[Federal Register Volume 69, Number 104 (Friday, May 28, 2004)]
[Rules and Regulations]
[Pages 30590-30591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11964]



[[Page 30590]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 209

[Docket No. FRA-2004-17530; Notice No. 1]
RIN 2130-AB62


Inflation Adjustment of the Maximum and Minimum Civil Penalties 
for a Violation of the Hazardous Materials Transportation Laws and 
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 and maximum civil 
monetary penalties (CMP) that it will apply when assessing a penalty 
for a violation of the Federal hazardous material transportation laws 
and regulations. Consistent with past FRA practice, FRA's penalty 
increase will mirror that made by DOT's lead agency for administration 
of the hazardous materials transportation laws and regulations, the 
Research and Special Program Administration (RSPA). In particular, FRA 
is increasing the minimum civil penalty from $250 to $275 and the 
maximum civil penalty from $27,500 to $32,500.

DATES: Effective Date: June 28, 2004.

FOR FURTHER INFORMATION CONTACT: Melissa L. Porter, Trial Attorney, 
Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6034).

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Act) requires that agencies adjust by 
regulation each maximum CMP, or the 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.) 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 the calendar year preceding the 
adjustment 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. 
These adjusted amounts are subject to a rounding formula found in 
section 5 of the Act, and the first adjustment may not exceed an 
increase of ten percent.
    FRA is responsible for enforcement of the hazardous material 
transportation law and regulations primarily in instances where 
violations involve railroads and those who ship by rail. 49 CFR 
1.49(s). The hazardous material transportation regulations are issued 
not by FRA, but by RSPA. 49 CFR 1.53(b). RSPA's regulations contain CMP 
provisions that are subject to the Act, and RSPA has twice amended its 
regulations by final rules to reflect changes in its maximum and 
minimum CMPs. FRA's minimum and maximum CMPs that it applies when 
assessing penalties for violations of the hazardous material 
transportation laws and regulations have historically mirrored RSPA's 
minimum and maximum CMPs that it applies when assessing penalties for 
violations of the hazardous material transportation laws and 
regulations.
    The hazardous materials transportation law at 40 U.S.C. 5123 (a)(1) 
established a CMP for a knowing violation of the Federal hazardous 
material transportation law (49 U.S.C. ch. 51) or RSPA's regulations 
(49 CFR Parts 171-180), in an amount of ``at least $250 but not more 
than $25,000 for each violation.'' Pursuant to the Act, in a final rule 
published in the Federal Register on January 21, 1997, RSPA increased 
the maximum CMP for a violation from $25,000 to $27,500. 62 FR 2970. 
(This increase in the maximum CMP was subject to the initial rounding 
limitations discussed above.) Accordingly, on March 10, 1998, FRA 
issued a final rule that revised its own regulations and added a 
reference to FRA's previously issued policy statement concerning its 
enforcement of RSPA's regulations to reflect RSPA's increase in the 
maximum CMP. On September 8, 2003, RSPA again increased the maximum 
CMP, this time to $32,500, based on the increase in the CPI from June 
1997 to June 2002. 68 FR 52844. (Because this was the second time RSPA 
had increased the maximum CMP under the Act, the increase in the 
maximum CMP was not subject to the 10 percent limit in the Act.) In 
this final rule, FRA is amending its regulations and policy statement 
once again to reflect the most recent change in RSPA's maximum CMP.
    Prior to September 8, 2003, RSPA has not adjusted the $250 minimum 
CMP amount specified in its regulations. By the final rule issued in 
2003, RSPA increased its minimum CMP to $275. 68 FR 52844. (Because it 
was a first time adjustment to the minimum CMP, the increase was 
subject to the 10 percent limitation required by the Act.) FRA is now 
amending its regulations and policy statement to reflect this change in 
RSPA's minimum CMP.
    RSPA determined that the new minimum and maximum CMPs for hazardous 
material transportation violations apply to violations that occur after 
September 30, 2003, for which a civil penalty is assessed by RSPA. 
FRA's changes will be applicable to all violations occurring after June 
28, 2004, for which a civil penalty is assessed by FRA.

Public Participation

    FRA is proceeding to a final rule without providing a notice of 
proposed rulemaking or an opportunity for public comment. The 
adjustments required by the Act are ministerial acts over which FRA has 
no discretion, making public comment unnecessary.

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) 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 shippers who are considered small 
entities there is no economic impact on any person who complies with 
the Federal hazardous material transportation 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,

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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

    The final rule issued today will not result in the expenditure, in 
the aggregate, of $100,000,000 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.

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 in 49 CFR Part 209

    Hazardous materials, Penalties.

The Final Rule

0
Therefore, in consideration of the foregoing, chapter II subtitle NB of 
title 49 of the Code of Federal Regulations is amended as follows:

PART 209--[AMENDED]

0
1. The authority citation for part 209 is revised 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.  209.103  [Amended]

0
2. Section 209.103 is amended by removing the numerical amount ``$250'' 
and adding in its place the numerical amount ``$275'', and by removing 
the numerical amount ``$27,500'' and adding in its place the numerical 
amount ``$32,500''.


Sec.  209.105  [Amended]

0
3. Section 209.105(c) is amended by removing the numerical amount 
``$25,000'' and adding in its place the numerical amount ``$32,500''.

Appendix B to Part 209--[Amended]

0
4. In appendix B to part 209, the text before the table is amended by 
removing all references to the numerical amount ``$25,000'' and adding 
in their place the numerical amount ``$32,500,'' and by removing the 
reference to the numerical amount ``$250'' and adding in its place the 
numerical amount ``$275''.

    Issued in Washington, DC, on May 18, 2004
Allan Rutter,
Administrator, Federal Railroad Administration.
[FR Doc. 04-11964 Filed 5-27-04; 8:45 am]
BILLING CODE 4910-06-P