[Federal Register: December 30, 2008 (Volume 73, Number 250)]
[Rules and Regulations]
[Page 79698-79705]
[DOCID:fr30de08-25]

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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,
238, 239, 240, 241, and 244

[Docket No. FRA-2004-17529; Notice No. 6]
RIN 2130-AB94

Adjustments to the Minimum and Maximum Civil Monetary Penalties
for Violations of Federal Railroad Safety Laws or Federal Railroad
Administration Safety Regulations

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: To comply with the Federal Civil Penalties Inflation
Adjustment Act of 1990, FRA is adjusting the minimum civil monetary
penalty that it will apply when it assesses a civil penalty for a
violation of a railroad safety statute or regulation under its
authority. FRA is also adjusting its ordinary maximum and aggravated
maximum penalties to incorporate the new maximum civil penalty amounts
authorized by the Rail Safety Improvement Act of 2008. In particular,
FRA is increasing the minimum civil penalty per violation from $550 to
$650, while the ordinary maximum civil penalty per violation will be
increased from $16,000 to $25,000 and the aggravated maximum civil
penalty per violation where a grossly negligent violation or pattern of
repeated violations has created an imminent hazard of death or injury
(``grossly negligent violation'') will be increased from $27,000 to
$100,000.

DATES: This final rule is effective March 2, 2009.

FOR FURTHER INFORMATION CONTACT: Stephen N. Gordon, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop
10, Washington, DC 20590 (telephone<PHONE_NUMBER>),
<EMAIL_ADDRESS>
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 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.
    In 2008, Congress determined that additional measures were
necessary to deter violations of Federal laws and regulations that
contribute to railroad fatalities, injuries, and hazardous materials
releases. See H.R. Rep. No. 110-336, at 1 (2008). As a result, it
passed the Rail Safety Improvement Act of 2008, which was signed into
law by the President on October 16, 2008. See Public Law 110-432,
Division A, 122 Stat. 4848. The Rail Safety Improvement Act of 2008
authorizes, among other initiatives, increased maximum penalty amounts
by revising the language in 49 U.S.C. 21301(a)(2), 21302(a)(2), and
21303(a)(2) to allow for civil penalty assessments up to $25,000 per
violation with penalty assessments up to $100,000 in instances where
grossly negligent violations occur. Id. at sec. 302.
    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 29
regulations that contain provisions referencing 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 $650, the ordinary maximum CMP to $25,000, and
the aggravated maximum CMP to $100,000. Where applicable, FRA is
amending the corresponding appendices to those regulatory provisions,
which outline FRA enforcement policy. FRA also is amending part 224 by
removing the footnote attached to Sec.  224.111 and adding the removed
text, as amended, as a footnote to part 224, appendix A.

Calculation of the Inflation Adjustment

    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 2007) 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 2004 for the minimum CMP of $550). See 72 FR 51196 (Sept.
6, 2007); 69 FR 62818 (Oct. 28, 2004); 69 FR 30592 (May 28, 2004). 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 inflation adjusted CMP amounts.
    With the exception of the penalties relating to the hours of
service laws (49 U.S.C. ch. 211), the ordinary maximum CMP for a
violation of the rail safety

laws and regulations was initially established by the Rail Safety
Improvement Act of 1988, which set a $10,000 limit for a CMP imposed
for any ordinary violation, and a $20,000 limit for grossly negligent
conduct that results in an aggravated violation. In 1998, after
applying the adjustment calculation in the Inflation Act, FRA
determined that the ordinary maximum CMP for any single violation
needed to be increased to $11,000 and that the maximum CMP for
aggravated violations needed to be increased to $22,000. FRA then
amended each of its regulations by final rule to reflect the increased
CMPs. See 63 FR 11618 (March 10, 1998).
    The Rail Safety Enforcement and Review Act (RSERA) in 1992
increased the range of the minimum and maximum civil penalties 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. Before enactment of RSERA, the penalty was ``up to $1,000
per violation.'' RSERA increased the minimum civil penalty for an hours
of service violation to $500, the ordinary maximum civil penalty to
$10,000, and the aggravated maximum civil penalty to $20,000. By
applying the same adjustment calculation using the 1992 CPI, the
ordinary and aggravated 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.
    In 1998, FRA applied the adjustment calculation in the Inflation
Act to the minimum CMP and determined that it would not need to be
increased. In 2004, FRA determined, by applying the adjustment
calculation using the June 2003 CPI, that the minimum CMP should be
increased from $500 to $550. FRA also determined in 2004 under the same
rationale that the aggravated maximum CMP should be increased from
$22,000 to $27,000. 69 FR 30592 (May 28, 2004). In 2007, FRA applied
the inflation adjustment calculation, determined that the ordinary
maximum CMP needed to be increased, and amended each of its regulations
by final rule to reflect an increase in the ordinary maximum CMP to
$16,000. 72 FR 51194 (Sept. 6, 2007).
    Prior to the enactment of the Rail Safety Improvement Act of 2008,
FRA was evaluating the need to make inflation adjustments to its CMP
amounts under the requirements of the Inflation Act. The Rail Safety
Improvement Act of 2008, however, increased the authorized amounts for
ordinary maximum CMPs ($25,000) and aggravated maximum CMPs ($100,000).
The regulations now are being amended to reflect this change in
statutory authority for ordinary maximum and aggravated maximum CMPs,
which temporarily alleviates the need to perform inflation adjustment
calculations for FRA's ordinary maximum and aggravated maximum CMPs.
While the new law increased the authority for maximum penalties, it did
not address the minimum CMP amount. Therefore, FRA must calculate
whether an inflation adjustment is necessary with respect to the
minimum CMP. Applying the inflation adjustment calculation, FRA has
determined that the minimum CMP should be increased as the following
calculations show.

Calculations To Determine Minimum Civil Monetary Penalty Update for
2008

    As required, this year, FRA reevaluated the minimum CMP and
concluded that it should be increased to $650, as the next calculations
show. The June 2007 CPI of 624.129 divided by the CPI for June 2004 of
568.2 (since the last update was in 2004) equals an inflation factor of
1.09843; $550 times 1.09843 equals $604. The raw inflation adjustment
amount of $54 is rounded to the nearest multiple of 100, which is $100.
The inflation adjusted minimum penalty is $550 plus $100, or $650, see
appendix, and is applicable to all of the rail safety statutes and
regulations. Because this is the second time that the minimum CMP has
been adjusted under the Act, the ten-percent cap on the increase does
not apply. This new FRA minimum penalty will apply to violations that
occur on or after March 2, 2009.

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, in making these technical amendments to
give effect to the new Rail Safety Improvement Act of 2008, 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 Order 12866 and DOT Regulatory Policies and Procedures

    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. The cost of complying with
existing substantive regulations is not being increased. The rules
merely contain a regulatory formulation of FRA's amended statutory
authority pursuant to the Rail Safety Improvement Act of 2008 and
simply reserve FRA's right to assess a penalty up to $25,000, or
$100,000 in appropriate circumstances. Additionally, the adjustment of
the minimum CMP is a limited ministerial act over 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. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is

purely domestic in nature and is not expected to affect trade
opportunities for U.S. firms doing business overseas or for foreign
firms doing business in the United States.

E. Paperwork Reduction Act

    There are no new information collection requirements in this final
rule.

F. Compliance With the Unfunded Mandates Reform Act of 1995

    The final rule issued today will not result in the expenditure, in
the aggregate, of $141,000,000 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.

G. Environmental Assessment

    There are no significant environmental impacts associated with this
final rule.

H. 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 in 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, 238, 239, 240, 241, and 244

49 CFR Part 209

    Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 213

    Bridges, Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 214

    Bridges, 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

    Penalties, Railroad safety.

49 CFR Part 217

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

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

    Penalties, Radio, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 221

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 222

    Administrative practice and procedure, Penalties, Railroad safety,
Reporting and recordkeeping requirements.

49 CFR Part 223

    Glass and glass products, 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.

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

    Penalties, Railroad employees, Reporting and recordkeeping
requirements.

49 CFR Part 229

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 230

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 231

    Penalties, Railroad safety.

49 CFR Part 232

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 233

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 234

    Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

49 CFR Part 235

    Administrative practice and procedure, Penalties, Railroad safety,
Reporting and recordkeeping requirements.

49 CFR Part 236

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 238

    Fire prevention, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

49 CFR Part 239

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 240

    Administrative practice and procedure, Penalties, Railroad
employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 241

    Communications, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

49 CFR Part 244

    Administrative practice and procedure, Penalties, Railroad safety,
Reporting and recordkeeping requirements.

The Final Rule

0
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, 238, 239, 240, 241, and 244, of subtitle B, chapter
II of title 49 of the Code of Federal Regulations are amended as
follows:

PART 209--[AMENDED]

0
1. The authority citation for part 209 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20114; 28
U.S.C. 2461, note; and 49 CFR 1.49.

Sec.  209.409  [Amended]

0
2. Section 209.409 is amended by:
0
a. Removing the numerical amount ``$500'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 209--[Amended]

0
3. Appendix A to part 209 is amended by:
0
a. Removing the numerical amount ``$550'' in the third paragraph below
the heading ``PENALTY SCHEDULES; ASSESSMENT OF MAXIMUM PENALTIES,'' and
replacing it with the numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' in the third paragraph
below the heading ``PENALTY SCHEDULES; ASSESSMENT OF MAXIMUM
PENALTIES,'' and replacing it with the numerical amount ``$25,000'';
0
c. Removing the reference to the numerical amount ``$11,000'' in the
sixth paragraph below the heading ``PENALTY SCHEDULES; ASSESSMENT OF
MAXIMUM PENALTIES,'' and replacing it with the numerical amount
``$25,000''; and
0
d. Removing both references to the numerical amount ``$27,000'' in the
sixth paragraph below the heading ``PENALTY SCHEDULES; ASSESSMENT OF
MAXIMUM PENALTIES,'' and replacing them with the numerical amount
``$100,000''.

Appendix B to Part 209--[Amended]

0
4. Footnote 1 to appendix B to part 209 is amended by:
0
a. Removing the numerical amount ``$500'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$11,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

PART 213--[AMENDED]

0
5. The authority citation for part 213 continues to read as follows:

    Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461,
note; and 49 CFR 1.49(m).

Sec.  213.15  [Amended]

0
6. Paragraph (a) of Sec.  213.15 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix B to Part 213--[Amended]

0
7. Footnote 1 to appendix B of part 213 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 214--[AMENDED]

0
8. The authority citation for part 214 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.

Sec.  214.5  [Amended]

0
9. Section 214.5 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 214--[Amended]

0
10. Footnote 1 to appendix A of part 214 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 215--[AMENDED]

0
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.

Sec.  215.7  [Amended]

0
12. Section 215.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix B to Part 215--[Amended]

0
13. Footnote 1 to appendix B of part 215 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 216--[AMENDED]

0
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.

Sec.  216.7  [Amended]

0
15. Section 216.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

 PART 217--[AMENDED]

0
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.

Sec.  217.5  [Amended]

0
17. Section 217.5 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 217--[Amended]

0
18. Footnote 1 to appendix A of part 217 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 218--[AMENDED]

0
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.

Sec.  218.9  [Amended]

0
20. Section 218.9 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 218--[Amended]

0
21. Footnote 1 of appendix A to part 218 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 219--[AMENDED]

0
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).

Sec.  219.9  [Amended]

0
23. Paragraph (a) of Sec.  219.9 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';

0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 219--[Amended]

0
24. Footnote 1 to appendix A of part 219 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 220--[AMENDED]

0
25. The authority citation for part 220 continues to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304,
21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

Sec.  220.7  [Amended]

0
26. Section 220.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix C to Part 220--[Amended]

0
27. Footnote 1 to appendix C of part 220 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 221--[AMENDED]

0
28. 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.

Sec.  221.7  [Amended]

0
29. Section 221.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix C to Part 221--[Amended]

0
30. Footnote 1 to appendix C of part 221 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 222--[AMENDED]

0
31. 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.

Sec.  222.11  [Amended]

0
32. Section 222.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix G to Part 222--[Amended]

0
33. Footnote 1 to appendix G of part 222 is amended by: Removing the
numerical amount ``27,000'' and adding in its place the numerical
amount ``100,000''.

PART 223--[AMENDED]

0
34. 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.

Sec.  223.7  [Amended]

0
35. Section 223.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix B to Part 223--[Amended]

0
36. Footnote 1 to appendix B of part 223 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 224--[AMENDED]

0
37. The authority citation for part 224 is revised 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.

Sec.  224.11  [Amended]

0
38. Paragraph (a) of Sec.  224.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.
0
39. Section 224.111 is amended by removing footnote 1.

Appendix A to Part 224--[Amended]

0
40. Appendix A of part 224 is amended by adding footnote 1, to read as
follows:
* * * * *
    \1\ A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $100,000 for any violation where circumstances
warrant. See 49 CFR part 209, appendix A.
* * * * *

PART 225--[AMENDED]

0
41. The authority citation for part 225 is revised to read as follows:

    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.

Sec.  225.29  [Amended]

0
42. Section 225.29 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 225--[Amended]

0
43. Footnote 1 to appendix A of part 225 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 227--[AMENDED]

0
44. The authority citation for part 227 is revised 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.

Sec.  227.9  [Amended]

0
45. Paragraph (a) of Sec.  227.9 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$11,000'' and adding in its place
the numerical amount ``$25,000'';
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''; and
0
d. Removing the phrase ``appendix H'' and adding in its place the
phrase ``appendix G''.

Appendix G to Part 227--[Amended]

0
46. Appendix G of part 227 is amended by adding the following paragraph
as Footnote 1:
* * * * *
    \1\ A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $100,000 for any violation where circumstances
warrant. See 49 CFR part 209, appendix A.
* * * * *

PART 228--[AMENDED]

0
47. The authority citation for part 228 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21108; 28 U.S.C. 2461,
note; and 49 CFR 1.49.

Sec.  228.21  [Amended]

0
48. Section 228.21 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 228--[Amended]--Requirements of the Hours of Service
Act: Statement of Agency Policy and Interpretation

0
49. In appendix A to part 228, the ninth paragraph below the heading
``GENERAL PROVISIONS'', entitled ``Penalty'', is amended by removing
its last sentence and adding the following sentences in its place:

Appendix A to Part 228--Requirements of the Hours of Service Act:
Statement of Agency Policy and Interpretation

* * * * *
    Penalty. * * * Effective October 9, 2007, the ordinary maximum
penalty of $11,000 was raised to $16,000 as required under law.
Effective March 2, 2009, the minimum penalty, ordinary maximum penalty
and aggravated maximum penalty were raised again. The minimum penalty
was increased from $550 to $650 pursuant to the law's requirement.
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.
* * * * *

Appendix B to Part 228--[Amended]

0
50. Appendix B is amended by removing each of the three references to
the numerical amount ``$500'' and replacing them with the numerical
amount ``$650''.
0
51. Footnote 1 to appendix B of part 228 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 229--[AMENDED]

0
52. The authority citation for part 229 continues to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20137-20138,
20143, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49
CFR 1.49(c), (m).

Sec.  229.7  [Amended]

0
53. Paragraph (b) of Sec.  229.7 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix B to Part 229--[Amended]

0
54. Appendix B is amended by removing the numerical amount ``$500''
from the entry at 229.105 and adding in its place the numerical amount
``$650''.
0
55. Footnote 1 to appendix B of part 229 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 230--[AMENDED]

0
56. 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.

Sec.  230.4  [Amended]

0
57. Paragraph (a) of Sec.  230.4 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

PART 231--[AMENDED]

0
58. 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.

Sec.  231.0  [Amended]

0
59. Paragraph (f) of Sec.  231.0 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 231--[Amended]

0
60. Appendix A is amended by removing the numerical amount ``$500''
from the entry at 146.A and adding in its place the numerical amount
``$650''.
0
61. Footnote 1 to appendix A of part 231 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 232--[AMENDED]

0
62. 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.

Sec.  232.11  [Amended]

0
63. Paragraph (a) of Sec.  232.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650;
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 232--[Amended]

0
64. Footnote 1 to appendix A of part 232 is amended by:
0
a. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
b. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

PART 233--[AMENDED]

0
65. 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.

Sec.  233.11  [Amended]

0
66. Section 233.11 is amended by:

0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 233--[Amended]

0
67. Footnote 1 to appendix A of part 233 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 234--[AMENDED]

0
68. The authority citation for part 234 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.

Sec.  234.6  [Amended]

0
69. Paragraph (a) of Sec.  234.6 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 234--[Amended]

0
70. Footnote 1 to appendix A of part 234 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 235--[AMENDED]

0
71. 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.

Sec.  235.9  [Amended]

0
72. Section 235.9 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 235--[Amended]

0
73. Footnote 1 to appendix A of part 235 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 236--[AMENDED]

0
74. The authority citation for part 236 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note and 49
CFR 1.49.

Sec.  236.0  [Amended]

0
75. Paragraph (f) of Sec.  236.0 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 236--[Amended]

0
76. Footnote 1 to appendix A of part 236 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 238--[AMENDED]

0
77. 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.

Sec.  238.11  [Amended]

0
78. Paragraph (a) of Sec.  238.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 238--[Amended]

0
79. Footnote 1 to appendix A to part 238 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 239--[AMENDED]

0
80. 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).

Sec.  239.11  [Amended]

0
81. Section 239.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 239--[Amended]

0
82. Footnote 1 to appendix A to part 239 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 240--[AMENDED]

0
83. 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.

Sec.  240.11  [Amended]

0
84. Paragraph (a) of Sec.  240.11 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix A to Part 240--[Amended]

0
85. Appendix A is amended by removing each of the three references to
the numerical amount ``$500'' and adding in each of their places the
numerical amount ``$650''.
0
86. Footnote 1 to appendix A of part 240 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 241--[AMENDED]

0
87. 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.

Sec.  241.15  [Amended]

0
88. Paragraph (a) of Sec.  241.15 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

Appendix B to Part 241--[Amended]

0
89. Footnote 1 to appendix B of part 241 is amended by removing the
numerical amount ``$27,000'' and adding in its place the numerical
amount ``$100,000''.

PART 244--[AMENDED]

0
90. 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.

Sec.  244.5  [Amended]

0
91. Paragraph (a) of Sec.  244.5 is amended by:
0
a. Removing the numerical amount ``$550'' and adding in its place the
numerical amount ``$650'';
0
b. Removing the numerical amount ``$16,000'' and adding in its place
the numerical amount ``$25,000''; and
0
c. Removing the numerical amount ``$27,000'' and adding in its place
the numerical amount ``$100,000''.

    Issued in Washington, DC on December 18, 2008.
Clifford C. Eby,
Acting Administrator, Federal Railroad Administration.

    Note: This appendix will not appear in the Code of Federal
Regulations.

Appendix: ``Step-by-Step Calculations To Determine Civil Monetary
Penalty Update: 2008''

Step-by-Step Calculations To Determine Civil Monetary Penalty Update:
2008

    These calculations follow U.S. Department of Transportation and
Government Accountability Office (GAO), formerly the General
Accounting Office, guidance to determine if the minimum civil
monetary penalty (CMP) 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''). Overall, the minimum rises from $550 to $650 for
2008, under the Inflation Act.

Minimum CMP

    The current minimum CMP is $550, last updated on May 28, 2004.
See 69 FR 30592.
    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 2007
= 624.129.
    The CPI for June of the year the CMP was last set or adjusted
under the Inflation Act, i.e., CPI for June 2004 = 568.2.
    Step 2: Calculate the Cost of Living Adjustment (COLA), or the
Inflation Factor.
    COLA= CPI for June 2007 = 624.129 = 1.09843, CPI for June 2004
568.2.
    Step 3: Find the Raw Inflation Adjustment or Inflation
Adjustment Before Rounding. Raw Inflation Adjustment = CMP x COLA =
$550 x 1.09843 = $604.14 [ap] $604.
    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 = $604 - $550
= $54.
    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, p. 4).
    Multiples of $100 are $0, $100, $200.* * * The nearest multiple
of $100 is therefore $100. Rounded, the $54 increase = $100.
    Step 5: Find the Inflation Adjusted Penalty After Rounding.
    CMP after rounding = Original CMP + Rounded Increase = $550 +
$100 = $650.
    Step 6: Apply a 10% Ceiling if Necessary.
    As the minimum CMP has been adjusted previously according to the
Inflation Act, the 10% cap for first-time adjustments does not
apply.
    Step 7: Determine New Penalty.
    The new minimum CMP = $650.
    For 2008, the minimum CMP rises by $100.

 [FR Doc. E8-30753 Filed 12-29-08; 8:45 am]

BILLING CODE 4910-06-P