Civil Monetary Penalty Inflation Adjustment

Federal RegisterMar 10, 1998

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209, 213, 214, 215, 216, 217, 218, 219, 220, 221, 223,

225, 228, 229, 230, 231, 232, 233, 234, 235, 236, and 240

[Docket No. RSEP-8, Notice 1]

RIN 2105-AC63

Civil Monetary Penalty Inflation Adjustment

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FRA is implementing the requirements of the Federal Civil

Penalties Inflation Adjustment Act of 1990, as amended by the Debt

Collection Improvement Act of 1996 in this final rule. FRA is adjusting

the maximum civil monetary penalties it issues for violations of

railroad safety statutes and regulations under its authority.

EFFECTIVE DATE: April 9, 1998.

FOR FURTHER INFORMATION CONTACT: Cynthia Walters, Trial Attorney,

Office of Chief Counsel, FRA, 400 Seventh Street S.W., Washington, D.C.

20590 (telephone 202-632-3188).

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation

Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, 28 U.S.C.

2461, note (Act), 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, requires that agencies adjust by regulation each

maximum civil monetary penalty (CMP) within that agency's jurisdiction

by October 23, 1996 (180 days after enactment of the Debt Collection

Improvement Act) and adjust those penalty amounts once every four years

thereafter. Congress recognized the important role that CMPs play in

deterring violations of Federal law and regulations and realized that

inflation has diminished the impact of these penalties. In the Debt

Collection Improvement Act, Congress found a way to counter the effect

that inflation has had on the CMPs by having the agencies charged with

enforcement responsibility administratively adjust the CMP.

Calculation of the Adjustment

The inflation adjustment is to be calculated by increasing the

maximum civil monetary penalty or the range of minimum and maximum CMPs

by the percentage that the Consumer Price Index (CPI) for the month of

June 1995 (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

utilized Bureau of Labor Statistics Data to calculate adjusted CMP

amounts.

FRA currently has 21 regulations that contain provisions which

reference its ability to impose civil penalties if a person violates

any requirement in the pertinent portion of a statute or the Code of

Federal Regulations. In this final rule, FRA is amending each of those

separate regulatory provisions to reflect the increased maximum CMP and

the corresponding footnotes in each Schedule of Civil Penalties. In

some instances, FRA is amending the corresponding appendices to these

regulatory provisions, which outline FRA enforcement policy, as well.

With the exception of the provisions relating to the Hours of Service

Laws contained in Part 228, FRA's maximum penalty was established by

the Rail Safety Improvement Act of 1988, which set a $10,000 limit for

a penalty imposed for any single violation and a $20,000 limit for

willful violation where a grossly negligent violation or pattern of

repeat violations has created an imminent hazard of death or injury or

has actually caused death or injury. By applying the adjustment

calculation described above using the 1988 CPI, these maximum penalties

will rise to $11,000 and $22,000, respectively, in each of the

regulations being amended. The Rail Safety Enforcement and Review Act

of 1992 increased the maximum civil penalty from $1,000 to $10,000 and

$20,000, respectively, for violations of the Hours of Service Laws,

making these penalty amounts uniform with those of FRA's other

regulatory provisions. By applying the same adjustment calculation

using the 1992 CPI, the maximum penalties for violations of the Hours

of Service Laws are equivalent to those of the other regulations,

$11,000 and $22,000.

FRA is also responsible for enforcement in instances where

violations of the hazardous materials regulations involve railroads and

those who ship by rail. The hazardous materials regulations are not

issued by FRA but are issued by the Research and Special Projects

Administration (RSPA), a component of DOT. The relevant portions of the

RSPA regulations have been revised (see 62 FR 2970) to reflect the

calculation that the new statutory maximum is $27,500. Since FRA has

previously issued a policy statement concerning its enforcement of

these regulations, FRA is modifying the language in the policy

statement which references the statutory maximum to reflect this new

maximum of $27,500 in this final rule, as well as the provisions in 49

CFR Part 209 addressing hazardous materials.

Except for the hazardous materials regulations, these new FRA

maximum penalties will apply to violations that occur on or after April

1, 1998. RSPA has already determined that the new maximums for

hazardous materials violations apply to violations that occurred after

January 21, 1997.

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. FRA is issuing these

amendments as a final rule applicable to all future cases under its

authority.

[[Page 11619]]

Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This rule has been evaluated in accordance with existing policies

and procedures. It is not considered a significant regulatory action

under section 3(f) of Executive Order 12866 and therefore was not

reviewed by the Office of Management and Budget. This rule is not

significant under the Regulatory Policies and Procedures of the

Department of Transportation (44 FR 11034). The economic impact of the

final rule is minimal to the extent that preparation of a regulatory

evaluation is not warranted.

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 who are considered small entities

there is no economic impact on any person who complies with the Federal

railroad safety laws.

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 12612,

preparation of a Federalism assessment is not warranted.

Paperwork Reduction Act

There are no new information collection requirements in this final

rule.

Compliance with the Unfunded Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-

4) each federal agency ``shall, unless otherwise prohibited by law,

assess the effects of Federal Regulatory actions on State, local, and

tribal governments, and the private sector (other than to the extent

that such regulations incorporate requirements specifically set forth

in law).'' Section 201. Section 202 of the Act further requires that

``before promulgating any general notice of proposed rulemaking that is

likely to result in promulgation of any rule that includes any Federal

mandate that may result in the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector, of $

100,000,000 or more (adjusted annually for inflation) in any 1 year,

and before promulgating any final rule for which a general notice of

proposed rulemaking was published, the agency shall prepare a written

statement * * * '' detailing the effect on State, local and tribal

governments and the private sector. The final rule issued today will

not result in the expenditure, in the aggregate, of $100,000,000 or

more in any one year, and thus preparation of a statement is not

required.

List of Subjects in 49 CFR Parts 209, 213, 214, 215, 216, 217, 218,

219, 220, 221, 223, 225, 228, 229, 230, 231, 232, 233, 234, 235,

236, 240

Railroad safety, Penalties.

Therefore, in consideration of the foregoing, parts 209, 213, 214,

215, 216, 217, 218, 219, 220, 221, 223, 225, 228, 229, 230, 231, 232,

233, 234, 235, 236, 240 Title 49, Code of Federal Regulations are

amended as follows:

PART 209--[AMENDED]

1. The authority citation for part 209 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49

Sec. 209.103 [Amended]

2. Section 209.103 is amended by removing the numerical amount

``$25,000'' and adding in its place the numerical amount ``$27,500''.

Sec. 209.335 [Amended]

3. Section 209.335(b) is amended by removing the numerical amount

``$10,000'' and adding in its place the numerical amount ``$11,000''.

Sec. 209.409 [Amended]

4. Section 209.409 is amended by removing the numerical amount

``$10,000'' and adding in its place the numerical amount ``$11,000''

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 209--[Amended]

5. In appendix A to part 209, the section entitled Penalty

Schedules; Assessment of Maximum Penalties is revised to read as

follows:

* * * * *

As recommended by the Department of Transportation in its

initial proposal for rail safety legislative revisions in 1987, the

RSIA raised the maximum civil penalties for violations of the safety

regulations. Under the Hours of Service Act, the penalty was changed

from a flat $500 to a penalty of ``up to $1,000, as the Secretary of

Transportation deems reasonable.'' Under all the other statutes, the

maximum penalty was raised from $2,500 to $10,000 per violation,

except that ``where a grossly negligent violation or pattern of

repeated violations has created an imminent hazard of death or

injury to persons, or has caused death or injury,'' a penalty of up

to $20,000 per violation may be assessed.

The Rail Safety Enforcement and Review Act of 1992 (RSERA)

increased the maximum penalty from $1,000 to $10,000 and in some

cases, $20,000 for a violation of the Hours of Service Laws, making

these penalty amounts uniform with those of FRA's other regulatory

provisions. RSERA also increased the minimum civil monetary penalty

from $250 to $500 for all of FRA's regulatory provisions. The

Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law

101-410, 104 Stat. 890, 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 required that agencies adjust by

regulation each maximum civil monetary penalty within the agency's

jurisdiction for inflation and make subsequent adjustments once

every four years after the initial adjustment. Accordingly, FRA's

maximum civil monetary penalties have been adjusted.

FRA's traditional practice has been to issue penalty schedules

assigning to each particular regulation specific dollar amounts for

initial penalty assessments. The schedule (except where issued after

notice and an opportunity for comment) constitutes a statement of

agency policy, and is ordinarily issued as an appendix to the

relevant part of the Code of Federal Regulations. For each

regulation, the schedule shows two amounts within the $500 to

$11,000 range in separate columns, the first for ordinary

violations, the second for willful violations (whether committed by

railroads or individuals). In one instance--part 231--the schedule

refers to sections of the relevant FRA defect code rather than to

sections of the CFR text. Of course, the defect code, which is

simply a reorganized version of the CFR text used by FRA to

facilitate computerization of inspection data, is substantively

identical to the CFR text.

The schedule amounts are meant to provide guidance as to FRA's

policy in predictable situations, not to bind FRA from using the

full range of penalty authority where extraordinary circumstances

warrant. The Senate report on the bill that became the RSIA stated:

It is expected that the Secretary would act expeditiously to set

penalty levels commensurate with the severity of the violations,

with imposition of the maximum penalty reserved for violation of any

regulation where warranted by exceptional circumstances. S. Rep. No.

100-153, 10th Cong., 2d Sess. 8 (1987).

Accordingly, under each of the schedules (ordinarily in a

footnote), and regardless of the fact that a lesser amount might be

shown in both columns of the schedule, FRA reserves the right to

assess the statutory maximum penalty of up to $22,000 per violation

where a grossly negligent violation has created an imminent hazard

of death or injury. This authority

[[Page 11620]]

to assess a penalty for a single violation above $11,000 and up to

$22,000 is used only in very exceptional cases to penalize egregious

behavior. Where FRA avails itself of this right to use the higher

penalties in place of the schedule amount it so indicates in its

penalty demand letter.

* * * * *

PART 213--[AMENDED]

6. The authority citation for Part 213 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49

Sec. 213.15 [Amended]

7. Section 213.15 is amended by:

a. Removing parenthetical text following the word ``person'' and

adding in its place: ``(an entity of any type covered under 1 U.S.C. 1,

including but not limited to the following: a railroad; a manager,

supervisor, official, or other employee or agent of a railroad; any

owner, manufacturer, lessor, or lessee of railroad equipment, track, or

facilities; any independent contractor providing goods or services to a

railroad; and any employee of such owner, manufacturer, lessor, lessee,

or independent contractor)'.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500'', removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix B to Part 213--[Amended]

8. Footnote 1 to appendix B of part 213 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 214--[AMENDED]

9. The authority citation for part 214 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49

Sec. 214.5 [Amended]

10. Section 214.5 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 214--[Amended]

11. Footnote 1 to appendix A of part 214 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 215--[AMENDED]

12. The authority citation for Part 215 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 215.7 [Amended]

13. Section 215.7 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix B to Part 215--[Amended]

14. Footnote 1 to appendix B of part 215 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 216--[AMENDED]

15. The authority citation for part 216 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 216.7 [Amended]

16. Section 216.7 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

PART 217--[AMENDED]

17. The authority citation for part 217 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 217.5 [Amended]

18. Section 217.5 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 217--[Amended]

19. Footnote 1 to appendix A of part 217 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

[[Page 11621]]

PART 218--[AMENDED]

20. The authority citation for part 218 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 218.9 [Amended]

21. Section 218.9 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 218--[Amended]

22. Footnote 1 to appendix A of part 218 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 219--[AMENDED]

23. The authority citation for part 219 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20140, and 49 CFR 1.49.

Sec. 219.9(a) [Amended]

24. Section 219.9(a) is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 219--[Amended]

25. Footnote 1 to appendix A of part 219 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 220--[AMENDED]

26. The authority citation for part 220 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 220.7 [Amended]

27. Section 220.7 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix C to Part 220--[Amended]

28. Footnote 1 to appendix C of part 220 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 221--[AMENDED]

29. The authority citation for part 221 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 221.17 [Amended]

30. Section 221.7 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 220--[Amended]

31. Footnote 1 to appendix A of part 220 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 223--[AMENDED]

32. The authority citation for part 223 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 223.7 [Amended]

33. Section 223.7 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix B to Part 223--[Amended]

34. Footnote 1 to appendix B of part 223 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 225--[AMENDED]

35. The authority citation for part 225 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20901, 21301-21302, and 49

CFR 1.49.

[[Page 11622]]

Sec. 225.29 [Amended]

36. Section 225.29 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 225--[Amended]

37. Footnote 1 to appendix A of part 225 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 228--[AMENDED]

38. The authority citation for part 228 is revised to read as

follows:

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

Sec. 228.21 [Amended]

39. Section 228.21 is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 228--[Amended]

40. In appendix A to part 228, the section entitiled Penalty is

revised to read as follows:

* * * * *

As amended by the Rail Safety Improvement Act of 1988 and the

Rail Safety Enforcement and Review Act of 1992, the penalty

provisions of the law apply to any person (an entity of any type

covered under 1 U.S.C. 1, including but not limited to the

following: a railroad; a manager, supervisor, official, or other

employee or agent of a railroad; any owner, manufacturer, lessor, or

lessee of railroad equipment, track, or facilities; any independent

contractor providing goods or services to a railroad; and any

employee of such owner, manufacturer, lessor, lessee, or independent

contractor), except that a penalty may be assessed against an

individual only for a willful violation. See appendix A to 49 CFR

part 209. For violations that occurred on September 3, 1992, a

person who violates the Act is liable for a civil penalty, as the

Secretary of Transportation deems reasonable, in an amount not less

than $500 nor more than $11,000, except that where a grossly

negligent violation or a pattern of repeated violations has created

an imminent hazard of death or injury to persons, or has caused

death or injury, a penalty not to exceed $22,000 may be assessed.

The Federal Civil Penalties Inflation Adjustment Act of 1990 as

amended by the Debt Collection Improvement Act of 1996 required

agencies to increase the maximum civil monetary penalty for

inflation. The amounts increased from $10,000 to $11,000 and from

$20,000 to $22,000 respectively.

Each employee who is required or permitted to be on duty for a

longer period than prescribed by law or who does not receive a

required period of rest represents a separate and distinct violation

and subjects the railroad to a separate civil penalty. In the case

of a violation of section 2(a)(3) or (a)(4) of the Act, each day a

facility is in noncompliance constitutes a separate offense and

subjects the railroad to a separate civil penalty.

In compromising a civil penalty assessed under the Act, FRA

takes into account the nature, circumstances, extent, and gravity of

the violation committed, and, with respect to the person found to

have committed such violation, the degree of culpability, any

history of prior or subsequent offenses, ability to pay, effect on

ability to continue to do business and such other matters as justice

may require.

* * * * *

PART 229--[AMENDED]

41. The authority citation for part 229 is revised to read as

follows:

Authority: 49 U.S.C., 20103, 20107, 20701-20703, and 49 CFR

1.49.

Sec. 229.7 [Amended]

42. Section 229.7(b) is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix B to Part 229--[Amended]

43. Footnote 1 to appendix B of part 229 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 230--[AMENDED]

44. The authority citation for part 230 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

45. Section 230.0 is amended by:

Sec. 230.0 [Amended]

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

[[Page 11623]]

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

PART 231--[AMENDED]

46. The authority citation for part 231 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20301-20306, and 49 CFR 1.49.

Sec. 231.0 [Amended]

47. Section 231.0(e) is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 231--[Amended]

48. Footnote 1 to appendix A of part 231 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 232--[AMENDED]

49. The authority citation for part 232 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

Sec. 232.0 [Amended]

50. Section 232.0 (e) is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$250'' and adding in its place

the numerical amount ``$500''; removing the numerical amount

``$10,000''; and adding in its place the numerical amount ``$11,000'';

and removing the numerical amount ``$20,000'' and adding in its place

the numerical amount ``$22,000''.

Appendix A to Part 232--[Amended]

51. Footnote 1 to appendix A of part 232 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 233--[AMENDED]

52. The authority citation for Part 233 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

53. Section 233.11 is revised to read as follows:

Sec. 233.11 Civil penalties.

Any person (an entity of any type covered under 1 U.S.C. 1,

including but not limited to the following: a railroad; a manager,

supervisor, official, or other employee or agent of a railroad; any

owner, manufacturer, lessor, or lessee of railroad equipment, track, or

facilities; any independent contractor providing goods or services to a

railroad; and any employee of such owner, manufacturer, lessor, lessee,

or independent contractor) who violates any requirement of this part or

causes the violation of any such requirement is subject to a civil

penalty of at least $500 and not more than $11,000 per violation,

except that: Penalties may be assessed against individuals only for

willful violations, and, where a grossly negligent violation or a

pattern of repeated violations has created an imminent hazard of death

or injury to persons, or has caused death or injury, a penalty not to

exceed $22,000 per violation may be assessed. Each day a violation

continues shall constitute a separate offense. See appendix A to this

part for a statement of agency civil penalty policy.

Appendix A to Part 233--[Amended]

54. Footnote 1 to appendix A of part 233 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 234--[AMENDED]

55. The authority citation for part 234 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, and 49 CFR 1.49.

Sec. 234.6 [Amended]

56. Section 234.6(a) is amended by:

a. Removing the parenthetical text following the word ``person''

and adding in its place: ``(an entity of any type covered under 1

U.S.C. 1, including but not limited to the following: a railroad; a

manager, supervisor, official, or other employee or agent of a

railroad; any owner, manufacturer, lessor, or lessee of railroad

equipment, track, or facilities; any independent contractor providing

goods or services to a railroad; and any employee of such owner,

manufacturer, lessor, lessee, or independent contractor)''.

b. Removing the numerical amount ``$10,000''; and adding in its

place the numerical amount ``$11,000''; and removing the numerical

amount ``$20,000'' and adding in its place the numerical amount

``$22,000''.

Appendix A to Part 234--[Amended]

57. Footnote 1 to appendix A of part 234 is amended by removing the

numerical amount ``$20,000'' and adding in its place the numerical

amount ``$22,000''.

PART 235--[AMENDED]

58. The authority citation for part 235 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, and 49 CFR 1.49.

59. Section 235.9 is revised to read as follows:

Sec. 235.9 Civil penalty.