05-13185. Inflation Adjustment of the Ordinary Maximum Civil Monetary Penalty for a Violation of a Federal Railroad Safety Law or Federal Railroad Administration Safety Regulation

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Final rule; withdrawal.

SUMMARY:

FRA is withdrawing its final rule that adjusted from $11,000 to $15,000 the ordinary maximum civil penalty that applies when a civil penalty for a violation of railroad safety statutes and regulations is assessed under its authority, due to an error in the application of the rounding rules found in the applicable statute. The ordinary maximum civil penalty will remain at $11,000.

DATES:

The final rule published on June 8, 2005, at 70 FR 33380 is withdrawn in its entirety as of July 6, 2005.

FOR FURTHER INFORMATION CONTACT:

Carolina Mirabal, Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone [phone]), [e-mail].

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 CMPs, within that agency's jurisdiction by October 23, 1996 and to adjust those penalty amounts once every four years thereafter to reflect inflation. Public Law 101-410, 104 Stat. 890, as amended by Section 31001(s) of the Debt Collection Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-373, April 26, 1996, 28 U.S.C. 2461, note. 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 Inflation 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 CMPs.

Calculation of the Adjustment

Under the Inflation Act, the inflation adjustment is calculated by increasing the maximum CMP, or the range of minimum and maximum CMPs, by the percentage that the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment (here, June 2004) 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 (here, June 1998 for the ordinary maximum). Section 5(a) of 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, or to the nearest multiple of $5,000 for a penalty of more than $10,000 and less than or equal to $100,000. The first adjustment may not exceed an increase of ten percent. FRA utilized Bureau of Labor Statistics data to calculate adjusted CMP amounts.

FRA is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes and regulations, including the civil penalty provisions at 49 U.S.C. ch. 213. 49 CFR 1.49; 49 U.S.C. ch. 201-213. FRA currently has 27 regulations that contain provisions that reference its authority 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 retracting its June 8, 2005 amendments to each of those separate regulatory provisions and the corresponding footnotes in each Schedule of Civil Penalties that raised the ordinary maximum CMP from $11,000 to $15,000. The ordinary maximum CMP should remain at $11,000, as shown below:

The June 2004 CPI of 568.2 divided by the June 1998 CPI of 488.2 equals an inflation factor of 1.164; $11,000 multiplied by 1.164 equals $12,804, or an increase of $1,804. The increase of $1,804 is then rounded to the nearest multiple of $5,000, which in this case is $0. Thus, the ordinary maximum will remain at $11,000. In the final rule, 70 FR 33380, FRA erroneously rounded to the nearest multiple of $5,000 the amount of $12,804, instead of the increased amount ($1,804) as required by the Inflation Act.

List of Subjects in 49 CFR Parts 209, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 225, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 240, 241, and 244

• Penalties
• Railroad safety

The Final Rule

In consideration of the foregoing, the final rule published on June 8, 2005 at 70 FR 33380 is hereby withdrawn.

Issued in Washington, DC on June 28, 2005.

Joseph H. Boardman,

Administrator, Federal Railroad Administration.