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[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR209]

[Page 16-58]
 

TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES


                           Subpart A--General

Sec.
209.1 Purpose.
209.3 Definitions.
209.5 Service.
209.6 Requests for admission.
209.7 Subpoenas; witness fees.
209.8 Depositions in formal proceedings.
209.9 Filing.
209.11 Request for confidential treatment.
209.13 Consolidation.
209.15 Rules of evidence.
209.17 Motions.

                Subpart B--Hazardous Materials Penalties

                             Civil Penalties

209.101 Civil penalties generally.
209.103 Minimum and maximum penalties.
209.105 Notice of probable violation.
209.107 Reply.
209.109 Payment of penalty; compromise.
209.111 Informal response and assessment.
209.113 Request for hearing.
209.115 Hearing.
209.117 Presiding officer's decision.
209.119 Assessment considerations.
209.121 Appeal.

[[Page 17]]

                           Criminal Penalties

209.131 Criminal penalties generally.
209.133 Referral for prosecution.

                      Subpart C--Compliance Orders

209.201 Compliance orders generally.
209.203 Notice of investigation.
209.205 Reply.
209.207 Consent order.
209.209 Hearing.
209.211 Presiding officer's decision.
209.213 Appeal.
209.215 Time limitation.

                 Subpart D--Disqualification Procedures

209.301 Purpose and scope.
209.303 Coverage.
209.305 Notice of proposed disqualification.
209.307 Reply.
209.309 Informal response.
209.311 Request for hearing.
209.313 Discovery.
209.315 Subpoenas.
209.317 Official record.
209.319 Prehearing conference.
209.321 Hearing.
209.323 Initial decision.
209.325 Finality of decision.
209.327 Appeal.
209.329 Assessment considerations.
209.331 Enforcement of disqualification order.
209.333 Prohibitions.
209.335 Penalties.
209.337 Information collection.

                Subpart E--Reporting of Remedial Actions

209.401 Purpose and scope.
209.403 Applicability.
209.405 Reporting of remedial actions.
209.407 Delayed reports.
209.409 Penalties.

Appendix A to Part 209--Statement of Agency Policy Concerning 
          Enforcement of the Federal Railroad Safety Laws
Appendix B to Part 209--Federal Railroad Administration Guidelines for 
          Initial Hazardous Materials Assessments
Appendix C to Part 209--FRA's Policy Statement Concerning Small Entities

    Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20114, and 49 CFR 
1.49.

    Source: 42 FR 56742, Oct. 28, 1977, unless otherwise noted.

                           Subpart A--General

Sec. 209.1  Purpose.

    Appendix A to this part contains a statement of agency policy 
concerning enforcement of those laws. This part describes certain 
procedures employed by the Federal Railroad Administration in its 
enforcement of statutes and regulations related to railroad safety. By 
delegation from the Secretary of Transportation, the Administrator has 
responsibility for:
    (a) Enforcement of subchapters B and C of chapter I, subtitle B, 
title 49, CFR, with respect to the transportation or shipment of 
hazardous materials by railroad (49 CFR 1.49(s));
    (b) Exercise of the authority vested in the Secretary by the Federal 
Railroad Safety Act of 1970, 45 U.S.C. 421, 431-441, as amended by the 
Rail Safety Improvement Act of 1988, Public Law 100-342 (June 22, 1988) 
(49 CFR 1.49(m)); and
    (c) Exercise of the authority vested in the Secretary pertaining to 
railroad safety as set forth in the statutes transferred to the 
Secretary by section 6(e) of the Department of Transportation Act, 49 
App. U.S.C. 1655(e) (49 CFR 1.49 (c), (d), (f), and (g)).

[42 FR 56742, Oct. 28, 1977, as amended at 53 FR 52920, Dec. 29, 1988; 
54 FR 42905, Oct. 18, 1989]

Sec. 209.3  Definitions.

    As used in this part--
    Administrator means the Administrator of FRA, the Deputy 
Administrator of FRA, or the delegate of either.
    Chief Counsel means the Chief Counsel of FRA or his or her delegate.
    Day means calendar day.
    Federal railroad safety laws means the provisions of law generally 
at 49 U.S.C. subtitle V, part A or 49 U.S.C. chap. 51 or 57 and the 
rules, regulations, orders, and standards issued under any of those 
provisions. See Pub. L. 103-272 (1994). Before recodification, these 
statutory provisions were contained in the following statutes: (i) the 
Federal Railroad Safety Act of 1970 (Safety Act) (49 U.S.C. 20101-20117, 
20131, 20133-20141, 20143, 21301, 21302, 21304, 21311, 24902, and 24905, 
and sections 4(b)(1), (i), and (t) of Pub. L. 103-272, formerly codified 
at 45 U.S.C. 421, 431 et seq.); (ii) the Hazardous Materials 
Transportation Act (Hazmat Act) (49 U.S.C. 5101 et seq., formerly 
codified at 49 App. U.S.C. 1801 et seq.); (iii) the Sanitary Food 
Transportation Act of 1990 (SFTA) (49 U.S.C.

[[Page 18]]

5713, formerly codified at 49 App. U.S.C. 2801 (note)); and those laws 
transferred to the jurisdiction of the Secretary of Transportation by 
subsection (e)(1), (2), and (6)(A) of section 6 of the Department of 
Transportation Act (DOT Act), as in effect on June 1, 1994 (49 U.S.C. 
20302, 21302, 20701-20703, 20305, 20502-20505, 20901, 20902, and 80504, 
formerly codified at 49 App. U.S.C. 1655(e)(1), (2), and (6)(A)). 49 
U.S.C. 20111 and 20109, formerly codified at 45 U.S.C. 437 (note) and 
441(e). Those laws transferred by the DOT Act include, but are not 
limited to, the following statutes: (i) the Safety Appliance Acts (49 
U.S.C. 20102, 20301, 20302, 20304, 21302, and 21304, formerly codified 
at 45 U.S.C. 1-14, 16); (ii) the Locomotive Inspection Act (49 U.S.C. 
20102, 20701-20703, 21302, and 21304, formerly codified at 45 U.S.C. 22-
34); (iii) the Accident Reports Act (49 U.S.C. 20102, 20701, 20702, 
20901-20903, 21302, 21304, and 21311, formerly codified at 45 U.S.C. 38-
43); (iv) the Hours of Service Act (49 U.S.C. 20102, 21101-21107, 21303, 
and 21304, formerly codified at 45 U.S.C. 61-64b); and (v) the Signal 
Inspection Act (49 U.S.C. 20102, 20502-20505, 20902, 21302, and 21304, 
formerly codified at 49 App. U.S.C. 26).
    FRA means the Federal Railroad Administration, U.S. Department of 
Transportation.
    FRA Safety Inspector means an FRA safety inspector, a state 
inspector participating in railroad safety investigative and 
surveillance activities under part 212 of this chapter, or any other 
official duly authorized by FRA.
    Motion means a request to a presiding officer to take a particular 
action.
    Person generally includes all categories of entities covered under 1 
U.S.C. 1, including but not limited to the following: a railroad; any 
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; however, person, when used to 
describe an entity that FRA alleges to have committed a violation of the 
provisions of law formerly contained in the Hazardous Materials 
Transportation Act or contained in the Hazardous Materials Regulations, 
has the same meaning as in 49 U.S.C. 5102(9) (formerly codified at 49 
App. U.S.C. 1802(11)), i.e., an individual, firm, copartnership, 
corporation, company, association, joint-stock association, including 
any trustee, receiver, assignee, or similar representative thereof, or 
government, Indian tribe, or authority of a government or tribe when 
offering hazardous material for transportation in commerce or 
transporting hazardous material to further a commercial enterprise, but 
such term does not include the United States Postal Service or, for the 
purposes of 49 U.S.C. 5123-5124 (formerly contained in sections 110 and 
111 of the Hazardous Materials Transportation Act and formerly codified 
at 49 App. U.S.C. 1809-1810), a department, agency, or instrumentality 
of the Federal Government.
    Pleading means any written submission setting forth claims, 
allegations, arguments, or evidence.
    Presiding Officer means any person authorized to preside over any 
hearing or to make a decision on the record, including an administrative 
law judge.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electro-magnetic guideways, including (i) commuter or 
other short-haul railroad passenger service in a metropolitan or 
suburban area and commuter railroad service that was operated by the 
Consolidated Rail Corporation on January 1, 1979; and (ii) high speed 
ground transportation systems that connect metropolitan areas, without 
regard to whether those systems use new technologies not associated with 
traditional railroads; but does not include rapid transit operations in 
an urban area that are not connected to the general railroad system of 
transportation.
    Respondent means a person upon whom FRA has served a notice of 
probable violation, notice of investigation, or notice of proposed 
disqualification.

[59 FR 43676, Aug. 24, 1994]

Sec. 209.5  Service.

    (a) Each order, notice, or other document required to be served 
under this part shall be served personally or by

[[Page 19]]

registered or certified mail, except as otherwise provided herein.
    (b) Service upon a person's duly authorized representative 
constitutes service upon that person.
    (c) Service by registered or certified mail is complete upon 
mailing. An official United States Postal Service receipt from the 
registered or certified mailing constitutes prima facie evidence of 
service.
    (d) Service of requests for admission and motions may be made by 
first-class mail, postage prepaid.
    (e) Each pleading must be accompanied by a certificate of service 
specifying how and when service was made.

[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]

Sec. 209.6  Requests for admission.

    (a) A party to any proceeding under subpart B, C, or D of this part 
may serve upon any other party written requests for the admission of the 
genuineness of any relevant documents identified within the request, the 
truth of any relevant matters of fact, and the application of law to the 
facts as set forth in the request.
    (b) Each matter of which an admission is requested shall be deemed 
to be admitted unless, within 30 days after receipt of the request, the 
party to whom the request is directed serves upon the party requesting 
the admission a written answer under oath or objection addressed to the 
matter, signed by the party.
    (c) The sworn answer shall specifically admit or deny the matter or 
set forth in detail the reasons why the answering party cannot 
truthfully admit or deny the matter. If an objection is made, the 
reasons therefor shall be stated.
    (d) Any matter admitted under this section is conclusively 
established unless the presiding official permits withdrawal or 
amendment of the admission for good cause shown.
    (e) Upon motion, the presiding officer may order any party to 
respond to a request for admission.

[54 FR 42906, Oct. 18, 1989]

Sec. 209.7  Subpoenas; witness fees.

    (a) The Chief Counsel may issue a subpoena on his or her own 
initiative in any matter related to enforcement of the railroad safety 
laws. However, where a proceeding under subpart B, C, or D of this part 
has been initiated, only the presiding officer may issue subpoenas, and 
only upon the written request of any party to the proceeding who makes 
an adequate showing that the information sought will materially advance 
the proceeding.
    (b) A subpoena may require attendance of a witness at a deposition 
or hearing or the production of documentary or other tangible evidence 
in the possession or control of the person served, or both.
    (c) A subpoena may be served personally by any person who is not an 
interested person and is not less than eighteen (18) years of age, or by 
certified or registered mail.
    (d) Service of a subpoena shall be made by delivering a copy of the 
subpoena in the appropriate manner, as set forth below. Service of a 
subpoena requiring attendance of a person is not complete unless 
delivery is accompanied by tender of fees for one day's attendance and 
mileage as specified by paragraph (f) of this section. However, when a 
subpoena is issued upon the request of any officer or agency of the 
United States, fees and mileage need not be tendered at the time of 
service but will be paid by FRA at the place and time specified in the 
subpoena for attendance.

Delivery of a copy of the subpoena may be made:
    (1) To a natural person by:
    (i) Handing it to the person;
    (ii) Leaving it at his or her office with the person in charge 
thereof;
    (iii) Leaving it at his or her dwelling place or usual place of 
abode with some person of suitable age and discretion then residing 
therein;
    (iv) Mailing it by registered or certified mail to him or her at his 
or her last known address; or
    (v) Any method whereby actual notice of the issuance and content is 
given (and the fees are made available) prior to the return date.
    (2) To an entity other than a natural person by:

[[Page 20]]

    (i) Handing a copy of the subpoena to a registered agent for service 
or to any officer, director, or agent in charge of any office of the 
person;
    (ii) Mailing it by registered or certified mail to any 
representative listed in paragraph (d)(2)(i) of this section at his or 
her last known address; or
    (iii) Any method whereby actual notice is given to such 
representative (and the fees are made available) prior to the return 
date.
    (e) The original subpoena bearing a certificate of service shall be 
filed in accordance with Sec. 209.9.
    (f) A witness subpoenaed by the FRA shall be entitled to the same 
fees and mileage as would be paid to a witness in a proceeding in the 
district courts of the United States. See 28 U.S.C. 1821. The witness 
fees and mileage shall be paid by the person requesting that the 
subpoena be issued. In an appropriate case, the Chief Counsel or the 
hearing officer may direct the person requesting issuance of a subpoena 
for the production of documentary or other tangible evidence to 
reimburse the responding person for actual costs of producing and/or 
transporting such evidence.
    (g) Notwithstanding the provisions of paragraph (f) of this section, 
and upon request, witness fees and mileage or the costs of producing 
other evidence may be paid by the FRA if the official who issued the 
subpoena determines on the basis of good cause shown that:
    (1) The presence of the subpoenaed witness or evidence will 
materially advance the proceedings; and
    (2) The party at whose instance the subpoena was issued would suffer 
a serious financial hardship if required to pay the witness fees and 
mileage.
    (h) Any person to whom a subpoena is directed may, prior to the time 
specified therein for compliance, but in no event more than ten (10) 
days after the date of service of such subpoena, apply in writing to the 
official who issued the subpoena, or if that person is unavailable, to 
the Chief Counsel, to quash or modify the subpoena. The application 
shall contain a brief statement of the reasons relied upon in support of 
the action sought therein. The issuing official or the Chief Counsel, as 
the case may be, may:
    (1) Deny the application;
    (2) Quash or modify the subpoena; or
    (3) In the case of subpoena to produce documentary or other tangible 
evidence, condition denial of the application upon the advancement by 
the party in whose behalf the subpoena is issued of the reasonable cost 
of producing the evidence.
    (i) If there is a refusal to obey a subpoena served upon any person 
under the provisions of this section, the FRA may request the Attorney 
General to seek the aid of the United States District Court for any 
district in which the person is found to compel that person, after 
notice, to appear and give testimony, or to appear and produce the 
subpoenaed documents before the FRA, or both.
    (j) Attendance of any FRA employee engaged in an investigation which 
gave rise to a proceeding under subpart B or C of this part for the 
purpose of eliciting factual testimony may be assured by filing a 
request with the Chief Counsel at least fifteen (15) days before the 
date of the hearing. The request must indicate the present intent of the 
requesting person to call the employee as a witness and state generally 
why the witness will be required.

[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]

Sec. 209.8  Depositions in formal proceedings.

    (a) Any party to a proceeding under subpart B, C, or D of this part 
may take the testimony of any person, including a party, by deposition 
upon oral examination on order of the presiding officer following the 
granting of a motion under paragraph (b) of this section. Depositions 
may be taken before any disinterested person who is authorized by law to 
administer oaths. The attendance of witnesses may be compelled by 
subpoena as provided in Sec. 209.7 and, for proceedings under subpart D 
of this part, Sec. 209.315.
    (b) Any party desiring to take the deposition of a witness shall 
file and serve a written motion setting forth the name of the witness; 
the date, time, and place of the deposition; the subject matter of the 
witness' expected testimony; whether any party objects to the taking of 
the deposition; and the

[[Page 21]]

reasons for taking such deposition. Such motion shall be granted only 
upon a showing of good cause. Good cause exists to take a person's 
deposition when the information sought is relevant to the subject matter 
involved in the proceeding and:
    (1) The information is not obtainable from some other source that is 
more convenient, less burdensome, and less expensive; or
    (2) The request is not unreasonably cumulative, unduly burdensome, 
or unduly expensive, taking into account the needs of the case, 
limitations on the parties' resources, and the importance of the issues 
in the case.
    (c) Such notice as the presiding officer shall order will be given 
for the taking of a deposition, but this shall not be less than 10 days' 
written notice unless the parties agree to a shorter period.
    (d) Each witness testifying upon deposition shall be sworn and the 
adverse party shall have the right to cross-examine. The questions 
propounded and the answers thereto, together with all objections made, 
shall be reduced to writing, subscribed by the witness, and certified by 
the reporter.
    (e) Depositions taken under this section may be used for discovery, 
to contradict or impeach the testimony of the deponent as a witness, or 
as evidence in the proceeding as permitted by paragraph (f) of this 
section and in accordance with the limitations of Fed. R. Civ. Pro. 32 
as though it were applicable to these proceedings.
    (f) Subject to such objections to the questions and answers as were 
noted at the time of taking the deposition and as would be valid were 
the witness personally present and testifying, such deposition may be 
offered in evidence by any party to the proceeding.

[54 FR 42906, Oct. 18, 1989]

Sec. 209.9  Filing.

    All materials filed with FRA or any FRA officer in connection with a 
proceeding under subpart B, C, or D of this part shall be submitted in 
duplicate to the Assistant Chief Counsel for Safety, (RCC-30), Office of 
Chief Counsel, Federal Railroad Administration, 400 Seventh Street, SW., 
Washington, DC 20590, except that documents produced in accordance with 
a subpoena shall be presented at the place and time specified by the 
subpoena.

[54 FR 42906, Oct. 18, 1989]

Sec. 209.11  Request for confidential treatment.

    (a) This section governs the procedures for requesting confidential 
treatment of any document filed with or otherwise provided to FRA in 
connecton with its enforcement of statutes related to railroad safety. 
For purposes of this section, ``enforcement'' shall include all 
investigative and compliance activities, in addition to the development 
of violation reports and recommendations for prosecution.
    (b) A request for confidential treatment with respect to a document 
or portion thereof may be made on the basis that the information is--
    (1) Exempt from the mandatory disclosure requirements of the Freedom 
of Information Act (5 U.S.C. 552);
    (2) Required to be held in confidence by 18 U.S.C. 1905; or
    (3) Otherwise exempt by law from public disclosure.
    (c) Any document containing information for which confidential 
treatment is requested shall be accompanied at the time of filing by a 
statement justifying nondisclosure and referring to the specific legal 
authority claimed.
    (d) Any document containing any information for which confidential 
treatment is requested shall be marked ``CONFIDENTIAL'' or ``CONTAINS 
CONFIDENTIAL INFORMATION'' in bold letters. If confidentiality is 
requested as to the entire document, or if it is claimed that 
nonconfidential information in the document is not reasonably segregable 
from confidential information, the accompanying statement of 
justification shall so indicate. If confidentiality is requested as to a 
portion of the document, then the person filing the document shall file 
together with the document a second copy of the document from which the 
information for which confidential treatment is requested has been 
deleted. If the person filing a document of which only a portion is 
requested to be held in confidence does not submit a second copy of the 
document with the confidential information deleted. FRA

[[Page 22]]

may assume that there is no objection to public disclosure of the 
document in its entirety.
    (e) FRA retains the right to make its own determination with regard 
to any claim of confidentiality. Notice of a decision by the FRA to deny 
a claim, in whole or in part, and an opportunity to respond shall be 
given to a person claiming confidentiality of information no less than 
five days prior to its public disclosure.

Sec. 209.13  Consolidation.

    At the time a matter is set for hearing under subpart B, C, or D of 
this part, the Chief Counsel may consolidate the matter with any similar 
matter(s) pending against the same respondent or with any related 
matter(s) pending against other respondent(s) under the same subpart. 
However, on certification by the presiding officer that a consolidated 
proceeding is unmanageable or otherwise undesirable, the Chief Counsel 
will rescind or modify the consolidation.

[54 FR 42906, Oct. 18, 1989]

Sec. 209.15  Rules of evidence.

    The Federal Rules of Evidence for United States Courts and 
Magistrates shall be employed as general guidelines for proceedings 
under subparts B, C, and D of this part. However, all relevant and 
material evidence shall be received into the record.

[54 FR 42907, Oct. 18, 1989]

Sec. 209.17  Motions.

    Motions shall be in writing, filed with the presiding officer, and 
copies served upon the parties in accordance with Sec. 209.5, except 
that oral motions may be made during the course of any hearing or 
appearance before the presiding officer. Each motion shall state the 
particular order, ruling, or action desired and the grounds therefor. 
Unless otherwise specified by the presiding officer, any objection to a 
written motion must be filed within 10 days after receipt of the motion.

[54 FR 42907, Oct. 18, 1989]

                Subpart B--Hazardous Materials Penalties

                             Civil Penalties

Sec. 209.101  Civil penalties generally.

    (a) Sections 209.101 through 209.121 prescribe rules of procedure 
for the assessment of civil penalties pursuant to the Federal hazardous 
materials transportation safety law, 49 U.S.C. Chapter 51.
    (b) When the FRA has reason to believe that a person has knowingly 
committed an act which is a violation of any provision of subchapter B 
or C of chapter I, subtitle B of this title for which the FRA exercises 
enforcement responsibility or any waiver or order issued thereunder, it 
may conduct a proceeding to assess a civil penalty.

[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996]

Sec. 209.103  Minimum and maximum penalties.

    A person who knowingly violates a requirement of subchapter A or C 
of chapter I, Subtitle B of this title is liable for a civil penalty of 
at least $250 but not more than $27,500 for each violation. When the 
violation is a continuing one, each day of the violation constitutes a 
separate offense. 49 U.S.C. 5123.

[61 FR 38646, July 25, 1996, as amended at 63 FR 11619, Mar. 10, 1998]

Sec. 209.105  Notice of probable violation.

    (a) FRA, through the Chief Counsel, begins a civil penalty 
proceeding by serving a notice of probable violation on a person 
charging him or her with having violated one or more provisions of 
subchapter A or C of chapter I, subtitle B of this title. Appendix B to 
this part contains guidelines used by the chief counsel in making 
initial penalty assessments.
    (b) A notice of probable violation issued under this section 
includes:
    (1) A statement of the provision(s) which the respondent is believed 
to have violated;
    (2) A statement of the factual allegations upon which the proposed 
civil penalty is being sought;

[[Page 23]]

    (3) Notice of the maximum amount of civil penalty for which the 
respondent may be liable;
    (4) Notice of the amount of the civil penalty proposed to be 
assessed;
    (5) A description of the manner in which the respondent should make 
payment of any money to the United States;
    (6) A statement of the respondent's right to present written 
explanations, information or any materials in answer to the charges or 
in mitigation of the penalty; and
    (7) A statement of the respondent's right to request a hearing and 
the procedures for requesting a hearing.
    (c) The FRA may amend the notice of probable violation at any time 
prior to the entry of an order assessing a civil penalty. If the 
amendment contains any new material allegation of fact, the respondent 
is given an opportunity to respond. In an amended notice, FRA may change 
the penalty amount proposed to be assessed up to and including the 
maximum penalty amount of $25,000 for each violation.

[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996]

Sec. 209.107  Reply.

    (a) Within thirty (30) days of the service of a notice of probable 
violation issued under Sec. 209.105, the respondent may--
    (1) Pay as provided in Sec. 209.109(a) and thereby close the case;
    (2) Make an informal response as provided in Sec. 209.111; or
    (3) Request a hearing as provided in Sec. 209.113.
    (b) The Chief Counsel may extend the thirty (30) days period for 
good cause shown.
    (c) Failure of the respondent to reply by taking one of the three 
actions described in paragraph (a) of this section within the period 
provided constitutes a waiver of his or her right to appear and contest 
the allegations and authorizes the Chief Counsel, without further notice 
to the respondent, to find the facts to be as alleged in the notice of 
probable violation and to assess an appropriate civil penalty.

Sec. 209.109  Payment of penalty; compromise.

    (a) Payment of a civil penalty should be made by certified check or 
money order payable to the Federal Railroad Administration and sent to 
the Accounting Division, Federal Railroad Administration, Department of 
Transportation, Washington, DC 20590.
    (b) At any time before an order assessing a penalty is referred to 
the Attorney General for collection, the respondent may offer to 
compromise for a specific amount by contracting the Chief Counsel.

Sec. 209.111  Informal response and assessment.

    (a) If a respondent elects to make an informal response to a notice 
of probable violation, respondent shall submit to the Chief Counsel such 
written explanations, information or other materials as respondent may 
desire in answer to the charges or in mitigation of the proposed 
penalty.
    (b) The respondent may include in his or her informal written 
response a request for a conference. Upon receipt of such a request, the 
Chief Counsel arranges for a conference as soon as practicable at a time 
and place of mutual convenience.
    (c) Written explanations, information or materials, submitted by the 
respondent and relevant information presented during any conference held 
under this section are considered by the Chief Counsel in reviewing the 
notice of proposed violation and determining the fact of violation and 
the amount of any penalty to be assessed.
    (d) After consideration of an informal response, including any 
relevant information presented at a conference, the Chief Counsel may 
dismiss the notice of probable violation in whole or in part. If he or 
she does not dismiss it in whole, he or she may issue an order assessing 
a civil penalty.

Sec. 209.113  Request for hearing.

    (a) If a respondent elects to request a hearing, he or she must 
submit a written request to the Chief Counsel referring to the case 
number which appeared on the notice of the probable violation. The 
request must--

[[Page 24]]

    (1) State the name and address of the respondent and of the person 
signing the request if different from the respondent;
    (2) State with respect to each allegation whether it is admitted or 
denied; and
    (3) State with particularity the issues to be raised by the 
respondent at the hearing.
    (b) After a request for hearing which complies with the requirements 
of paragraph (a) of this section, the Chief Counsel schedules a hearing 
for the earliest practicable date.
    (c) The Chief Counsel or the hearing officer appointed under 
Sec. 209.115 may grant extensions of the time of the commencement of the 
hearing for good cause shown.

Sec. 209.115  Hearing.

    (a) When a hearing is requested and scheduled under Sec. 209.113, a 
hearing officer designated by the Chief Counsel convenes and presides 
over the hearing. If requested by respondent and if practicable, the 
hearing is held in the general vicinity of the place where the alleged 
violation occurred, or at a place convenient to the respondent. 
Testimony by witnesses shall be given under oath and the hearing shall 
be recorded verbatim.
    (b) The presiding official may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by Sec. 209.7;
    (3) Adopt procedures for the submission of evidence in written form;
    (4) Take or cause depositions to be taken;
    (5) Rule on offers of proof and receive relevant evidence;
    (6) Examine witnesses at the hearing;
    (7) Convene, recess, reconvene, and adjourn and otherwise regulate 
the course of the hearing;
    (8) Hold conferences for settlement, simplification of the issues or 
any other proper purpose; and
    (9) Take any other action authorized by or consistent with the 
provisions of this subpart pertaining to civil penalties and permitted 
by law which may expedite the hearing or aid in the disposition of an 
issue raised, therein.
    (c) The Chief Counsel has the burden of providing the facts alleged 
in the notice of proposed violation and may offer such relevant 
information as may be necessary fully to inform the presiding officer as 
to the matter concerned.
    (d) The respondent may appear and be heard on his or her own behalf 
or through counsel of his or her choice. The respondent or his or her 
counsel may offer relevant information including testimony which he or 
she believes should be considered in defense of the allegations or which 
may bear on the penalty proposed to be assessed and conduct such cross-
examination as may be required for a full disclosure of the material 
facts.
    (e) At the conclusion of the hearing or as soon thereafter as the 
hearing officer shall provide, the parties may file proposed findings 
and conclusions, together with supporting reasons.

[42 FR 56742, Oct. 28, 1977; 42 FR 59755, Nov. 21, 1977]

Sec. 209.117  Presiding officer's decision.

    (a) After consideration of the evidence of record, the presiding 
officer may dismiss the notice of probable violation in whole or in 
part. If the presiding officer does not dismiss it in whole, he or she 
will issue and serve on the respondent an order assessing a civil 
penalty. The decision of the presiding officer will include a statement 
of findings and conclusions as well as the reasons therefor on all 
material issues of fact, law, and discretion.
    (b) If, within twenty (20) days after service of an order assessing 
a civil penalty, the respondent does not pay the civil penalty or file 
an appeal as provided in Sec. 209.121, the case may be referred to the 
Attorney General with a request that an action to collect the penalty be 
brought in the appropriate United States District Court.

Sec. 209.119  Assessment considerations.

    The assessment of a civil penalty under Sec. 209.117 is made only 
after considering:
    (a) The nature and circumstances of the violation;
    (b) The extent and gravity of the violation;

[[Page 25]]

    (c) The degree of the respondent's culpabilty;
    (d) The respondent's history of prior offenses;
    (e) The respondent's ability to pay;
    (f) The effect on the respondent's ability to continue in business; 
and
    (g) Such other matters as justice may require.

Sec. 209.121  Appeal.

    (a) Any party aggrieved by a presiding officer's decision or order 
issued under Sec. 209.117 assessing a civil penalty may file an appeal 
with the Administrator. The appeal must be filed within twenty (20) days 
of service of the presiding officer's order.
    (b) Prior to rendering a final determination on an appeal, the 
Administrator may remand the case for further proceedings before the 
hearing officer.
    (c) In the case of an appeal by a respondent, if the Administrator 
affirms the assessment and the respondent does not pay the civil penalty 
within twenty (20) days after service of the Administrator's decision on 
appeal, the matter may be referred to the Attorney General with a 
request that an action to collect the penalty be brought in the 
appropriate United States District Court.

                           Criminal Penalties

Sec. 209.131  Criminal penalties generally.

    The Federal hazardous materials transportation safety laws (49 
U.S.C. 5124) provide a criminal penalty of a fine under title 18, United 
States Code, and imprisonment for not more than 5 years, or both, for 
any person who knowingly violates 49 U.S.C. 5104(b) or who willfully 
violates chapter 51 of title 49, United States Code, or a regulation 
prescribed or order issued under that chapter.

[61 FR 38647, July 25, 1996]

Sec. 209.133  Referral for prosecution.

    If an inspector, including a certified state inspector under Part 
212 of this chapter, or other employee of FRA becomes aware of a 
possible willful violation of the Federal hazardous materials 
transportation safety laws (49 U.S.C. Chapter 51) or a regulation issued 
under those laws for which FRA exercises enforcement responsibility, he 
or she reports it to the Chief Counsel. If evidence exists tending to 
establish a prima facie case, and if it appears that assessment of a 
civil penalty would not be an adequate deterrent to future violations, 
the Chief Counsel refers the report to the Department of Justice for 
criminal prosecution of the offender.

[61 FR 38647, July 25, 1996]

                      Subpart C--Compliance Orders

Sec. 209.201  Compliance orders generally.

    (a) This subpart prescribes rules of procedure leading to the 
issuance of compliance orders pursuant to the Federal railroad safety 
laws at 49 U.S.C. 5121(a) and/or 20111(b).
    (b) The FRA may commence a proceeding under this subpart when FRA 
has reason to believe that a person is engaging in conduct or a pattern 
of conduct that involves one or more violations of the Federal railroad 
safety laws or any regulation or order issued under those laws for which 
FRA exercises enforcement authority.

[61 FR 38647, July 25, 1996]

Sec. 209.203  Notice of investigation.

    (a) FRA begins a compliance order proceeding by serving a notice of 
investigation on the respondent.
    (b) The notice of investigation contains:
    (1) A statement of the legal authority for the proceeding;
    (2) A statement of the factual allegations upon which the remedial 
action is being sought; and
    (3) A statement of the remedial action being sought in the form of a 
proposed compliance order.
    (c) The FRA may amend the notice of investigation at any time prior 
to the entry of a final compliance order. If an amendment includes any 
new material allegation of fact or seeks new or additional remedial 
action, the respondent is given an opportunity to respond.

Sec. 209.205  Reply.

    (a) Within thirty (30) days of service of a notice of investigation, 
the respondent may file a reply with the FRA. The Chief Counsel may 
extend

[[Page 26]]

the time for filing for good cause shown.
    (b) The reply must be in writing, signed by the person filing it, 
and state with respect to each factual allegation whether it is admitted 
or denied. Even though formally denied, a factual allegation set forth 
in a notice of investigation is considered to be admitted for purposes 
of the proceeding unless:
    (1) Opposed by the affidavit of an individual having personal 
knowledge of the subject matter;
    (2) Challenged as defective on its face together with a supporting 
explanation as to why it is believed to be defective; or
    (3) Otherwise actively put at issue through the submission of 
relevant evidence.
    (c) The reply must set forth any affirmative defenses and include a 
statement of the form and nature of proof by which those defenses are to 
be established.
    (d) If it is necessary to respond to an amendment to the notice of 
investigation, the respondent may amend the reply concerning the 
substance of matters contained in the amendment to the notice at any 
time before the issuance of an order under Sec. 209.211.
    (e) If the respondent elects not to contest one or more factual 
allegations, he or she should so state in the reply. An election not to 
contest a factual allegation is an admission of that allegation solely 
for the purpose of issuing a compliance order. That election constitutes 
a waiver of hearing as to that allegation but does not, by itself, 
constitute a waiver of the right to be heard on other issues. In 
connection with a statement of election not to contest a factual 
allegation, the respondent may propose an appropriate order for issuance 
by the Administrator or propose the negotiation of a consent order.
    (f) Failure of the respondent to file a reply within the period 
provided constitutes a waiver of his or her right to appear and contest 
the allegation and authorizes the Administrator, without further notice 
to the respondent, to find the facts to be as alleged in the notice of 
proposed violation and to issue an appropriate order directing 
compliance.

Sec. 209.207  Consent order.

    (a) At any time before the issuance of an order under Sec. 209.211, 
the Chief Counsel and the respondent may execute an agreement proposing 
the entry by consent of an order directing compliance. The Administrator 
may accept the proposed order by signing it. If the Administrator 
rejects the proposed order, he or she directs that the proceeding 
continue.
    (b) An agreement submitted to the Administrator under this section 
must include:
    (1) A proposed compliance order suitable for the Administrator's 
signature;
    (2) An admission of all jurisdictional facts;
    (3) An express waiver of further procedural steps and of all right 
to seek judicial review or otherwise challenge or contest the validity 
of the order; and
    (4) An acknowledgment that the notice of investigation may be used 
to construe the terms of the order.

Sec. 209.209  Hearing.

    (a) When a respondent files a reply contesting allegations in a 
notice of investigation issued under Sec. 209.203 or when the FRA and 
the respondent fail to agree upon an acceptable consent order, the 
hearing officer designated by the Chief Counsel convenes and presides 
over a hearing on the proposed compliance order.
    (b) The presiding official may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by Sec. 209.7;
    (3) Adopt procedures for the submission of evidence;
    (4) Take or cause depositions to be taken;
    (5) Rule on offers of proof and receive relevant evidence;
    (6) Examine witnesses at the hearing;
    (7) Convene, recess, reconvene, ad- journ and otherwise regulate the 
course of the hearing;
    (8) Hold conferences for settlement, simplification of the issues or 
any other proper purpose; and
    (9) Take any other action authorized by or consistent with the 
provisions of this subpart pertaining to compliance orders and permitted 
by law which may

[[Page 27]]

expedite the hearing or aid in the disposition of an issue raised 
therein.
    (c) The Chief Counsel has the burden of providing the facts alleged 
in the notice of investigation and may offer such relevant information 
as may be necessary fully to inform the presiding officer as to the 
matter concerned.
    (d) The respondent may appear and be heard on his or her own behalf 
or through counsel of his or her choice. The respondent or his or her 
counsel may offer relevant information, including testimony which he or 
she believes should be considered in defense of the allegations or which 
may bear on the remedial action being sought, and conduct such cross-
examination as may be required for a full disclosure of the material 
facts.
    (e) At the conclusion of the hearing or as soon thereafter as the 
hearing officer shall provide, the parties may file proposed findings 
and conclusions, together with supporting reasons therefor.

Sec. 209.211  Presiding officer's decision.

    (a) After consideration of evidence, the presiding officer may 
dismiss the notice of investigation or issue a compliance order. The 
decision of the presiding officer will include a statement of findings 
and conclusions as well as the reasons therefor on all material issues 
of fact, law, and discretion.
    (b) A compliance order issued under this section is effective twenty 
(20) days from service on the respondent unless otherwise provided 
therein.

Sec. 209.213  Appeal.

    (a) Any party aggrieved by a presiding officer's decision may file 
an appeal with the Administrator. The appeal must be filed within twenty 
(20) days after service of the presiding officer's decision.
    (b) Prior to rendering a final determination on an appeal, the 
Administrator may remand the case for further proceedings before the 
hearing officer.
    (c) The filing of an appeal does not stay the effectiveness of a 
compliance order unless the Administrator expressly so provides.

Sec. 209.215  Time limitation.

    A proceeding for the issuance of a compliance order under the 
Federal Railroad Safety Act of 1970, as amended, shall be completed 
within twelve (12) months after issuance of the notice of investigation.

                 Subpart D--Disqualification Procedures

    Source: 54 FR 42907, Oct. 18, 1989, unless otherwise noted.

Sec. 209.301  Purpose and scope.

    (a) This subpart prescribes the rules of practice for administrative 
proceedings relating to the determination of an individual's fitness for 
performing safety-sensitive functions under section 209(f) of the 
Federal Railroad Safety Act of 1970 (45 U.S.C. 438(f)).
    (b) The purpose of this subpart is to prevent accidents and 
casualties in railroad operations that result from the presence in the 
work force of railroad employees, including managers and supervisors, 
and agents of railroads who have demonstrated their unfitness to perform 
the safety-sensitive functions described in Sec. 209.303 by violating 
any rule, regulation, order or standard prescribed by FRA. Employees and 
agents who evidence such unfitness may be disqualified, under specified 
terms and conditions, temporarily or permanently, from performing such 
safety-sensitive functions.
    (c) This subpart does not preempt a railroad from initiating 
disciplinary proceedings and imposing disciplinary sanctions against its 
employees, including managers and supervisors, under its collective 
bargaining agreements or in the normal and customary manner. 
Disqualification determinations made under this subpart shall have no 
effect on prior or subsequent disciplinary actions taken against such 
employees by railroads.

Sec. 209.303  Coverage.

    This subpart applies to the following individuals:
    (a) Railroad employees who are assigned to perform service subject 
to the Hours of Service Act (45 U.S.C. 61-64b)

[[Page 28]]

during a duty tour, whether or not the person has performed or is 
currently performing such service, and any person who performs such 
service.
    (b) Railroad employees or agents who:
    (1) Inspect, install, repair, or maintain track and roadbed;
    (2) Inspect, repair or maintain, locomotives, passenger cars, and 
freight cars;
    (3) Conduct training and testing of employees when the training or 
testing is required by the FRA's safety regulations; or
    (c) Railroad managers, supervisors, or agents when they:
    (1) Perform the safety-sensitive functions listed in paragraphs (a) 
and (b) of this section;
    (2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section; or
    (3) Are in a position to direct the commission of violations of any 
of the requirements of parts 213 through 236 of this title.

Sec. 209.305  Notice of proposed disqualification.

    (a) FRA, through the Chief Counsel, begins a disqualification 
proceeding by serving a notice of proposed disqualification on the 
respondent charging him or her with having violated one or more rules, 
regulations, orders, or standards promulgated by FRA, which render the 
respondent unfit to perform safety-sensitive functions described in 
Sec. 209.303.
    (b) The notice of proposed disqualification issued under this 
section shall contain:
    (1) A statement of the rule(s), regulation(s), order(s), or 
standard(s) that the respondent is alleged to have violated;
    (2) A statement of the factual allegations that form the basis of 
the initial determination that the respondent is not fit to perform 
safety-sensitive functions;
    (3) A statement of the effective date, duration, and other 
conditions, if any, of the disqualification order;
    (4) A statement of the respondent's right to answer the charges in 
writing and furnish affidavits and any other documentary evidence in 
support of the answer;
    (5) A statement of the respondent's right to make an informal 
response to the Chief Counsel;
    (6) A statement of the respondent's right to request a hearing and 
the procedures for requesting a hearing;
    (7) A statement of the respondent's right to counsel or other 
designated representative; and
    (8) Notice of the consequences of the respondent's failure to take 
any of the actions described in Sec. 209.307(a).
    (c) The Chief Counsel shall enclose with the notice of proposed 
disqualification a copy of the material that is relied on in support of 
the charges. Nothing in this section precludes the Chief Counsel from 
presenting at a subsequent hearing under Sec. 209.321 any evidence of 
the charges set forth in the notice that the Chief Counsel acquires 
after service thereof on the respondent. The Chief Counsel, however, 
shall serve a copy of any such evidence on the respondent at or before 
the prehearing conference required under Sec. 209.319. Failure to 
furnish such evidence to respondent at or before the prehearing 
conference bars its introduction at the hearing.
    (d) The Chief Counsel shall provide a copy of the notice of proposed 
disqualification to the railroad that employs the respondent.

Sec. 209.307  Reply.

    (a) Within 30 days after receipt of the notice of proposed 
disqualification issued under Sec. 209.305, the respondent shall reply 
in writing to the charges. The respondent may furnish affidavits and any 
other documentary evidence in support of the reply. Further, the 
respondent may elect to--
    (1) Stipulate to the charges and consent to the imposition of the 
disqualification order under the conditions set forth in the notice;
    (2) Make an informal response as provided in Sec. 209.309; or
    (3) Request a hearing as provided in Sec. 209.311.
    (b) The Chief Counsel may extend the reply period for good cause 
shown, provided the request for extension is

[[Page 29]]

served before the expiration of the period provided in paragraph (a) of 
this section.
    (c) Failure of the respondent to reply to the notice of proposed 
disqualification within the period provided in paragraph (a) of this 
section or an extension thereto provided under paragraph (b) of this 
section constitutes a waiver of the respondent's right to appear and 
contest the charges or the proposed disqualification. Respondent's 
failure to reply authorizes the Chief Counsel, without further notice to 
the respondent, to find the respondent unfit for the performance of the 
safety-sensitive functions described in Sec. 209.303 and to order the 
respondent disqualified from performing them for the period and under 
the other conditions described in the notice of proposed 
disqualification. The Chief Counsel shall serve respondent with the 
disqualification order and provide a copy of the order to the railroad 
by which the respondent is employed.

Sec. 209.309  Informal response.

    (a) If the respondent elects to make an informal response to a 
notice of proposed disqualification, he or she shall submit to the Chief 
Counsel such written explanations, information, or other materials as 
respondent may desire in answer to the charges or in mitigation of the 
proposed disqualification.
    (b) The respondent may include in an informal written response a 
request for a conference. Upon receipt of such a request, the Chief 
Counsel shall arrange for a conference at a time and place designated by 
the Chief Counsel.
    (c) Written explanations, information, or materials submitted by the 
respondent and relevant information presented during any conference held 
under this section shall be considered by the Chief Counsel in reviewing 
the notice of proposed disqualification, including the question of the 
respondent's fitness and the conditions of any disqualification that may 
be imposed.
    (d) After consideration of an informal response, including any 
relevant information presented at a conference, the Chief Counsel shall 
take one of the following actions:
    (1) Dismiss all the charges and terminate the notice of proposed 
disqualification;
    (2) Dismiss some of the charges and mitigate the proposed 
disqualification;
    (3) Mitigate the proposed disqualification; or
    (4) Sustain the charges and proposed disqualification.
    (e) Should the Chief Counsel sustain, in whole or in part, the 
charges and proposed disqualification and reach settlement with the 
respondent, the Chief Counsel shall issue an appropriate 
disqualification order reflecting the settlement and shall provide a 
copy of that order to the railroad by which the respondent is employed. 
The duration of the disqualification period may be less than, but shall 
be no greater than, the period set forth in the notice. Any settlement 
reached shall be evidenced by a written agreement, which shall include 
declarations from the respondent stipulating to the charges contained in 
the disqualification order, consenting to the imposition of the 
disqualification under the conditions set forth in the disqualification 
order, and waiving his or her right to a hearing.
    (f) If settlement of the charges against the respondent is not 
achieved, the Chief Counsel shall terminate settlement discussions no 
later than 30 days from service of the informal response upon the Chief 
Counsel by serving respondent written notice of termination of 
settlement negotiations.
    (g) By electing to make an informal response to a notice of proposed 
disqualification, the respondent does not waive the right to a hearing. 
However, the respondent must submit the hearing request required by 
Sec. 209.311(a) within l0 days after receipt of the notice of 
termination of settlement negotiations from the Chief Counsel. Failure 
to submit such a request constitutes a waiver of the respondent's right 
to appear and contest the charges or the proposed disqualification.
    (h) The Chief Counsel may extend the period for requesting a hearing 
for good cause shown, provided the request for extension is served 
before the expiration of the period provided in paragraph (g) of this 
section.

[[Page 30]]

Sec. 209.311  Request for hearing.

    (a) If the respondent elects to request a hearing, he or she must 
submit a written request within the time periods specified in 
Sec. 209.307(a) or Sec. 209.309(g) to the Chief Counsel referring to the 
case number that appears on the notice of proposed disqualification. The 
request must contain the following:
    (1) The name, address, and telephone number of the respondent and of 
the respondent's designated representative, if any;
    (2) A specific response admitting, denying, or explaining each 
allegation of the notice of disqualification order.
    (3) A description of the claims and defenses to be raised by the 
respondent at the hearing; and
    (4) The signature of the respondent or the representative, if any.
    (b) Upon receipt of a request for a hearing complying with the 
requirements of paragraph (a) of this section, the Chief Counsel shall 
arrange for the appointment of a presiding officer and transmit the 
disqualification file to the presiding officer, who shall schedule the 
hearing for the earliest practicable date within the time period set by 
Sec. 209.321(a) of this subpart.
    (c) Upon assignment of a presiding officer, further matters in the 
proceeding generally are conducted by and through the presiding officer, 
except that the Chief Counsel and respondent may settle or voluntarily 
dismiss the case without order of the presiding officer. The Chief 
Counsel shall promptly notify the presiding officer of any settlement or 
dismissal of the case.

Sec. 209.313  Discovery.

    (a) Disqualification proceedings shall be conducted as expeditiously 
as possible with due regard to the rights of the parties. Discovery is 
designed to enable a party to obtain relevant information needed for 
preparation of the party's case. These regulations are intended to 
provide a simple, timely, and relatively economical system for 
discovery. They shall be interpreted and applied so as to avoid delay 
and facilitate adjudication of the case.
    (b) Discovery may be obtained by requests for admission under 
Sec. 209.6, requests for production of documentary or other tangible 
evidence under Sec. 209.7, and depositions under Sec. 209.8.
    (c) A party may initiate the methods of discovery permitted under 
paragraph (b) of this section at any time after respondent requests a 
hearing under Sec. 209.311.
    (d) Discovery shall be completed within 90 days after receipt of 
respondent's request for a hearing under Sec. 209.311. Upon motion for 
good cause shown, the presiding officer may extend this time period for 
an additional 30 days. The presiding officer may grant an additional 30 
day extension only when the party requesting the extension shows by 
clear and convincing evidence that the party was unable to complete 
discovery within the prescribed time period through no fault or lack of 
due diligence of such party, and that denial of the request would result 
in irreparable prejudice.
    (e) If a party fails to comply with a discovery order or an order to 
compel, the presiding officer may:
    (1) Strike any appropriate part of the pleadings or other 
submissions of the party failing to comply with such order;
    (2) Prohibit the party failing to comply with such order from 
introducing evidence relating to the information sought;
    (3) Draw an inference in favor of the requesting party with regard 
to the information sought; and
    (4) Permit the requesting party to introduce secondary evidence 
concerning the information sought.

Sec. 209.315  Subpoenas.

    Once a notice of proposed disqualification has been issued in a 
particular matter, only the presiding officer may issue, deny, quash, or 
modify subpoenas under this subpart in accordance with Sec. 209.7.

Sec. 209.317  Official record.

    The notice of proposed disqualification, respondent's reply, 
exhibits, and verbatim record of testimony, if a hearing is held, and 
all pleadings, stipulations, and admissions filed and rulings and orders 
entered in the course of the proceeding shall constitute the exclusive 
and official record.

[[Page 31]]

Sec. 209.319  Prehearing conference.

    (a) The parties shall confer with the presiding officer, either in 
person or by telephone, for a conference at least 10 days before the 
hearing to consider:
    (1) Formulation and simplification of the issues;
    (2) Stipulations, admissions of fact, and admissions of the contents 
and authenticity of documents;
    (3) Advance rulings from the presiding officer on the admissibility 
of evidence;
    (4) Identification of witnesses, including the scope of their 
testimony, and of hearing exhibits;
    (5) Possibility of settlement; and
    (6) Such other matters as the presiding officer deems necessary to 
expedite the disposition of the proceeding.
    (b) The record shall show the matters disposed of by order and by 
agreement in such a prehearing conference. The subsequent course of the 
hearing shall be controlled by such action.
    (c) The prehearing conference shall be held within 150 days after 
receipt of respondent's request for a hearing under Sec. 209.311.

Sec. 209.321  Hearing.

    (a) Upon receipt of a hearing request complying with Sec. 209.311, 
an administrative hearing for review of a notice of proposed 
disqualification shall be conducted by a presiding officer, who can be 
any person authorized by the FRA Administrator, including an 
administrative law judge. The hearing shall begin within 180 days from 
receipt of respondent's hearing request. Notice of the time and place of 
the hearing shall be given to the parties at least 20 days before the 
hearing. Testimony by witnesses shall be given under oath and the 
hearing shall be recorded verbatim. The hearing shall be open to the 
public, unless the presiding official determines that it would be in the 
best interests of the respondent, a witness, or other affected persons, 
to close all or any part of it. If the presiding official makes such a 
determination, an appropriate order, which sets forth the reasons 
therefor, shall be entered.
    (b) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by Sec. 209.7;
    (3) Adopt procedures for the submission of evidence in written form;
    (4) Take or cause depositions to be taken as provided in Sec. 209.8;
    (5) Rule on offers of proof and receive relevant evidence;
    (6) Examine witnesses at the hearing;
    (7) Convene, recess, reconvene, adjourn, and otherwise regulate the 
course of the hearing;
    (8) Hold conferences for settlement, simplification of the issues, 
or any other proper purpose; and
    (9) Take any other action authorized by or consistent with the 
provisions of this subpart and permitted by law that may expedite the 
hearing or aid in the disposition of an issue raised therein.
    (c) FRA has the burden of proof, by a preponderance of the evidence, 
as to the facts alleged in the notice of proposed disqualification, the 
reasonableness of the conditions of the qualification proposed, and, 
except as provided in Sec. 209.329(a), the respondent's lack of fitness 
to perform safety-sensitive functions. The Chief Counsel may offer 
relevant evidence, including testimony, in support of the allegations 
contained in the notice of proposed disqualification and conduct such 
cross-examination as may be required for a full disclosure of the 
material facts.
    (d) The respondent may appear and be heard on respondent's own 
behalf or through respondent's designated representative. The respondent 
may offer relevant evidence, including testimony, in defense of the 
allegations or in mitigation of the proposed disqualification and 
conduct such cross-examination as may be required for a full disclosure 
of the material facts. Respondent has the burden of proof, by a 
preponderance of the evidence, as to any affirmative defense, including 
that respondent's actions were in obedience to the direct order of a 
railroad supervisor or higher level official.
    (e) The record shall be closed at the conclusion of the hearing, 
unless the parties request the opportunity to submit proposed findings 
and conclusions. When the presiding officer allows the parties to submit 
proposed findings and conclusions, documents previously

[[Page 32]]

identified for introduction into evidence, briefs, or other posthearing 
submissions the record shall be left open for such time as the presiding 
officer grants for that purpose.

[54 FR 42907, Oct. 18, 1989, as amended at 60 FR 53136, Oct. 12, 1995]

Sec. 209.323  Initial decision.

    (a) The presiding officer shall prepare an initial decision after 
the closing of the record. The initial decision may dismiss the notice 
of proposed disqualification, in whole or in part, sustain the charges 
and proposed disqualification, or sustain the charges and mitigate the 
proposed disqualification.
    (b) If the presiding officer sustains the charges and the proposed 
disqualification, dismisses some of the charges, or mitigates the 
proposed disqualification, the presiding officer shall issue and serve 
an appropriate order disqualifying respondent from engaging in the 
safety-sensitive functions described in Sec. 209.303. If the presiding 
officer dismisses all of the charges set forth in notice of proposed 
disqualification, a dismissal order shall be issued and served.
    (c) Each initial decision shall contain:
    (1) Findings of fact and conclusions of law, as well as the reasons 
or bases therefor, upon all the material issues of fact and law 
presented on the record;
    (2) An order, as described in paragraph (b) of this section;
    (3) The dates any disqualification is to begin and end and other 
conditions, if any, that the respondent must satisfy before the 
disqualification order is discharged;
    (4) The date upon which the decision will become final, as 
prescribed in Sec. 209.325; and
    (5) Notice of the parties' appeal rights, as prescribed in 
Sec. 209.327.
    (d) The decision shall be served upon the FRA Chief Counsel and the 
respondent. The Chief Counsel shall provide a copy of the 
disqualification order to the railroad by which the respondent is 
employed.

Sec. 209.325  Finality of decision.

    (a) The initial decision of the presiding officer shall become final 
35 days after issuance. Such decisions are not precedent.
    (b) Exception. The initial decision shall not become final if, 
within 35 days after issuance of the decision, any party files an appeal 
under Sec. 209.327. The timely filing of such an appeal shall stay the 
order in the initial decision.

Sec. 209.327  Appeal.

    (a) Any party aggrieved by an initial decision issued under 
Sec. 209.323 may file an appeal. The appeal must be filed within 35 days 
of issuance of the initial decision with the Federal Railroad 
Administrator, 400 Seventh Street, SW., Washington, DC 20590. A copy of 
the appeal shall be served on each party. The appeal shall set forth 
objections to the initial decision, supported by reference to applicable 
laws and regulations, and with specific reference to the record. If the 
Administrator has played any role in investigating, prosecuting, or 
deciding to prosecute the particular case, the Administrator shall 
recuse him or herself and delegate his or her authority under this 
section to a person not so involved.
    (b) A party may file a reply to an appeal within 25 days of service 
of the appeal. If the party relies on evidence contained in the record 
for the reply, the party shall specifically refer to the pertinent 
evidence in the record.
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided the written request for 
extension is served before the expiration of the applicable period 
provided in paragraph (c) or (d) of this section.
    (d) The Administrator has sole discretion to permit oral argument on 
the appeal. On the Administrator's own initiative or upon written motion 
by any party, the Administrator may determine that oral argument will 
contribute substantially to the development of the issues on appeal and 
may grant the parties an opportunity for oral argument.
    (e) The Administrator may affirm, reverse, alter, or modify the 
decision of the presiding officer, or may remand the case for further 
proceedings before

[[Page 33]]

the presiding officer. The Administrator shall inform the parties and 
the presiding officer of his or her decision.
    (f) The decision of the Administrator is final, constitutes final 
agency action, and is not subject to further administrative review.

Sec. 209.329  Assessment considerations.

    (a) Proof of a respondent's willful violation of one of the 
requirements of parts 213 through 236 (excluding parts 225, 228, and 
233) of this title establishes a rebuttable presumption that the 
respondent is unfit to perform the safety-sensitive functions described 
in Sec. 209.303. Where such presumption arises, the respondent has the 
burden of establishing that, taking account of the factors in paragraph 
(b) of this section, he or she is fit to perform the foregoing safety-
sensitive functions for the period and under the other conditions, if 
any, proposed in the notice of proposed disqualification.
    (b) In determining respondent's lack of fitness to perform safety-
sensitive functions and the duration and other conditions, if any, of 
appropriate disqualification orders under Secs. 209.309, 209.323, and 
209.327, the factors to be considered, to the extent: Each is pertinent 
to the respondent's case, include but are not limited to the following:
    (1) The nature and circumstances of the violation, including whether 
the violation was intentional, technical, or inadvertent, was committed 
willfully, or was frequently repeated;
    (2) The adverse impact or the potentially adverse impact of the 
violation on the health and safety of persons and the safety of 
property;
    (3) The railroad's operating rules, safety rules, and repair and 
maintenance standards;
    (4) Repair and maintenance standards adopted by the industry;
    (5) The consistency of the conditions of the proposed 
disqualification with disqualification orders issued against other 
employees for the same or similar violations;
    (6) Whether the respondent was on notice of any safety regulations 
that were violated or whether the respondent had been warned about the 
conduct in question;
    (7) The respondent's past record of committing violations of safety 
regulations, including previous FRA warnings issued, disqualifications 
imposed, civil penalties assessed, railroad disciplinary actions, and 
criminal convictions therefor;
    (8) The civil penalty scheduled for the violation of the safety 
regulation in question;
    (9) Mitigating circumstances surrounding the violation, such as the 
existence of an emergency situation endangering persons or property and 
the need for the respondent to take immediate action; and
    (10) Such other factors as may be warranted in the public interest.

Sec. 209.331  Enforcement of disqualification order.

    (a) A railroad that employs or formerly employed an individual 
serving under a disqualification order shall inform prospective or 
actual employers of the terms and conditions of the order upon receiving 
notice that the disqualified employee is being considered for employment 
with or is employed by another railroad to perform any of the safety-
sensitive functions described in Sec. 209.303.
    (b) A railroad that is considering hiring an individual to perform 
the safety-sensitive functions described in Sec. 209.303 shall ascertain 
from the individual's previous employer, if such employer was a 
railroad, whether the individual is subject to a disqualification order.
    (c) An individual subject to a disqualification order shall inform 
his or her employer of the order and provide a copy thereof within 5 
days after receipt of the order. Such an individual shall likewise 
inform any prospective employer who is considering hiring the individual 
to perform any of the safety-sensitive functions described in 
Sec. 209.303 of the order and provide a copy thereof within 5 days after 
receipt of the order or upon application for the position, whichever 
first occurs.

Sec. 209.333  Prohibitions.

    (a) An individual subject to a disqualification order shall not work 
for any railroad in any manner inconsistent with the order.

[[Page 34]]

    (b) A railroad shall not employ any individual subject to a 
disqualification order in any manner inconsistent with the order.

Sec. 209.335  Penalties.

    (a) Any individual who violates Sec. 209.331(c) or Sec. 209.333(a) 
may be permanently disqualified from performing the safety-sensitive 
functions described in Sec. 209.303. Any individual who willfully 
violates Sec. 209.331(c) or Sec. 209.333(a) may also be assessed a civil 
penalty of at least $1,000 and not more than $5,000 per violation.
    (b) Any railroad that violates Sec. 209.331 (a) or (b) or 
Sec. 209.333(b) may be assessed a civil penalty of at least $5,000 and 
not more than $11,000 per violation.
    (c) Each day a violation continues shall constitute a separate 
offense.

[54 FR 42907, Oct. 18, 1989, as amended at 63 FR 11619, Mar. 10, 1998]

Sec. 209.337  Information collection.

    The information collection requirements in Sec. 209.331 of this part 
have been reviewed by the Office of Management and Budget pursuant to 
the Paperwork Reduction Act of 1980, (44 U.S.C. 3501 et seq.) and have 
been assigned OMB control number 2130-0529.

[56 FR 66791, Dec. 26, 1991]

                Subpart E--Reporting of Remedial Actions

    Source: 59 FR 43676, Aug. 24, 1994, unless otherwise noted.

Sec. 209.401  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties arising from the operation of a railroad that result from a 
railroad's failure to remedy certain violations of the Federal railroad 
safety laws for which assessment of a civil penalty has been 
recommended.
    (b) To achieve this purpose, this subpart requires that if an FRA 
Safety Inspector notifies a railroad both that assessment of a civil 
penalty will be recommended for its failure to comply with a provision 
of the Federal railroad safety laws and that a remedial actions report 
must be submitted, the railroad shall report to the FRA Safety 
Inspector, within 30 days after the end of the calendar month in which 
such notification is received, actions taken to remedy that failure.
    (c) This subpart does not relieve the railroad of the underlying 
responsibility to comply with a provision of the Federal railroad safety 
laws. The 30-day period after the end of the calendar month in which 
notification is received is intended merely to provide the railroad with 
an opportunity to prepare its report to FRA, and does not excuse 
continued noncompliance.
    (d) This subpart requires the submission of remedial actions reports 
for the general categories of physical defects, recordkeeping and 
reporting violations, and filing violations, where the railroad can 
literally and specifically correct a failure to comply with a provision 
of the Federal railroad safety laws, as reasonably determined by the FRA 
Safety Inspector. No railroad is required to submit a report for a 
failure involving either a completed or past transaction or a 
transaction that it can no longer remedy.

Sec. 209.403  Applicability.

    This subpart applies to any railroad that receives written 
notification from an FRA Safety Inspector both (i) that assessment of a 
civil penalty will be recommended for its failure to comply with a 
provision of the Federal railroad safety laws and (ii) that it must 
submit a remedial actions report.

Sec. 209.405  Reporting of remedial actions.

    (a) Except as provided in Sec. 209.407, each railroad that has 
received written notification on Form FRA F 6180.96 from an FRA Safety 
Inspector both that assessment of a civil penalty will be recommended 
for the railroad's failure to comply with a provision of the Federal 
railroad safety laws and that it must submit a remedial actions report, 
shall report on this form all actions that it takes to remedy that 
failure. The railroad shall submit the completed form to the FRA Safety 
Inspector within 30 days after the end of the calendar month in which 
the notification is received.
    (1) Date of receipt of notification. If the FRA Safety Inspector 
provides written

[[Page 35]]

notification to the railroad by first class mail, then for purposes of 
determining the calendar month in which notification is received, the 
railroad shall be presumed to have received the notification five 
business days following the date of mailing.
    (2) Completion of Form FRA F 6180.96, including selection of 
railroad remedial action code. Each railroad shall complete the remedial 
actions report in the manner prescribed on the report form. The railroad 
shall select the one remedial action code on the reporting form that 
most accurately reflects the action or actions that it took to remedy 
the failure, such as, repair or replacement of a defective component 
without movement, movement of a locomotive or car for repair (where 
permitted) and its subsequent repair, completion of a required test or 
inspection, removal of a noncomplying item from service but not for 
repair (where permitted), reduction of operating speed (where sufficient 
to achieve compliance), or any combination of actions appropriate to 
remedy the noncompliance cited. Any railroad selecting the remedial 
action code ``other remedial actions'' shall also furnish FRA with a 
brief narrative description of the action or actions taken.
    (3) Submission of Form FRA F 6180.96. The railroad shall return the 
form by first class mail to the FRA Safety Inspector whose name and 
address appear on the form.
    (b) Any railroad concluding that the violation alleged on the 
inspection report may not have occurred may submit the remedial actions 
report with an appropriate written explanation. Failure to raise all 
pertinent defenses does not foreclose the railroad from doing so in 
response to a penalty demand.

Sec. 209.407  Delayed reports.

    (a) If a railroad cannot initiate or complete remedial actions 
within 30 days after the end of the calendar month in which the 
notification is received, it shall--
    (1) Prepare, in writing, an explanation of the reasons for such 
delay and a good faith estimate of the date by which it will complete 
the remedial actions, stating the name and job title of the preparer and 
including either:
    (i) A photocopy of both sides of the Form FRA F 6180.96 on which the 
railroad received notification; or
    (ii) The following information:
    (A) The inspection report number;
    (B) The inspection date; and
    (C) The item number; and
    (2) Sign, date, and submit such written explanation and estimate, by 
first class mail, to the FRA Safety Inspector whose name and address 
appear on the notification, within 30 days after the end of the calendar 
month in which the notification is received.
    (b) Within 30 days after the end of the calendar month in which all 
such remedial actions are completed, the railroad shall report in 
accordance with the remedial action code procedures referenced in 
Sec. 209.405(a). The additional time provided by this section for a 
railroad to submit a delayed report shall not excuse it from liability 
for any continuing violation of a provision of the Federal railroad 
safety laws.

Sec. 209.409  Penalties.

    Any person who violates any requirement of this subpart 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. A person may also be subject to the 
criminal penalties provided for in 49 U.S.C. 21311 (formerly codified in 
45 U.S.C. 438(e)) for knowingly and willfully falsifying reports 
required by this subpart.

[59 FR 43676, Aug. 24, 1994, as amended at 63 FR 11619, Mar. 10, 1998]

     Appendix A to Part 209--Statement of Agency Policy Concerning 
             Enforcement of the Federal Railroad Safety Laws

    The Federal Railroad Administration (``fra'') enforces the federal 
railroad safety

[[Page 36]]

statutes under delegation from the Secretary of Transportation. See 49 
CFR 1.49 (c), (d), (f), (g), and (m). Those statutes include the Federal 
Railroad Safety Act of 1970 (``Safety Act''), 45 U.S.C. 421 et seq., and 
a group of statutes enacted prior to 1970 referred to collectively 
herein as the ``older safety statutes'': The Safety Appliance Acts, 45 
U.S.C. 1-16; the Locomotive Inspection Act, 45 U.S.C. 22-34; the 
Accident Reports Act, 45 U.S.C. 38-43; the Hours of Service Act, 45 
U.S.C. 61-64b; and the Signal Inspection Act, 49 App. U.S.C. 26. 
Regulations implementing those statutes are found at 49 CFR parts 213 
through 236. The Rail Safety Improvement Act of 1988 (Pub. L. No. 100-
342, enacted June 22, 1988) (``RSIA'') raised the maximum civil 
penalties available under the railroad safety laws and made individuals 
liable for willful violations of those laws. FRA also enforces the 
Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., as 
it pertains to the shipment or transportation of hazardous materials by 
rail.

                        The Civil Penalty Process

    The front lines in the civil penalty process are the FRA safety 
inspectors: FRA employs over 300 inspectors, and their work is 
supplemented by approximately 100 inspectors from states participating 
in enforcement of the federal rail safety laws. These inspectors 
routinely inspect the equipment, track, and signal systems and observe 
the operations of the nation's railroads. They also investigate hundreds 
of complaints filed annually by those alleging noncompliance with the 
laws. When inspection or complaint investigation reveals noncompliance 
with the laws, each noncomplying condition or action is listed on an 
inspection report. Where the inspector determines that the best method 
of promoting compliance is to assess a civil penalty, he or she prepares 
a violation report, which is essentially a recommendation to the FRA 
Office of Chief Counsel to assess a penalty based on the evidence 
provided in or with the report.
    In determining which instances of noncompliance merit penalty 
recommendations, the inspector considers:
    (1) The inherent seriousness of the condition or action;
    (2) The kind and degree of potential safety hazard the condition or 
action poses in light of the immediate factual situation;
    (3) Any actual harm to persons or property already caused by the 
condition or action;
    (4) The offending person's (i.e., railroad's or individual's) 
general level of current compliance as revealed by the inspection as a 
whole;
    (5) The person's recent history of compliance with the relevant set 
of regulations, especially at the specific location or division of the 
railroad involved;
    (6) Whether a remedy other than a civil penalty (ranging from a 
warning on up to an emergency order) is more appropriate under all of 
the facts; and
    (7) Such other factors as the immediate circumstances make relevant.
    The civil penalty recommendation is reviewed at the regional level 
by a specialist in the subject matter involved, who requires correction 
of any technical flaws and determines whether the recommendation is 
consistent with national enforcement policy in similar circumstances. 
Guidance on that policy in close cases is sometimes sought from Office 
of Safety headquarters. Violation reports that are technically and 
legally sufficient and in accord with FRA policy are sent from the 
regional office to the Office of Chief Counsel.
    The exercise of this discretion at the field and regional levels is 
a vital part of the enforcement process, ensuring that the exacting and 
time-consuming civil penalty process is used to address those situations 
most in need of the deterrent effect of penalties. FRA exercises that 
discretion with regard to individual violators in the same manner it 
does with respect to railroads.
    The Office of Chief Counsel's Safety Division reviews each violation 
report it receives from the regional offices for legal sufficiency and 
assesses penalties based on those allegations that survive that review. 
Historically, the Division has returned to the regional offices less 
than five percent of the reports submitted in a given year, often with a 
request for further work and resubmission.
    Where the violation was committed by a railroad, penalties are 
assessed by issuance of a penalty demand letter that summarizes the 
claims, encloses the violation report with a copy of all evidence on 
which FRA is relying in making its initial charge, and explains that the 
railroad may pay in full or submit, orally or in writing, information 
concerning any defenses or mitigating factors. The railroad safety 
statutes, in conjunction with the Federal Claims Collection Act, 
authorize FRA to adjust or compromise the initial penalty claims based 
on a wide variety of mitigating factors. This system permits the 
efficient collection of civil penalties in amounts that fit the actual 
offense without resort to time-consuming and expensive litigation. Over 
its history, FRA has had to request that the Attorney General bring suit 
to collect a penalty on only a very few occasions.
    Once penalties have been assessed, the railroad is given a 
reasonable amount of time to investigate the charges. Larger railroads 
usually make their case before FRA in an informal conference covering a 
number of case files that have been issued and investigated since the 
previous conference. Thus, in terms

[[Page 37]]

of the negotiating time of both sides, economies of scale are achieved 
that would be impossible if each case were negotiated separately. The 
settlement conferences, held either in Washington or another mutually 
agreed on location, include technical experts from both FRA and the 
railroad as well as lawyers for both parties. In addition to allowing 
the two sides to make their cases for the relative merits of the various 
claims, these conferences also provide a forum for addressing current 
compliance problems. Smaller railroads usually prefer to handle 
negotiations through the mail or over the telephone, often on a single 
case at a time. Once the two sides have agreed to an amount on each 
case, that agreement is put in writing and a check is submitted to FRA's 
accounting division covering the full amount agreed on.
    Cases brought under the Hazardous Materials Transportation Act, 49 
App. U.S.C. 1801 et seq., are, due to certain statutory requirements, 
handled under more formal administrative procedures. See 49 CFR part 
209, subpart B.

                   Civil Penalties Against Individuals

    The RSIA amended the penalty provisions of the railroad safety 
statutes to make them applicable to any ``person (including a railroad 
and any manager, supervisor, official, or other employee or agent of a 
railroad)'' who fails to comply with the regulations or statutes. E.g., 
section 3 of the RSIA, amending section 209 of the Safety Act. However, 
the RSIA also provided that civil penalties may be assessed against 
individuals ``only for willful violations.''
    Thus, any individual meeting the statutory description of ``person'' 
is liable for a civil penalty for a willful violation of, or for 
willfully causing the violation of, the safety statutes or regulations. 
Of course, as has traditionally been the case with respect to acts of 
noncompliance by railroads, the FRA field inspector exercises discretion 
in deciding which situations call for a civil penalty assessment as the 
best method of ensuring compliance. The inspector has a range of 
options, including an informal warning, a more formal warning letter 
issued by the Safety Division of the Office of Chief Counsel, 
recommendation of a civil penalty assessment, recommendation of 
disqualification or suspension from safety-sensitive service, or, under 
the most extreme circumstances, recommendation of emergency action.
    The threshold question in any alleged violation by an individual 
will be whether that violation was ``willful.'' (Note that section 3(a) 
of the RSIA, which authorizes suspension or disqualification of a person 
whose violation of the safety laws has shown him or her to be unfit for 
safety-sensitive service, does not require a showing of willfulness. 
Regulations implementing that provision are found at 49 CFR part 209, 
subpart D.) FRA proposed this standard of liability when, in 1987, it 
originally proposed a statutory revision authorizing civil penalties 
against individuals. FRA believed then that it would be too harsh a 
system to collect fines from individuals on a strict liability basis, as 
the safety statutes permit FRA to do with respect to railroads. FRA also 
believed that even a reasonable care standard (e.g., the Hazardous 
Materials Transportation Act's standard for civil penalty liability, 49 
U.S.C. 1809(a)) would subject individuals to civil penalties in more 
situations than the record warranted. Instead, FRA wanted the authority 
to penalize those who violate the safety laws through a purposeful act 
of free will.
    Thus, FRA considers a ``willful'' violation to be one that is an 
intentional, voluntary act committed either with knowledge of the 
relevant law or reckless disregard for whether the act violated the 
requirements of the law. Accordingly, neither a showing of evil purpose 
(as is sometimes required in certain criminal cases) nor actual 
knowledge of the law is necessary to prove a willful violation, but a 
level of culpability higher than negligence must be demonstrated. See 
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Brock v. 
Morello Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and Donovan v. 
Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).
    Reckless disregard for the requirements of the law can be 
demonstrated in many ways. Evidence that a person was trained on or made 
aware of the specific rule involved--or, as is more likely, its 
corresponding industry equivalent--would suffice. Moreover, certain 
requirements are so obviously fundamental to safe railroading (e.g., the 
prohibition against disabling an automatic train control device) that 
any violation of them, regardless of whether the person was actually 
aware of the prohibition, should be seen as reckless disregard of the 
law. See Brock, supra, 809 F.2d 164. Thus, a lack of subjective 
knowledge of the law is no impediment to a finding of willfulness. If it 
were, a mere denial of the content of the particular regulation would 
provide a defense. Having proposed use of the word ``willful,'' FRA 
believes it was not intended to insulate from liability those who simply 
claim--contrary to the established facts of the case--they had no reason 
to believe their conduct was wrongful.
    A willful violation entails knowledge of the facts constituting the 
violation, but actual, subjective knowledge need not be demonstrated. It 
will suffice to show objectively what the alleged violator must have 
known of the facts based on reasonable inferences drawn from the 
circumstances. For example, a person shown to have been responsible for 
performing an initial terminal air brake test that was not in fact 
performed would not be

[[Page 38]]

able to defend against a charge of a willful violation simply by 
claiming subjective ignorance of the fact that the test was not 
performed. If the facts, taken as a whole, demonstrated that the person 
was responsible for doing the test and had no reason to believe it was 
performed by others, and if that person was shown to have acted with 
actual knowledge of or reckless disregard for the law requiring such a 
test, he or she would be subject to a civil penalty.
    This definition of ``willful'' fits squarely within the parameters 
for willful acts laid out by Congress in the RSIA and its legislative 
history. Section 3(a) of the RSIA amends the Safety Act to provide:
    For purposes of this section, an individual shall be deemed not to 
have committed a willful violation where such individual has acted 
pursuant to the direct order of a railroad official or supervisor, under 
protest communicated to the supervisor. Such individual shall have the 
right to document such protest.
    As FRA made clear when it recommended legislation granting 
individual penalty authority, a railroad employee should not have to 
choose between liability for a civil penalty or insubordination charges 
by the railroad. Where an employee (or even a supervisor) violates the 
law under a direct order from a supervisor, he or she does not do so of 
his or her free will. Thus, the act is not a voluntary one and, 
therefore, not willful under FRA's definition of the word. Instead, the 
action of the person who has directly ordered the commission of the 
violation is itself a willful violation subjecting that person to a 
civil penalty. As one of the primary sponsors of the RSIA said on the 
Senate floor:
    This amendment also seeks to clarify that the purpose of imposing 
civil penalties against individuals is to deter those who, of their free 
will, decide to violate the safety laws. The purpose is not to penalize 
those who are ordered to commit violations by those above them in the 
railroad chain of command. Rather, in such cases, the railroad official 
or supervisor who orders the others to violate the law would be liable 
for any violations his order caused to occur. One example is the 
movement of railroad cars or locomotives that are actually known to 
contain certain defective conditions. A train crew member who was 
ordered to move such equipment would not be liable for a civil penalty, 
and his participation in such movements could not be used against him in 
any disqualification proceeding brought by FRA.

133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator 
Exon).

    It should be noted that FRA will apply the same definition of 
``willful'' to corporate acts as is set out here with regard to 
individual violations. Although railroads are strictly liable for 
violations of the railroad safety laws and deemed to have knowledge of 
those laws, FRA's penalty schedules contain, for each regulation, a 
separate amount earmarked as the initial assessment for willful 
violations. Where FRA seeks such an extraordinary penalty from a 
railroad, it will apply the definition of ``willful'' set forth above. 
In such cases--as in all civil penalty cases brought by FRA--the 
aggregate knowledge and actions of the railroad's managers, supervisors, 
employees, and other agents will be imputed to the railroad. Thus, in 
situations that FRA decides warrant a civil penalty based on a willful 
violation, FRA will have the option of citing the railroad and/or one or 
more of the individuals involved. In cases against railroads other than 
those in which FRA alleges willfulness or in which a particular 
regulation imposes a special standard, the principles of strict 
liability and presumed knowledge of the law will continue to apply.
    The RSIA gives individuals the right to protest a direct order to 
violate the law and to document the protest. FRA will consider such 
protests and supporting documentation in deciding whether and against 
whom to cite civil penalties in a particular situation. Where such a 
direct order has been shown to have been given as alleged, and where 
such a protest is shown to have been communicated to the supervisor, the 
person or persons communicating it will have demonstrated their lack of 
willfulness. Any documentation of the protest will be considered along 
with all other evidence in determining whether the alleged order to 
violate was in fact given.
    However, the absence of such a protest will not be viewed as 
warranting a presumption of willfulness on the part of the employee who 
might have communicated it. The statute says that a person who 
communicates such a protest shall be deemed not to have acted willfully; 
it does not say that a person who does not communicate such a protest 
will be deemed to have acted willfully. FRA would have to prove from all 
the pertinent facts that the employee willfully violated the law. 
Moreover, the absence of a protest would not be dispositive with regard 
to the willfulness of a supervisor who issued a direct order to violate 
the law. That is, the supervisor who allegedly issued an order to 
violate will not be able to rely on the employee's failure to protest 
the order as a complete defense. Rather, the issue will be whether, in 
view of all pertinent facts, the supervisor intentionally and 
voluntarily ordered the employee to commit an act that the supervisor 
knew would violate the law or acted with reckless disregard for whether 
it violated the law.
    FRA exercises the civil penalty authority over individuals through 
informal procedures very similar to those used with respect to railroad 
violations. However, FRA varies

[[Page 39]]

those procedures somewhat to account for differences that may exist 
between the railroad's ability to defend itself against a civil penalty 
charge and an individual's ability to do so. First, when the field 
inspector decides that an individual's actions warrant a civil penalty 
recommendation and drafts a violation report, the inspector or the 
regional director informs the individual in writing of his or her 
intention to seek assessment of a civil penalty and the fact that a 
violation report has been transmitted to the Office of Chief Counsel. 
This ensures that the individual has the opportunity to seek counsel, 
preserve documents, or take any other necessary steps to aid his or her 
defense at the earliest possible time.
    Second, if the Office of Chief Counsel concludes that the case is 
meritorious and issues a penalty demand letter, that letter makes clear 
that FRA encourages discussion, through the mail, over the telephone or 
in person, of any defenses or mitigating factors the individual may wish 
to raise. That letter also advises the individual that he or she may 
wish to obtain representation by an attorney and/or labor 
representative. During the negotiation stage, FRA considers each case 
individually on its merits and gives due weight to whatever information 
the alleged violator provides.
    Finally, in the unlikely event that a settlement cannot be reached, 
FRA sends the individual a letter warning of its intention to request 
that the Attorney General sue for the initially proposed amount and 
giving the person a sufficient interval (e.g., 30 days) to decide if 
that is the only alternative.
    FRA believes that the intent of Congress would be violated if 
individuals who agree to pay a civil penalty or are ordered to do so by 
a court are indemnified for that penalty by the railroad or another 
institution (such as a labor organization). Congress intended that the 
penalties have a deterrent effect on individual behavior that would be 
lessened, if not eliminated, by such indemnification.
    Although informal, face-to-face meetings are encouraged during the 
negotiation of a civil penalty charge, the RSIA does not require that 
FRA give individuals or railroads the opportunity for a formal, trial-
type administrative hearing as part of the civil penalty process. FRA 
does not provide that opportunity because such administrative hearings 
would be likely to add significantly to the costs an individual would 
have to bear in defense of a safety claim (and also to FRA's enforcement 
expenses) without shedding any more light on what resolution of the 
matter is fair than would the informal procedures set forth here. Of 
course, should an individual or railroad decide not to settle, that 
person would be entitled to a trial de novo when FRA, through the 
Attorney General, sued to collect the penalty in the appropriate United 
States district court.

           Penalty Schedules; Assessment of Maximum Penalties

    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

[[Page 40]]

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 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.

          The Extent And Exercise Of FRA's Safety Jurisdiction

    The Safety Act and, as amended by the RSIA, the older safety 
statutes apply to ``railroads.'' Section 202(e) of the Safety Act 
defines railroad as follows:
    The term ``railroad'' as used in this title means all forms of non-
highway ground transportation that run on rails or electromagnetic 
guideways, including (1) commuter or other short-haul rail passenger 
service in a metropolitan or suburban area, as well as any commuter rail 
service which was operated by the Consolidated Rail Corporation as of 
January 1, 1979, and (2) high speed ground transportation systems that 
connect metropolitan areas, without regard to whether they use new 
technologies not associated with traditional railroads. Such term does 
not include rapid transit operations within an urban area that are not 
connected to the general railroad system of transportation.
    Prior to 1988, the older safety statutes had applied only to common 
carriers engaged in interstate or foreign commerce by rail. The Safety 
Act, by contrast, was intended to reach as far as the Commerce Clause of 
the Constitution (i.e., to all railroads that affect interstate 
commerce) rather than be limited to common carriers actually engaged in 
interstate commerce. In reporting out the bill that became the 1970 
Safety Act, the House Committee on Interstate and Foreign Commerce 
stated:
    The Secretary's authority to regulate extends to all areas of 
railroad safety. This legislation is intended to encompass all those 
means of rail transportation as are commonly included within the term. 
Thus, ``railroad'' is not limited to the confines of ``common carrier by 
railroad'' as that language is defined in the Interstate Commerce Act.

H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970).
    FRA's jurisdiction was bifurcated until, in 1988, the RSIA amended 
the older safety statutes to make them coextensive with the Safety Act 
by making them applicable to railroads and incorporating the Safety 
Act's definition of the term (e.g., 45 U.S.C. 16, as amended). The RSIA 
also made clear that FRA's safety jurisdiction is not confined to 
entities using traditional railroad technology. The new definition of 
``railroad'' emphasized that all non-highway high speed ground 
transportation systems--regardless of technology used--would be 
considered railroads.
    Thus, with the exception of self-contained urban rapid transit 
systems, FRA's statutory jurisdiction extends to all entities that can 
be construed as railroads by virtue of their providing non-highway 
ground transportation over rails or electromagnetic guideways, and will 
extend to future railroads using other technologies not yet in use. For 
policy reasons, however, FRA does not exercise jurisdiction under all of 
its regulations to the full extent permitted by statute. Based on its 
knowledge of where the safety problems were occurring at the time of its 
regulatory action and its assessment of the practical limitations on its 
role, FRA has, in each regulatory context, decided that the best option 
was to regulate something less than the total universe of railroads.
    For example, all of FRA's regulations exclude from their reach 
railroads whose entire operations are confined to an industrial 
installation (i.e., ``plant railroads''), such as those in steel mills 
that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1) 
(accident reporting regulations). Some rules exclude passenger 
operations that are not part of the general railroad system (such as 
some tourist railroads) only if they meet the definition of ``insular.'' 
E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade 
crossing signal safety). Other regulations exclude not only plant 
railroads but all other railroads that are not operated as a part of, or 
over the lines of, the general railroad system of transportation. E.g., 
49 CFR 214.3 (railroad workplace safety).
    By ``general railroad system of transportation,'' FRA refers to the 
network of standard gage track over which goods may be transported 
throughout the nation and passengers may travel between cities and 
within metropolitan and suburban areas. Much of this network is 
interconnected, so that a rail vehicle can travel across the nation 
without leaving the system. However, mere physical connection to the 
system does not bring trackage within it. For example, trackage

[[Page 41]]

within an industrial installation that is connected to the network only 
by a switch for the receipt of shipments over the system is not a part 
of the system.
    Moreover, portions of the network may lack a physical connection but 
still be part of the system by virtue of the nature of operations that 
take place there. For example, the Alaska Railroad is not physically 
connected to the rest of the general system but is part of it. The 
Alaska Railroad exchanges freight cars with other railroads by car float 
and exchanges passengers with interstate carriers as part of the general 
flow of interstate commerce. Similarly, an intercity high speed rail 
system with its own right of way would be part of the general system 
although not physically connected to it. The presence on a rail line of 
any of these types of railroad operations is a sure indication that such 
trackage is part of the general system: the movement of freight cars in 
trains outside the confines of an industrial installation, the movement 
of intercity passenger trains, or the movement of commuter trains within 
a metropolitan or suburban area. Urban rapid transit operations are 
ordinarily not part of the general system, but may have sufficient 
connections to that system to warrant exercise of FRA's jurisdiction 
(see discussion of passenger operations, below). Tourist railroad 
operations are not inherently part of the general system and, unless 
operated over the lines of that system, are subject to few of FRA's 
regulations.
    The boundaries of the general system are not static. For example, a 
portion of the system may be purchased for the exclusive use of a single 
private entity and all connections, save perhaps a switch for receiving 
shipments, severed. Depending on the nature of the operations, this 
could remove that portion from the general system. The system may also 
grow, as with the establishment of intercity service on a brand new 
line. However, the same trackage cannot be both inside and outside of 
the general system depending upon the time of day. If trackage is part 
of the general system, restricting a certain type of traffic over that 
trackage to a particular portion of the day does not change the nature 
of the line--it remains the general system.
    Of course, even where a railroad operates outside the general 
system, other railroads that are definitely part of that system may have 
occasion to enter the first railroad's property (e.g., a major railroad 
goes into a chemical or auto plant to pick up or set out cars). In such 
cases, the railroad that is part of the general system remains part of 
that system while inside the installation; thus, all of its activities 
are covered by FRA's regulations during that period. The plant railroad 
itself, however, does not get swept into the general system by virtue of 
the other railroad's activity, except to the extent it is liable, as the 
track owner, for the condition of its track over which the other 
railroad operates during its incursion into the plant. Of course, in the 
opposite situation, where the plant railroad itself operates beyond the 
plant boundaries on the general system, it becomes a railroad with 
respect to those particular operations, during which its equipment, 
crew, and practices would be subject to FRA's regulations.
    In some cases, the plant railroad leases track immediately adjacent 
to its plant from the general system railroad. Assuming such a lease 
provides for, and actual practice entails, the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant, the lease 
would remove the plant railroad's operations on that trackage from the 
general system for purposes of FRA's regulations, as it would make that 
trackage part and parcel of the industrial installation. (As explained 
above, however, the track itself would have to meet FRA's standards if a 
general system railroad operated over it. See 49 CFR 213.5 for the rules 
on how an owner of track may assign responsibility for it.) A lease or 
practice that permitted other types of movements by general system 
railroads on that trackage would, of course, bring it back into the 
general system, as would operations by the plant railroad indicating it 
was moving cars on such trackage for other than its own purposes (e.g., 
moving cars to neighboring industries for hire).
    FRA exercises jurisdiction over tourist, scenic, and excursion 
railroad operations whether or not they are conducted on the general 
railroad system. There are two exceptions: (1) operations of less than 
24-inch gage (which, historically, have never been considered railroads 
under the Federal railroad safety laws); and (2) operations that are off 
the general system and ``insular'' (defined below).
    Insularity is an issue only with regard to tourist operations over 
trackage outside of the general system used exclusively for such 
operations. FRA considers a tourist operation to be insular if its 
operations are limited to a separate enclave in such a way that there is 
no reasonable expectation that the safety of any member of the 
public'except a business guest, a licensee of the tourist operation or 
an affiliated entity, or a trespasser'would be affected by the 
operation. A tourist operation will not be considered insular if one or 
more of the following exists on its line:
    [sbull]A public highway-rail crossing that is in use;
    [sbull]An at-grade rail crossing that is in use;
    [sbull]A bridge over a public road or waters used for commercial 
navigation; or

[[Page 42]]

    [sbull]A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad.
    When tourist operations are conducted on the general system, FRA 
exercises jurisdiction over them, and all of FRA's pertinent regulations 
apply to those operations unless a waiver is granted or a rule 
specifically excepts such operations (e.g., the passenger equipment 
safety standards contain an exception for these operations, 49 CFR 
238.3(c)(3), even if conducted on the general system). When a tourist 
operation is conducted only on track used exclusively for that purpose 
it is not part of the general system. The fact that a tourist operation 
has a switch that connects it to the general system does not make the 
tourist operation part of the general system if the tourist trains do 
not enter the general system and the general system railroad does not 
use the tourist operation's trackage for any purpose other than 
delivering or picking up shipments to or from the tourist operation 
itself.
    If a tourist operation off the general system is insular, FRA does 
not exercise jurisdiction over it, and none of FRA's rules apply. If, 
however, such an operation is not insular, FRA exercises jurisdiction 
over the operation, and some of FRA's rules (i.e., those that 
specifically apply beyond the general system to such operations) will 
apply. For example, FRA's rules on accident reporting, steam 
locomotives, and grade crossing signals apply to these non-insular 
tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of 
FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal 
railroad safety statutes themselves.
    In drafting safety rules, FRA has a specific obligation to consider 
financial, operational, or other factors that may be unique to tourist 
operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider 
those factors in determining whether any particular rule will apply to 
tourist operations. Therefore, although FRA asserts jurisdiction quite 
broadly over these operations, we work to ensure that the rules we issue 
are appropriate to their somewhat special circumstances.
    It is important to note that FRA's exercise of its regulatory 
authority on a given matter does not preclude it from subsequently 
amending its regulations on that subject to bring in railroads 
originally excluded. More important, the self-imposed restrictions on 
FRA's exercise of regulatory authority in no way constrain its exercise 
of emergency order authority under section 203 of the Safety Act. That 
authority was designed to deal with imminent hazards not dealt with by 
existing regulations and/or so dangerous as to require immediate, ex 
parte action on the government's part. Thus, a railroad excluded from 
the reach of any of FRA's regulations is fully within the reach of FRA's 
emergency order authority, which is coextensive with FRA's statutory 
jurisdiction over all railroads.

         FRA's Policy on Jurisdiction Over Passenger Operations

    Under the Federal railroad safety laws, FRA has jurisdiction over 
all railroads except ``rapid transit operations in an urban area that 
are not connected to the general railroad system of transportation.'' 49 
U.S.C. 20102. Within the limits imposed by this authority, FRA exercises 
jurisdiction over all railroad passenger operations, regardless of the 
equipment they use, unless FRA has specifically stated below an 
exception to its exercise of jurisdiction for a particular type of 
operation. This policy is stated in general terms and does not change 
the reach of any particular regulation under its applicability section. 
That is, while FRA may generally assert jurisdiction over a type of 
operation here, a particular regulation may exclude that kind of 
operation from its reach. Therefore, this statement should be read in 
conjunction with the applicability sections of all of FRA's regulations.

                     Intercity Passenger Operations

    FRA exercises jurisdiction over all intercity passenger operations. 
Because of the nature of the service they provide, standard gage 
intercity operations are all considered part of the general railroad 
system, even if not physically connected to other portions of the 
system. Other intercity passenger operations that are not standard gage 
(such as a magnetic levitation system) are within FRA's jurisdiction 
even though not part of the general system.

                           Commuter Operations

    FRA exercises jurisdiction over all commuter operations. Congress 
apparently intended that FRA do so when it enacted the Federal Railroad 
Safety Act of 1970, and made that intention very clear in the 1982 and 
1988 amendments to that act. FRA has attempted to follow that mandate 
consistently. A commuter system's connection to other railroads is not 
relevant under the rail safety statutes. In fact, FRA considers commuter 
railroads to be part of the general railroad system regardless of such 
connections.
    FRA will presume that an operation is a commuter railroad if there 
is a statutory determination that Congress considers a particular 
service to be commuter rail. For example, in the Northeast Rail Service 
Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter 
authorities. If that presumption does not apply, and the operation does 
not meet the description of a system that is presumptively urban rapid 
transit (see below), FRA will determine whether a system is

[[Page 43]]

commuter or urban rapid transit by analyzing all of the system's 
pertinent facts. FRA is likely to consider an operation to be a commuter 
railroad if:
    [sbull]The system serves an urban area, its suburbs, and more 
distant outlying communities in the greater metropolitan area,
    [sbull]The system's primary function is moving passengers back and 
forth between their places of employment in the city and their homes 
within the greater metropolitan area, and moving passengers from station 
to station within the immediate urban area is, at most, an incidental 
function, and
    [sbull]The vast bulk of the system's trains are operated in the 
morning and evening peak periods with few trains at other hours.
    Examples of commuter railroads include Metra and the Northern 
Indiana Commuter Transportation District in the Chicago area; Virginia 
Railway Express and MARC in the Washington area; and Metro-North, the 
Long Island Railroad, New Jersey Transit, and the Port Authority Trans 
Hudson (PATH) in the New York area.

                   Other Short Haul Passenger Service

    The federal railroad safety statutes give FRA authority over 
``commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area.'' 49 U.S.C. 20102. This means that, in 
addition to commuter service, there are other short-haul types of 
service that Congress intended that FRA reach. For example, a passenger 
system designed primarily to move intercity travelers from a downtown 
area to an airport, or from an airport to a resort area, would be one 
that does not have the transportation of commuters within a metropolitan 
area as its primary purpose. FRA would ordinarily exercise jurisdiction 
over such a system as ``other short-haul service'' unless it meets the 
definition of urban rapid transit and is not connected in a significant 
way to the general system.

                     Urban Rapid Transit Operations

    One type of short-haul passenger service requires special treatment 
under the safety statutes: ``rapid transit operations in an urban 
area.'' Only these operations are excluded from FRA's jurisdiction, and 
only if they are ``not connected to the general railroad system.'' FRA 
will presume that an operation is an urban rapid transit operation if 
the system is not presumptively a commuter railroad (see discussion 
above) the operation is a subway or elevated operation with its own 
track system on which no other railroad may operate, has no highway-rail 
crossings at grade, operates within an urban area, and moves passengers 
from station to station within the urban area as one of its major 
functions.
    Where neither the commuter railroad nor urban rapid transit 
presumptions applies, FRA will look at all of the facts pertinent to a 
particular operation to determine its proper characterization. FRA is 
likely to consider an operation to be urban rapid transit if:
    [sbull]The operation serves an urban area (and may also serve its 
suburbs),
    [sbull]Moving passengers from station to station within the urban 
boundaries is a major function of the system and there are multiple 
station stops within the city for that purpose (such an operation could 
still have the transportation of commuters as one of its major functions 
without being considered a commuter railroad), and
    [sbull]The system provides frequent train service even outside the 
morning and evening peak periods.
    Examples of urban rapid transit systems include the Metro in the 
Washington, D.C. area, CTA in Chicago, and the subway systems in New 
York, Boston, and Philadelphia. The type of equipment used by such a 
system is not determinative of its status. However, the kinds of 
vehicles ordinarily associated with street railways, trolleys, subways, 
and elevated railways are the types of vehicles most often used for 
urban rapid transit operations.
    FRA can exercise jurisdiction over a rapid transit operation only if 
it is connected to the general railroad system, but need not exercise 
jurisdiction over every such operation that is so connected. FRA is 
aware of several different ways that rapid transit operations can be 
connected to the general system. Our policy on the exercise of 
jurisdiction will depend upon the nature of the connection(s). In 
general, a connection that involves operation of transit equipment as a 
part of, or over the lines of, the general system will trigger FRA's 
exercise of jurisdiction. Below, we review some of the more common types 
of connections and their effect on the agency's exercise of 
jurisdiction. This is not meant to be an exhaustive list of connections.

   Rapid Transit Connections Sufficient to Trigger FRA's Exercise of 
                              Jurisdiction

    Certain types of connections to the general railroad system will 
cause FRA to exercise jurisdiction over the rapid transit line to the 
extent it is connected. FRA will exercise jurisdiction over the portion 
of a rapid transit operation that is conducted as a part of or over the 
lines of the general system. For example, rapid transit operations are 
conducted on the lines of the general system where the rapid transit 
operation and other railroad use the same track. FRA will exercise its 
jurisdiction over the operations conducted on the general system. In 
situations involving joint use of the same track, it does not matter 
that the rapid transit operation occupies the track only at times when 
the freight,

[[Page 44]]

commuter, or intercity passenger railroad that shares the track is not 
operating. While such time separation could provide the basis for waiver 
of certain of FRA's rules (see 49 CFR part 211), it does not mean that 
FRA will not exercise jurisdiction. However, FRA will exercise 
jurisdiction over only the portions of the rapid transit operation that 
are conducted on the general system. For example, a rapid transit line 
that operates over the general system for a portion of its length but 
has significant portions of street railway that are not used by 
conventional railroads would be subject to FRA's rules only with respect 
to the general system portion. The remaining portions would not be 
subject to FRA's rules. If the non-general system portions of the rapid 
transit line are considered a ``rail fixed guideway system'' under 49 
CFR Part 659, those rules, issued by the Federal Transit Administration 
(FTA), would apply to them.
    Another connection to the general system sufficient to warrant FRA's 
exercise of jurisdiction is a railroad crossing at grade where the rapid 
transit operation and other railroad cross each other's tracks. In this 
situation, FRA will exercise its jurisdiction sufficiently to assure 
safe operations over the at-grade railroad crossing. FRA will also 
exercise jurisdiction to a limited extent over a rapid transit operation 
that, while not operated on the same tracks as the conventional 
railroad, is connected to the general system by virtue of operating in a 
shared right-of-way involving joint control of trains. For example, if a 
rapid transit line and freight railroad were to operate over a movable 
bridge and were subject to the same authority concerning its use (e.g., 
the same tower operator controls trains of both operations), FRA will 
exercise jurisdiction in a manner sufficient to ensure safety at this 
point of connection. Also, where transit operations share highway-rail 
grade crossings with conventional railroads, FRA expects both systems to 
observe its signal rules. For example, FRA expects both railroads to 
observe the provision of its rule on grade crossing signals that 
requires prompt reports of warning system malfunctions. See 49 CFR part 
234. FRA believes these connections present sufficient intermingling of 
the rapid transit and general system operations to pose significant 
hazards to one or both operations and, in the case of highway-rail grade 
crossings, to the motoring public. The safety of highway users of 
highway-rail grade crossings can best be protected if they get the same 
signals concerning the presence of any rail vehicles at the crossing and 
if they can react the same way to all rail vehicles.

 Rapid Transit Connections Not Sufficient to Trigger FRA's Exercise of 
                              Jurisdiction

    Although FRA could exercise jurisdiction over a rapid transit 
operation based on any connection it has to the general railroad system, 
FRA believes there are certain connections that are too minimal to 
warrant the exercise of its jurisdiction. For example, a rapid transit 
system that has a switch for receiving shipments from the general system 
railroad is not one over which FRA would assert jurisdiction. This 
assumes that the switch is used only for that purpose. In that case, any 
entry onto the rapid transit line by the freight railroad would be for a 
very short distance and solely for the purpose of dropping off or 
picking up cars. In this situation, the rapid transit line is in the 
same situation as any shipper or consignee; without this sort of 
connection, it cannot receive or offer goods by rail.
    Mere use of a common right-of-way or corridor in which the 
conventional railroad and rapid transit operation do not share any means 
of train control, have a rail crossing at grade, or operate over the 
same highway-rail grade crossings would not trigger FRA's exercise of 
jurisdiction. In this context, the presence of intrusion detection 
devices to alert one or both carriers to incursions by the other one 
would not be considered a means of common train control. These common 
rights of way are often designed so that the two systems function 
completely independently of each other. FRA and FTA will coordinate with 
rapid transit agencies and railroads wherever there are concerns about 
sufficient intrusion detection and related safety measures designed to 
avoid a collision between rapid transit trains and conventional 
equipment.
    Where these very minimal connections exist, FRA will not exercise 
jurisdiction unless and until an emergency situation arises involving 
such a connection, which is a very unlikely event. However, if such a 
system is properly considered a rail fixed guideway system, FTA's rules 
(49 CFR part 659) will apply to it.

                Coordination of the FRA and FTA Programs

    FTA's rules on rail fixed guideway systems (49 CFR part 659) apply 
to any rapid transit systems or portions thereof not subject to FRA's 
rules. On rapid transit systems that are not sufficiently connected to 
the general railroad system to warrant FRA's exercise of jurisdiction 
(as explained above), FTA's rules will apply exclusively. On those rapid 
transit systems that are connected to the general system in such a way 
as warrant exercise of FRA's jurisdiction, only those portions of the 
rapid transit system that are

[[Page 45]]

connected to the general system will generally be subject to FRA's 
rules.
    A rapid transit railroad may apply to FRA for a waiver of any FRA 
regulations. See 49 CFR part 211. FRA will seek FTA's views whenever a 
rapid transit operation petitions FRA for a waiver of its safety rules. 
In granting or denying any such waiver, FRA will make clear whether its 
rules do not apply to any segments of the operation so that it is clear 
where FTA's rules do apply.

                         Extraordinary Remedies

    While civil penalties are the primary enforcement tool under the 
federal railroad safety laws, more extreme measures are available under 
certain circumstances. FRA has authority to issue orders directing 
compliance with the Federal Railroad Safety Act, the Hazardous Materials 
Transportation Act, the older safety statutes, or regulations issued 
under any of those statutes. See 45 U.S.C. 437(a) and (d), and 49 App. 
U.S.C. 1808(a). Such an order may issue only after notice and 
opportunity for a hearing in accordance with the procedures set forth in 
49 CFR part 209, subpart C. FRA inspectors also have the authority to 
issue a special notice requiring repairs where a locomotive or freight 
car is unsafe for further service or where a segment of track does not 
meet the standards for the class at which the track is being operated. 
Such a special notice may be appealed to the regional director and the 
FRA Administrator. See 49 CFR part 216, subpart B.
    FRA may, through the Attorney General, also seek injunctive relief 
in federal district court to restrain violations or enforce rules issued 
under the railroad safety laws. See 45 U.S.C. 439 and 49 App. U.S.C. 
1810.
    FRA also has the authority to issue, after notice and an opportunity 
for a hearing, an order prohibiting an individual from performing 
safety-sensitive functions in the rail industry for a specified period. 
This disqualification authority is exercised under procedures found at 
49 CFR part 209, subpart D.
    Criminal penalties are available for willful violations of the 
Hazardous Materials Transportation Act or its regulations. See 49 App. 
U.S.C. 1809(b), and 49 CFR 209.131, 133. Criminal penalties are also 
available under 45 U.S.C. 438(e) for knowingly and willfully falsifying, 
destroying, or failing to complete records or reports required to be 
kept under the various railroad safety statutes and regulations. The 
Accident Reports Act, 45 U.S.C. 39, also contains criminal penalties.
    Perhaps FRA's most sweeping enforcement tool is its authority to 
issue emergency safety orders ``where an unsafe condition or practice, 
or a combination of unsafe conditions or practices, or both, create an 
emergency situation involving a hazard of death or injury to persons * * 
*'' 45 U.S.C. 432(a). After its issuance, such an order may be reviewed 
in a trial-type hearing. See 49 CFR 211.47 and 216.21 through 216.27. 
The emergency order authority is unique because it can be used to 
address unsafe conditions and practices whether or not they contravene 
an existing regulatory or statutory requirement. Given its extraordinary 
nature, FRA has used the emergency order authority sparingly.

[53 FR 52920, Dec. 29, 1988, as amended at 63 FR 11619, Mar. 10, 1998; 
64 FR 62864, Nov. 17, 1999; 65 FR 42544, July 10, 2000]

 Appendix B to Part 209--Federal Railroad Administration Guidelines for 
                 Initial Hazardous Materials Assessments

    These guidelines establish benchmarks to be used in determining 
initial civil penalty assessments for violations of the Hazardous 
Materials Regulations (HMR). The guideline penalty amounts reflect the 
best judgment of the FRA Office of Safety Assurance and Compliance (RRS) 
and of the Safety Law Division of the Office of Chief Counsel (RCC) on 
the relative severity, on a scale of $250 to $25,000, of the various 
violations routinely encountered by FRA inspectors. (49 U.S.C. 5123) 
Unless otherwise specified, the guideline amounts refer to average 
violations, that is, violations involving a hazardous material with a 
medium level of hazard, and a violator with an average compliance 
history. In an ``average violation,'' the respondent has committed the 
acts due to a failure to exercise reasonable care under the 
circumstances (``knowingly''). For some sections, the guidelines contain 
a breakdown according to relative severity of the violation, for 
example, the guidelines for shipping paper violations at 49 CFR 
Secs. 172.200-.203. All penalties in these guidelines are subject to 
change depending upon the circumstances of the particular case. The 
general duty sections, for example Secs. 173.1 and 174.7, are not 
ordinarily cited as separate violations; they are primarily used as 
explanatory citations to demonstrate applicability of a more specific 
section where applicability is otherwise unclear.
    FRA believes that infractions of the regulations that lead to 
personal injury are especially serious; this is directly in line with 
Department of Transportation policy that hazardous materials are only 
safe for transportation when they are securely sealed in a proper 
package. (Some few containers, such as tank cars of carbon dioxide, are 
designed to vent off excess internal pressure. They are exceptions to 
the ``securely sealed'' rule.) ``Personal injury'' has become somewhat 
of a term of art, especially in the fields of occupational safety and of 
accident reporting. To avoid confusion, these penalty guidelines use the 
notion of ``human contact'' to trigger

[[Page 46]]

penalty aggravation. In essence, any contact by a hazardous material on 
a person during transportation is a per se injury and proof will not be 
required regarding the extent of the physical contact or its 
consequences. When a violation of the Hazardous Materials Regulations 
causes a death or serious injury, the maximum penalty of $25,000 shall 
always be assessed initially.
    These guidelines are a preliminary assessment tool for FRA's use. 
They create no rights in any party. FRA is free to vary from them when 
it deems appropriate and may amend them from time to time without prior 
notice. Moreover, FRA is not bound by any amount it initially proposes 
should litigation become necessary. In fact, FRA reserves the express 
authority to amend the NOPV to seek a penalty of up to $25,000 for each 
violation at any time prior to issuance of an order.

                      Penalty Assessment Guidelines
------------------------------------------------------------------------
          Emergency orders                                    Guideline
------------------------------------------------------------------------
EO16...............................  Penalties for                 5,000
                                      violations of EO16
                                      vary depending on the
                                      circumstances.
EO17...............................  Penalties for                 (\1\)
                                      violations of EO17
                                      vary depending on the
                                      circumstances.
                                     Failure to file annual        5,000
                                      report.
------------------------------------------------------------------------
\1\ Varies.


                      Penalty Assessment Guidelines
------------------------------------------------------------------------
           49 CFR section                  Description        Guideline
------------------------------------------------------------------------
                                PART 107
------------------------------------------------------------------------
107.608............................  Failure to register or        1,000
                                      to renew
                                      registration. (Note:
                                      registration--or
                                      renewal--is
                                      mitigation.).
------------------------------------
                                PART 171
------------------------------------------------------------------------
171.2(c)...........................  Representing (marking,        8,000
                                      certifying, selling,
                                      or offering) a
                                      packaging as meeting
                                      regulatory
                                      specification when it
                                      does not.
171.2(f)(2)........................  Billing, marking, etc.        2,000
                                      for the presence of
                                      HM when no HM is
                                      present. (Mitigation
                                      required for
                                      shipments smaller
                                      than a carload, i.e.,
                                      single drum penalty
                                      is 1,000).
171.12.............................  Import shipments--            4,000
                                      Importer not
                                      providing shipper and
                                      forwarding agent with
                                      US requirements.
                                      Cannot be based on
                                      inference.
                                     Import shipments--            2,000
                                      Failure to certify by
                                      shipper or forwarding
                                      agent.
171.15.............................  Failure to provide            6,000
                                      immediate notice of
                                      certain hazardous
                                      materials incidents.
171.16.............................  Failure to file               4,000
                                      incident report (form
                                      DOT 5800.1). (Note:
                                      Multiple failures
                                      will aggravate the
                                      penalty; see the
                                      expert attorney.).
------------------------------------
                                PART 172
------------------------------------------------------------------------
Shipping Papers:
    172.200--.203..................  Offering hazardous
                                      materials for
                                      transportation when
                                      the material is not
                                      properly described on
                                      the shipping paper as
                                      required by Secs.
                                      172.200--.203. (The
                                      ``shipping paper'' is
                                      the document tendered
                                      by the shipper/
                                      offeror to the
                                      carrier. The original
                                      shipping paper
                                      contains the
                                      shipper's
                                      certification at Sec.
                                       172.204.).
                                     --Information on the         15,000
                                      shipping paper is
                                      wrong to the extent
                                      that it caused or
                                      materially
                                      contributed to a
                                      reaction by emergency
                                      responders that
                                      aggravated the
                                      situation or caused
                                      or materially
                                      contributed to
                                      improper handling by
                                      the carrier that led
                                      to or materially
                                      contributed to a
                                      product release.
                                     --Total lack of               7,500
                                      hazardous materials
                                      information on
                                      shipping paper. (Some
                                      shipping names alone
                                      contain sufficient
                                      information to reduce
                                      the guideline to the
                                      next lower level, but
                                      they may be such
                                      dangerous products
                                      that aggravation
                                      needs to be
                                      considered.).
                                     --Some information is         5,000
                                      present but the
                                      missing or improper
                                      description could
                                      cause mishandling by
                                      the carrier or a
                                      delay or error in
                                      emergency response.
                                     --When the improper           2,000
                                      description is not
                                      likely to cause
                                      serious problem
                                      (technical defect).
                                     --Shipping paper              7,500
                                      includes a hazardous
                                      materials description
                                      and no hazardous
                                      materials are present.
                                     Note: Failure to
                                      include emergency
                                      response information
                                      is covered at Secs.
                                      172.600-604; while
                                      the normal unit of
                                      violation for
                                      shipping papers is
                                      the whole document,
                                      failure to provide
                                      emergency response
                                      information is a
                                      separate violation.
    172.204........................  Shipper's failure to          2,000
                                      certify.

[[Page 47]]


    172.205........................  Hazardous waste               4,000
                                      manifest. (Applies
                                      only to defects in
                                      the Hazardous Waste
                                      Manifest form [EPA
                                      Form 8700-22 and 8700-
                                      22A]; shipping paper
                                      defects are cited and
                                      penalized under Sec.
                                      172.200-.203.).
Marking............................  The guidelines for
                                      ``marking''
                                      violations
                                      contemplate a total
                                      lack of the
                                      prescribed mark.
                                      Obviously, where the
                                      package (including a
                                      whole car) is
                                      partially marked,
                                      mitigation should be
                                      applied.
    172.301........................  Failure to mark a non-        1,000
                                      bulk package as
                                      required (e.g., no
                                      commodity name on a
                                      55-gallon drum).
                                      (Shipment is the unit
                                      of violation.).
    172.302........................  Failure to follow             2,000
                                      standards for marking
                                      bulk packaging.
                                      (Note: If a more
                                      specific section
                                      applies, cite it and
                                      its penalty
                                      guideline.).
    172.302(a).....................  ID number missing or          2,500
                                      in improper location.
                                      (The guideline is for
                                      a portable tank; for
                                      smaller bulk
                                      packages, the
                                      guideline should be
                                      mitigated downward.).
    172.302(b).....................  Failure to use the            2,000
                                      correct size of
                                      markings. (Note: If
                                      Sec.  172.326(a) is
                                      also cited, it takes
                                      precedence and
                                      .302(b) is not cited.
                                      Note also: the
                                      guideline is for a
                                      gross violation of
                                      marking size--\1/
                                      2\<gr-thn-eq> where
                                      2<gr-thn-eq> is
                                      required--and
                                      mitigation should be
                                      considered for
                                      markings approaching
                                      the required size.).
    172.302(c).....................  Failure to place              2,000
                                      exemption number
                                      markings on bulk
                                      package.
    172.303........................  Prohibited marking.
                                      (Package is marked
                                      for a hazardous
                                      material and contains
                                      either another
                                      hazardous material or
                                      no hazardous
                                      material.)
                                     --The marking is wrong       10,000
                                      and caused or
                                      contributed to a
                                      wrong emergency
                                      response.
                                     --Inconsistent                5,000
                                      marking; e.g.,
                                      Shipping name and ID
                                      number do not agree.
                                     --Marked as a                 2,000
                                      hazardous material
                                      when package does not
                                      contain a hazardous
                                      material.
    172.313........................  ''Inhalation Hazard''         2,500
                                      not marked.
    172.322........................  Failure to mark for           1,500
                                      MARINE POLLUTANT
                                      where required.
    172.325(a).....................  Improper, or missing,         1,500
                                      HOT mark for elevated
                                      temperature material.
    172.326(a).....................  Failure to mark a             2,500
                                      portable tank with
                                      the commodity name.
    172.326(b).....................  Owner's/lessee's name           500
                                      not displayed.
    172.326(c).....................  Failure to mark               2,500
                                      portable tank with ID
                                      number.
    172.330(a)(1)(i)...............  Offering/transporting         2,500
                                      hazardous materials
                                      in a tank car that
                                      does not have the
                                      required shipping
                                      name or common name
                                      stenciled on the car;
                                      include reference to
                                      section requiring
                                      stenciling, such as
                                      Sec.  173.314(b) (5)
                                      or (6).
    172.330(a)(1)(ii)..............  Offering/transporting         2,500
                                      hazardous materials
                                      in a tank car that
                                      does not have the
                                      required ID number
                                      displayed on the car.
    172.331(b).....................  Offering bulk                 2,500
                                      packaging other than
                                      a portable tank,
                                      cargo tank, or tank
                                      car (e.g., a hopper
                                      car) not marked with
                                      UN/NA number. (I.e.,
                                      a hopper car carrying
                                      a hazardous
                                      substance, where a
                                      placard is not
                                      required).
    172.332........................  Improper display of           2,000
                                      identification number
                                      markings. Note:
                                      Citation of this
                                      section and Secs.
                                      172.326 (portable
                                      tanks), 172.328
                                      (cargo tanks), or
                                      172.330 (tank cars)
                                      does not create two
                                      separate violations.
    172.334(a).....................  Displaying ID numbers         4,000
                                      on a RADIOACTIVE,
                                      EXPLOSIVES
                                      1.1,1.2,1.3,1.4,1.5,
                                      or 1.6, or DANGEROUS,
                                      or subsidiary hazard
                                      placard.
    172.334(b).....................  --Improper display of        15,000
                                      ID number that caused
                                      or contributed to a
                                      wrong emergency
                                      response.
                                     --Improper display of         5,000
                                      ID number that could
                                      cause carrier
                                      mishandling or minor
                                      error in emergency
                                      response.
                                     --Technical error.....        2,000
    172.334(f).....................  Displaying ID number          1,500
                                      on orange panel not
                                      in proximity to the
                                      placard.
Labeling:
    172.400-.450...................  Failure to label              2,500
                                      properly. (See also
                                      Sec.  172.301
                                      regarding the marking
                                      of packages.).
Placarding.........................  The guidelines for
                                      ``placarding''
                                      violations
                                      contemplate a total
                                      lack of the
                                      prescribed placard.
                                      Obviously, where the
                                      package (including a
                                      whole car) is
                                      partially placarded,
                                      mitigation should be
                                      applied.
    172.502........................  --Placarded as                2,000
                                      hazardous material
                                      when car does not
                                      contain a hazardous
                                      material.
                                     --Placard does not            2,000
                                      represent hazard of
                                      the contents.
                                     --Display of sign or          2,000
                                      device that could be
                                      confused with
                                      regulatory placard.
                                      Photograph or good,
                                      clear description
                                      necessary.
    172.503........................  Improper display of ID        (\1\)
                                      number on placards.
                                      (Note: Do not cite
                                      this section; cite
                                      Sec.  172.334.).
    172.504(a).....................  Failure to placard;
                                      affixing or
                                      displaying wrong
                                      placard. (See also
                                      Secs.  172.502(a),
                                      172.504(a), 172.505,
                                      172.510(c), 172.516,
                                      174.33, 174.59,
                                      174.69; all
                                      applicable sections
                                      should be cited, but
                                      the penalty should be
                                      set at the amount for
                                      the violation most
                                      directly in point.)
                                      (Generally, the car
                                      is the unit of
                                      violation, and
                                      penalties vary with
                                      the number of errors,
                                      typically at the rate
                                      of $1,000 per
                                      placard.)

[[Page 48]]


                                     --Complete failure to         7,500
                                      placard.
                                     --One placard missing         1,000
                                      (add $1,000 per
                                      missing placard up to
                                      a total of three;
                                      then use the
                                      guideline above).
                                     -- Complete failure to        2,500
                                      placard, but only 2
                                      placards are required
                                      (e.g., intermediate
                                      bulk containers
                                      [IBCs]).
    172.504(b).....................  Improper use of               5,000
                                      DANGEROUS placard for
                                      mixed loads.
    172.504(c).....................  Placarded for wrong           2,000
                                      hazard class when no
                                      placard was required
                                      due to 1,001 pound
                                      exemption.
    172.504(e).....................  Use of placard other
                                      than as specified in
                                      the table:
                                     --Improper placard           15,000
                                      caused or contributed
                                      to improper reaction
                                      by emergency response
                                      forces or caused or
                                      contributed to
                                      improper handling by
                                      carrier that led to a
                                      product release.
                                     --Improper placard            5,000
                                      that could cause
                                      improper emergency
                                      response or handling
                                      by carrier.
                                     --Technical violation.        2,500
    172.505........................  Improper application          5,000
                                      of placards for
                                      subsidiary hazards.
                                      (Note: This is in
                                      addition to any
                                      violation on the
                                      primary hazard
                                      placards.).
    172.508(a).....................  Offering hazardous            7,500
                                      material for rail
                                      transportation
                                      without affixing
                                      placards. (Note: The
                                      preferred section for
                                      a total failure to
                                      placard is
                                      172.504(a); only one
                                      section should be
                                      cited to avoid a dual
                                      penalty.) (Note also:
                                      Persons offering
                                      hazardous materials
                                      for rail movement
                                      must affix placards;
                                      if offering for
                                      highway movement, the
                                      placards must be
                                      tendered to the
                                      carrier. Sec.
                                      172.506.).
                                     Placards OK, except             500
                                      they were IMDG labels
                                      instead of 10<gr-thn-
                                      eq> placards. (Unit
                                      of violation is the
                                      packaging, usually a
                                      portable tank.).
                                     Placards on TOFC/COFC         (\2\)
                                      units not readily
                                      visible. (Note: Do
                                      not cite this
                                      section, cite Sec.
                                      172.516 instead.).
    172.508(b).....................  Accepting hazardous           5,000
                                      material for rail
                                      transportation
                                      without placards
                                      affixed.
    172.510(a).....................  EXPLOSIVES 1.1,               5,000
                                      EXPLOSIVES 1.2,
                                      POISON GAS, POISON
                                      GAS-RESIDUE,
                                      (Division 2.3, Hazard
                                      Zone A), POISON, or
                                      POISON-RESIDUE
                                      (Division 6.1,
                                      Packing Group I,
                                      Hazard Zone A)
                                      placards displayed
                                      without square
                                      background.
    172.510(c).....................  Improper use of
                                      RESIDUE placard.
                                     --Placarded RESIDUE           4,000
                                      when loaded.
                                     --Placarded loaded            1,000
                                      when car contains
                                      only a residue.
                                     --Placarded EMPTY when          500
                                      RESIDUE is required.
    172.514........................  Improper placarding of        2,000
                                      bulk packaging other
                                      than a tank car: For
                                      the ``exception''
                                      packages in
                                      174.514(c). Note: Use
                                      the regular
                                      placarding sections
                                      for the guideline
                                      amounts for larger
                                      bulk packages.
    172.516........................  Placard not readily           1,000
                                      visible, improperly
                                      located or displayed,
                                      or deteriorated. Good
                                      color photos
                                      ``essential'' to
                                      prove deterioration,
                                      and considerable
                                      weathering is
                                      permissible. Placard
                                      is the unit of
                                      violation.
                                     --When placards on an         2,000
                                      intermodal container
                                      are not visible, for
                                      instance, because the
                                      container is in a
                                      well car. Container
                                      is the unit of
                                      violation, and, as a
                                      matter of enforcement
                                      policy, FRA accepts
                                      the lack of
                                      visibility of the end
                                      placards.
Emergency Response Information.....  Violations of Secs.
                                      172.600-.604 are in
                                      addition to shipping
                                      paper violations. In
                                      citing a carrier, if
                                      the railroad's
                                      practice is to carry
                                      an emergency response
                                      book or to put the E/
                                      R information as an
                                      attachment to the
                                      consist, the unit of
                                      violation is
                                      generally the train
                                      (or the consist).
                                      ``Telephone number''
                                      violations are
                                      generally best cited
                                      against the shipper;
                                      if against a
                                      railroad, there
                                      should be proof that
                                      the number was given
                                      to the railroad, that
                                      is, it was on the
                                      original shipping
                                      document.
    172.600-.602...................  Where improper               15,000
                                      emergency response
                                      information has
                                      caused an improper
                                      reaction from
                                      emergency forces and
                                      the improper response
                                      has aggravated the
                                      situation. Note:
                                      Proof of this will be
                                      rigorous. For
                                      instance, if the
                                      emergency response
                                      forces had chemical
                                      information with the
                                      correct response and
                                      they relied, instead,
                                      on shipper/carrier
                                      information to their
                                      detriment; the
                                      $15,000 penalty
                                      guideline applies.
                                     Bad, missing, or              4,000
                                      improper emergency
                                      response information.
                                      (Be careful in
                                      transmitting
                                      violations of this
                                      section against a
                                      railroad; there are
                                      many sources of E/R
                                      information and it
                                      does not necessarily
                                      ``travel'' with the
                                      shipping documents.).
    172.602(c).....................  Failure to have              15,000
                                      emergency response
                                      information
                                      ``immediately
                                      accessible''.
    172.604........................  Improper or missing           2,500
                                      emergency response
                                      telephone number.
Training:
    172.702(a).....................  General failure to            5,000
                                      train hazmat
                                      employees.
    172.702(b).....................  Hazmat employee               1,000
                                      performing covered
                                      function without
                                      training. (Unit of
                                      violation is the
                                      employee; see the
                                      expert attorney if
                                      more than 10
                                      employees are
                                      involved.).
    172.704(a).....................  Failure to train in           2,500
                                      the required areas:

[[Page 49]]


                                     --General awareness/
                                      familiarization
                                     --Function-specific
                                     --Safety
                                     (Unit of violation is
                                      the ``area,'' and,
                                      for a total failure
                                      to train, cite
                                      172.702(a) and use
                                      that penalty instead
                                      of 172.704.)
    172.704(c).....................  Initial and recurrent         (\3\)
                                      training. (Note: Cite
                                      this and the relevant
                                      substantive section,
                                      e.g., 172.702(a), and
                                      use penalty provided
                                      there.).
    172.704(d).....................  Failure to maintain           2,500
                                      record of training.
                                      (Unit of violation is
                                      the record.).
------------------------------------
                                PART 173
------------------------------------------------------------------------
173.1..............................  General duty section          2,000
                                      applicable to
                                      shippers; also
                                      includes subparagraph
                                      (b), the requirement
                                      to train employees
                                      about applicable
                                      regulations. (Cite
                                      the appropriate
                                      section in the
                                      172.700-.704 series
                                      for training
                                      violations.).
173.9(a)...........................  Early delivery of             5,000
                                      transport vehicle
                                      that has been
                                      fumigated. (48 hours
                                      must have elapsed
                                      since fumigation.).
173.9(b)...........................  Failure to display            1,000
                                      fumigation placard.
                                      (Ordinarily cited
                                      against shipper only,
                                      not against
                                      railroad.).
173.10.............................  Delivery requirements         3,000
                                      for gases and for
                                      flammable liquids.
                                      See also 174.204 and
                                      174.304.
173.22.............................  Shipper                       (\4\)
                                      responsibility: This
                                      general duty section
                                      should ordinarily be
                                      cited only to support
                                      a more specific
                                      charge.
173.22a............................  Improper use of               2,500
                                      packagings authorized
                                      under exemption.
                                     Failure to maintain           1,000
                                      copy of exemption as
                                      required..
173.24(b)(1) & 173.24(b)(2) and      Securing closures:
 173.24(f)(1) & 173.24(f)(1)(ii).     These subsections are
                                      the general ``no
                                      leak'' standard for
                                      all packagings. Sec.
                                      173.24(b) deals
                                      primarily with
                                      packaging as a whole,
                                      while Sec.  173.24(f)
                                      focuses on closures.
                                      Cite the sections
                                      accordingly, using
                                      both the leak/non-
                                      leak criteria and the
                                      package size
                                      considerations to
                                      reach the appropriate
                                      penalty. Any actual
                                      leak will aggravate
                                      the guideline by,
                                      typically, 50%; a
                                      leak with contact
                                      with a human being
                                      will aggravate by at
                                      least 100%, up to the
                                      maximum of $25,000 if
                                      the HMR violation
                                      causes the injury.
                                      With tank cars, Sec.
                                      173.31(b) applies,
                                      and IM portable tanks
                                      [Sec.  173.32c], and
                                      other tanks of that
                                      size range, should
                                      use the tank car
                                      penalty amounts,
                                      stated in reference
                                      to that section.
                                     --Small bottle or box.        1,000
                                     --55-gallon drum......        2,500
                                     --Larger container,           5,000
                                      e.g., IBC; not
                                      portable tank or tank
                                      car.
173.24(c)..........................  Use of package not
                                      meeting
                                      specifications,
                                      including required
                                      stencils and
                                      markings. The most
                                      specific section for
                                      the package involved
                                      should be cited (see
                                      below). The penalty
                                      guideline should be
                                      adjusted for the size
                                      of the container. Any
                                      actual leak will
                                      aggravate the
                                      guideline by,
                                      typically, 50%; a
                                      leak with contact
                                      with a human being
                                      will aggravate by at
                                      least 100%, up to the
                                      maximum of $25,000 if
                                      the HMR violation
                                      causes the injury.
                                     --Small bottle or box.        1,000
                                     --55-gallon drum......        2,500
                                     --Larger container,           5,000
                                      e.g., IBC; not
                                      portable tank or tank
                                      car.
                                     For more specific
                                      sections: Tank cars--
                                      Sec.  173.31(a),
                                      portable tanks--Sec.
                                      173.32, and IM
                                      portable tanks--Secs.
                                      173.32a, .32b, and
                                      .32c, q.v
173.24a(a)(3)......................  Non-bulk packagings:          1,000
                                      Failure to secure and
                                      cushion inner
                                      packagings.
                                     --Causes leak.........        3,000
                                     --Leak with any              10,000
                                      contact between
                                      product and any human
                                      being.
173.24a(b)&(d).....................  Non-bulk packagings:          1,000
                                      Exceeding filling
                                      limits.
                                     --Causes leak.........        3,000
                                     --Leak with any              10,000
                                      contact between
                                      product and any human
                                      being.
173.24b(a).........................  Insufficient outage:          3,000
                                     --<1%
                                     --Causes leak.........        5,000
                                     --Leak with any              10,000
                                      contact between
                                      product and any human
                                      being.
173.24b(a)(3)......................  Outage <5% on PIH             5,000
                                      material.
                                     --Causes leak.........        7,500
                                     --Leak with any              10,000
                                      contact between
                                      product and any human
                                      being.
173.26.............................  Loaded beyond gross           5,000
                                      weight or capacity as
                                      stated in
                                      specification.
                                      (Applies only if
                                      quantity limitations
                                      do not appear in
                                      packaging
                                      requirements of Part
                                      173.).
173.28.............................  Improper reuse,               1,000
                                      reconditioning, or
                                      remanufacture of
                                      packagings..

[[Page 50]]


173.29(a)..........................  Offering residue tank
                                      car for
                                      transportation when
                                      openings are not
                                      tightly closed (Sec.
                                      174.67(k) is also
                                      usually applicable).
                                      The regulation
                                      requires offering
                                      ``in the same manner
                                      as when'' loaded and
                                      may be cited when a
                                      car not meeting
                                      specifications (see
                                      Sec.  173.31(a)(1))
                                      is released back into
                                      transportation after
                                      unloading; same
                                      guideline amount.
                                      Guidelines vary with
                                      the type of commodity
                                      involved:
                                     --Hazardous material          2,000
                                      with insignificant
                                      vapor pressure and
                                      without
                                      classification as
                                      ``poison'' or
                                      ``inhalation hazard''.
                                     --With actual leak....        5,000
                                     --With leak allowing         15,000
                                      the product to
                                      contact any human
                                      being.
                                     --Hazardous material          5,000
                                      with vapor pressure
                                      (essentially any gas
                                      or compressed gas)
                                      and/or with
                                      classification as
                                      ``poison'' or
                                      ``inhalation
                                      hazard.''.
                                     --With actual leak....        7,500
                                     --With leak allowing         15,000
                                      the product (or fumes
                                      or vapors) to contact
                                      any human being. (In
                                      the case of fumes,
                                      the ``contact'' must
                                      be substantial.).
                                     --Where only violation        1,000
                                      is failure to secure
                                      a protective housing,
                                      e.g., the covering
                                      for the gaging device.
173.30.............................  A general duty section
                                      that should be cited
                                      with the explicit
                                      statement of the
                                      duty.
173.31(a)(1).......................  Use of a tank car not
                                      meeting
                                      specifications and
                                      the ``Bulk
                                      packaging''
                                      authorization in
                                      Column 8 of the Sec.
                                      172.101 Hazardous
                                      Materials Table
                                      reference is:
                                     Sec.  173.240.........        1,000
                                     Sec.  173.241.........        2,500
                                     Sec.  173.242.........        5,000
                                     Sec.  173.243.........        5,000
                                     Sec.  173.244.........        7,500
                                     Sec.  173.245.........        7,500
                                     Sec.  173.247.........        1,000
                                     Sec.  173.314, .315...        5,000
                                     --Minor defect not              500
                                      affecting the ability
                                      of the package to
                                      contain a hazardous
                                      material, e.g., no
                                      chain on a bottom
                                      outlet closure plug.
                                     Tank meets                    1,000
                                      specification, but
                                      specification is not
                                      stenciled on car.
                                      Note: Sec.  179.1(e)
                                      implies that only the
                                      builder has the duty
                                      here, but it is the
                                      presence of the
                                      stencil that gives
                                      the shipper the right
                                      to rely on the
                                      builder. (See Sec.
                                      173.22(a)(3).).
                                     Tank car not stenciled
                                      ``Not for flammable
                                      liquids,'' and it
                                      should be. (AAR Tank
                                      Car Manual, Appendix
                                      C, C3.03(a)5.)
                                     --Most cars...........        2,500
                                     --Molten sulfur car...          500
                                     --If flammable liquid         5,000
                                      is actually in the
                                      car.
173.31(a)(4).......................  Use of a tank car             5,000
                                      stenciled for one
                                      commodity to
                                      transport another.
173.31(a)(5).......................  Use of DOT-                  10,000
                                      specification tank
                                      car without shelf
                                      couplers. (Note:
                                      prior to November 15,
                                      1992, this did not
                                      apply to a car not
                                      carrying hazardous
                                      materials.).
                                     --Against a carrier,          6,000
                                      cite Sec.  174.3 and
                                      this section.
173.31(a)(6).......................  Use of non-DOT               10,000
                                      specification car
                                      without shelf
                                      couplers to carry
                                      hazardous materials.
                                      (Applies only since
                                      November 15, 1990.).
                                     --Against a carrier,          6,000
                                      cite Sec.  174.3 and
                                      this section.
173.31(a)(7).......................  Use of tank car               5,000
                                      without air brake
                                      support attachments
                                      welded to pads.
                                      (Effective July 1,
                                      1991).
173.31(a)(15)......................  Tank car with                 7,500
                                      nonreclosing pressure
                                      relief device used to
                                      transport Class 2
                                      gases, Class 3 or 4
                                      liquids, or Division
                                      6.1 liquids, PG I or
                                      II.
173.31(a)(17)......................  Tank car with interior        7,500
                                      heating coils used to
                                      transport Division
                                      2.3 or Division 6.1,
                                      PG I, based on
                                      inhalation toxicity.
173.31(b)(1), 173.31(b)(3).........  Shipper failure to            5,000
                                      determine (to the
                                      extent practicable)
                                      that tank, safety
                                      appurtenances, and
                                      fittings are in
                                      proper condition for
                                      transportation;
                                      failure to properly
                                      secure closures.
                                      (Sections
                                      173.31(b)(1) &
                                      .31(b)(3), often
                                      cited as together for
                                      loose closure
                                      violations, are taken
                                      as one violation.)
                                      The unit of violation
                                      is the car,
                                      aggravated if
                                      necessary for truly
                                      egregious condition.
                                      Sections 173.24(b) &
                                      (f) establish a ``no-
                                      leak'' design
                                      standard, and 173.31
                                      imposes that standard
                                      on operations.
                                     --With actual leak of        10,000
                                      product.
                                     --With actual leak           15,000
                                      allowing the product
                                      (or fumes or vapors)
                                      to contact any human
                                      being. (With safety
                                      vent, be careful
                                      because carrier might
                                      be at fault.).
                                     --Minor violation,            1,000
                                      e.g., bottom outlet
                                      cap loose on tank car
                                      of molten sulfur
                                      (because product is a
                                      solid when shipped).
                                     --Failure (.31(b)(1))         1,000
                                      to have bottom outlet
                                      cap off during
                                      loading.

[[Page 51]]


173.31(b)(4).......................  Filling and offering          6,000
                                      for transportation a
                                      tank car overdue for
                                      retest of tank,
                                      interior heater
                                      system, and/or safety
                                      relief valve. Note
                                      that the car may be
                                      filled while in-date,
                                      held, and then
                                      shipped out-of-date.
                                      (Adjust penalty if
                                      less than one month
                                      or more than one year
                                      overdue.).
173.31(c)(1).......................  Tank, interior heater
                                      system, and/or safety
                                      valve overdue for
                                      retest. If these
                                      conditions exist, the
                                      violation is of Sec.
                                      173.31(b)(4). If the
                                      violation is for
                                      improperly conducting
                                      the test(s), see the
                                      expert attorney.
173.31(c)(10)......................  Failure to properly           1,000
                                      stencil a retest that
                                      was performed.
173.32c............................  Loose closures on an          5,000
                                      IM portable tank
                                      (Sec.  173.24
                                      establishes the
                                      ``tight closure''
                                      standard; Sec.
                                      172.32c applies it to
                                      IM portable tanks.)
                                      (The scale of
                                      penalties is the same
                                      as for tank cars.).
                                     --With actual leak of        10,000
                                      product.
                                     --With actual leak and       15,000
                                      human being contact.
                                     --Minor violation.....        1,000
173.314(b)(5)......................  No commodity stencil,         2,500
                                      compressed gas tank
                                      car. (See also Sec.
                                      172.330).
173.314(c).........................  Compressed gas loaded         6,000
                                      in excess of filling
                                      density (same basic
                                      concept as
                                      insufficient outage).
                                     --``T'' car with              5,000
                                      excessive voids in
                                      the thermal coating,
                                      such that the car no
                                      longer complies with
                                      the DOT
                                      specification.
                                      Section 173.31(a)(1)
                                      requires tank cars
                                      used to transport
                                      hazardous materials
                                      to meet the
                                      requirements of the
                                      applicable
                                      specification and
                                      this section (Sec.
                                      173..314(c)) lists
                                      112T/114T cars as
                                      allowed for
                                      compressed gases.
------------------------------------
                                PART 174
------------------------------------------------------------------------
General Requirements:
    174.3..........................  Acceptance of
                                      improperly prepared
                                      shipment. This
                                      general duty section
                                      must be accompanied
                                      by a citation to the
                                      specific section
                                      violated.
    174.7..........................  Carrier's failure to          (\5\)
                                      instruct employees;
                                      cannot be based on
                                      inference; Secs.
                                      172.700-.704 are
                                      preferred citations.
    174.8(b).......................  --Failure to inspect          4,000
                                      hazardous materials
                                      (and adjacent) cars
                                      at point where train
                                      is required to be
                                      inspected. (Unit of
                                      violation is the
                                      train.) (Note: For
                                      all ``failure to
                                      inspect'' citations,
                                      the mere presence of
                                      a nonconforming
                                      condition does not
                                      prove a failure to
                                      inspect.).
                                     --Allowing unsafe             8,000
                                      loaded placarded car
                                      to continue in
                                      transportation beyond
                                      point where
                                      inspection was
                                      required). (Unit of
                                      violation is the
                                      car.).
                                     --Failure to determine        5,000
                                      whether placards are
                                      in place and conform
                                      to shipping papers
                                      (at a required
                                      inspection point).
                                      (Unit of violation is
                                      the car.).
    174.9(a).......................  Failure to properly           4,000
                                      inspect loaded,
                                      placarded tank car at
                                      origin or interchange.
    174.9(b).......................  Loose or insecure             1,000
                                      closures on tank car
                                      containing a residue
                                      of a hazardous
                                      material. (FRA policy
                                      is that, against a
                                      railroad, this
                                      violation must be
                                      observable from the
                                      ground because, for
                                      reasons of safety,
                                      railroad inspectors
                                      do not climb on cars
                                      absent an indication
                                      of a leak.).
    174.9(c).......................  Failure to ``card'' a         3,000
                                      tank car overdue for
                                      tank retest.
    174.10(c)......................  Offering a                    3,000
                                      noncomplying shipment
                                      in interchange.
    174.10(d)......................  Offering leaking car         10,000
                                      of hazardous
                                      materials in
                                      interchange.
    174.12.........................  Improper performance          3,000
                                      of intermediate
                                      shipper/carrier
                                      duties; applies to
                                      forwarders and
                                      highway carriers
                                      delivering TOFC/COFC
                                      shipments to
                                      railroads.
    174.14.........................  Failure to expedite:          1,000
                                      violation of ``48-
                                      hour rule.'' Note:
                                      does not apply to
                                      cars ``held short''
                                      of destination or
                                      constructively placed.
General Operating Requirements.....  Note: This subpart
                                      (Subpart B) of Part
                                      174 has three
                                      sections referring to
                                      shipment
                                      documentation: Sec.
                                      174.24 relating to
                                      accepting documents,
                                      Sec.  174.25 relating
                                      to the preparation of
                                      movement documents,
                                      and Sec.  174.26
                                      relating to movement
                                      documents in the
                                      possession of the
                                      train crew. Only the
                                      most relevant section
                                      should be cited. In
                                      most cases, the unit
                                      of violation is the
                                      shipment, although
                                      where a unified
                                      consist is used to
                                      give notice to the
                                      crew, there is some
                                      justification for
                                      making it the train,
                                      especially where the
                                      discrepancy was
                                      generated using
                                      automated data
                                      processing and the
                                      error is repetitious.
    174.24.........................  Accepting hazardous
                                      materials shipment
                                      without properly
                                      prepared shipping
                                      paper. (Note: The
                                      carrier's duty
                                      extends only to the
                                      document received,
                                      that is, a shipment
                                      of hazardous
                                      materials in an
                                      unplacarded transport
                                      vehicle with a
                                      shipping paper
                                      showing other than a
                                      hazardous material is
                                      not a violation
                                      against the carrier
                                      unless knowledge of
                                      the contents of the
                                      vehicle is proved.
                                      Likewise, receipt of
                                      a tank car placarded
                                      for Class 3 with a
                                      shipping paper
                                      indicating a
                                      flammable liquid does
                                      not create a carrier
                                      violation if the car,
                                      in fact, contains a
                                      corrosive. On the
                                      other hand, receipt
                                      of a placarded
                                      trailer with a
                                      shipping paper
                                      listing only FAK
                                      (``freight-all-
                                      kinds''), imposes a
                                      duty on the carrier
                                      to inquire further
                                      and to reject the
                                      shipment if it is
                                      improperly billed.)

[[Page 52]]


                                     --Improper hazardous          7,500
                                      materials information
                                      that could cause
                                      delay or error in
                                      emergency response.
                                     --Total absence of            5,000
                                      hazardous materials
                                      information.
                                     --Technical errors,           1,000
                                      not likely to cause
                                      problems, especially
                                      with emergency
                                      response.
                                     --Minor errors not              500
                                      relating to hazardous
                                      materials emergency
                                      response, e.g., not
                                      listing an exemption
                                      number and the
                                      exemption is not one
                                      affecting emergency
                                      response.
    174.25.........................  Preparing improper
                                      movement documents.
                                      (Similar to the
                                      requirements in Sec.
                                      174.24, here the
                                      carrier is held
                                      responsible for
                                      preparing a movement
                                      document that
                                      accurately reflects
                                      the shipping paper
                                      tendered to it. With
                                      no hazardous
                                      materials information
                                      on the shipper's bill
                                      of lading, the
                                      carrier is not in
                                      violation--absent
                                      knowledge of
                                      hazardous contents--
                                      for preparing a
                                      nonhazardous movement
                                      document. While
                                      ``movement
                                      documents'' in the
                                      rail industry used to
                                      be waybills or switch
                                      tickets (almost
                                      exclusively),
                                      carriers are now
                                      incorporating the
                                      essential information
                                      into a consist,
                                      expanded from its
                                      former role as merely
                                      a listing of the cars
                                      in the train.)
                                     --Information on the         15,000
                                      movement document is
                                      wrong to the extent
                                      that it actually
                                      caused or materially
                                      contributed to a
                                      reaction by emergency
                                      responders that
                                      aggravated the
                                      situation or caused
                                      or materially
                                      contributed to
                                      improper handling by
                                      the carrier that led
                                      to or materially
                                      contributed to a
                                      product release.
                                     --Total lack of               7,500
                                      hazardous materials
                                      information on
                                      movement document.
                                      (Some shipping names
                                      alone contain
                                      sufficient
                                      information to reduce
                                      the guideline to the
                                      next lower level, but
                                      they may be such
                                      dangerous products
                                      that aggravation
                                      needs to be
                                      considered.).
                                     --Some information is         5,000
                                      present, but the
                                      missing or improper
                                      description could
                                      cause mishandling by
                                      the carrier or a
                                      delay or error in
                                      emergency response,
                                      including missing
                                      RESIDUE description
                                      required by Sec.
                                      174.25(c).
                                     --Missing/improper            3,500
                                      endorsement, unless
                                      on a switch ticket as
                                      allowed under Sec.
                                      174.25(b).
                                     --Movement document           2,500
                                      does not indicate,
                                      for a flatcar
                                      carrying trailers or
                                      containers, which
                                      trailers or
                                      containers contain
                                      hazardous materials.
                                      (If all trailers or
                                      containers on the
                                      flatcar contain
                                      hazardous materials,
                                      there is no
                                      violation.).
                                     --When the improper           1,000
                                      description is not
                                      likely to cause
                                      serious problem
                                      (technical defect).
                                     --Minor errors not              500
                                      related to hazardous
                                      materials emergency
                                      response, e.g., not
                                      listing an exemption
                                      number and the
                                      exemption is not one
                                      affecting emergency
                                      response.
                                     Note: Failure to
                                      include emergency
                                      response information
                                      is covered at Sec.
                                      172.600-604; while
                                      the normal unit of
                                      violation for
                                      movement documents is
                                      the whole document,
                                      failure to provide
                                      emergency response
                                      information is a
                                      separate violation.
    174.26(a)......................  Failure to execute the        5,000
                                      required POISON GAS
                                      and EXPLOSIVES 1.1/
                                      1.2 notices. (The
                                      notice is the unit of
                                      violation, because
                                      one notice can cover
                                      several shipments.).
                                     Failure to deliver the        5,000
                                      required POISON GAS
                                      and EXPLOSIVES 1.1/
                                      1.2 notices to train
                                      and engine crew.
                                      (Cite this, or the
                                      above, as
                                      appropriate.).
                                     Failure to transfer           3,000
                                      notice from crew to
                                      crew. (Note that this
                                      is very likely an
                                      individual liability
                                      situation; the
                                      penalty guideline
                                      listed here, however,
                                      presumes action
                                      against a railroad.).
                                     Failure to keep copy          1,000
                                      of notice on file.
    174.26(b)......................  Train crew does not           6,000
                                      have a document
                                      indicating position
                                      in train of each
                                      loaded, placarded
                                      car. Aggravate by 50%
                                      for Poison Gas, 2.3,
                                      and Explosives, 1.1
                                      and 1.2. (Train is
                                      the unit of
                                      violation.).
                                     --Technical violation,        1,000
                                      e.g., car is listed
                                      in correct relative
                                      order, but not in
                                      exact numerical
                                      order, usually
                                      because of addition
                                      of car or cars to
                                      head or tail of
                                      train. (Note: Applies
                                      only if the actual
                                      location is off by 10
                                      or fewer cars.).
    174.26(c)......................  Improper paperwork in
                                      possession of train
                                      crew. (If the
                                      investigation of an
                                      accident reveals a
                                      violation of this
                                      section and Sec.
                                      174.25, cite this
                                      section.) (Shipment
                                      is unit of violation,
                                      although there is
                                      justification for
                                      making it the train
                                      if a unified consist
                                      is used to carry this
                                      information and the
                                      violation is a
                                      pattern one
                                      throughout all, or
                                      almost all, of the
                                      hazardous materials
                                      shipments. For
                                      intermodal traffic,
                                      ``shipment'' can mean
                                      the container or
                                      trailer--e.g., a UPS
                                      trailer with several
                                      non-disclosed
                                      hazardous materials
                                      packages would be one
                                      unit.)

[[Page 53]]


                                     --Information on the         15,000
                                      document possessed by
                                      the train crew is
                                      wrong to the extent
                                      that it caused or
                                      materially
                                      contributed to a
                                      reaction by emergency
                                      responders that
                                      aggravated the
                                      situation or caused
                                      or materially
                                      contributed to
                                      improper handling by
                                      the carrier that led
                                      to or materially
                                      contributed to a
                                      product release.
                                     --Total lack of               7,500
                                      hazardous materials
                                      information on
                                      movement document.
                                      (Some shipping names
                                      alone contain
                                      sufficient
                                      information to reduce
                                      the guideline to the
                                      next lower level, but
                                      they may be such
                                      dangerous products
                                      that aggravation
                                      needs to be
                                      considered.).
                                     --Some information is         5,000
                                      present but the
                                      error(s) could cause
                                      mishandling by the
                                      carrier or a delay or
                                      error in emergency
                                      response. Includes
                                      missing RESIDUE
                                      description required
                                      by Sec.  174.25(c).
                                     --Improper                    3,500
                                      information, but the
                                      hazardous materials
                                      are small shipments
                                      (e.g., UPS moves) and
                                      PG III (e.g., the
                                      ``low hazard''
                                      materials allowed in
                                      TOFC/COFC service
                                      without an exemption
                                      since HM-197).
                                     --Technical defect not        1,000
                                      likely to cause delay
                                      or error in emergency
                                      response or carrier
                                      handling.
                                     --Minor error not               500
                                      relating to emergency
                                      response or carrier
                                      handling, e.g., not
                                      listing the exemption
                                      number on document
                                      and the exemption is
                                      not one affecting
                                      emergency response.
    174.33.........................  --Failure to maintain
                                      ``an adequate supply
                                      of placards.'' [The
                                      violation is for
                                      ``failure to
                                      replace''; if missing
                                      placards are
                                      replaced, the supply
                                      is obviously
                                      adequate, if not,
                                      failure to have a
                                      placard is not a
                                      separate violation
                                      from failure to
                                      replace it.]
                                     --Failure to replace          1,000
                                      lost or destroyed
                                      placards based on
                                      shipping paper
                                      information. (This is
                                      in addition to the
                                      basic placarding
                                      mistakes in, for
                                      instance, Sec.
                                      172.504.).
                                     Note: A railroad's
                                      placarding duties are
                                      to not accept a car
                                      without placards
                                      [Sec.  172.508(b)];
                                      to maintain an
                                      ``adequate supply''
                                      of placards and to
                                      replace them based on
                                      shipping paper
                                      information [Sec.
                                      174.33]; and to not
                                      transport a car
                                      without placards
                                      [Sec.  174.59]. At
                                      each inspection
                                      point, a railroad
                                      must determine that
                                      all placards are in
                                      place. [Sec.
                                      172.8(b)] The ``next
                                      inspection point''
                                      replacement
                                      requirement in Sec.
                                      174.59, q.v., refers
                                      to placards that
                                      disappear between
                                      inspection points; a
                                      car at an inspection
                                      point must be
                                      placarded because it
                                      is in transportation,
                                      even if held up at
                                      that point. [49
                                      U.S.C. 5102(12)]
    174.45.........................  Failure to report
                                      hazardous materials
                                      accidents or
                                      incidents. Cite Secs.
                                      171.15 or 171.16 as
                                      appropriate.
    174.50.........................  Moving leaking tank           7,500
                                      car unnecessarily.
                                     Failure to stencil            3,500
                                      leaking tank car.
                                     Loss of product              15,000
                                      resulted in human
                                      being contact because
                                      of improper carrier
                                      handling.
    174.55.........................  Failure to block and
                                      brace as prescribed.
                                      (See also Secs.
                                      174.61, .63, .101,
                                      .112, .115; where
                                      these more specific
                                      sections apply, cite
                                      them.) Note: The
                                      regulatory
                                      requirement is that
                                      hazardous materials
                                      packages be loaded
                                      and securely blocked
                                      and braced to prevent
                                      the packages from
                                      changing position,
                                      falling to the floor,
                                      or sliding into each
                                      other. If the load is
                                      tight and secure,
                                      pieces of lumber or
                                      other materials may
                                      not be necessary to
                                      achieve the ``tight
                                      load'' requirement.
                                      Be careful on these
                                      and consult freely
                                      with the expert
                                      attorney and
                                      specialists in the
                                      Hazardous Materials
                                      Division.
                                     --General failure to          5,000
                                      block and brace.
                                     --Inadequate blocking         2,500
                                      and bracing (an
                                      attempt was made but
                                      blocking/bracing was
                                      insufficient.).
                                     --Inadequate blocking         7,500
                                      and bracing leading
                                      to a leak.
                                     --Inadequate blocking        15,000
                                      and bracing leading
                                      to a leak and human
                                      being contact.

[[Page 54]]


    174.59.........................  Marking and
                                      placarding. Note: As
                                      stated elsewhere, a
                                      railroad's placarding
                                      duties are to not
                                      accept a car without
                                      placards [Sec.
                                      172.508(b)], to
                                      maintain an
                                      ``adequate supply''
                                      of placards and to
                                      replace them based on
                                      shipping paper
                                      information [Sec.
                                      174.33], and to not
                                      transport a car
                                      without placards
                                      [Sec.  174.59]. At
                                      each inspection
                                      point, a railroad
                                      must determine that
                                      all placards are in
                                      place. [Sec.
                                      172.8(b)] The ``next
                                      inspection point''
                                      replacement
                                      requirement in this
                                      section refers to
                                      placards that
                                      disappear between
                                      inspection points. A
                                      car at an inspection
                                      point must be
                                      placarded because it
                                      is in transportation
                                      [49 U.S.C. 5102(12)],
                                      even if held up at
                                      that point. Because
                                      the statute creates
                                      civil penalty
                                      liability only if a
                                      violation is
                                      ``knowing,'' that is,
                                      ``a reasonable person
                                      knew or should have
                                      known that an act
                                      performed by him was
                                      in violation of the
                                      HMR,'' and because
                                      railroads are not
                                      under a duty to
                                      inspect hazardous
                                      materials cars merely
                                      standing in a yard,
                                      violations written
                                      for unplacarded cars
                                      in yards must include
                                      proof that the
                                      railroad knew about
                                      the unplacarded cars
                                      and took no
                                      corrective action
                                      within a reasonable
                                      time. (Note also that
                                      the real problem with
                                      unplacarded cars in a
                                      railyard may be a
                                      lack of emergency
                                      response information,
                                      Secs.  172.600-.604,
                                      and investigation may
                                      reveal that those
                                      sections should be
                                      cited instead of this
                                      one.)
                                     --Complete failure to         7,500
                                      placard.
                                     --One placard missing         1,000
                                      (add $1,000 per
                                      missing placard up to
                                      a total of three;
                                      then use the
                                      guideline above).
                                     For other placarding
                                      violations, see Secs.
                                      172.500-.560 and
                                      determine if one of
                                      them more correctly
                                      states the violation.
    174.61.........................  Improper                      3,000
                                      transportation of
                                      transport vehicle or
                                      freight container on
                                      flat car. (Note: If
                                      improper lading
                                      restraint is the
                                      violation, see Sec.
                                      174.55; if improper
                                      restraint of a bulk
                                      packaging inside a
                                      closed transport
                                      vehicle is the
                                      violation, see Sec.
                                      174.63(b).).
    174.63(a) & (c)................  --Improper                    3,000
                                      transportation of
                                      portable tank or
                                      other bulk packaging
                                      in TOFC/COFC service.
                                     --Improper                    7,500
                                      transportation
                                      leading to a release
                                      of product.
                                     --Improper                   15,000
                                      transportation
                                      leading to a release
                                      and human being
                                      contact.
    174.63(b)......................  Improper securement of
                                      bulk packaging inside
                                      enclosed transport
                                      vehicle or freight
                                      container.
                                     --General failure to          5,000
                                      secure.
                                     --Inadequate                  2,500
                                      securement (an
                                      attempt to secure was
                                      made but the means of
                                      securement were
                                      inadequate).
                                     --Inadequate                  7,500
                                      securement leading to
                                      a leak.
                                     --Inadequate                 15,000
                                      securement leading to
                                      a leak and human
                                      being contact.
    174.63(e)......................  Transportation of             7,500
                                      cargo tank or multi-
                                      unit tank car tank
                                      without authorization
                                      and in the absence of
                                      an emergency.
    174.67(a)(1)...................  Tank car unloading            2,500
                                      operations performed
                                      by persons not
                                      properly instructed
                                      (case cannot be based
                                      on inference).
    174.67(a)(2)...................  Unloading without
                                      brakes set and/or
                                      wheels blocked. (The
                                      enforcement standard,
                                      as per 1995 Hazardous
                                      Materials Technical
                                      Resolution Committee,
                                      is that sufficient
                                      handbrakes must be
                                      applied on one or
                                      more cars to prevent
                                      movement and each car
                                      with a handbrake set
                                      must be blocked in
                                      both directions. The
                                      unloading facility
                                      must make a
                                      determination on how
                                      many brakes to set.)
                                     --No brakes set, no           5,000
                                      wheels blocked, or
                                      fewer brakes set/
                                      wheels blocked than
                                      facility's operating
                                      plan.
                                     --No brakes set, but          3,000
                                      wheels blocked.
                                     --Brakes set, but             4,000
                                      wheels not blocked.
    174.67(a)(3)...................  Unloading without             2,000
                                      cautions signs
                                      properly displayed.
                                      (See Part 218,
                                      Subpart B).
    174.67(c)(2)...................  Failure to use non-
                                      metallic block to
                                      prop manway cover
                                      open while unloading
                                      through bottom outlet.
                                     --Flammable or                3,000
                                      combustible liquid,
                                      or other product with
                                      a vapor flash point
                                      hazard.
                                     --Material with no              500
                                      vapor flammability
                                      hazard.
    174.67(h)......................  Insecure unloading           10,000
                                      connections, such
                                      that product is
                                      actually leaking.
    174.67(i)......................  Unattended unloading..        5,000
    174.67(j)......................  Discontinued unloading        2,000
                                      without disconnecting
                                      all unloading
                                      connections,
                                      tightening valves,
                                      and applying closures
                                      to all other
                                      openings. (Note: If
                                      the car is attended,
                                      this subsection does
                                      not apply.).
    174.67(k)......................  Preparation of car
                                      after unloading:
                                      Removal of unloading
                                      connections is
                                      required, as is the
                                      closing of all
                                      openings with a
                                      ``suitable tool.''
                                      Note: This subsection
                                      requires unloading
                                      connections to be
                                      ``removed'' when
                                      unloading is
                                      complete, Sec.
                                      174.67(j) requires
                                      them to be
                                      ``disconnected'' for
                                      a temporary cessation
                                      of unloading. The
                                      penalties recommended
                                      here mirror those in
                                      Sec.  173.29, dealing
                                      with insecure
                                      closures generally.

[[Page 55]]


                                     --Hazardous material          2,000
                                      with insignificant
                                      vapor pressure and
                                      without
                                      classification as
                                      ``poison'' or
                                      ``inhalation hazard''.
                                     --With actual leak....        5,000
                                     --With leak allowing         15,000
                                      the product to
                                      contact any human
                                      being.
                                     --Hazardous material          5,000
                                      with vapor pressure
                                      (essentially any gas
                                      or compressed gas)
                                      and/or with
                                      classification as
                                      ``poison'' or
                                      ``inhalation hazard''.
                                     --With actual leak....        7,500
                                     --With leak allowing         15,000
                                      the product (or fumes
                                      or vapors) to contact
                                      any human being).
                                      Note: Contact with
                                      fumes must be
                                      substantial.
    174.69.........................  --Complete failure to         6,000
                                      remove loaded
                                      placards and replace
                                      with RESIDUE placard
                                      on tank cars.
                                     --Partial failure.            1,000
                                      (Unit of violation is
                                      the placard; the
                                      guideline is used for
                                      each placard up to 3,
                                      then the penalty
                                      above is applicable.).
    174.81.........................  --Failure to obey             6,000
                                      segregation
                                      requirements for
                                      materials forbidden
                                      to be stored or
                                      transported together.
                                      (``X'' in the table).
                                     --Failure to obey             4,000
                                      segregation
                                      requirements for
                                      materials that must
                                      be separated to
                                      prevent commingling
                                      in the event of a
                                      leak. (``O'' in the
                                      table).
    174.83(a)......................  Improper switching of         5,000
                                      placarded rail cars.
    174.83(b)......................  Improper switching of         8,000
                                      loaded rail car
                                      containing Division
                                      1.1/1.2, 2.3 PG I
                                      Zone A, or Division
                                      6.1 PG I Zone A, or
                                      DOT 113 tank car
                                      placarded for 2.1.
    174.83(c)-(e)..................  Improper switching of         5,000
                                      placarded flatcar.
    174.83(f)......................  Switching Division 1.1/       8,000
                                      1.2 without a buffer
                                      car or placement of
                                      Division 1.1/1.2 car
                                      under a bridge or
                                      alongside a passenger
                                      train or platform.
    174.84.........................  Improper handling of          4,000
                                      Division 1.1/1.2, 2.3
                                      PG I Zone A, 6.1 PG I
                                      Zone A in relation to
                                      guard or escort cars.
    174.85.........................  Improper Train
                                      Placement (The unit
                                      of violation under
                                      this section is the
                                      car. Where more than
                                      one placarded car is
                                      involved, e.g., if 2
                                      placarded cars are
                                      too close to the
                                      engine, both are
                                      violations. Where
                                      both have a similar
                                      violation, e.g., a
                                      Division 1.1 car next
                                      to a loaded tank car
                                      of a Class 3
                                      material, each car
                                      gets the appropriate
                                      penalty as listed
                                      below.)
                                     RESIDUE car without at        3,000
                                      least 1 buffer from
                                      engine or occupied
                                      caboose.
                                     Placard Group 1--
                                      Division 1.1/1.2
                                      (Class A explosive)
                                      materials
                                     --Fewer than 6 cars           8,000
                                      (where train length
                                      permits) from engine
                                      or occupied caboose.
                                     --As above but with at        7,000
                                      least 1 buffer.
                                     --No buffer at all            8,000
                                      (where train length
                                      doesn't permit 5).
                                     --Next to open top car        7,000
                                      with lading beyond
                                      car ends or, if
                                      shifted, would be
                                      beyond car ends.
                                     --Next to loaded flat         6,000
                                      car, except closed
                                      TOFC/COFC equipment,
                                      auto carriers,
                                      specially equipped
                                      car with tie-down
                                      devices, or car with
                                      permanent bulkhead.
                                     --Next to operating           7,000
                                      temperature-control
                                      equipment or internal
                                      combustion engine in
                                      operation.
                                     --Next to placarded           7,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     Placard Group 2--
                                      Division 1.3/1.4/1.5
                                      (Class B and C
                                      explosives); Class 2
                                      (compressed gas,
                                      other than Division
                                      2.3, PG 1 Zone A;
                                      Class 3 (flammable
                                      liquids); Class 4
                                      (flammable solid);
                                      Class 5 (oxidizing
                                      materials); Class 6,
                                      (poisonous liquids),
                                      except 6.1 PG 1 Zone
                                      A; Class 8 (corrosive
                                      materials).
                                     For tank cars:
                                     --Fewer than 6 cars           6,000
                                      (where train length
                                      permits) from engine
                                      or occupied caboose.
                                     --As above but with at        5,000
                                      least 1 buffer.
                                     No buffer at all              6,000
                                      (where train length
                                      doesn't permit 5).
                                     --Next to open top car        5,000
                                      with lading beyond
                                      car ends or, if
                                      shifted, would be
                                      beyond car ends.
                                     --Next to loaded flat         4,000
                                      car, except closed
                                      TOFC/COFC equipment,
                                      auto carriers,
                                      specially equipped
                                      car with tie-down
                                      devices, or car with
                                      permanent bulkhead.
                                     --Next to operating           5,000
                                      temperature-control
                                      equipment or internal
                                      combustion engine in
                                      operation.
                                     --Next to placarded           5,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     For other rail cars:
                                     --Next to placarded           5,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     Placard Group 3--
                                      Divisions 2.3 (PG 1
                                      Zone A; poisonous
                                      gases) and 6.1 (PG 1
                                      Zone A; poisonous
                                      materials)

[[Page 56]]


                                     For tank cars:
                                     --Fewer than 6 cars           8,000
                                      (where train length
                                      permits) from engine
                                      or occupied caboose.
                                     --As above but with at        7,000
                                      least 1 buffer.
                                     No buffer at all              8,000
                                      (where train length
                                      doesn't permit 5).
                                     --Next to open top car        7,000
                                      with lading beyond
                                      car ends or, if
                                      shifted, would be
                                      beyond car ends.
                                     --Next to loaded flat         6,000
                                      car, except closed
                                      TOFC/COFC equipment,
                                      auto carriers,
                                      specially equipped
                                      car with tie-down
                                      devices, or car with
                                      permanent bulkhead.
                                     --Next to operating           7,000
                                      temperature-control
                                      equipment or internal
                                      combustion engine in
                                      operation.
                                     --Next to placarded           7,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     For other rail cars:
                                     --Next to placarded           5,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     Placard Group 4--Class
                                      7 (radioactive)
                                      materials.
                                     For rail cars:
                                     --Next to locomotive          8,000
                                      or occupied caboose.
                                     --Next to placarded           5,000
                                      car, except one from
                                      same placard group or
                                      COMBUSTIBLE.
                                     --Next to carload of          3,000
                                      undeveloped film.
    174.86.........................  Exceeding maximum             3,000
                                      allowable operating
                                      speed (15 mph) while
                                      transporting molten
                                      metals or molten
                                      glass.
    174.101(o)(4)..................  Failure to have proper
                                      explosives placards
                                      on flatcar carrying
                                      trailers/containers
                                      placarded for Class
                                      1. (Except for a
                                      complete failure to
                                      placard, the unit of
                                      violation is the
                                      placard.).
                                     --Complete failure to         7,500
                                      placard.
                                     --One placard missing         1,000
                                      (add $1,000 per
                                      missing placard up to
                                      a total of three,
                                      then use the
                                      guideline above).
    174.104(f).....................  Failure to retain car         1,000
                                      certificates at
                                      ``forwarding
                                      station''.
                                     Failure to attach car         1,000
                                      certificates to car.
                                      (Unit of violation is
                                      the certificate, 2
                                      are required.).
    174.204........................  Improper tank car             3,000
                                      delivery of gases
                                      (Class 2 materials).
    174.304........................  Improper tank car             3,000
                                      delivery of flammable
                                      liquids (Class 3
                                      materials).
    174.600........................  Improper tank car             5,000
                                      delivery of materials
                                      extremely poisonous
                                      by inhalation
                                      (Division 2.3 Zone A
                                      or 6.1 Zone A
                                      materials).
------------------------------------
                                PART 178
------------------------------------------------------------------------
178.2(b)...........................  Package not
                                      constructed according
                                      to specifications--
                                      also cite section not
                                      complied with.
                                     --Bulk packages,              8,000
                                      including portable
                                      tanks.
                                     --55-gallon drum......        2,500
                                     --Smaller package.....        1,000
------------------------------------
                                PART 179
------------------------------------------------------------------------
179.1(e)...........................  Tank car not                  8,000
                                      constructed according
                                      to specifications--
                                      also cite section not
                                      complied with. (Note:
                                      Part 179 violations
                                      are against the
                                      builder or repairer.
                                      Sections in this Part
                                      are often cited in
                                      conjunction with
                                      violations of Secs.
                                      172.330 and 173.31
                                      (a)&(b) by shippers.
                                      In such cases, the
                                      Part 179 sections are
                                      cited as references,
                                      not as separate
                                      alleged violations.).
179.6..............................  Repair procedures not         5,000
                                      in compliance with
                                      Appendix R of the
                                      Tank Car Manual.
------------------------------------------------------------------------
\1\ See Sec.  172.334.
\2\ See Sec.  172.516.
\3\ Varies.
\4\ See specific section.
\5\ See penalties: 172.700-.704.


[61 FR 38647, July 25, 1996]

[[Page 57]]

Appendix C to Part 209--FRA's Policy Statement Concerning Small Entities

    This policy statement required by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) explains 
FRA's communication and enforcement policies concerning small entities 
subject to the federal railroad safety laws. These policies have been 
developed to take into account the unique concerns and operations of 
small businesses in the administration of the national railroad safety 
program, and will continue to evolve to meet the needs of the railroad 
industry. For purposes of this policy statement, the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.), and the ``excessive demand'' 
provisions of the Equal Justice Act (5 U.S.C. 504 (a)(4), and 28 U.S.C. 
2412 (d)(1)(D)), Class III railroads, contractors and hazardous 
materials shippers meeting the economic criteria established for Class 
III railroads in 49 CFR 1201.1-1, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less 
constitute the class of organizations considered ``small entities'' or 
``small businesses.''
    FRA understands that small entities in the railroad industry have 
significantly different characteristics than larger carriers and 
shippers. FRA believes that these differences necessitate careful 
consideration in order to ensure that those entities receive appropriate 
treatment on compliance and enforcement matters, and enhance the safety 
of railroad operations. Therefore, FRA has developed programs to respond 
to compliance-related inquiries of small entities, and to ensure proper 
handling of civil penalty and other enforcement actions against small 
businesses.

                    Small Entity Communication Policy

    It is FRA's policy that all agency personnel respond in a timely and 
comprehensive fashion to the inquiries of small entities concerning rail 
safety statutes, safety regulations, and interpretations of these 
statutes and regulations. Also, FRA personnel provide guidance to small 
entities, as needed, in applying the law to specific facts and 
situations that arise in the course of railroad operations. These agency 
communications take many forms, and are tailored to meet the needs of 
the requesting party.
    FRA inspectors provide training on the requirements of all railroad 
safety statutes and regulations for new and existing small businesses 
upon request. Also, FRA inspectors often provide impromptu training 
sessions in the normal course of their inspection duties. FRA believes 
that this sort of preventive, rather than punitive, communication 
greatly enhances railroad safety. FRA's Office of Safety and Office of 
Chief Counsel regularly provide oral and written responses to questions 
raised by small entities concerning the plain meaning of the railroad 
safety standards, statutory requirements, and interpretations of the 
law. As required by the SBREFA, when FRA issues a final rule that has a 
significant impact on a substantial number of small entities, FRA will 
also issue a compliance guide for small entities concerning that rule.
    It is FRA's policy to maintain frequent and open communications with 
the national representatives of the primary small entity associations 
and to consult with these organizations before embarking on new policies 
that may impact the interests of small businesses. In some regions of 
the country where the concentration of small entities is particularly 
high, FRA Regional Administrators have established programs in which all 
small entities in the region meet with FRA regional specialists on a 
regular basis to discuss new regulations, persistent safety concerns, 
emerging technology, and compliance issues. Also, FRA regional offices 
hold periodic conferences, in which specific blocks of time are set 
aside to meet with small businesses and hear their concerns.
    In addition to these communication practices, FRA has instituted an 
innovative partnership program that expands the extent to which small 
entities participate in the development of policy and process. The 
Railroad Safety Advisory Committee (RSAC) has been established to advise 
the agency on the development and revision of railroad safety standards. 
The committee consists of a wide range of industry representatives, 
including organizations that represent the interests of small business. 
The small entity representative groups that sit on the RSAC may appoint 
members of their choice to participate in the development of new safety 
standards. This reflects FRA's policy that small business interests must 
be heard and considered in the development of new standards to ensure 
that FRA does not impose unnecessary economic burdens on small 
businesses, and to create more effective standards. Finally, FRA's Web 
site (http://www.fra.dot.gov) makes pertinent agency information 
available instantly to the public.
    FRA's longstanding policy of open communication with small entities 
is apparent in these practices. FRA will make every effort to develop 
new and equally responsive communication procedures as is warranted by 
new developments in the railroad industry.

                     Small Entity Enforcement Policy

    FRA has adopted an enforcement policy that addresses the unique 
nature of small entities in the imposition of civil penalties and 
resolution of those assessments. Pursuant to FRA's statutory authority, 
and as described in Appendix A to 49 CFR part 209, it is FRA's

[[Page 58]]

policy to consider a variety of factors in determining whether to take 
enforcement action against persons, including small entities, who have 
violated the safety laws and regulations. In addition to the seriousness 
of the violation and the person's history of compliance, FRA inspectors 
consider ``such other factors as the immediate circumstances make 
relevant.'' In the context of violations by small entities, those 
factors include whether the violations were made in good faith (e.g., 
based on an honest misunderstanding of the law), and whether the small 
entity has moved quickly and thoroughly to remedy the violation(s). In 
general, the presence of both good faith and prompt remedial action 
militates against taking a civil penalty action, especially if the 
violations are isolated events. On the other hand, violations involving 
willful actions and/or posing serious health, safety, or environmental 
threats should ordinarily result in enforcement actions, regardless of 
the entity's size.
    Once FRA has assessed a civil penalty, it is authorized to adjust or 
compromise the initial penalty claims based on a wide variety of 
mitigating factors, unless FRA must terminate the claim for some reason. 
FRA has the discretion to reduce the penalty as it deems fit, but not 
below the statutory minimums. The mitigating criteria FRA evaluates are 
found in the railroad safety statutes and SBREFA: The severity of the 
safety or health risk presented; the existence of alternative methods of 
eliminating the safety hazard; the entity's culpability; the entity's 
compliance history; the entity's ability to pay the assessment; the 
impacts an assessment might exact on the entity's continued business; 
and evidence that the entity acted in good faith. FRA staff attorneys 
regularly invite small entities to present any information related to 
these factors, and reduce civil penalty assessments based on the value 
and integrity of the information presented. Staff attorneys conduct 
conference calls or meet with small entities to discuss pending 
violations, and explain FRA's view on the merits of any defenses or 
mitigating factors presented that may have resulted or failed to result 
in penalty reductions. Among the ``other factors'' FRA considers at this 
stage is the promptness and thoroughness of the entity's remedial action 
to correct the violations and prevent a recurrence. Small entities 
should be sure to address these factors in communications with FRA 
concerning civil penalty cases. Long-term solutions to compliance 
problems will be given great weight in FRA's determinations of a final 
settlement offer.
    Finally, under FRA's Safety Assurance and Compliance Program (SACP), 
FRA identifies systemic safety hazards that continue to occur in a 
carrier or shipper operation, and in cooperation with the subject 
business, develops an improvement plan to eliminate those safety 
concerns. Often, the plan provides small entities with a reasonable time 
frame in which to make improvements without the threat of civil penalty. 
If FRA determines that the entity has failed to comply with the 
improvement plan, however, enforcement action is initiated.
    FRA's small entity enforcement policy is flexible and comprehensive. 
FRA's first priority in its compliance and enforcement activities is 
public and employee safety. However, FRA is committed to obtaining 
compliance and enhancing safety with reasoned, fair methods that do not 
inflict undue hardship on small entities.

[68 FR 24894, May 9, 2003]





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