 4–23–12; 8:45 am] 

BILLING CODE 4910–06–P 


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