[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