
[Federal Register: July 27, 2010 (Volume 75, Number 143)]
[Rules and Regulations]               
[Page 43840-43844]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy10-18]                         


[[Page 43840]]

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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.

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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

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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

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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 http://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

