Inflation Adjustment of the Ordinary Maximum and Aggravated Maximum Civil Monetary Penalties for a Violation of the Hazardous Material Transportation Laws and Regulations, 43840-43844 [2010-18321]
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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA–2004–17530; Notice No.
2]
RIN 2130–ZA03
Inflation Adjustment of the Ordinary
Maximum and Aggravated Maximum
Civil Monetary Penalties for a Violation
of the Hazardous Material
Transportation Laws and Regulations
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA is adjusting the ordinary
maximum penalty and the aggravated
maximum penalty that it will apply
when assessing a civil monetary penalty
for a violation of the Federal hazardous
material transportation laws or a
regulation, special permit, or approval
issued under those laws. The aggravated
maximum penalty is available only for
a violation that results in death, serious
illness, or severe injury to any person or
substantial destruction of property. In
particular, FRA is increasing the
ordinary maximum civil monetary
penalty per violation from $50,000 to
$55,000 and the aggravated maximum
civil penalty from $100,000 to $110,000.
The minimum civil monetary penalty
for a violation related to training
remains at $450. The minimum civil
monetary penalty per violation for other
hazardous material violations remains at
$250. These adjustments are required by
the Federal Civil Penalties Inflation
Adjustment Act of 1990 as amended by
the Debt Collection Improvement Act of
1996.
DATES: Effective Date: September 27,
2010.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Roberta J. Stewart, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., Mail Stop 10, Washington,
DC 20590 (telephone 202–493–6027),
roberta.stewart@dot.gov.
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 penalties,
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,
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SUPPLEMENTARY INFORMATION:
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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 civil
penalties 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 civil penalties by having the
agencies charged with enforcement
responsibility administratively adjust
the civil penalties.
This final rule is published under the
authority of 49 U.S.C. 5123 and 5124,
which provide civil and criminal
penalties for violations of Federal
hazardous material transportation law
or a regulation, order, special permit or
approval issued under that law. The
hazardous material transportation
regulations are issued by the Pipeline
and Hazardous Materials Safety
Administration (PHMSA). 49 CFR
1.53(b). FRA is authorized as the
delegate of the Secretary of
Transportation to enforce the hazardous
material statutes and regulations. 49
CFR 1.49(s).
Calculation of the Adjustment
The Inflation Act requires each
Federal agency to periodically adjust
CMPs that it administers to consider the
effects of inflation. The Inflation Act is
set forth in a note to 29 U.S.C. 2461.
According to Section 5 of the Inflation
Act, the maximum and minimum CMPs
must be increased based on a ‘‘cost-ofliving adjustment’’ determined by the
increase in the Consumer Price Index
(CPI) for the month of June of the
calendar year preceding the adjustment
as compared to the CPI for the month of
June in the year in which the last
adjustment was made. 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; that the
amount of the adjustment must be
rounded to the nearest multiple of
$5,000, for a penalty between $10,000
and $100,000; and that the first CMP
adjustment is limited to 10 percent of
the original penalty amount. Any
increased CMP applies only to
violations that occur after the date the
increase takes effect. FRA utilizes
Bureau of Labor Statistics data to
calculate inflation adjusted CMP
amounts.
Section 7120 of the Hazardous
Materials Safety and Security
Reauthorization Act of 2005 (Title VII of
the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
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Legacy for Users (‘‘SAFETEA–LU,’’ Pub.
L. 109–59, 119 Stat. 1905)) amended 49
U.S.C. 5123(a) to reset the maximum
and minimum CMPs for a knowing
violation of the Federal hazardous
material transportation laws, 49 U.S.C.
5101 et seq., or a regulation, order,
special permit, or approval issued under
that law as follows:
—Maximum civil penalty: $50,000,
except that amount may be increased
to $100,000 for a violation that results
in death, serious illness, or severe
injury to a person or substantial
destruction of property.
—Minimum civil penalty: $250, except
that the minimum civil penalty for a
violation related to training is $450.
Before the enactment of SAFETEA–LU,
the inflation-adjusted maximum civil
penalty for a hazardous material
violation was $32,500, and the inflationadjusted minimum civil penalty for a
hazardous materials violation was $275.
69 FR 30590, May 28, 2004. To
implement these SAFETEA–LU
amendments to the maximum and
minimum penalties, FRA issued a final
rule that was published on December
26, 2006, 71 FR 77293, making the new
maximum and minimum penalties
effective with respect to violations on or
after December 26, 2006.
Under the Inflation Act, FRA is now
required to adjust the maximum and
minimum civil penalties set forth in 49
U.S.C. 5123(a), as amended by
SAFETEA–LU. Because these
adjustments are the first adjustments to
the amounts reset in SAFETEA–LU, an
increase in the maximum and minimum
civil penalty amounts is limited to 10
percent.
Because this adjustment and the
amount thereof are mandated by statute,
notice of proposed rulemaking is
unnecessary, and there is good cause to
make the adjusted ordinary maximum
and aggravated maximum civil penalties
applicable to any violation occurring on
or after September 27, 2010. 5 U.S.C.
553(b), (d).
PHMSA recently issued a final rule to
adjust its maximum and minimum civil
monetary penalties per the Inflation Act.
See 74 FR 68701 (December 29, 2009).
FRA’s maximum and minimum CMPs
that it assesses for violations of the
hazardous material transportation laws
and regulations have historically
mirrored PHMSA’s. However, for this
round of CMP inflation adjustments,
FRA notes that there is one discrepancy
between PHMSA’s adjusted CMPs and
FRA’s adjusted CMPs. Because
PHMSA’s inflation adjustments were
performed in calendar year 2009,
PHMSA calculated its new maximum
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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations
and minimum penalties using the CPIs
from June 2008 and June 2005. FRA, on
the other hand, is calculating the
inflation adjustment of its CMPs for
hazardous material violations in
calendar year 2010, and is therefore
using the CPIs from June 2009 and June
2005. The CPI increase between June
2008 and June 2005 was greater than the
CPI increase between June 2009 and
June 2005. As calculated by PHMSA, its
minimum CMP for violations related to
training increased ten percent from $450
to $495. 74 FR 68701. In FRA’s
calculations, as described below, the
minimum CMP for violations related to
training remains at $450, due to the
different years of CPIs used to calculate
the inflation increase.
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Calculations To Determine Hazardous
Material Civil Monetary Penalty
Updates for Violations On or After
September 27, 2010
1. Ordinary and Aggravated Maximum
Civil Monetary Penalties
As required, this year FRA
reevaluated the ordinary and aggravated
maximum hazardous material civil
penalties and concluded that they
should be increased to $55,000 and
$110,000, respectively, as the next
calculations show. The June 2009 CPI of
646.121 (the CPI in the year before the
year that the present adjustment is being
made) divided by the CPI for June 2005
of 582.6 (the year that the then-current
maximum penalty of $32,500 was reset
by SAFETEA–LU) equals an inflation
factor of 1.10903; $50,000 times 1.10903
equals $55,451.50. The raw inflation
adjustment amount of $5,452 is rounded
to the nearest $5,000, which is $5,000.
Because this is the first adjustment for
this penalty, any increase is capped at
10 percent of the current penalty
amount; $5,000 is 10 percent of $50,000
and does not exceed the 10 percent
limit. Therefore, the inflation-adjusted
ordinary maximum CMP is $50,000 plus
$5,000, or $55,000, and is applicable to
all of the hazardous material laws and
regulations enforced by FRA.
Applying the same calculations to the
$100,000 aggravated maximum penalty
for certain, more serious violations,
$100,000 times 1.10903 equals
$110,903. The raw inflation adjustment
amount of $10,903 is rounded to the
nearest $5,000, which is $10,000.
Because this is the first adjustment for
this penalty, any increase is capped at
10 percent of the current penalty
amount; $10,000 is 10 percent of
$100,000 and does not exceed the 10
percent limit. Therefore, the inflationadjusted aggravated maximum CMP for
certain hazardous material violations is
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$110,000. This maximum may apply to
CMPs for a violation of the hazardous
material laws or regulations that results
in death, serious illness, or severe injury
to a person or substantial destruction of
property. The new ordinary and
aggravated maximum CMPs will apply
to violations that occur on or after
September 27, 2010.
2. Minimum Civil Monetary Penalty for
Hazardous Materials Violations Related
to Training
FRA also reevaluated the minimum
CMP for a training violation and
determined that it should remain at
$450, as the following calculations
show: $450 times the inflation factor of
1.10903 equals $499. The raw inflation
adjustment amount of $49 is rounded to
the nearest $100, which is $0. The
inflation-adjusted minimum CMP for
training violations therefore does not
change, and remains at $450.
43841
significant regulatory action under
section 3(f) of Executive Order 12866
and, therefore, was not reviewed by the
Office of Management and Budget
(OMB). This rule is not significant
under DOT Regulatory Policies and
Procedures. 44 FR 11034. The cost of
complying with existing substantive
regulations is not being increased. The
adjustment for inflation of the
maximum and 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. This rule applies to shippers
and carriers of hazardous material and
persons who manufacture, mark, certify,
or sell packagings, containers and
3. Minimum Civil Monetary Penalty for
packaging components as qualified for
All Other Hazardous Material Violations
use in transporting hazardous materials
Applying the adjustment calculation,
in commerce, some of whom are small
FRA has determined that the minimum
entities. However, there is no economic
CMP for all other hazardous material
impact on any person who complies
violations should remain at $250, as the with Federal hazardous material
following calculations show: $250 times transportation law and the regulations,
the inflation factor of 1.10903 equals
orders, special permits and approvals
$277. The raw inflation adjustment
issued under that law.
amount of $27 is rounded to the nearest
C. Federalism
$100, which is $0. Therefore, the
minimum CMP remains at $250.
This final rule has been analyzed in
accordance with the principles and
Public Participation
criteria contained in Executive Order
FRA is proceeding to a final rule
13132 (‘‘Federalism’’), and the
without providing a notice of proposed
President’s May 20, 2009 memorandum
rulemaking or an opportunity for public on ‘‘Preemption’’ (74 FR 24693, May 22,
comment. Public comment is
2009). As amended in 2005, 49 U.S.C.
unnecessary because, in making these
5125(h) provided that the preemption
technical amendments, FRA is not
provisions in Federal hazardous
exercising discretion in a way that could material transportation law do ‘‘not
be informed by public comment. As
apply to any * * * penalty * * * utilized
such, notice and comment procedures
by a State, political subdivision of a
are ‘‘impracticable, unnecessary, or
State, or Indian tribe to enforce a
contrary to the public interest’’ within
requirement applicable to the
the meaning of the Administrative
transportation of hazardous material.’’
Procedure Act, 5 U.S.C. 553(b)(3)(B).
Accordingly, this final rule does not
Likewise, the adjustments required by
have any preemptive effect on the
the Inflation Act are ministerial acts
amount or nature of penalties imposed
over which FRA has no discretion,
by a State, local, or Indian Tribal
making public comment unnecessary.
government for violations of their
FRA is issuing these amendments as a
requirements which are consistent with
final rule applicable to all future
requirements in Federal hazardous
hazardous material civil penalty cases
material transportation law and the
under its authority to cite for violations
regulations prescribed under that law.
that occur on or after the effective date
Preparation of a federalism assessment
of this final rule.
is not warranted.
Regulatory Impact
D. International Trade Impact
Assessment
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
The Trade Agreement Act of 1979
prohibits Federal agencies from
This rule has been evaluated in
engaging in any standards or related
accordance with existing policies and
activities that create unnecessary
procedures. It is not considered a
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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations
E. Paperwork Reduction Act
The Final Rule
In consideration of the foregoing, Part
209 of Subtitle B, Chapter II of Title 49
of the Code of Federal Regulations is
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.
There are no new information
collection requirements in this final
rule.
§ 209.103
2. Section 209.103 is revised by:
a. Removing the numerical amount
‘‘$50,000’’ in paragraph (a) and replacing
it with the numerical amount ‘‘$55,000’’;
and
■ b. Removing the numerical amount
‘‘$100,000’’ in paragraph (a)(1) and
replacing it with the numerical amount
‘‘$110,000’’; and
■ c. Removing the date of ‘‘August 10,
2005’’ in paragraph (c) and replacing it
with ‘‘September 27, 2010’’.
The final rule issued today will not
result in the expenditure, in the
aggregate, of $141,300,000 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.
Note: This appendix will not appear in the
Code of Federal Regulations.
Appendix: ‘‘Step-by-Step Calculations
to Determine Civil Monetary Penalty
Updates: 2010’’
Step-by-Step Calculations to Determine
Hazardous Material Civil Penalty Inflation
Adjustments: 2010
Ordinary and Aggravated Maximum Civil
Penalties
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’’).
Maximum Civil Monetary Penalties
The current ordinary maximum CMP is
$50,000, set on August 10, 2005, by Section
7120 of the Hazardous Materials Safety and
Security Reauthorization Act of 2005 (Title
VII of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy
for Users (‘‘SAFETEA–LU,’’ Pub. L. 109–59,
119 Stat. 1905)), which amended 49 U.S.C.
5123(a).
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 2009 = 646.121
The CPI for June of the year the CMP was last
set or adjusted under the Inflation Act, i.e.,
CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living
Adjustment (COLA), or the Inflation Factor.
§ 209.105
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.
I. Privacy Act
Anyone is able to search the
electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
document (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70, pages 19477–78) or
online at https://www.dot.gov/
privacy.html.
List of Subjects in 49 CFR Part 209
Administrative practice and
procedure, Hazardous materials
Step 3: Find the Raw Inflation Adjustment
or Inflation Adjustment Before Rounding.
[Amended]
3. Section 209.105(c) is revised by:
a. Removing the numerical amount
‘‘$50,000’’ in the last sentence and
replacing it with the numerical amount
‘‘$55,000’’; and
■ b. Removing the numerical amount
‘‘$100,000’’ in the last sentence and
replacing it with the numerical amount
‘‘$110,000’’.
COLA =
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Issued in Washington, DC, on July 21,
2010.
Joseph C. Szabo,
Administrator, Federal Railroad
Administration.
Appendix B to Part 209—[AMENDED]
■ 4. Appendix B to Part 209 is amended
by:
■ a. Removing the numerical amount
‘‘$50,000’’ in the first paragraph below
the heading ‘‘APPENDIX B TO PART
209—FEDERAL RAILROAD
ADMINISTRATION GUIDELINES FOR
INITIAL HAZARDOUS MATERIAL
ASSESSMENTS’’ and replacing it with
the numerical amount ‘‘$55,000’’; and
■ b. Removing the numerical amount
‘‘$100,000’’ in the first paragraph below
the heading ‘‘APPENDIX B TO PART
209—FEDERAL RAILROAD
ADMINISTRATION GUIDELINES FOR
INITIAL HAZARDOUS MATERIALS
There are no significant
environmental impacts associated with
this final rule.
15:25 Jul 26, 2010
ASSESSMENTS’’ and replacing it with
the numerical amount ‘‘$110,000’’.
■ 5. Footnote 2 to Appendix B to Part
209 is amended by:
■ a. Removing the numerical amount
‘‘$50,000’’ and replacing it with the
numerical amount ‘‘$55,000’’; and
■ b. Removing the numerical amount
‘‘$100,000’’ and replacing it with the
numerical amount ‘‘$110,000’’.
■
■
G. Environmental Assessment
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[Amended]
■
■
F. Compliance With the Unfunded
Mandates Reform Act of 1995
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transportation, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
CPI for June 2009 646.121
=
= 1.10903
CPI for June 2005
582.6
Raw Inflation Adjustment = CMP × COLA =
$50,000 × 1.10903 = $55,451.50 ≈
$55,452
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Step 4: Round the Raw Inflation
Adjustment Amount.
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ER27JY10.000</MATH>
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.
Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations
CMP after rounding = Original CMP +
Rounded Increase = $50,000 + $5,000 =
$55,000
Step 6: Apply a 10% Ceiling if necessary.
10% of $50,000 is $5,000, so the increase
does not exceed the 10% cap.
Step 7: Determine New Penalty.
The new maximum CMP = $55,000
With respect to hazardous material
violations that occur on or after [insert date
60 days after publication], the maximum
CMP rises from $50,000 to $55,000.
The current maximum CMP for a
hazardous material violation that results in
death, serious illness, or severe injury to any
person or substantial destruction of property
is $100,000, set on August 10, 2005, by
nearest multiple of $5,000 is therefore
$10,000. Rounded, the $10,900 increase =
$10,000.
Step 5: Find the Inflation Adjusted Penalty
After Rounding.
CMP after rounding = Original CMP +
Rounded Increase = $100,000 + $10,000
= $110,000
Step 6: Apply a 10% Ceiling if necessary.
This is the first time that the statutorily
reset CMP is being adjusted, so the 10% cap
applies; 10% of $100,000 is $10,000, so the
increase does not exceed the 10% cap.
Step 7: Determine New Penalty.
The new aggravated maximum CMP for
certain hazardous material violations =
$110,000.
With respect to hazardous material
violations that occur on or after [insert date
60 days after publication], this aggravated
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COLA =
Step 3: Find the Raw Inflation Adjustment
or Inflation Adjustment Before Rounding.
Raw Inflation Adjustment = CMP × COLA =
$450 × 1.10903 = $499
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 = $499 ¥ $450 = $49
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.
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Minimum Civil Monetary Penalty for
Training Violations
The current minimum CMP for hazardous
material violations related to training is $450,
set on August 10, 2005, by Section 7120 of
the Hazardous Materials Safety and Security
Reauthorization Act of 2005.
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 2009 = 646.121.
The CPI for June of the year the CMP was last
set or adjusted under the Inflation Act, i.e.,
CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living
Adjustment (COLA), or the Inflation Factor.
CPI for June 2009 646.121
=
= 1.10903
CPI for June 2005
582.6
The nearest multiple of $100 is therefore
$0. Rounded, the $49 increase = $0.
Step 5: Find the Inflation Adjusted Penalty
After Rounding.
CMP after rounding = Original CMP +
Rounded Increase = $450 + $0 = $450.
Step 6: Apply a 10% Ceiling if necessary.
The penalty amount did not increase, so
the 10% cap does not apply.
Step 7: Determine New Penalty.
The new minimum CMP for training
violations = $450
With respect to hazardous material
violations that occur on or after [insert date
60 days after publication], the minimum
CMP for training violations remains $450.
COLA =
maximum CMP rises from $100,000 to
$110,000.
Minimum Civil Monetary Penalty for All
Other Hazardous Material Violations
The current minimum CMP is $250, set on
August 10, 2005, by Section 7120 of the
Hazardous Materials Safety and Security
Reauthorization Act of 2005 (Title VII of the
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (‘‘SAFETEA–LU,’’ Pub.
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 2009 = 646.121
The CPI for June of the year the civil penalty
was last set or adjusted under the Inflation
Act, i.e., CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living
Adjustment (COLA), or the Inflation Factor.
CPI for June 2009 646.121
=
= 1.10903
CPI for June 2005
582.6
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ER27JY10.003</MATH>
Step 3: Find the Raw Inflation Adjustment
or Inflation Adjustment Before Rounding.
Raw Inflation Adjustment = CMP × COLA =
$100,000 × 1.10903 = $110,903 ≈
$110,900
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 = $110,900 ¥ $100,000 =
$10,900.
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, p. 4.) Multiples of
$5,000 are $0, $5,000, $10,000. * * * The
CPI for June 2009 646.121
=
= 1.10903
CPI for June 2005
582.6
ER27JY10.002</MATH>
COLA =
Section 7120 of the Hazardous Materials
Safety and Security Reauthorization Act of
2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act:
A Legacy for Users (‘‘SAFETEA–LU,’’ Pub. L.
109–59, 119 Stat. 1905)), which amended 49
U.S.C. 5123(a).
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 2009 = 646.121
The CPI for June of the year the CMP was last
set or adjusted under the Inflation Act, i.e.,
CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living
Adjustment (COLA), or the Inflation Factor.
ER27JY10.001</MATH>
Recall that the increase in the CMP is
rounded, according to the rounding rules.
Increase = Raw Inflation Adjustment ¥
Original CMP = $55,452 ¥ $50,000 =
$5,452
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, p. 4.) Multiples of
$5,000 are $0, $5,000, $10,000. * * * The
nearest multiple of $5,000 is therefore
$5,000. Rounded, the $5,452 increase =
$5,000
Step 5: Find the Inflation Adjusted Penalty
After Rounding.
43843
43844
Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations
Step 3: Find the Raw Inflation Adjustment
or Inflation Adjustment Before Rounding.
Raw Inflation Adjustment = CMP × COLA =
$250 × 1.10903 = $277
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 = $277 ¥ $250 = $27
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
$0. Rounded, the $27 increase = $0.
Step 5: Find the Inflation Adjusted Penalty
After Rounding.
CMP after rounding = Original CMP +
Rounded Increase = $250 + $0 = $250.
Step 6: Apply a 10% Ceiling if Necessary.
The penalty amount did not increase, so
the 10% cap does not apply.
Step 7: Determine New Penalty.
The new minimum CMP = $250
With respect to hazardous materials
violations, other than training violations, that
occur on or after September 27, 2010, the
minimum CMP remains $250.
[FR Doc. 2010–18321 Filed 7–26–10; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R9-IA-2008-0116]
[90100-1660-1FLA B6]
RIN 1018–AW38
Endangered and Threatened Wildlife
and Plants; Determination on Listing
the Black-Breasted Puffleg as
Endangered Throughout its Range;
Final Rule
AGENCY:
Fish and Wildlife Service,
Interior.
Final rule.
ACTION:
We, the U.S. Fish and
Wildlife Service, determine endangered
status under the Endangered Species
Act of 1973 (Act), as amended, for the
black-breasted puffleg (Eriocnemis
nigrivestis), a hummingbird native to
Ecuador.
SUMMARY:
This rule becomes effective
August 26, 2010.
ADDRESSES: This final rule is available
on the Internet at https://
www.regulations.gov. Comments and
materials received, as well as supporting
documentation used in the preparation
of this rule, is available for public
jdjones on DSK8KYBLC1PROD with RULES
DATES:
VerDate Mar<15>2010
15:25 Jul 26, 2010
Jkt 220001
inspection by appointment during
normal business hours at: U.S. Fish and
Wildlife Service, Branch of Listing,
Endangered Species Program, 4401 N.
Fairfax Drive, Room 400, Arlington, VA
22203; telephone 703–358–2171.
FOR FURTHER INFORMATION CONTACT:
Janine Van Norman, Chief, Branch of
Foreign Species, Endangered Species
Program, U.S. Fish and Wildlife Service,
4401 N. Fairfax Drive, Room 420,
Arlington, VA 22203; telephone 703–
358–2171; facsimile 703–358–1735. If
you use a telecommunications devise
for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
On May 6, 1991, we received a
petition (1991 petition) from Alison
Stattersfield, of the International
Council for Bird Preservation (ICBP), to
list 53 foreign birds under the Act,
including the black-breasted puffleg
(also referred to in this rule as ‘‘puffleg’’)
that is the subject of this final rule. On
December 16, 1991, we made a positive
90–day finding and announced the
initiation of a status review of the
species included in the 1991 petition
(56 FR 65207). On March 28, 1994 (59
FR 14496), we published a 12–month
finding on the 1991 petition. In that
document, we announced our finding
that listing the remaining 38 species
from the 1991 petition, including the
black-breasted puffleg, was warranted
but precluded because of other listing
activity.
Per the Service’s listing priority
guidelines (September 21, 1983; 48 FR
43098), we identified the listing priority
numbers (LPNs) (ranging from 1 to 12)
for all outstanding foreign species in our
2007 Annual Notice of Review (ANOR)
(72 FR 20184), published on April 23,
2007. In that notice, the black-breasted
puffleg was designated with a LPN 2
and we determined that listing
continued to be warranted but
precluded. It should be noted that
‘‘Table 1 – Candidate Review,’’ in our
2007 ANOR, erroneously noted the
black-breasted puffleg as having an LPN
of 3. However, the correct LPN in 2007
was 2, as discussed in the body of the
notice (72 FR 20184, p. 20197).
Previous Federal Action
On January 12, 1995 (60 FR 2899), we
reiterated the warranted-but-precluded
status of the remaining species from the
1991 petition, with the publication of
the final rule to list the 30 African birds.
We made subsequent warranted-butprecluded findings for all outstanding
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
foreign species from the 1991 petition,
including the black-breasted puffleg, as
published in our annual notices of
review (ANOR) on May 21, 2004 (69 FR
29354), and April 23, 2007 (72 FR
20184).
On January 23, 2008, the United
States District Court ordered the Service
to propose listing rules for five foreign
bird species, actions which had been
previously determined to be warranted
but precluded: The Andean flamingo
(Phoenicoparrus andinus), blackbreasted puffleg (Eriocnemis nigrivestis),
Chilean woodstar (Eulidia yarrellii),
medium tree finch (Camarhynchus
pauper), and the St. Lucia forest thrush
(Cichlherminia lherminieri
sanctaeluciae). The court ordered the
Service to issue proposed listing rules
for these species by the end of 2008.
On July 29, 2008 (73 FR 44062), we
published in the Federal Register a
notice announcing our annual petition
findings for foreign species (2008
ANOR). In that notice, we announced
that listing was warranted for 30 foreign
bird species, including the blackbreasted puffleg, which is the subject of
this final rule.
Summary of Comments and
Recommendations
In the proposed rule published on
December 8, 2008 (73 FR 74427), we
requested that all interested parties
submit written comments on the
proposal by February 6, 2009. We
received six comments on the proposed
rule. We received one comment from
the Center for Biological Diversity
supporting the proposed listing, three
comments were from peer reviewers,
and two other comments were received
from the public that contained no
substantive information. We did not
receive any requests for a public
hearing.
Peer Review
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), we solicited expert opinion
from three knowledgeable individuals
with scientific expertise that included
familiarity with this species and its
habitat, biological needs, and threats.
We received responses from all three of
the peer reviewers.
We reviewed all comments received
from the peer reviewers for substantive
issues and new information regarding
the proposed listing of this species. The
peer reviewers generally concurred with
our methods and conclusions and
provided additional information,
clarifications, and suggestions to
improve the final listing determination.
Peer reviewer comments are addressed
E:\FR\FM\27JYR1.SGM
27JYR1
]]>Agencies
[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Rules and Regulations]
[Pages 43840-43844]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18321]
[[Page 43840]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[Docket No. FRA-2004-17530; Notice No. 2]
RIN 2130-ZA03
Inflation Adjustment of the Ordinary Maximum and Aggravated
Maximum Civil Monetary Penalties for a Violation of the Hazardous
Material Transportation Laws and Regulations
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is adjusting the ordinary maximum penalty and the
aggravated maximum penalty that it will apply when assessing a civil
monetary penalty for a violation of the Federal hazardous material
transportation laws or a regulation, special permit, or approval issued
under those laws. The aggravated maximum penalty is available only for
a violation that results in death, serious illness, or severe injury to
any person or substantial destruction of property. In particular, FRA
is increasing the ordinary maximum civil monetary penalty per violation
from $50,000 to $55,000 and the aggravated maximum civil penalty from
$100,000 to $110,000. The minimum civil monetary penalty for a
violation related to training remains at $450. The minimum civil
monetary penalty per violation for other hazardous material violations
remains at $250. These adjustments are required by the Federal Civil
Penalties Inflation Adjustment Act of 1990 as amended by the Debt
Collection Improvement Act of 1996.
DATES: Effective Date: September 27, 2010.
FOR FURTHER INFORMATION CONTACT: Roberta J. Stewart, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop
10, Washington, DC 20590 (telephone 202-493-6027),
roberta.stewart@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 penalties, 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
civil penalties 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 civil penalties by having the
agencies charged with enforcement responsibility administratively
adjust the civil penalties.
This final rule is published under the authority of 49 U.S.C. 5123
and 5124, which provide civil and criminal penalties for violations of
Federal hazardous material transportation law or a regulation, order,
special permit or approval issued under that law. The hazardous
material transportation regulations are issued by the Pipeline and
Hazardous Materials Safety Administration (PHMSA). 49 CFR 1.53(b). FRA
is authorized as the delegate of the Secretary of Transportation to
enforce the hazardous material statutes and regulations. 49 CFR
1.49(s).
Calculation of the Adjustment
The Inflation Act requires each Federal agency to periodically
adjust CMPs that it administers to consider the effects of inflation.
The Inflation Act is set forth in a note to 29 U.S.C. 2461. According
to Section 5 of the Inflation Act, the maximum and minimum CMPs must be
increased based on a ``cost-of-living adjustment'' determined by the
increase in the Consumer Price Index (CPI) for the month of June of the
calendar year preceding the adjustment as compared to the CPI for the
month of June in the year in which the last adjustment was made. 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; that the amount of the adjustment must be rounded to the
nearest multiple of $5,000, for a penalty between $10,000 and $100,000;
and that the first CMP adjustment is limited to 10 percent of the
original penalty amount. Any increased CMP applies only to violations
that occur after the date the increase takes effect. FRA utilizes
Bureau of Labor Statistics data to calculate inflation adjusted CMP
amounts.
Section 7120 of the Hazardous Materials Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(``SAFETEA-LU,'' Pub. L. 109-59, 119 Stat. 1905)) amended 49 U.S.C.
5123(a) to reset the maximum and minimum CMPs for a knowing violation
of the Federal hazardous material transportation laws, 49 U.S.C. 5101
et seq., or a regulation, order, special permit, or approval issued
under that law as follows:
--Maximum civil penalty: $50,000, except that amount may be increased
to $100,000 for a violation that results in death, serious illness, or
severe injury to a person or substantial destruction of property.
--Minimum civil penalty: $250, except that the minimum civil penalty
for a violation related to training is $450.
Before the enactment of SAFETEA-LU, the inflation-adjusted maximum
civil penalty for a hazardous material violation was $32,500, and the
inflation-adjusted minimum civil penalty for a hazardous materials
violation was $275. 69 FR 30590, May 28, 2004. To implement these
SAFETEA-LU amendments to the maximum and minimum penalties, FRA issued
a final rule that was published on December 26, 2006, 71 FR 77293,
making the new maximum and minimum penalties effective with respect to
violations on or after December 26, 2006.
Under the Inflation Act, FRA is now required to adjust the maximum
and minimum civil penalties set forth in 49 U.S.C. 5123(a), as amended
by SAFETEA-LU. Because these adjustments are the first adjustments to
the amounts reset in SAFETEA-LU, an increase in the maximum and minimum
civil penalty amounts is limited to 10 percent.
Because this adjustment and the amount thereof are mandated by
statute, notice of proposed rulemaking is unnecessary, and there is
good cause to make the adjusted ordinary maximum and aggravated maximum
civil penalties applicable to any violation occurring on or after
September 27, 2010. 5 U.S.C. 553(b), (d).
PHMSA recently issued a final rule to adjust its maximum and
minimum civil monetary penalties per the Inflation Act. See 74 FR 68701
(December 29, 2009). FRA's maximum and minimum CMPs that it assesses
for violations of the hazardous material transportation laws and
regulations have historically mirrored PHMSA's. However, for this round
of CMP inflation adjustments, FRA notes that there is one discrepancy
between PHMSA's adjusted CMPs and FRA's adjusted CMPs. Because PHMSA's
inflation adjustments were performed in calendar year 2009, PHMSA
calculated its new maximum
[[Page 43841]]
and minimum penalties using the CPIs from June 2008 and June 2005. FRA,
on the other hand, is calculating the inflation adjustment of its CMPs
for hazardous material violations in calendar year 2010, and is
therefore using the CPIs from June 2009 and June 2005. The CPI increase
between June 2008 and June 2005 was greater than the CPI increase
between June 2009 and June 2005. As calculated by PHMSA, its minimum
CMP for violations related to training increased ten percent from $450
to $495. 74 FR 68701. In FRA's calculations, as described below, the
minimum CMP for violations related to training remains at $450, due to
the different years of CPIs used to calculate the inflation increase.
Calculations To Determine Hazardous Material Civil Monetary Penalty
Updates for Violations On or After September 27, 2010
1. Ordinary and Aggravated Maximum Civil Monetary Penalties
As required, this year FRA reevaluated the ordinary and aggravated
maximum hazardous material civil penalties and concluded that they
should be increased to $55,000 and $110,000, respectively, as the next
calculations show. The June 2009 CPI of 646.121 (the CPI in the year
before the year that the present adjustment is being made) divided by
the CPI for June 2005 of 582.6 (the year that the then-current maximum
penalty of $32,500 was reset by SAFETEA-LU) equals an inflation factor
of 1.10903; $50,000 times 1.10903 equals $55,451.50. The raw inflation
adjustment amount of $5,452 is rounded to the nearest $5,000, which is
$5,000. Because this is the first adjustment for this penalty, any
increase is capped at 10 percent of the current penalty amount; $5,000
is 10 percent of $50,000 and does not exceed the 10 percent limit.
Therefore, the inflation-adjusted ordinary maximum CMP is $50,000 plus
$5,000, or $55,000, and is applicable to all of the hazardous material
laws and regulations enforced by FRA.
Applying the same calculations to the $100,000 aggravated maximum
penalty for certain, more serious violations, $100,000 times 1.10903
equals $110,903. The raw inflation adjustment amount of $10,903 is
rounded to the nearest $5,000, which is $10,000. Because this is the
first adjustment for this penalty, any increase is capped at 10 percent
of the current penalty amount; $10,000 is 10 percent of $100,000 and
does not exceed the 10 percent limit. Therefore, the inflation-adjusted
aggravated maximum CMP for certain hazardous material violations is
$110,000. This maximum may apply to CMPs for a violation of the
hazardous material laws or regulations that results in death, serious
illness, or severe injury to a person or substantial destruction of
property. The new ordinary and aggravated maximum CMPs will apply to
violations that occur on or after September 27, 2010.
2. Minimum Civil Monetary Penalty for Hazardous Materials Violations
Related to Training
FRA also reevaluated the minimum CMP for a training violation and
determined that it should remain at $450, as the following calculations
show: $450 times the inflation factor of 1.10903 equals $499. The raw
inflation adjustment amount of $49 is rounded to the nearest $100,
which is $0. The inflation-adjusted minimum CMP for training violations
therefore does not change, and remains at $450.
3. Minimum Civil Monetary Penalty for All Other Hazardous Material
Violations
Applying the adjustment calculation, FRA has determined that the
minimum CMP for all other hazardous material violations should remain
at $250, as the following calculations show: $250 times the inflation
factor of 1.10903 equals $277. The raw inflation adjustment amount of
$27 is rounded to the nearest $100, which is $0. Therefore, the minimum
CMP remains at $250.
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,
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 hazardous material 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 (OMB). This rule is not
significant under DOT Regulatory Policies and Procedures. 44 FR 11034.
The cost of complying with existing substantive regulations is not
being increased. The adjustment for inflation of the maximum and
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. This rule
applies to shippers and carriers of hazardous material and persons who
manufacture, mark, certify, or sell packagings, containers and
packaging components as qualified for use in transporting hazardous
materials in commerce, some of whom are small entities. However, there
is no economic impact on any person who complies with Federal hazardous
material transportation law and the regulations, orders, special
permits and approvals issued under that law.
C. Federalism
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''), and
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693,
May 22, 2009). As amended in 2005, 49 U.S.C. 5125(h) provided that the
preemption provisions in Federal hazardous material transportation law
do ``not apply to any * * * penalty * * * utilized by a State,
political subdivision of a State, or Indian tribe to enforce a
requirement applicable to the transportation of hazardous material.''
Accordingly, this final rule does not have any preemptive effect on the
amount or nature of penalties imposed by a State, local, or Indian
Tribal government for violations of their requirements which are
consistent with requirements in Federal hazardous material
transportation law and the regulations prescribed under that law.
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
[[Page 43842]]
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 $141,300,000 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.
I. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70,
pages 19477-78) or online at https://www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 209
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Final Rule
0
In consideration of the foregoing, Part 209 of Subtitle B, Chapter II
of Title 49 of the Code of Federal Regulations is amended as follows:
PART 209--[AMENDED]
0
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.
Sec. 209.103 [Amended]
0
2. Section 209.103 is revised by:
0
a. Removing the numerical amount ``$50,000'' in paragraph (a) and
replacing it with the numerical amount ``$55,000''; and
0
b. Removing the numerical amount ``$100,000'' in paragraph (a)(1) and
replacing it with the numerical amount ``$110,000''; and
0
c. Removing the date of ``August 10, 2005'' in paragraph (c) and
replacing it with ``September 27, 2010''.
Sec. 209.105 [Amended]
0
3. Section 209.105(c) is revised by:
0
a. Removing the numerical amount ``$50,000'' in the last sentence and
replacing it with the numerical amount ``$55,000''; and
0
b. Removing the numerical amount ``$100,000'' in the last sentence and
replacing it with the numerical amount ``$110,000''.
Appendix B to Part 209--[AMENDED]
0
4. Appendix B to Part 209 is amended by:
0
a. Removing the numerical amount ``$50,000'' in the first paragraph
below the heading ``APPENDIX B TO PART 209--FEDERAL RAILROAD
ADMINISTRATION GUIDELINES FOR INITIAL HAZARDOUS MATERIAL ASSESSMENTS''
and replacing it with the numerical amount ``$55,000''; and
0
b. Removing the numerical amount ``$100,000'' in the first paragraph
below the heading ``APPENDIX B TO PART 209--FEDERAL RAILROAD
ADMINISTRATION GUIDELINES FOR INITIAL HAZARDOUS MATERIALS ASSESSMENTS''
and replacing it with the numerical amount ``$110,000''.
0
5. Footnote 2 to Appendix B to Part 209 is amended by:
0
a. Removing the numerical amount ``$50,000'' and replacing it with the
numerical amount ``$55,000''; and
0
b. Removing the numerical amount ``$100,000'' and replacing it with the
numerical amount ``$110,000''.
Issued in Washington, DC, on July 21, 2010.
Joseph C. Szabo,
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 Updates: 2010''
Step-by-Step Calculations to Determine Hazardous Material Civil Penalty
Inflation Adjustments: 2010
Ordinary and Aggravated Maximum Civil Penalties
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'').
Maximum Civil Monetary Penalties
The current ordinary maximum CMP is $50,000, set on August 10,
2005, by Section 7120 of the Hazardous Materials Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(``SAFETEA-LU,'' Pub. L. 109-59, 119 Stat. 1905)), which amended 49
U.S.C. 5123(a).
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 2009 =
646.121
The CPI for June of the year the CMP was last set or adjusted under
the Inflation Act, i.e., CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living Adjustment (COLA), or the
Inflation Factor.
[GRAPHIC] [TIFF OMITTED] TR27JY10.000
Step 3: Find the Raw Inflation Adjustment or Inflation
Adjustment Before Rounding.
Raw Inflation Adjustment = CMP x COLA = $50,000 x 1.10903 =
$55,451.50 [ap] $55,452
Step 4: Round the Raw Inflation Adjustment Amount.
[[Page 43843]]
Recall that the increase in the CMP is rounded, according to the
rounding rules.
Increase = Raw Inflation Adjustment - Original CMP = $55,452 -
$50,000 = $5,452
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, p. 4.) Multiples
of $5,000 are $0, $5,000, $10,000. * * * The nearest multiple of
$5,000 is therefore $5,000. Rounded, the $5,452 increase = $5,000
Step 5: Find the Inflation Adjusted Penalty After Rounding.
CMP after rounding = Original CMP + Rounded Increase = $50,000 +
$5,000 = $55,000
Step 6: Apply a 10% Ceiling if necessary.
10% of $50,000 is $5,000, so the increase does not exceed the
10% cap.
Step 7: Determine New Penalty.
The new maximum CMP = $55,000
With respect to hazardous material violations that occur on or
after [insert date 60 days after publication], the maximum CMP rises
from $50,000 to $55,000.
The current maximum CMP for a hazardous material violation that
results in death, serious illness, or severe injury to any person or
substantial destruction of property is $100,000, set on August 10,
2005, by Section 7120 of the Hazardous Materials Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(``SAFETEA-LU,'' Pub. L. 109-59, 119 Stat. 1905)), which amended 49
U.S.C. 5123(a).
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 2009 =
646.121
The CPI for June of the year the CMP was last set or adjusted under
the Inflation Act, i.e., CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living Adjustment (COLA), or the
Inflation Factor.
[GRAPHIC] [TIFF OMITTED] TR27JY10.001
Step 3: Find the Raw Inflation Adjustment or Inflation
Adjustment Before Rounding.
Raw Inflation Adjustment = CMP x COLA = $100,000 x 1.10903 =
$110,903 [ap] $110,900
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 = $110,900 -
$100,000 = $10,900.
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, p. 4.) Multiples
of $5,000 are $0, $5,000, $10,000. * * * The nearest multiple of
$5,000 is therefore $10,000. Rounded, the $10,900 increase =
$10,000.
Step 5: Find the Inflation Adjusted Penalty After Rounding.
CMP after rounding = Original CMP + Rounded Increase = $100,000 +
$10,000 = $110,000
Step 6: Apply a 10% Ceiling if necessary.
This is the first time that the statutorily reset CMP is being
adjusted, so the 10% cap applies; 10% of $100,000 is $10,000, so the
increase does not exceed the 10% cap.
Step 7: Determine New Penalty.
The new aggravated maximum CMP for certain hazardous material
violations = $110,000.
With respect to hazardous material violations that occur on or
after [insert date 60 days after publication], this aggravated
maximum CMP rises from $100,000 to $110,000.
Minimum Civil Monetary Penalty for Training Violations
The current minimum CMP for hazardous material violations
related to training is $450, set on August 10, 2005, by Section 7120
of the Hazardous Materials Safety and Security Reauthorization Act
of 2005.
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 2009
= 646.121.
The CPI for June of the year the CMP was last set or adjusted under
the Inflation Act, i.e., CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living Adjustment (COLA), or the
Inflation Factor.
[GRAPHIC] [TIFF OMITTED] TR27JY10.002
Step 3: Find the Raw Inflation Adjustment or Inflation
Adjustment Before Rounding.
Raw Inflation Adjustment = CMP x COLA = $450 x 1.10903 = $499
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 = $499 - $450 =
$49
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 $0. Rounded, the $49
increase = $0.
Step 5: Find the Inflation Adjusted Penalty After Rounding.
CMP after rounding = Original CMP + Rounded Increase = $450 + $0 =
$450.
Step 6: Apply a 10% Ceiling if necessary.
The penalty amount did not increase, so the 10% cap does not
apply.
Step 7: Determine New Penalty.
The new minimum CMP for training violations = $450
With respect to hazardous material violations that occur on or
after [insert date 60 days after publication], the minimum CMP for
training violations remains $450.
Minimum Civil Monetary Penalty for All Other Hazardous Material
Violations
The current minimum CMP is $250, set on August 10, 2005, by
Section 7120 of the Hazardous Materials Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(``SAFETEA-LU,'' Pub.
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 2009 =
646.121
The CPI for June of the year the civil penalty was last set or
adjusted under the Inflation Act, i.e., CPI for June 2005 = 582.6
Step 2: Calculate the Cost of Living Adjustment (COLA), or the
Inflation Factor.
[GRAPHIC] [TIFF OMITTED] TR27JY10.003
[[Page 43844]]
Step 3: Find the Raw Inflation Adjustment or Inflation
Adjustment Before Rounding.
Raw Inflation Adjustment = CMP x COLA = $250 x 1.10903 = $277
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 = $277 - $250 =
$27
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 $0. Rounded, the $27
increase = $0.
Step 5: Find the Inflation Adjusted Penalty After Rounding.
CMP after rounding = Original CMP + Rounded Increase = $250 + $0 =
$250.
Step 6: Apply a 10% Ceiling if Necessary.
The penalty amount did not increase, so the 10% cap does not
apply.
Step 7: Determine New Penalty.
The new minimum CMP = $250
With respect to hazardous materials violations, other than
training violations, that occur on or after September 27, 2010, the
minimum CMP remains $250.
[FR Doc. 2010-18321 Filed 7-26-10; 8:45 am]
BILLING CODE 4910-06-P
