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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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