[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Notices]
[Pages 15116-15118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04957]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
Notice of Updated Civil Penalty Schedules and Guidelines
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of availability.
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SUMMARY: FRA is issuing this notice to advise all interested
stakeholders that it has issued, and made available on its website,
updated civil penalty schedules and guidelines (Schedules) to account
for inflation. This notice explains FRA's increase to its guideline
rail safety civil penalty amounts. This notice also announces FRA's
intent to adjust the civil penalty amounts line-by-line on an annual
basis for inflation, after this adjustment.
FOR FURTHER INFORMATION CONTACT: Veronica Chittim, Senior Attorney,
Office of the Chief Counsel, telephone: 202-480-3410, email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
FRA is authorized as the delegate of the Secretary of
Transportation to enforce the Federal railroad safety and hazardous
materials transportation statutes, regulations, and orders, including
the civil penalty provisions codified primarily at 49 U.S.C. chs. 51
and 213.\1\ FRA currently has safety regulations in 36 parts of the
Code of Federal Regulations (CFR) that contain provisions establishing
the agency's authority to impose civil penalties if a person \2\
violates any requirement in the pertinent portion of a statute,
regulation, or order. Out of those 36 CFR parts, 32 contain civil
penalty Schedules constituting a statement of agency policy. These
Schedules were historically issued as an appendix to the relevant part
of the CFR. In 2019, FRA relocated the existing Schedules from the CFR
to FRA's website (https://railroads.dot.gov/legislation-regulations/civil-penalties-schedules-guidelines).\3\ Since 2019, FRA has
incorporated updates to the Schedules to account for regulatory
changes, to reflect updated minimum and maximum statutory civil
monetary penalty (CMP) amounts, and to add Schedules for FRA
regulations (i.e., 49 CFR parts 271 and 299).
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\1\ 49 U.S.C. 103 and 49 CFR 1.89; 49 U.S.C. chs. 51, 201-213.
\2\ 49 CFR 209.3.
\3\ 84 FR 23730 (May 23, 2019).
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FRA last published comprehensive, line-by-line revisions to the
Schedules of its safety regulations in 1988.\4\ The revisions reflected
the higher maximum penalty amounts the Rail Safety Improvement Act of
1988 (RSIA of 1988) established.\5\ With the exception of the penalties
relating to the hours of service laws (49 U.S.C. ch. 211),\6\ RSIA
[[Page 15117]]
of 1988 raised the maximum penalty for an ordinary violation from
$2,500 to $10,000 (ordinary maximum) and to $20,000 for a grossly
negligent violation or pattern of repeated violations that has caused
an imminent hazard or death or injury to individuals, or has caused
death or injury (aggravated maximum). Therefore, FRA published
amendments to the Schedules to ``give effect to the full range of civil
penalties . . . permitted to be assessed for violation of specific
regulations.'' \7\ In these amendments, FRA revised not only the
ordinary and aggravated maximum CMP amounts per violation, but also the
individual, line-item penalties for specific sections or subsections of
the regulations.
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\4\ 53 FR 52918 (Dec. 29, 1988).
\5\ Pub. L. 100-342.
\6\ The Rail Safety Enforcement and Review Act (RSERA) (Pub. L.
102-365, Sept. 3, 1992), increased the maximum penalty for a
violation of the hours of service laws, from $1,000 to $10,000, and
in some cases to $20,000, making these penalty amounts consistent
with those of FRA's other regulatory provisions. RSERA also
increased the minimum penalty from $250 to $500 for all of FRA's
regulatory provisions.
\7\ 53 FR 52918.
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Since the publication of the Schedules in 1988, FRA has
periodically adjusted its minimum CMP and its ordinary and aggravated
maximum CMPs to conform to the mandates of the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Inflation Act).\8\ The Inflation Act
required each agency to: (1) adjust by regulation each maximum CMP, or
range of minimum and maximum CMPs, within that agency's jurisdiction;
and (2) adjust those penalty amounts once every four years thereafter,
to reflect inflation.\9\ FRA periodically reviewed its minimum CMP and
ordinary and aggravated maximum CMPs as the Inflation Act required and
adjusted them as appropriate.\10\
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\8\ 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. 26, 1996.
\9\ Id.
\10\ See, e.g., 63 FR 11618 (Mar. 10, 1998); 69 FR 30591 (May
28, 2004); 72 FR 51194 (Sept. 6, 2007).
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The Rail Safety Improvement Act of 2008 (RSIA) increased the
ordinary and aggravated maximum CMPs to $25,000 and $100,000,
respectively.\11\ In 2008, FRA adjusted its minimum CMP from $550 to
$650 under the Inflation Act, and also adopted $25,000 as the ordinary
maximum and $100,000 as the aggravated maximum CMPs required by the
RSIA.\12\ Subsequently, in 2012, FRA adjusted the aggravated maximum
CMP for inflation to $105,000, but kept the minimum and ordinary
maximum CMPs unchanged.\13\
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\11\ Public Law 110-432, Div. A, Sec. 302.
\12\ Id.; 74 FR 15387 (Apr. 6, 2009).
\13\ 77 FR 24415 (Apr. 24, 2012).
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Under the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (2015 Inflation Act), agencies were required
to make a catch-up adjustment for the minimum, ordinary maximum, and
aggravated maximum CMPs, followed by annual inflation adjustments.\14\
FRA has adjusted the statutory minimum, ordinary maximum, and
aggravated maximum CMPs pursuant to the 2015 Inflation Act, with the
most recent adjustment occurring on January 6, 2023.\15\
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\14\ Public Law 114-74, Sec. 701 (Nov. 2, 2015).
\15\ See 49 CFR part 209, appendix A. Effective January 6, 2023,
the minimum CMP was raised from $976 to $1,052, the ordinary maximum
CMP was raised from $31,928 to $34,401, and the aggravated maximum
CMP was raised from $127,712 to $137,603. See 88 FR 1114.
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FRA's practice has been to issue Schedules assigning to each
section or subsection of the regulations specific dollar amounts for
initial penalty assessments. These Schedules (and all line-item penalty
amounts found within them) are statements of agency policy that specify
the penalty that FRA will ordinarily assess for the violation of a
particular section or subsection of a safety regulation, and are
published to inform members of the regulated community of the penalty
FRA will likely assess for a given violation within the range of the
statutory minimum to the aggravated maximum CMP. The Schedules are not
regulations nor are they subject to notice-and-comment requirements.
The Schedules provide guidance on FRA's policy in predictable
situations, but they do not prevent FRA from using the full range of
penalty authority when circumstances warrant. Thus, regardless of the
amounts shown in the Schedules, FRA continues to reserve the right to
assess, within the range established by the rail safety statutes (49
U.S.C. ch. 213) or by regulation under the 2015 Inflation Act, an
amount other than that listed in the Schedules based on the
circumstances of the alleged violation.
The Schedules included in these statements of agency policy
continue to provide guideline penalty amounts for two categories of
violations: ordinary (non-willful) and willful. Each Schedule lists the
CFR section or subsection in the left-hand column, sometimes with
additional designations to distinguish different types of violations
(penalty codes) of the section or subsection, to facilitate the
assessment of civil penalties.\16\ The corresponding guideline penalty
amount for an ordinary violation and then the guideline penalty amount
for a willful violation are listed. The ordinary penalties apply to
railroads or other respondents, except individuals, while the
``willful'' column applies to willful violations committed by railroads
or other respondents, including individuals.
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\16\ The only exception is 49 CFR part 231; the left-hand column
of the Schedule lists the FRA defect codes for that part, and not
the corresponding CFR sections. This is because the defect codes are
organized by the type of safety appliance, which makes them easier
to use than the section numbers of part 231, which are organized
primarily by car or locomotive type. Nevertheless, if necessary,
every defect code can be traced to a specific regulatory provision
in part 231 or statutory provision in 49 U.S.C. ch. 203, or both.
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Updated Civil Penalty Schedules
FRA is updating, line-by-line, FRA's civil penalty Schedules to
account for inflation. Although the 2015 Inflation Act did not require
FRA to adjust individual, line-item penalty amounts, Congress'
recognition in that Act of the negative impact that inflation has on
the deterrent effect of FRA's civil penalties, and the fact FRA has
never adjusted each of its civil penalties to specifically account for
inflation, prompted FRA to update these statements of agency policy.
FRA believes the new inflation-adjusted penalty amounts in these
statements of agency policy will preserve the deterrent effects of the
CMPs, supporting FRA's mission to make the United States' rail system
safer.
Many of FRA's existing CMP guideline amounts are below the 2023
statutory minimum CMP amount of $1,052.\17\ To address this issue both
specifically for the existing $1,000 guideline CMPs and to combat the
erosion of the deterrent effect of FRA's civil penalties in a
consistent manner, FRA is updating all rail safety CMP guideline
amounts.
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\17\ See, e.g., a guideline base CMP for a non-willful violation
of 49 CFR 213.241, Inspection records, $1,000.
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Effective for violations occurring on or after March 8, 2023, FRA
has increased all rail safety penalties by multiplying the base, pre-
adjusted penalty, by two. For example, a base penalty of $2,500 will
increase to $5,000. Beginning in 2024, FRA intends to annually adjust
all of its Schedules by a fixed inflation rate factor (using the
Consumer Price Index), similar to the calculation used to adjust the
statutory minimum and maximum CMPs. FRA will continue to post such
inflation updates to its Schedules on FRA's website (https://railroads.dot.gov/legislation-regulations/civil-penalties-schedules-guidelines).
Conclusion
To promote railroad safety by enhancing and maintaining the
deterrent effect of the civil penalty program, FRA is doubling its
guideline
[[Page 15118]]
penalties to account for inflation. Beginning in 2024, FRA expects to
annually adjust its civil penalty Schedules indexed to the rate of
inflation. All updates to these statements of agency policy can be
found on FRA's website (https://railroads.dot.gov/legislation-regulations/civil-penalties-schedules-guidelines).
Issued in Washington, DC.
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2023-04957 Filed 3-9-23; 8:45 am]
BILLING CODE 4910-06-P