[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1999 Edition]
[From the U.S. Government Printing Office]


          49



          Transportation



[[Page i]]

          PARTS 200 TO 399

                         Revised as of October 1, 1999

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF OCTOBER 1, 1999
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1999



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 49:
    Subtitle B--Other Regulations Relating to Transportation--
      (Continued):
          Chapter II--Federal Railroad Administration, 
          Department of Transportation                               5
          Chapter III--Federal Highway Administration, 
          Department of Transportation                             639
  Finding Aids:
      Material Approved for Incorporation by Reference........    1041
      Table of CFR Titles and Chapters........................    1045
      Alphabetical List of Agencies Appearing in the CFR......    1063
      List of CFR Sections Affected...........................    1073



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  49 CFR 200.1 refers 
                       to title 49, part 200, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 1999), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules. A list of CFR titles, chapters, and parts 
and an alphabetical list of agencies publishing in the CFR are also 
included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
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(toll-free). E-mail, gpoaccess@gpo.gov.
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 1999.



[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of seven volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-399, parts 400-999, parts 1000-1199, 
part 1200 to End. The first volume (parts 1-99) contains current 
regulations issued under subtitle A--Office of the Secretary of 
Transportation; the second volume (parts 100-185) and the third volume 
(parts 186-199) contain the current regulations issued under chapter I--
Research and Special Programs Administration (DOT); the fourth volume 
(parts 200-399) contains the current regulations issued under chapter 
II--Federal Railroad Administration (DOT), and chapter III--Federal 
Highway Administration (DOT); the fifth volume (parts 400-999) contains 
the current regulations issued under chapter IV--Coast Guard (DOT), 
chapter V--National Highway Traffic Safety Administration (DOT), chapter 
VI--Federal Transit Administration (DOT), chapter VII--National Railroad 
Passenger Corporation (AMTRAK), and chapter VIII--National 
Transportation Safety Board; the sixth volume (parts 1000-1199) contains 
the current regulations issued under chapter X--Surface Transportation 
Board and the seventh volume (part 1200 to End) contains the current 
regulations issued under chapter X--Surface Transportation Board and 
chapter XI--Bureau of Transportation Statistics, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 1999.

    In the volume containing parts 100-185, see Sec. 172.101 for the 
Hazardous Materials Table, and Sec. 172.102 for the Optional Hazardous 
Materials Table. An Identification Number Cross Reference Index to 
Proper Shipping Names in Secs. 172.101 and 172.102 appears at the 
beginning of part 172. The Federal Motor Vehicle Safety Standards appear 
in part 571.

    Redesignation tables for chapter X--Surface Transportation Board, 
Department of Transportation appear in the Finding Aids section of the 
sixth and seventh volumes.

    For this volume, Melanie L. Marcec was the Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                        TITLE 49--TRANSPORTATION




                  (This book contains parts 200 to 399)

  --------------------------------------------------------------------
                                                                    Part

  SUBTITLE B--Other Regulations Relating To Transportation--(Continued)

chapter ii--Federal Railroad Administration, Department of 
  Transportation............................................         200

chapter iii--Federal Highway Administration, Department of 
  Transportation............................................         301

[[Page 3]]

  Subtitle B--Other Regulations Relating To Transportation (Continued)

[[Page 5]]



       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 
                             TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
200             Informal rules of practice for passenger 
                    service.................................           7
201             Formal rules of practice for passenger 
                    service.................................           9
207             Railroad police officers....................          15
209             Railroad safety enforcement procedures......          16
210             Railroad noise emission compliance 
                    regulations.............................          53
211             Rules of practice...........................          59
212             State safety participation regulations......          66
213             Track safety standards......................          77
214             Railroad workplace safety...................         121
215             Railroad freight car safety standards.......         143
216             Special notice and emergency order 
                    procedures: Railroad track, locomotive 
                    and equipment...........................         158
217             Railroad operating rules....................         162
218             Railroad operating practices................         166
219             Control of alcohol and drug use.............         179
220             Railroad communications.....................         256
221             Rear end marking device--passenger, commuter 
                    and freight trains......................         264
223             Safety glazing standards--locomotives, 
                    passenger cars and cabooses.............         269
225             Railroad accidents/incidents: Reports 
                    classification, and investigations......         274
228             Hours of service of railroad employees......         292
229             Railroad locomotive safety standards........         305
230             Locomotive inspection.......................         328
231             Railroad safety appliance standards.........         328
232             Railroad power brakes and drawbars..........         370
233             Signal systems reporting requirements.......         386
234             Grade crossing signal system safety.........         388
235             Instructions governing applications for 
                    approval of a discontinuance or material 
                    modification of a signal system or 
                    relief from the requirements of part 236         398

[[Page 6]]

236             Rules, standards, and instructions governing 
                    the installation, inspection, 
                    maintenance, and repair of signal and 
                    train control systems, devices, and 
                    appliances..............................         402
238             Passenger equipment safety standards........         438
239             Passenger train emergency preparedness......         509
240             Qualification and certification of 
                    locomotive engineers....................         520
245             Railroad user fees..........................         561
250             Guarantee of certificates of trustees of 
                    railroads in reorganization.............         566
256             Financial assistance for railroad passenger 
                    terminals...............................         571
260             Regulations governing section 511 of the 
                    Railroad Revitalization and Regulatory 
                    Reform Act of 1976, as amended..........         581
261             Credit assistance for surface transportation 
                    projects................................         605
265             Nondiscrimination in federally assisted 
                    railroad programs.......................         605
266             Assistance to States for local rail service 
                    under section 5 of the Department of 
                    Transportation Act......................         617
268             Magnetic levitation transportation 
                    technology deployment program...........         632

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PART 200--INFORMAL RULES OF PRACTICE FOR PASSENGER SERVICE--Table of Contents




Sec.
200.1  Genera1.
200.3  Definitions.
200.5  Applications.
200.7  Objections.
200.9  Hearings.
200.11  Orders, approvals, and determinations.
200.13  Publication.

    Authority: Secs. 402(e) and 406 of Pub. L. 91-518, 84 Stat. 1327, as 
amended by sec. 10(2) of Pub. L. 93-146, 87 Stat. 548 and sec. 121 of 
Pub. L. 96-73, 93 Stat. 537 (45 U.S.C. 562(e), 566); 49 CFR 1.49.

    Source: 45 FR 64192, Sept. 29, 1980, unless otherwise noted.



Sec. 200.1  General.

    This part prescribes procedures under which applications will be 
received and heard and by which rules and orders will be issued under 
subsection 402(e) and section 406 of the Rail Passenger Service Act (45 
U.S.C. 562(e) and 566).



Sec. 200.3  Definitions.

    (a) Act means the Rail Passenger Service Act (45 U.S.C. 500 et 
seq.).
    (b) Administrator means the Federal Railroad Administrator, the 
Deputy Administrator of FRA, or the delegate of either.
    (c) Amtrak means the National Railroad Passenger Corporation.
    (d) Amtrak trains means trains operated by or on behalf of Amtrak.
    (e) Chief Counsel means the Chief Counsel or Acting Chief Counsel of 
the FRA.
    (f) Downgrading of a facility means a reduction in track 
classification as specified in FRA track safety standards (49 CFR part 
213), or any other change in facilities which may increase the time 
required for a passenger train to operate over the route on which such 
facility is located.
    (g) Facility means railroad tracks, right-of-way, fixed equipment 
and facilities, real-property appurtenant thereto, and includes signal 
systems, passenger station and repair tracks, station buildings, 
platforms, and adjunct facilities such as water, fuel, steam, electric, 
and air lines.
    (h) FRA means the Federal Railroad Administration.
    (i) Railroad means a person providing railroad transportation for 
compensation.
    (j) Shipper means a person contracting with one or more railroads 
for freight transportation.



Sec. 200.5  Applications.

    (a) Each application and objection under this part shall be 
submitted in writing to: Docket Clerk, Office of the Chief Counsel, 
Federal Railroad Administration, 400 7th Street, SW., Washington, DC 
20590.
    (b) Any procedural issues arising from the submission or 
consideration of applications under this part, such as timeliness and 
adequacy, shall be heard and decided by the Administration's panel 
established under Sec. 200.9.
    (c) Any railroad adversely affected by the preference requirement of 
subsection 402(e) of the Act may apply to the Administrator for an order 
altering that requirement. Each application shall:
    (1) List by endpoints the routes that are so affected; and
    (2) Explain for every route listed how the preference requirement of 
subsection 402(e) will materially lessen the quality of freight service 
afforded by the applicant to its shippers, including information, data 
or documents sufficient to support that explanation; and
    (3) Include an analysis of whether and by how much Amtrak's 
compensation to the railroad should be reduced if the preference 
requirement is altered.
    (d) In accordance with section 406 of the Act, any railroad may 
apply to the Administrator for approval to downgrade or dispose of its 
facilities. Each application shall:
    (1) List the facilities for proposed downgrading or disposal;
    (2) Describe and give the location of each such facility and 
identify the most recent passenger service that made use of such 
facilities; and
    (3) Contain for each facility an analysis of the costs the railroad 
could avoid if it were not required to maintain or retain the facility 
in the condition requested by Amtrak, including

[[Page 8]]

information, data and documents sufficient to support the analysis.
    (e) In addition to the data provided with their applications, 
applicants shall furnish the Administrator with any other information 
that the Administrator finds necessary in order to make the 
determinations required by the Act.
    (f) Each applicant shall promptly notify, by registered or certified 
mail, any party affected by any application, whether Amtrak or a 
railroad, of the submission of such application under this part, and 
shall provide a copy of the application with such notice. An official 
United States Postal Service receipt from the registered or certified 
mailing constitutes prima facie evidence of notice.



Sec. 200.7  Objections.

    (a) Amtrak or any other party shall have 30 days from the date an 
application is received by FRA pursuant to section 402(e) of the Act to 
object to the proposed alteration of the preference requirement. Such 
objections shall be in writing and shall reference, by date, railroad, 
and former passenger routes, the application to which it pertains.
    (b) Amtrak shall have 30 days from the date an application is 
received by FRA pursuant to section 406 of the Act to object to any or 
all of the facility downgradings or disposals proposed in such 
application. Such objections shall be in writing and shall reference, by 
date, railroad, and former passenger routes, the application to which it 
pertains and shall list, by facility description and location, the 
specific downgradings or disposals to which Amtrak objects.



Sec. 200.9  Hearings.

    (a) Pursuant to any application under this part, a prehearing 
conference will be held if found necessary or desirable by the 
Administrator.
    (b) Pursuant to any application under this part, an oral hearing 
will be held if required by statute or if found necessary or desirable 
by the Administrator.
    (c) Hearings shall be conducted by a panel designated by the 
Administrator, consisting of three FRA employees, including the Chief 
Counsel or a member of his or her staff who shall serve as chairman of 
the panel and the Associate Administrator for Intercity Programs or his 
or her delegate.
    (d) Hearings shall be informal fact-finding proceedings, limited to 
the issues identified by the panel. Sections 556 and 557 of title 5, 
U.S.C., shall not apply.
    (e) All direct evidence shall be reduced to writing and submitted to 
the Docket Clerk thirty days in advance of the hearing unless this 
requirement is expressly waived by the panel. Copies shall be furnished 
to all parties concurrently with the submission to the Docket Clerk.
    (f) The panel may provide for oral presentations and cross-
examination, and shall apply rules of evidence as it finds necessary.
    (g) To the extent deemed appropriate by the panel, interested 
persons, including members of the public, may participate in the 
hearings through the submission of written data, oral presentations, or 
arguments.



Sec. 200.11  Orders, approvals, and determinations.

    (a) The Administrator shall promptly approve the downgrading or 
disposal of any facility to which Amtrak does not submit a timely 
objection under this part.
    (b) Orders, approvals, and determinations issued by the 
Administrator's panel under this part constitute the Administrator's 
action and shall be final.
    (c) Determinations under this part are not required to be based 
exclusively on the record of a hearing.



Sec. 200.13  Publication.

    (a) General notice of any hearing under this subpart shall be 
published in the Federal Register not less than 10 days before the 
hearing, and shall include (1) a statement of the time, place, and 
nature of the hearing, (2) a reference to the legal authority under 
which the hearing is being held and (3) a description of the subject and 
issues involved.
    (b) Any order, approval, or determination resulting from any hearing

[[Page 9]]

held under this part shall be published in the Federal Register.



PART 201--FORMAL RULES OF PRACTICE FOR PASSENGER SERVICE--Table of Contents




Sec.
201.1  General.
201.3  Definitions.
201.4  Scope of regulations.
201.5  Applications.
201.6  Notice of hearing.
201.7  Notification by interested persons.
201.8  Presiding officer.
201.9  Direct testimony submitted as written documents.
201.10  Mailing address.
201.11  Inspection and copying of documents.
201.12  Ex parte communications.
201.13  Prehearing conference.
201.14  Final agenda of the hearing.
201.15  Determination to cancel the hearing.
201.16  Rebuttal testimony and new issues of fact in final agenda.
201.17  Waiver of right to participate.
201.18  Conduct of the hearing.
201.19  Direct testimony.
201.20  Cross-examination.
201.21  Oral and written arguments.
201.22  Recommended decision, certification of the transcript, and 
          submission of comments on the recommended decision.
201.23  Administrator's decision.

    Authority: Secs. 402(f) and (h) of Pub. L. 91-518, 84 Stat. 1327, as 
amended by sec. 10(2) of Pub. L. 93-146, 87 Stat. 548 and sec. 216 of 
Pub. L 96-254, 94 Stat. 418 (45 U.S.C. 562 (f) and (h)); sec. 1.49 of 
Title 49, Code of Federal Regulations.

    Source: 46 FR 2614, Jan. 12, 1981, unless otherwise noted.



Sec. 201.1  General.

    This part prescribes procedures under which applications will be 
received and heard and by which rules and orders will be issued under 
subsections 402(f) and (h) of the Rail Passenger Service Act (45 U.S.C. 
562 (f) and (h)).



Sec. 201.3  Definitions.

    (a) The definitions set forth in Sec. 200.3 shall apply to this 
part.
    (b) The following definitions shall also apply to this part:
    (1) Party means--
    (i) The Administrator or his representative; or
    (ii) A person who has notified the Administrator by specified dates 
of his or her intent to participate in the hearing pursuant to 
Secs. 201.7 and 201.16(b).
    (2) Witness means any person who submits written direct testimony on 
an application to the Secretary under this part. A person may be both a 
party and a witness.



Sec. 201.4  Scope of regulations.

    The procedural regulations in this part govern the practice and 
procedure in hearings held under subsections 402(f) and (h) of the Act. 
These hearings will be governed by the provisions of 5 U.S.C. 556 and 
557 of the Administrative Procedure Act. The regulations shall be 
construed to secure the just, speedy, and inexpensive determination of 
all issues raised with respect to any proposal to increase speeds or to 
add trains pursuant to subsections 402(f) and (h) of the Act with full 
protection for the rights of all persons affected thereby.



Sec. 201.5  Applications.

    (a) Each application and objection under this part shall be 
submitted in writing to: Docket Clerk, Office of the Chief Counsel, 
Federal Railroad Administration, 400 7th Street, SW., Washington, DC 
20590.
    (b) Any procedural issues arising from the submission or 
consideration of applications under this part, such as timeliness and 
adequacy, shall be heard and decided by the presiding officer appointed 
under Sec. 201.8.
    (c) In accordance with subsection 402(f) of the Act, Amtrak may 
apply to the Administrator for an order requiring a railroad to permit 
accelerated speeds by Amtrak trains. Each application shall:
    (1) List by endpoints the routes for which Amtrak desires such 
acceleration;
    (2) Not list routes of more than one railroad;
    (3) Indicate by route and train the maximum speeds for Amtrak trains 
permitted by the railroad and the maximum speeds desired by Amtrak;
    (4) Indicate for each route listed the track classification as 
specified in FRA track safety standards (49 CFR part 213); and

[[Page 10]]

    (5) Explain why the maximum speeds Amtrak desires are safe and 
practicable, or what track, signal system, or other facility 
improvements would make such speeds safe and practicable.
    (d) In accordance with subsection 402(h) of the Act, Amtrak may 
apply to the Administrator for an order to require a railroad to permit 
or provide the operation of additional passenger trains on its rail 
lines. Each application shall:
    (1) List the railroad, the endpoints of the proposed additional 
train or trains, and the proposed schedule for such additional train or 
trains, and
    (2) Describe and give the background of all prior efforts and 
negotiations to obtain a satisfactory voluntary agreement with the 
railroad for the operation of the proposed additional train or trains.
    (e) In addition to the data provided with their applications, 
applicants shall furnish the Administrator with any other information 
that the Administrator finds necessary in order to make the 
determinations required by the Act.
    (f) Each applicant shall promptly notify, by registered or certified 
mail, any party affected by any application, whether Amtrak or a 
railroad, of the submission of each application under this part, and 
shall provide a copy of the application with such notice. An official U. 
S. Postal Service return receipt from the registered or certified 
mailing constitutes prima facie evidence of notice.



Sec. 201.6  Notice of hearing.

    (a) A notice of hearing on an application shall be published in the 
Federal Register.
    (b) The notice shall state:
    (1) The nature of the hearing;
    (2) The place and date of the hearing. The date shall not be less 
than 60 days after publication of notice of the hearing;
    (3) The legal authority under which the hearing is to be held;
    (4) Issues of fact which may be involved in the hearing;
    (5) If a draft Environmental Impact Statement is required, the date 
of publication of the draft and the place(s) where the draft and 
comments thereon may be viewed and copied;
    (6) The place(s) where records and submitted direct testimony will 
be kept for public inspection;
    (7) The final date for filing a notice of intent to participate in 
the hearing;
    (8) The final date for submission of direct testimony on the 
application, and the number of copies required;
    (9) The docket number assigned to the case, which shall be used in 
all subsequent proceedings; and
    (10) The place and date of the prehearing conference.



Sec. 201.7  Notification by interested persons.

    Any person desiring to participate as a party shall notify the 
Administrator, by registered or certified mail, on or before the date 
specified in the notice.



Sec. 201.8  Presiding officer.

    (a) Upon publication of the notice of hearing pursuant to 
Sec. 201.6, the Administrator shall appoint a presiding officer pursuant 
to 5 U.S.C. 3105. No individual who has any conflict of interest, 
financial or otherwise, shall serve as presiding officer in such 
proceeding.
    (b) The presiding officer, in any proceeding under this part, shall 
have power to:
    (1) Change the time and place of the hearing and adjourn the 
hearing;
    (2) Evaluate direct testimony submitted pursuant to these 
regulations, make a preliminary determination of the issues, conduct a 
prehearing conference to determine the issues for the hearing agenda, 
and cause to be published in the Federal Register a final hearing 
agenda;
    (3) Rule upon motions, requests, and admissibility of direct 
testimony;
    (4) Administer oaths and affirmations, question witnesses, and 
direct witnesses to testify;
    (5) Modify or waive any rule (after notice) upon determining that no 
party will be prejudiced;
    (6) Receive written comments and hear oral agruments;
    (7) Render a recommended decision; and
    (8) Do all acts and take all measures, including regulation of media 
coverage, for the maintenance of order at

[[Page 11]]

and the efficient conduct of the proceeding.
    (c) In case of the absence of the original presiding officer or his 
inability to act, the Administrator may assign to a successor the powers 
and duties of the original presiding officer without abatement of the 
proceeding unless otherwise ordered by the Administrator.
    (d) The presiding officer may upon his own motion withdraw as 
presiding officer in a proceeding if he deems himself to be 
disqualified.
    (e) A presiding officer may be requested to withdraw at any time 
prior to the recommended decision. Upon the filing by an interested 
person in good faith of a timely and sufficient affidavit alleging the 
presiding officer's personal bias, malice, conflict of interest, or 
other basis which might result in prejudice to a party, the hearing 
shall recess. The Administrator shall immediately act upon such 
allegation as a part of the record and decision in the proceeding, after 
making such investigation or holding such hearings, or both, as he may 
deem appropriate in the circumstances.



Sec. 201.9  Direct testimony submitted as written documents.

    (a) Unless otherwise specified, all direct testimony, including 
accompanying exhibits, shall be submitted to the presiding officer in 
writing no later than the dates specified in the notice of the hearing, 
the final hearing agenda, or within 15 days after the conclusion of the 
prehearing conference, as the case may be. All direct testimony shall be 
in affidavit form, and exhibits constituting part of such testimony, 
referred to in the affidavit and made a part thereof, shall be attached 
to the affidavit. Direct testimony submitted with exhibits shall state 
the issue to which the exhibit relates; if no such statement is made, 
the presiding officer shall determine the relevance of the exhibit to 
the issues published in the Federal Register.
    (b) The direct testimony submitted shall contain:
    (1) A concise statement of the witness' interest in the proceeding 
and his position regarding the issues presented. If the direct testimony 
is presented by a witness who is not a party, the witness shall state 
his relationship to the party;
    (2) Facts that are relevant and material; and
    (3) Any proposed issues of fact not stated in the notice of the 
hearing and the reason(s) why such issues should be considered at the 
hearing.
    (c) Ten copies of all direct testimony shall be submitted unless the 
notice of the hearing specifies otherwise.
    (d) Upon receipt, direct testimony shall be assigned a number and 
stamped with that number and the docket number.
    (e) Contemporaneous with the publication of the notice of hearing, 
Amtrak's direct testimony in support of its application shall be 
available for public inspection as specified in the notice of hearing. 
Amtrak may submit additional direct testimony during the time periods 
allowed for submission of such testimony by witnesses.



Sec. 201.10  Mailing address.

    Unless otherwise specified in the notice of hearing, all direct 
testimony shall be addressed to the Docket Clerk, Office of the Chief 
Counsel, Federal Railroad Administration, 400 7th Street, SW., 
Washington, DC 20590. All affidavits and exhibits shall be clearly 
marked with the docket number of the proceeding.



Sec. 201.11  Inspection and copying of documents.

    (a) If confidential financial information is not involved, any 
document in a file pertaining to any hearing authorized by this part or 
any document forming part of the record of such a hearing may be 
inspected or copied in the Office of the Chief Counsel, Federal Railroad 
Administration, 400 7th Street, SW., Washington, DC 20590, unless the 
file is in the care and custody of the presiding officer in which case 
he shall notify the parties as to where and when the record may be 
inspected.
    (b) If confidential financial information is involved, the presiding 
officer, at his discretion, upon the request of any party, may deny the 
public inspection and copying of such information.

[[Page 12]]



Sec. 201.12  Ex parte communications.

    (a) After notice of a hearing is published in the Federal Register, 
all communications, whether oral or written, involving any substantive 
or procedural issue and directed either to the presiding officer or to 
the Administrator, without reference to these rules of procedure, shall 
be deemed ex parte communications and shall not be considered part of 
the record for decision. A record of oral ex parte communications shall 
be made by the persons contacted. All written ex parte communications 
shall be available for public viewing at the places(s) specified in the 
notice of hearing.
    (b) The presiding officer shall not consult any person or party on 
any fact in issue or on the merits of the matter unless notice and 
opportunity is given for all parties to participate.



Sec. 201.13  Prehearing conference.

    (a) After an examination of all the direct testimony submitted, the 
presiding officer shall make a preliminary determination of issues of 
fact to be addressed at the hearing.
    (b) The presiding officer's preliminary determination shall be made 
available at the place or places provided in the notice of the hearing 
at least five days before the prehearing conference is held.
    (c) The purpose of the prehearing conference shall be to enable the 
presiding officer to determine, on the basis of the direct testimony 
submitted and prehearing discussions:
    (1) Whether the presiding officer's preliminary determination of 
issues of fact for the hearing has omitted or misconstrued any 
significant issues, and
    (2) The nature of the interest of each party and which parties' 
interests are adverse.
    (d) Only parties may participate in the prehearing conference. A 
party may appear in person or be represented by counsel.
    (e) Parties who do not appear at the prehearing conference shall be 
bound by the conference's determinations.



Sec. 201.14  Final agenda of the hearing.

    (a) After the prehearing conference, the presiding officer shall 
prepare a final agenda which shall be published in the Federal Register 
within ten days after the conclusion of the conference. A copy of the 
final agenda shall be mailed to all parties.
    (b) The final agenda shall list:
    (1) All the issues the hearing shall address, the order in which 
those issues shall be presented, and the direct testimony submitted on 
those issues; and
    (2) A final date for submission of direct testimony on issues of 
fact not included in the notice of hearing if such issues are presented.

The final agenda may also specify a final date for submission of direct 
testimony to rebut testimony previously submitted during the time 
specified in the notice of the hearing.
    (c) The presiding officer shall publish with the final agenda a list 
of witnesses who may appear at the hearing, a list of parties, the 
nature of the interest of each party, and which parties' interests are 
adverse on the issues presented.



Sec. 201.15  Determination to cancel the hearing.

    (a) If the presiding officer concludes that no issues of fact are 
presented by the direct testimony submitted, he shall publish such 
conclusion in the Federal Register with a notice that a hearing shall 
not be held. The notice shall set forth a date for filing written 
comments on the proposed recommended decision. Written comments may 
include proposed findings and conclusions, arguments, or briefs.
    (b) A person need not be a party to submit written comments.
    (c) Promptly after expiration of the period for receiving written 
comments, the presiding officer shall make a recommended decision based 
on the record, which in this case shall consist of the testimony, 
exhibits, and written comments submitted. He shall transfer to the 
Administrator his recommended decision, the record, and a certificate 
stating that the record contains all the written direct testimony and 
comments submitted. The Administrator shall then make a final decision 
in accordance with these regulations.

[[Page 13]]



Sec. 201.16  Rebuttal testimony and new issues of fact in final agenda.

    (a) Direct testimony to rebut testimony offered during the time 
period specified in the notice of hearing may be submitted pursuant to 
these regulations within fifteen days after the conclusion of the 
prehearing conference unless the presiding officer otherwise specifies 
in the final agenda.
    (b) If the final agenda presents issues not included in the notice 
of the hearing published pursuant to Sec. 201.6,
    (1) Any person interested in participating at the hearing on such 
issues presented shall notify the Administrator by certified mail of an 
intent to participate not later than ten days after publication of the 
final agenda. Such person may present direct testimony or cross-examine 
witnesses only on such issues presented unless he previously notified 
the Administrator pursuant to Sec. 201.7, and
    (2) Additional written direct testimony concerning such issues may 
be submitted within the time provided in the final agenda. Such direct 
testimony will comply with the requirements of Sec. 201.9.



Sec. 201.17  Waiver of right to participate.

    Persons who fail to notify the Administrator pursuant to Secs. 201.7 
and 201.16 shall be deemed to have waived their right to participate as 
parties in any part of the hearing.



Sec. 201.18  Conduct of the hearing.

    (a) The hearing shall be held at the time and place fixed in the 
notice of hearing, unless the presiding officer changes the time or 
place. If a change occurs, the presiding officer shall publish the 
change in the Federal Register and shall expeditiously notify all 
parties by telephone or by mail; provided, that if the change in time or 
place of hearing is made less than five days before the date previously 
fixed for the hearing, the presiding officer shall also announce, or 
cause to be announced, the change at the time and place previously fixed 
for the hearing.
    (b) The presiding officer shall, at the commencement of the hearing, 
introduce into the record. The notice of hearing as published in the 
Federal Register; all subsequent notices published in the Federal 
Register; the draft Environmental Impact Statement if it is required, 
and the comments thereon and agency responses to the comments; and a 
list of all parties. Direct testimony shall then be received with 
respect to the matters specified in the final agenda in such order as 
the presiding officer shall announce. With respect to direct testimony 
submitted as rebuttal testimony or in response to new issues presented 
by the prehearing conference, the presiding officer shall determine the 
relevance of such testimony.
    (c) The hearing shall be publicly conducted and reported verbatim by 
an offical reporter.
    (d) If a party objects to the admission or rejection of any direct 
testimony or to any other ruling of the presiding officer during the 
hearing, he shall state briefly the grounds of such objection, whereupon 
an automatic exception will follow if the objection is overruled by the 
presiding officer. The transcript shall not include argument or debate 
thereon except as ordered by the presiding officer. The ruling of the 
presiding officer on any objection shall be a part of the transcript and 
shall be subject to review at the same time and in the same manner as 
the Administrator's final decision. Only objections made before the 
presiding officer may subsequently be relied upon in the proceedings.
    (e) All motions and requests shall be addressed to, and ruled on by, 
the presiding officer if made prior to his certification of the 
transcript, or by the Administrator if made thereafter.



Sec. 201.19  Direct testimony.

    (a) Direct testimony shall be submitted by affidavit as provided in 
these regulations and introduced at the hearing by a witness in order to 
be considered part of the record. Such direct testimony shall not be 
read into evidence but shall become a part of the record subject to 
exclusion of irrelevant and immaterial parts thereof.
    (b) The witness introducing direct testimony shall:
    (1) State his name, address, and occupation;

[[Page 14]]

    (2) State his qualifications for introducing the direct testimony. 
If an expert, the witness shall briefly state the scientific or 
technical training that qualifies him as an expert;
    (3) Identify the direct testimony previously submitted in accordance 
with these regulations; and
    (4) Submit to appropriate direct and cross examination. Cross-
examination shall be by a party whose interests are adverse to those of 
the witness on the issue presented if the witness is a party, or adverse 
to the interests of the party who presented the witness if the witness 
is not a party.
    (c) A party shall be deemed to have waived the right to introduce 
direct testimony if such party fails to present a witness to introduce 
the direct testimony.
    (d) Offical notice may be taken of such matters as are judicially 
noticed by the courts of the United States, provided, that parties shall 
be given adequate notice by the presiding officer at the hearing of 
matters so noticed and shall be given adequate opportunity to show that 
such facts are inaccurate or are erroneously noticed.



Sec. 201.20  Cross-examination.

    (a) The presiding officer may:
    (1) Require the cross-examiner to outline the intended scope of the 
cross-examination;
    (2) Prohibit parties from cross-examining witnesses unless the 
presiding officer has determined that the cross-examiner has an adverse 
interest on the facts at issue to the party-witness. For the purposes of 
this subsection, the Administrator's or his representative's interest 
shall be considered adverse to all parties;
    (3) Limit the number of times any party or parties having a common 
interest may cross-examine an ``adverse'' witness on the same matter; 
and
    (4) Exclude cross-examination questions that are immaterial, 
irrelevant, or unduly repetitious.
    (b) Any party shall be given an opportunity to appear, either in 
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or 
counsel shall state his name, address, and occupation. If counsel cross-
examines the witness, counsel shall state for the record the authority 
to act as counsel. Cross-examiners shall be assumed to be familiar with 
the direct testimony.
    (c) Any party or party's counsel who fails to appear at the hearing 
to cross-examine an ``adverse'' witness shall be deemed to have waived 
the right to cross-examine that witness.
    (d) Scientific, technical, or commercial publications may be used 
only for the limited purpose of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance 
with these regulations.



Sec. 201.21  Oral and written arguments.

    (a) The presiding officer may, in his discretion, provide for oral 
argument at the end of the hearing. Such argument, when permitted, may 
be limited by the presiding officer to the extent necessary for the 
expeditious disposition of the proceeding.
    (b) The presiding officer shall announce at the hearing a reasonable 
period of time within which any interested person may file with the 
presiding officer any written comments on the application, including 
proposed findings and conclusions or written arguments or brief based 
upon the record, citing where practicable the relevant page or pages of 
the transcript. If a party filing a brief desires the presiding officer 
to reconsider any objection made by such party to a ruling of the 
presiding officer, he shall specifically identify such rulings by 
reference to the pertinent pages of the transcript and shall state his 
arguments thereon as a part of the brief.
    (c) Oral or written arguments shall be limited to issues arising 
from direct testimony on the record.



Sec. 201.22  Recommended decision, certification of the transcript, and submission of comments on the recommended decision.

    (a) Promptly after expiration of the period for receiving written 
briefs, the presiding officer shall make a recommended decision based on 
the record and transmit the decision to the Administrator. The 
recommended decision shall include:

[[Page 15]]

    (1) A statement containing a description of the history of the 
proceedings;
    (2) Findings on issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.
    (b) The presiding officer shall also transmit to the Administrator 
the transcript of the hearing, the original and all copies of the direct 
testimony, and written comments. The presiding officer shall attach to 
the original transcript of the hearing a certificate stating that, to 
the best of his knowledge and belief, the transcript is a true 
transcript of the testimony given at the hearing except in such 
particulars as are specified.
    (c) Immediately after receipt of the recommended decision, the 
Administrator shall give notice thereof in the Federal Register, send 
copies of the recommended decision to all parties, and provide 
opportunity for the submission of comments. The recommended decision may 
be reviewed and/or copied in the Office of the Chief Counsel, Federal 
Railroad Administration, 400 7th Street, SW., Washington, DC 20590.
    (d) Within twenty days after the notice of receipt of the 
recommended decision has been published in the Federal Register, any 
interested person may file with the Administrator any written comments 
on the recommended decision. All comments shall be submitted during the 
twenty-day period to the Administrator at the above address.



Sec. 201.23  Administrator's decision.

    (a) Upon receipt of the recommended decision and transcript and 
after the twenty-day period for receiving written comments on the 
recommended decision has passed, the Administrator's decision may 
affirm, modify, or set aside, in whole or in part, the recommended 
findings, conclusions, and decision of the presiding officer. The 
Administrator may also remand the hearing record to the presiding 
officer for a fuller development of the record.
    (b) The Administrator's decision shall include:
    (1) A statement containing a description of the history of the 
proceeding;
    (2) Findings on issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.
    (c) The Administrator's decision shall be published in the Federal 
Register. If the Amtrak application is approved in whole or in part, the 
final order shall be promulgated with the decision.



PART 207--RAILROAD POLICE OFFICERS--Table of Contents




Sec.
207.1  Application.
207.2  Definitions.
207.3  Designation and commissioning.
207.4  Notice to State officials.
207.5  Authority in States where officer not commissioned.

    Authority: 45 U.S.C. 446; 49 CFR 1.49(ff).

    Source: 59 FR 6587, Feb. 11, 1994, unless otherwise noted.



Sec. 207.1  Application.

    This part applies to all railroads, as such term is defined in 
section 202(e) of the Federal Railroad Safety Act of 1970, as amended, 
Public Law 91-458 (45 U.S.C. 431(e)).



Sec. 207.2  Definitions.

    As used in this part:
    (a) Railroad police officer means a peace officer who is 
commissioned in his or her state of legal residence or state of primary 
employment and employed by a railroad to enforce state laws for the 
protection of railroad property, personnel, passengers, and/or cargo.
    (b) Commissioned means that a state official has certified or 
otherwise designated a railroad employee as qualified under the 
licensing requirements of that state to act as a railroad police officer 
in that state.
    (c) Property means rights-of-way, easements, appurtenant property, 
equipment, cargo, facilities, and buildings and other structures owned, 
leased, operated, maintained, or transported by a railroad.



Sec. 207.3  Designation and commissioning.

    (a) A railroad may designate employees to be commissioned by a state 
authority as railroad police officers to serve in the states in which 
the railroad owns property.

[[Page 16]]

    (b) The designated railroad police officer shall be commissioned by 
the railroad police officer's state of legal residence or the railroad 
police officer's state of primary employment.



Sec. 207.4  Notice to State officials.

    (a) After the designated railroad police officer is commissioned by 
a state or states, the railroad shall send, by certified mail, written 
notice to appropriate officials of every other state in which the 
railroad police officer shall protect the railroad's property, 
personnel, passengers, and cargo. The notice of commission shall contain 
the following information:
    (1) The name of the railroad police officer;
    (2) The badge number, identification number, rank, code, or other 
identifying information assigned to the railroad police officer;
    (3) The date of commission;
    (4) The state or states where the railroad police officer is 
commissioned;
    (5) The date the railroad police officer received training or 
retraining regarding the laws of such state or states;
    (6) The name of the railroad official who designated the employee as 
a railroad police officer; and
    (7) Color photographs of the types of badges, identification cards, 
and other identifying materials the railroad uses to identify its 
railroad police officers.
    (b) The railroad shall keep copies of all such notices at a central 
location.
    (c) The authority set forth in Sec. 207.5 shall be effective upon 
receipt by such state(s) of written notice conforming to the 
requirements of this section.



Sec. 207.5  Authority in States where officer not commissioned.

    (a) A railroad police officer who is designated by a railroad and 
commissioned under the laws of any state is authorized to enforce the 
laws (as specified in paragraph (b) of this section) of any state in 
which the railroad owns property and to which the railroad has provided 
notice in accordance with Sec. 207.4.
    (b) Under the authority of paragraph (a) of this section, a railroad 
police officer may enforce only relevant laws for the protection of--
    (1) The railroad's employees, passengers, or patrons;
    (2) The railroad's property or property entrusted to the railroad 
for transportation purposes;
    (3) The intrastate, interstate, or foreign movement of cargo in the 
railroad's possession or in possession of another railroad or non-rail 
carrier while on the railroad property; and
    (4) The railroad movement of personnel, equipment, and materials 
vital to the national defense.
    (c) The authority exercised under this part by an officer for whom 
the railroad has provided notice in accordance with Sec. 207.4 shall be 
the same as that of a railroad police officer commissioned under the 
laws of that state.
    (d) The railroad police officer's law enforcement powers shall apply 
only on railroad property, except that an officer may pursue off 
railroad property a person suspected of violating the law on railroad 
property, and an officer may engage off railroad property in law 
enforcement activities, including, without limitation, investigation and 
arrest, if permissible under state law.



PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES--Table of Contents




                           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--Interim 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

    Authority: 49 U.S.C. 20103, 20107 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. 5713, formerly codified at 
49 App. U.S.C.

[[Page 18]]

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 registered or certified 
mail, except as otherwise provided herein.

[[Page 19]]

    (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:
    (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;

[[Page 20]]

    (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 reasons for taking such deposition. Such motion 
shall be granted only upon a showing of good cause. Good

[[Page 21]]

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 may assume that 
there is no objection

[[Page 22]]

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.

[[Page 35]]

    (1) Date of receipt of notification. If the FRA Safety Inspector 
provides written 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]

[[Page 36]]

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

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

[[Page 37]]

    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 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.

[[Page 38]]

    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 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

[[Page 39]]

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 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

[[Page 40]]

one instance--part 231--the schedule refers to sections of the relevant 
FRA defect code rather than to sections of the CFR text. Of course, the 
defect code, which is simply a reorganized version of the CFR text used 
by FRA to facilitate computerization of inspection data, is 
substantively identical to the CFR text.
    The schedule amounts are meant to provide guidance as to FRA's 
policy in predictable situations, not to bind FRA from using the full 
range of penalty authority where extraordinary circumstances warrant. 
The Senate report on the bill that became the RSIA stated:
    It is expected that the Secretary would act expeditiously to set 
penalty levels commensurate with the severity of the violations, with 
imposition of the maximum penalty reserved for violation of any 
regulation where warranted by exceptional circumstances. S. Rep. No. 
100-153, 10th Cong., 2d Sess. 8 (1987).
    Accordingly, under each of the schedules (ordinarily in a footnote), 
and regardless of the fact that a lesser amount might be shown in both 
columns of the schedule, FRA reserves the right to assess the statutory 
maximum penalty of up to $22,000 per violation where a grossly negligent 
violation has created an imminent hazard of death or injury. This 
authority 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 
(accident reporting regulations). Other regulations (e.g., 49 CFR 213.3, 
track safety regulations) exclude not only plant railroads but all other 
railroads that are not part of, or operated over, the ``general railroad 
system of transportation,'' i.e., the network of standard gage railroads 
over which the interchange of goods and passengers throughout the nation 
is possible--including even certain railroads not physically connected 
to the continental system, such as a freight railroad in Alaska with 
which other American railroads interchange cars by means of intermediate 
modes of transport. (Note that

[[Page 41]]

FRA proposed the ``general system'' language now found in section 202(e) 
of the Safety Act, and its construction of that language is not bound by 
construction of similar phrases used in other statutes, e.g., 45 U.S.C. 
151 First; those similar phrases are generally part of provisions in 
those laws limiting their reach--unlike that of the amended safety 
laws--to ``common carriers engaged in interstate commerce.'')
    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).
    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.

                         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).

[[Page 42]]

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]

 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 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.

[[Page 43]]

 
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.
    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\''
                                      where 2'' 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.

[[Page 44]]

 
    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.)
                                     --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''
                                      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.

[[Page 45]]

 
    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:
                                     --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..

[[Page 46]]

 
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..
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

[[Page 47]]

 
                                     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.
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.

[[Page 48]]

 
    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.)
                                     --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.).

[[Page 49]]

 
                                     --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.)
                                     --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.).

[[Page 50]]

 
                                     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.
    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.

[[Page 51]]

 
    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.
                                     --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.

[[Page 52]]

 
                                     --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)
                                     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).
------------------------------------------------------------------------

[[Page 53]]

 
                                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]



PART 210--RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS--Table of Contents




                      Subpart A--General Provisions

Sec.
210.1  Scope of part.
210.3  Applicability.
210.5  Definitions.
210.7  Responsibility for noise defective railroad equipment.
210.9  Movement of a noise defective locomotive, rail car, or consist of 
          a locomotive and rail cars.
210.11  Waivers.
210.13  Penalty.

                    Subpart B--Inspection and Testing

210.21  Scope of subpart.
210.23  Authorization.
210.25  Measurement criteria and procedures.
210.27  New locomotive certification.
210.29  Operation standards (moving locomotives and rail cars).
210.31  Operation standards (stationary locomotives at 30 meters).
210.33  Operation standards (switcher locomotives, load cell test 
          stands, car coupling operations, and retarders).

Appendix A to Part 210--Summary of Noise Standards, 40 CFR Part 201
Appendix B to Part 210--Switcher Locomotive Enforcement Policy

    Authority: Sec. 17, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 4916); 
sec. 1.49(o) of the regulations of the Office of the Secretary of 
Transportation, 49 CFR 1.49(o).

    Source: 48 FR 56758, Dec. 23, 1983, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 210.1  Scope of part.

    This part prescribes minimum compliance regulations for enforcement 
of the Railroad Noise Emission Standards established by the 
Environmental Protection Agency in 40 CFR part 201.



Sec. 210.3  Applicability.

    (a) Except as provided in paragraph (b) of this section, the 
provisions of this part apply to the total sound emitted by moving rail 
cars and locomotives (including the sound produced by refrigeration and 
air conditioning units that are an integral element of such equipment), 
active retarders, switcher locomotives, car coupling operations, and 
load cell test stands, operated by a railroad as defined in 45 U.S.C. 
22, under the conditions described in this part and in 40 CFR part 201.
    (b) The provisions of this part do not apply to--
    (1) Steam locomotives;
    (2) Street, suburban, or interurban electric railways unless 
operated as a

[[Page 54]]

part of the general railroad system of transportation;
    (3) Sound emitted by warning devices, such as horns, whistles, or 
bells when operated for the purpose of safety;
    (4) Special purpose equipment that may be located on or operated 
from rail cars;
    (5) As prescribed in 40 CFR 201.10, the provisions of 40 CFR 201.11 
(a) and (b) and (c) do not apply to gas turbinepowered locomotives or 
any locomotive type that cannot be connected by any standard method to a 
load cell; or
    (6) Inert retarders.

[48 FR 56758, Dec. 23, 1983, as amended at 54 FR 33228, Aug. 14, 1989]



Sec. 210.5  Definitions.

    (a) Statutory definitions. All terms used in this part and defined 
in the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.) have the 
definition set forth in that Act.
    (b) Definitions in standards. All terms used in this part and 
defined in Sec. 201.1 of the Railroad Noise Emission Standards, 40 CFR 
201.1, have the definition set forth in that section.
    (c) Additional definitions. As used in this part--
    Administrator means the Federal Railroad Administrator, the Deputy 
Administrator, or any official of FRA to whom the Administrator has 
delegated authority to act in the Administrator's stead.
    Consist of a locomotive and rail cars means one or more locomotives 
coupled to a rail car or rail cars.
    FRA means the Federal Railroad Administration.
    Inert retarder means a device or system for holding a classified cut 
of cars and preventing it from rolling out the bottom of a railyard.
    Inspector means FRA inspectors or FRA specialists.
    Noise defective means the condition in which railroad equipment is 
found to exceed the Railroad Noise Emission Standards, 40 CFR part 201.
    Railroad equipment means rail cars, locomotives, active retarders, 
and load cell test stands.
    Standards means the Railroad Noise Emission Standards, 40 CFR part 
201. (See appendix A in this part for a listing.)



Sec. 210.7  Responsibility for noise defective railroad equipment.

    Any railroad that uses railroad equipment that is noise defective or 
engages in a car coupling operating that results in excessive noise 
according to the criteria established in this part and in the Standards 
is responsible for compliance with this part. Subject to Sec. 210.9, 
such railroad shall--
    (a) Correct the noise defect;
    (b) Remove the noise defective railroad equipment from service; or
    (c) Modify the car coupling procedure to bring it within the 
prescribed noise limits.



Sec. 210.9  Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.

    A locomotive, rail car, or consist of a locomotive and rail cars 
that is noise defective may be moved no farther than the nearest forward 
facility where the noise defective conditions can be eliminated only 
after the locomotive, rail car, or consist of a locomotive and rail cars 
has been inspected and been determined to be safe to move.



Sec. 210.11  Waivers.

    (a) Any person may petition the Administrator for a waiver of 
compliance with any requirement in this part. A waiver of compliance 
with any requirement prescribed in the Standards may not be granted 
under this provision.
    (b) Each petition for a waiver under this section must be filed in 
the manner and contain information required by 49 CFR part 211.
    (c) If the Administrator finds that a waiver of compliance applied 
for under paragraph (a) of this section is in the public interest and is 
consistent with railroad noise abatement and safety, the Administrator 
may grant a waiver subject to any condition he deems necessary. Notice 
of each waiver granted, including a statement of the reasons therefor, 
will be published in the Federal Register.



Sec. 210.13  Penalty.

    Any person who operates railroad equipment subject to the Standards 
in

[[Page 55]]

violation of any requirement of this part or of the Standards is liable 
to penalty as prescribed in section 11 of the Noise Control Act of 1972 
(42 U.S.C. 4910), as amended.



                    Subpart B--Inspection and Testing



Sec. 210.21  Scope of subpart.

    This subpart prescribes the compliance criteria concerning the 
requirements for inspection and testing of railroad equipment or 
operations covered by the Standards.



Sec. 210.23  Authorization.

    (a) An inspector is authorized to perform any noise test prescribed 
in the Standards and in the procedures of this part at any time, at any 
appropriate location, and without prior notice to the railroad, for the 
purpose of determining whether railroad equipment is in compliance with 
the Standards.
    (b)(1) An inspector is authorized to request that railroad equipment 
and appropriate railroad personnel be made available for a passby or 
stationary noise emission test, as prescribed in the Standards and in 
the procedures of this part, and to conduct such test, at a reasonable 
time and location, for the purpose of determining whether the railroad 
equipment is in compliance with the Standards.
    (2) If the railroad has the capability to perform an appropriate 
noise emission test, as prescribed in the Standards and in the 
procedures of this part, an inspector is authorized to request that the 
railroad test railroad equipment. The railroad shall perform the 
appropriate test as soon as practicable.
    (3) The request referred to in this paragraph will be in writing, 
will state the grounds upon which the inspector has reason to believe 
that the railroad equipment does not conform to the Standards, and will 
be presented to an appropriate operating official of the railroad.
    (4) Testing or submission for testing is not required if the cause 
of the noise defect is readily apparent and the inspector verifies that 
it is corrected by the replacement of defective components or by 
instituting a normal maintenance or repair procedure.
    (c)(1) An inspector is authorized to inspect or examine a 
locomotive, rail car, or consist of a locomotive and rail cars operated 
by a railroad, or to request that the railroad inspect or examine the 
locomotive, rail car, or consist of a locomotive and rail cars, whenever 
the inspector has reason to believe that it does not conform to the 
requirements of the Standards.
    (2) An inspector may request that a railroad conduct an inspection 
or examination of a locomotive, rail car, or consist of a locomotive and 
rail cars on the basis of an excessive noise emission level measured by 
a passby test. If, after such inspection or examination, no mechanical 
condition that would result in a noise defect can be found and the 
inspector verifies that no such mechanical condition exists, the 
locomotive, rail car, or consist of a locomotive and rail cars may be 
continued in service.
    (3) The requests referred to in this paragraph will be in writing, 
will state the grounds upon which the inspector has reason to believe 
that the locomotive, rail car, or consist of a locomotive and rail cars 
does not conform to the Standards, and will be presented to an 
appropriate operating official of the railroad.
    (4) The inspection or examination referred to in this paragraph may 
be conducted only at recognized inspection points or scheduled stopping 
points.



Sec. 210.25  Measurement criteria and procedures.

    The parameters and procedures for the measurement of the noise 
emission levels are prescribed in the Standards.
    (a) Quantities measured are defined in Sec. 201.21 of the Standards.
    (b) Requirements for measurement instrumentation are prescribed in 
Sec. 201.22 of the Standards. In addition, the following calibration 
procedures shall be used:
    (1)(i) The sound level measurement system including the microphone 
shall be calibrated and appropriately adjusted at one or more nominal 
frequencies in the range from 250 through 1000 Hz at the beginning of 
each series of measurements, at intervals not exceeding 1 (one) hour 
during continual

[[Page 56]]

use, and immediately following a measurement indicating a violation.
    (ii) The sound level measurement system shall be checked not less 
than once each year by its manufacturer, a representative of its 
manufacturer, or a person of equivalent special competence to verify 
that its accuracy meets the manufacturer's design criteria.
    (2) An acoustical calibrator of the microphone coupler type designed 
for the sound level measurement system in use shall be used to calibrate 
the sound level measurement system in accordance with paragraph 
(b)(1)(i) of this section. The calibration must meet or exceed the 
accuracy requirements specified in section 5.4.1 of the American 
National Standard Institute Standards, ``Method for Measurement of Sound 
Pressure Levels,'' (ANSI S1.13-1971) for field method measurements.
    (c) Acoustical environment, weather conditions, and background noise 
requirements are prescribed in Sec. 201.23 of the Standards. In 
addition, a measurement tolerance of 2 dB(A) for a given measurement 
will be allowed to take into account the effects of the factors listed 
below and the interpretations of these effects by enforcement personnel:
    (1) The common practice of reporting field sound level measurements 
to the nearest whole decibel;
    (2) Variations resulting from commercial instrument tolerances;
    (3) Variations resulting from the topography of the noise 
measurement site;
    (4) Variations resulting from atmospheric conditions such as wind, 
ambient temperature, and atmospheric pressure; and
    (5) Variations resulting from reflected sound from small objects 
allowed within the test site.



Sec. 210.27  New locomotive certification.

    (a) A railroad shall not operate a locomotive built after December 
31, 1979, unless the locomotive has been certified to be in compliance 
with the Standards.
    (b) The certification prescribed in this section shall be determined 
for each locomotive model, by either--
    (1) Load cell testing in accordance with the criteria prescribed in 
the Standards; or
    (2) Passby testing in accordance with the criteria prescribed in the 
Standards.
    (c) If passby testing is used under paragraph (b)(2) of this 
section, it shall be conducted with the locomotive operating at maximum 
rated horsepower output.
    (d) Each new locomotive certified under this section shall be 
identified by a permanent badge or tag attached in the cab of the 
locomotive near the location of the inspection Form F 6180.49. The badge 
or tag shall state:
    (1) Whether a load cell or passby test was used;
    (2) The date and location of the test; and
    (3) The A-weighted sound level reading in decibels obtained during 
the passby test, or the readings obtained at idle throttle setting and 
maximum throttle setting during a load cell test.



Sec. 210.29  Operation standards (moving locomotives and rail cars).

    The operation standards for the noise emission levels of moving 
locomotives, rail cars, or consists of locomotives and rail cars are 
prescribed in the Standards and duplicated in appendix A of this part.
    (a) Measurements for compliance shall be made in compliance with the 
provisions of subpart C of the Standards and the following:
    (1) Consists of locomotives containing at least one locomotive unit 
manufactured prior to December 31, 1979, shall be evaluated for 
compliance in accordance with Sec. 201.12(a) of the Standards, unless a 
locomotive within the consist is separated by at least 10 rail car 
lengths or 500 feet from other locomotives in the consist, in which case 
such separated locomotives may be evaluated for compliance according to 
their respective built dates.
    (2) Consists of locomotives composed entirely of locomotive units 
manufactured after December 31, 1979, shall be evaluated for compliance 
in accordance with Sec. 201.12(b) of the Standards.
    (3) If the inspector cannot establish the built dates of all 
locomotives in a consist of locomotives measured under

[[Page 57]]

moving conditions, evaluation for compliance shall be made in accordance 
with Sec. 201.12(a) of the Standards.
    (b) Noise emission standards for rail cars operating under moving 
conditions are contained in Sec. 201.13 of the Standards and are stated 
in appendix A of this part. If speed measurement equipment used by the 
inspector at the time of the measurement is not operating within an 
accuracy of 5 miles per hour, evaluation for compliance shall be made in 
accordance with Sec. 201.13(2) of the Standards.
    (c) Locomotives and rail cars tested pursuant to the procedures 
prescribed in this part and in the Standards shall be considered in 
noncompliance whenever the test measurement, minus the appropriate 
tolerance (Sec. 210.25), exceeds the noise emission levels prescribed in 
appendix A of this part.



Sec. 210.31  Operation standards (stationary locomotives at 30 meters).

    (a) For stationary locomotives at load cells:
    (1) Each noise emission test shall begin after the engine of the 
locomotive has attained the normal cooling water operating temperature 
as prescribed by the locomotive manufacturer.
    (2) Noise emission testing in idle or maximum throttle setting shall 
start after a 40 second stabilization period in the throttle setting 
selected for the test.
    (3) After the stabilization period as prescribed in paragraph (a)(2) 
of this section, the A-weighted sound level reading in decibels shall be 
observed for an additional 30-second period in the throttle setting 
selected for the test.
    (4) The maximum A-weighted sound level reading in decibels that is 
observed during the 30-second period of time prescribed in paragraph 
(a)(3) of this section shall be used for test measurement purposes.
    (b) The following data determined by any locomotive noise emission 
test conducted after December 31, 1976, shall be recorded in the 
``Remarks'' section on the reverse side of Form F 6180.49:
    (1) Location of test;
    (2) Type of test;
    (3) Date of test; and
    (4) The A-weighted sound level reading in decibels obtained during 
the passby test, or the readings obtained at idle throttle setting and 
maximum throttle setting during a load cell test.
    (c) Any locomotive subject to this part that is found not to be in 
compliance with the Standards as a result of a passby test shall be 
subjected to a load cell test or another passby test prior to return to 
service, except that no such retest shall be required if the cause of 
the noise defect is readily apparent and is corrected by the replacement 
of defective components or by a normal maintenance or repair procedure.
    (d) The last entry recorded on Form F 6180.49 as required in 
paragraph (b) of this section shall be transcribed to a new Form FRA F 
6180.49 when it is posted in the locomotive cab.
    (e) Locomotives tested pursuant to the procedures prescribed in this 
part and in the Standards shall be considered in noncompliance wherever 
the test measurement, minus the appropriate tolerance (Sec. 210.25), 
exceeds the noise emission levels precribed in appendix A of this part.



Sec. 210.33  Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).

    (a) Measurement on receiving property of the noise emission levels 
from switcher locomotives, load cell test stands, car coupling 
operations, and retarders shall be performed in accordance with the 
requirements of 40 CFR part 201 and Sec. 210.25 of this part.
    (b) These sources shall be considered in noncompliance whenever the 
test measurement, minus the appropriate tolerance (Sec. 210.25), exceeds 
the noise emission levels prescribed in appendix A of this part.

[[Page 58]]



                       Appendix A to Part 210--Summary of Noise Standards, 40 CFR Part 201
----------------------------------------------------------------------------------------------------------------
                                                        Noise
                                                     standard--A
   Paragraph and section          Noise source         weighted      Noise measure \1\     Measurement location
                                                     sound level
                                                        in dB
----------------------------------------------------------------------------------------------------------------
                                 All Locomotives
                                Manufactured on or
                                Before 31 December
                                       1979
 
201.11(a)..................  Stationary, Idle                 73  Lmax (slow)...........  30 m (100 ft)
                              Throttle Setting.
201.11(a)..................  Stationary, All Other            93  ......do..............      Do.
                              Throttle Settings.
201.12(a)..................  Moving................           96  Lmax (fast)...........      Do.
 
                                 All Locomotives
                              Manufactured After 31
                                  December 1979
 
201.11(b)..................  Stationary, Idle                 70  Lmax (slow)...........      Do.
                              Throttle Setting.
201.11(b)..................  Stationary, All Other            87  ......do..............      Do.
                              Throttle Settings.
201.12(b)..................  Moving................           90  Lmax (fast)...........      Do.
201.11(c) and 201.12(c)....  Additional Requirement           65  L90 (fast)\2\.........  Receiving property
                              for Switcher
                              Locomotives
                              Manufactured on or
                              Before 31 December
                              1979 Operating in
                              Yards Where
                              Stationary Switcher
                              and other Locomotive
                              Noise Exceeds the
                              Receiving Property
                              Limit of.
201.11(c)..................  Stationary, Idle                 70  Lmax (slow)...........  30 m (100 ft)
                              Throttle Setting.
201.11(c)..................  Stationary, All Other            87  ......do..............      Do.
                              Throttle Settings.
201.12(c)..................  Moving................           90  Lmax (fast)...........      Do.
 
                                    Rail Cars
 
201.13(1)..................  Moving at Speeds of 45           88  ......do..............      Do.
                              mph or Less.
201.13(2)..................  Moving at Speeds                 93  ......do..............      Do.
                              Greater than 45 mph.
 
                              Other Yard Equipment
                                  and Facilities
 
201.14.....................  Retarders.............           83  Ladjavemax (fast).....  Receiving property
201.15.....................  Car-Coupling                     92  ......do..............      Do.
                              Operations.
201.16.....................  Locomotive Load Cell             65  L90 (fast)\2\.........      Do.
                              Test Stands, Where
                              the Noise from
                              Locomotive Load Cell
                              Operations Exceeds
                              the Receiving
                              Property Limits of.
201.16(a)..................  Primary Standard......           78  Lmax (slow)...........  30 m (100 ft).
201.16(b)..................  Secondary Standard if            65  L90 (fast)............  Receiving property
                              30-m Measurement Not                                         located more than 120
                              Feasible.                                                    m from Load Cell.
----------------------------------------------------------------------------------------------------------------
\1\ Lmax=Maximum sound level; L90=Statistical sound level exceeded 90% of the time; Ladjavemax=Adjusted average
  maximum sound level.
\2\ L90 must be validated by determining that L10-L99 is less than or equal to 4dB (A).


[48 FR 56758, Dec. 23, 1983; 49 FR 1521, Jan. 12, 1984]

     Appendix B to Part 210--Switcher Locomotive Enforcement Policy

    The EPA standards require that the noise emissions from all switcher 
locomotives in a particular facility be less than prescribed levels 
measured at 30 meters, under all operating modes. This requirement is 
deemed to be met unless ``receiving property'' noise due to switcher 
locomotives exceeds 65 dB(A), when measured in accordance with subpart C 
of 40 CFR part 201. The 65 dB(A) receiving property standard is the 
``trigger'' for requiring the 30-meter test of switcher locomotives.
    The purpose underlying FRA's enforcement of the noise standards is 
to reduce the impact of rail operations noise on receiving properties. 
In some instances, measures other than the 30-meter test approach may 
more effectively reduce the noise levels at receiving properties; 
therefore, FRA enforcement efforts will focus on abatement procedures 
that will achieve a reduction of receiving property noise levels to less 
than 65 dB(A).
    For example, a parked, idling locomotive, even if equipped with 
exhaust silencing that meets the stationary locomotive standard (30-
meter test), may cause the receiving property standard to be exceeded if 
located on trackage adjacent to the receiving property. In that case, 
application of the 30-meter test to other switcher locomotives at the 
facility may not serve to reduce the receiving property noise level. On 
the other hand, operational changes by the railroad could significantly 
reduce receiving property noise levels. In such case, FRA would consider 
retesting after abatement measures have been taken. If the receiving 
property noise level is below the trigger and the abatement action is 
adopted, FRA would not

[[Page 59]]

make a 30-meter test of the switcher locomotives at the facility.



PART 211--RULES OF PRACTICE--Table of Contents




                           Subpart A--General

Sec.
211.1   General.
211.3   Participation by interested persons.
211.5   Regulatory docket.
211.7   Filing requirements.
211.9   Content of rulemaking and waiver petitions.

                    Subpart B--Rulemaking Procedures

211.11  Processing of petitions for rulemaking.
211.13  Initiation and completion of rulemaking proceedings.
211.15  Notice and participation.
211.17  Publication and contents of notices.
211.19  Petitions for extensions of time to comment.
211.21  Consideration of comments received.
211.23  Additional public proceedings.
211.25  Hearings.
211.27  Publication of adopted rules and withdrawal of notices.
211.29  Petitions for reconsideration of a final rule.
211.31  Proceedings on petitions for reconsideration of a final rule.

                           Subpart C--Waivers

211.41  Processing of petitions for waiver of safety rules.
211.43  Processing of other waiver petitions.

                       Subpart D--Emergency Orders

211.47  Review procedures.

    Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries

211.51  Tests.
211.53  Signal applications.
211.55  Special approvals.
211.57  Petitions for reconsideration.
211.59  Proceedings on petitions for reconsideration.
211.61  Informal safety inquiries.

    Subpart F--Interim Procedures for the Review of Emergency Orders

211.71  General.
211.73  Presiding officer; powers.
211.75  Evidence.
211.77  Appeal to the Administrator.

    Authority: Secs. 6, 9, Pub. L. 89-670, 80 Stat. 937, 944 (49 U.S.C. 
1655, 1657); the statutes referred to in sec. 6(e) (1), (2), (3), (6) 
(A) of Pub. L. 89-670, 80 Stat. 939 (49 U.S.C. 1655); sec. 202 of Pub. 
L. 91-458, 84 Stat. 971 as amended by sec. 5(a) of Pub. L. 94-348 (45 
U.S.C. 431); and 49 CFR 1.49, unless otherwise noted.

    Source: 41 FR 54181, Dec. 13, 1976, unless otherwise noted.



                           Subpart A--General



Sec. 211.1  General.

    (a) This part prescribes rules of practice that apply to rulemaking 
and waiver proceedings, review of emergency orders issued under 45 
U.S.C. 432, and miscellaneous safety-related proceedings and informal 
safety inquiries. The specific time limits for disposition of 
proceedings apply only to proceedings initiated after December 31, 1976, 
under the Federal Railroad Safety Act of 1970 (45 U.S.C. 421 et seq.). 
When warranted, FRA will extend these time limits in individual 
proceedings. However, each proceeding under the Federal Railroad Safety 
Act shall be disposed of within 12 months after the date it is 
initiated. A proceeding shall be deemed to be initiated and the time 
period for its disposition shall begin on the date a petition or 
application that complies with the requirements of this chapter is 
received by the person designated in Sec. 211.7.
    (b) As used in this part--
    (1) Administrator means the Federal Railroad Administrator or the 
Deputy Administrator or the delegate of either of them.
    (2) Waiver includes exemption.
    (3) Safety Act means the Federal Railroad Safety Act of 1970, as 
amended (45 U.S.C. 421 et seq.).
    (4) Docket Clerk means the Docket Clerk, Office of Chief Counsel, 
Federal Railroad Administration, Washington, DC 20590.
    (5) Railroad Safety Board means the Railroad Safety Board, Office of 
Safety, Federal Railroad Administration, Washington, DC 20590.
    (c) Records relating to proceedings and inquiries subject to this 
part are available for inspection as provided in part 7 of this title.



Sec. 211.3  Participation by interested persons.

    Any person may participate in proceedings and inquiries subject to 
this

[[Page 60]]

part by submitting written information or views. The Administrator may 
also permit any person to participate in additional proceedings, such as 
informal appearances, conferences, or hearings at which a transcript or 
minutes are kept, to assure informed administrative action and protect 
the public interest.



Sec. 211.5  Regulatory docket.

    (a) Except as provided in paragraph (b) of this section, records of 
the Federal Railroad Administration concerning each proceeding subject 
to this part are maintained in current docket form by the Docket Clerk. 
These records include rulemaking and waiver petitions, emergency orders, 
notices, comments received in response to notices, hearing transcripts, 
final rules, denials of rulemaking petitions, grants and denials of 
waiver and other petitions.
    (b) Records pertaining to applications for special approval under 
Sec. 211.55, signal applications under parts 235 and 236 of this chapter 
and informal safety inquiries under Sec. 211.61, are maintained in a 
current docket form by the Secretary of the Railroad Safety Board.
    (c) Any person may examine docketed material in the office where it 
is maintained. Copies of docketed material other than commercially 
prepared transcripts may be obtained upon payment of the fees prescribed 
in part 7 of this title.



Sec. 211.7  Filing requirements.

    (a) Any person may petition the Administrator for issuance, 
amendment repeal or permanent or temporary waiver of any rule or 
regulation. In the case of a petition for waiver, it must be submitted 
at least 3 months before the proposed effective date, unless good cause 
is shown for not doing so.
    (b) Except as provided in paragraph (c) of this section, all 
petitions, applications, comments submitted in response to a notice, and 
other material pertaining to proceedings subject to this part, shall be 
submitted in triplicate to the Docket Clerk. Each petition received 
shall be acknowledged in writing. The acknowledgement shall contain the 
FRA docket number assigned to the petition and state the date the 
petition was received. Within 60 days following receipt, FRA will advise 
the petitioner or applicant of any deficiencies in its petition or 
application.
    (c) Applications for special approval under Sec. 211.55 and signal 
applications under parts 235 and 236 of this chapter, and protests or 
comments and all other material pertaining to them shall be submitted in 
triplicate to the Secretary of the Railroad Safety Board.



Sec. 211.9    Content of rulemaking and waiver petitions.

    Each petition for rulemaking or waiver must:
    (a) Set forth the text or substance of the rule, regulation, 
standard or amendment proposed, or specify the rule, regulation or 
standard that the petitioner seeks to have repealed or waived, as the 
case may be;
    (b) Explain the interest of the petitioner, and the need for the 
action requested; in the case of a petition for waiver, explain the 
nature and extent of the relief sought, and identify and describe the 
persons, equipment, installations and locations to be covered by the 
waiver;
    (c) Contain sufficient information to support the action sought 
including an evaluation of anticipated impacts of the action sought; 
each evaluation shall include an estimate of resulting costs to the 
private sector, to consumers, and to Federal, State and local 
governments as well as an evaluation of resulting benefits, quantified 
to the extent practicable. Each petition pertaining to safety 
regulations must also contain relevant safety data.



                    Subpart B--Rulemaking Procedures



Sec. 211.11  Processing of petitions for rulemaking.

    (a) General. Each petition for rulemaking filed as prescribed in 
Secs. 211.7 and 211.9 is referred to the head of the office responsible 
for the subject matter of the petition to review and recommend 
appropriate action to the Administrator. No public hearing or oral 
argument is held before the Administrator decides whether the petition 
should be granted. However, a notice

[[Page 61]]

may be published in the Federal Register inviting written comments 
concerning the petition. Each petition shall be granted or denied not 
later than six months after its receipt by the Docket Clerk.
    (b) Grants. If the Administrator determines that a rulemaking 
petition complies with the requirements of Sec. 211.9 and that 
rulemaking is justified, he initiates a rulemaking proceeding by 
publishing an advance notice or notice of proposed rulemaking in the 
Federal Register.
    (c) Denials. If the Administrator determines that a rulemaking 
petition does not comply with the requirements of Sec. 211.9 or that 
rulemaking is not justified, he denies the petition. If the petition 
pertains to railroad safety, the Administrator may also initiate an 
informal safety inquiry under Sec. 211.61.
    (d) Notification; closing of docket. Whenever the Administrator 
grants or denies a rulemaking petition, a notice of the grant or denial 
is mailed to the petitioner. If the petition is denied, the proceeding 
is terminated and the docket for that petition is closed.



Sec. 211.13  Initiation and completion of rulemaking proceedings.

    The Administrator initiates all rulemaking proceedings on his own 
motion by publishing an advance notice of proposed rulemaking or a 
notice of proposed rulemaking in the Federal Register. However, he may 
consider the recommendations of interested persons or other agencies of 
the United States. A separate docket is established and maintained for 
each rulemaking proceeding. Each rulemaking proceeding shall be 
completed not later than 12 months after the initial notice in that 
proceeding is published in the Federal Register. However, if it was 
initiated as the result of the granting of a rulemaking petition, the 
rulemaking proceeding shall be completed not later than 12 months after 
the petition was filed as prescribed in Secs. 211.7 and 211.9.



Sec. 211.15  Notice and participation.

    (a) Except as provided in paragraph (c) of this section, or when the 
Administrator finds for good cause that notice is impractical, 
unnecessary, or contrary to the public interest (and incorporates the 
findings and a brief statement of the reasons therefore in the rules 
issued), an advance notice or notice of proposed rulemaking is published 
in the Federal Register and interested persons are invited to 
participate in the rulemaking proceedings with respect to each 
substantive rule.
    (b) Unless the Administrator determines that notice and public 
rulemaking proceedings are necessary or desirable, interpretive rules, 
general statements of policy, and rules relating to organization, 
procedure, or practice, including those relating to agency management or 
personnel, are prescribed as final without notice or other public 
rulemaking proceedings.
    (c) An advance notice or notice of proposed rulemaking is issued and 
interested persons are invited to participate in rulemaking proceedings 
with respect only to those procedural and substantive rules of general 
applicability relating to public property, loans, grants, benefits, or 
contracts which the Administrator has determined to be of substantial 
public interest.



Sec. 211.17  Publication and contents of notices.

    Each advance notice or notice of proposed rulemaking is published in 
the Federal Register and includes--
    (a) A statement of the time, place and nature of the proposed 
rulemaking proceeding;
    (b) A reference to the authority under which it is issued;
    (c) A description of the subjects or issues involved or the 
substance or terms of the proposed rule;
    (d) A statement of the time within which written comments must be 
submitted and the required number of copies; and
    (e) A statement of how and to what extent interested persons may 
participate in the proceeding.



Sec. 211.19  Petitions for extensions of time to comment.

    (a) Any person may petition the Administrator for an extension of 
time to submit comments in response to an advance notice or notice of 
proposed rulemaking. The petition must be received by the Docket Clerk 
not later than 10

[[Page 62]]

days before expiration of the time stated in the notice and must contain 
reference to the FRA docket number for the proceeding involved. The 
filing of the petition does not automatically extend the time for 
petitioner's comments.
    (b) The Administrator grants the petition only if the petitioner 
shows a substantive interest in the proposed rule and good cause for the 
extension, and if time permits and the extension is in the public 
interest. Extensions will not be granted unless time permits and will 
not exceed one month. If an extension is granted, it is granted as to 
all persons and a notice of the extension is published in the Federal 
Register.



Sec. 211.21  Consideration of comments received.

    All timely comments are considered before final action is taken on a 
rulemaking proposal. Late-filed comments will be considered so far as 
possible without incurring additional expense or delay.



Sec. 211.23  Additional public proceedings.

    The Administrator may conduct other public proceedings that he finds 
necessary or desirable. For example, he may invite interested persons to 
present oral arguments, participate in conferences, or appear at 
informal hearings.



Sec. 211.25  Hearings.

    (a) A hearing will be held if required by statute or the 
Administrator finds it necessary or desirable.
    (b) Except for statutory hearings required to be on the record--
    (1) Hearings are fact-finding proceedings, and there are no formal 
pleadings or adverse parties;
    (2) Any rule issued in a proceeding in which a hearing is held is 
not based exclusively on the record of the hearing; and
    (3) Hearings are conducted in accordance with section 553 of title 
5, U.S.C.; section 556 and 557 of title 5 do not apply to hearings held 
under this part.
    (c) The Administrator conducts or designates a representative to 
conduct any hearing held under this part. The Chief Counsel serves or 
designates a member of his staff to serve as legal officer at the 
hearing.



Sec. 211.27  Publication of adopted rules and withdrawal of notices.

    Whenever the Administrator adopts a final rule or withdraws an 
advance notice or notice of proposed rulemaking, the final rule or a 
notice of withdrawal is published in the Federal Register.



Sec. 211.29  Petitions for reconsideration of a final rule.

    (a) Any person may petition the Administrator for reconsideration of 
any rule issued under this part. Except for good cause shown, such a 
petition must be submitted not later than 60 days after publication of 
the rule in the Federal Register, or 10 days prior to the effective date 
of the rule, whichever is the earlier. The petition must contain a brief 
statement of the complaint and an explanation as to why compliance with 
the rule is not possible, is not practicable, is unreasonable, or is not 
in the public interest.
    (b) If the petitioner requests consideration of additional facts, he 
must state the reason they were not presented to the Administrator 
within the allotted time.
    (c) The Administrator does not consider repetitious petitions.
    (d) Unless the Administrator specifically provides otherwise, and 
publishes notice thereof in the Federal Register, the filing of a 
petition under this section does not stay the effectiveness of a rule.

[41 FR 54181, Dec. 13, 1976, as amended at 42 FR 27593, May 31, 1977]



Sec. 211.31  Proceedings on petitions for reconsideration of a final rule.

    (a) The Administrator may grant or deny, in whole or in part, any 
petition for reconsideration of a final rule without further 
proceedings. Each petition shall be decided not later than 4 months 
after its receipt by the Docket Clerk. In the event he determines to 
reconsider a rule, the Administrator may amend the rule or initiate a 
new rulemaking proceeding. An appropriate notice is published in the 
Federal Register.
    (b) Whenever the Administrator determines that a petition should be

[[Page 63]]

granted or denied, a notice of the grant or denial of a petition for 
reconsideration is sent to the petitioner. When a petition is granted, a 
notice is published in the Federal Register.
    (c) The Administrator may consolidate petitions relating to the same 
rule.



                           Subpart C--Waivers



Sec. 211.41  Processing of petitions for waiver of safety rules.

    (a) General. Each petition for a permanent or temporary waiver of a 
safety rule, regulation or standard filed as prescribed in Secs. 211.7 
and 211.9, is referred to the Railroad Safety Board for decision and 
decided not later than 9 months after receipt.
    (b) Notice and hearing. If required by statute or the Administrator 
or the Railroad Safety Board deems it desirable, a notice is published 
in the Federal Register, an opportunity for public comment is provided, 
and a hearing is held in accordance with Sec. 211.25, before the 
petition is granted or denied.
    (c) Grants. If the Railroad Safety Board determines that the 
petition complies with the requirements of Sec. 211.9 and that a waiver 
is justified, it grants the petition. Conditions may be imposed on the 
grant of waiver if the Board concludes they are necessary to assure 
safety or are in the public interest.
    (d) Denials. If the Railroad Safety Board determines that the 
petition does not comply with the requirements of Sec. 211.9 or that a 
waiver is not justified, it denies the petition.
    (e) Notification. Whenever the Railroad Safety Board grants or 
denies a petition, a notice of that grant or denial is sent to the 
petitioner. When a petition has been decided, interested persons are 
also notified or a notice is published in the Federal Register.
    (f) Petition for reconsideration. Any person may petition for 
reconsideration of the grant or denial of a waiver under procedures set 
forth in Sec. 211.57. Each petition shall be processed in accordance 
with Sec. 211.59.



Sec. 211.43  Processing of other waiver petitions.

    (a) General. Except as provided in Sec. 211.41, each petition for a 
permanent or temporary waiver of a rule, regulation or standard shall be 
filed and processed as prescribed in Secs. 211.7 and 211.9.
    (b) Notice and hearing. If required by statute or the Administrator 
deems it desirable, a notice is published in the Federal Register, an 
opportunity for public comment is provided, and a hearing is held in 
accordance with Sec. 211.25, before the petition is granted or denied.
    (c) Grants. If the Administrator determines that the petition 
complies with the requirements of Sec. 211.9 and that a waiver is 
justified, he grants the waiver. Conditions may be imposed on the grant 
of waiver if the Administrator concludes they are necessary to achieve 
the purposes of programs affected by the grant of waiver or are 
otherwise in the public interest.
    (d) Denials. If the Administrator determines that the petition does 
not comply with the requirements of Sec. 211.9 or that a waiver is not 
justified, he denies the waiver.
    (e) Notification. Whenever the Administrator grants or denies a 
petition, a notice of the grant or denial is sent to the petitioner. 
When a petition has been decided, interested persons are also notified 
or a notice is published in the Federal Register.
    (f) Petitions for reconsideration. Any person may petition for 
reconsideration of the grant or denial of a waiver under procedures set 
forth in Sec. 211.57. Each petition shall be processed in accordance 
with Sec. 211.59.



                       Subpart D--Emergency Orders



Sec. 211.47  Review procedures.

    (a) As specified in section 203, Public Law 91-458, 84 Stat. 972 (45 
U.S.C. 432), opportunity for review of Emergency orders issued under 
that section will be provided in accordance with section 554 of title 5 
of the U.S.C.. Petitions for such review must be submitted in writing to 
the Office of Chief Counsel, Federal Railroad Administration, 
Washington, DC 20590. Upon receipt of a petition, FRA will immediately 
contact the petitioner and make the necessary

[[Page 64]]

arrangements for a conference to be held at the earliest date acceptable 
to the petitioner. At this conference, the petitioner will be afforded 
an opportunity to submit facts, arguments and proposals for modification 
or withdrawal of the Emergency order. If the controversy is not resolved 
at the conference and a hearing is desired, the petitioner must submit a 
written request for a hearing within 15 days after the conference. The 
hearing will commence within 14 calendar days f receipt of the request 
and will be conducted in accordance with sections 556 and 575, title 5, 
U.S.C. Each petition for review shall be decided not later than 3 months 
after receipt.
    (b) Unless stayed or modified by the Administrator, the requirements 
of each Emergency order shall remain in effect and be observed pending 
decision on a petition for review.



    Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries



Sec. 211.51  Tests.

    (a) Pursuant to the Department of Transportation Act (80 Stat. 931, 
49 U.S.C. 1651 et seq.), the Federal Railroad Safety Act of 1970 (84 
Stat. 971, 45 U.S.C. 421, 431-441), or both, the Administrator may 
temporarily suspend compliance with a substantive rule of the Federal 
Railroad Administration, if:
    (1) The suspension is necessary to the conduct of a Federal Railroad 
Administration approved test program designed to evaluate the 
effectiveness of new technology or operational approaches or instituted 
in furtherance of a present or proposed rulemaking proceeding;
    (2) The suspension is limited in scope and application to such 
relief as may be necessary to facilitate the conduct of the test 
program; and
    (3) The suspension is conditioned on the observance of standards 
sufficient to assure safety.
    (b) When required by statute, a notice is published in the Federal 
Register, an opportunity is provided for public comment, and a hearing 
is held in accordance with Sec. 211.25, before the FRA approved test 
program is implemented.
    (c) When the Administrator approves suspension of compliance with 
any rule in connection with a test program, a description of the test 
program containing an explanatory statement responsive to paragraph (a) 
of this section is published in the Federal Register.



Sec. 211.53  Signal applications.

    Applications for approval of discontinuance or material modification 
of a signal system authorized by part 235 or waiver of a requirement of 
part 236 of this chapter must be submitted in triplicate to the 
Secretary, Railroad Safety Board, handled in accordance with procedures 
set forth in part 235 or 236, respectively, and decided not later than 9 
months after receipt. When a decision is issued, the applicant and other 
interested parties are notified or a notice is published in the Federal 
Register.



Sec. 211.55  Special approvals.

    Requests for special approval pertaining to safety not otherwise 
provided for in this chapter, must be submitted in triplicate to the 
Secretary, Railroad Safety Board; specifying the action requested. These 
requests shall be considered by the Board and appropriate action shall 
be taken not later than 9 months after receipt. When a decision is 
issued, the requestor and other interested parties are notified or a 
notice is published in the Federal Register.



Sec. 211.57  Petitions for reconsideration.

    (a) Any person may petition the Administrator for reconsideration of 
final action taken in proceedings subject to subpart C or E of this 
part.
    (b) The petition must specify with particularity the grounds for 
modification or revocation of the action in question.
    (c) The Administrator does not consider repetitious petitions.
    (d) Unless the Administrator specifically provides otherwise, and 
gives notice to interested parties or publishes notice in the Federal 
Register, the filing of a petition under this section does not stay the 
effectiveness of the action sought to be reconsidered.

[[Page 65]]



Sec. 211.59  Proceedings on petitions for reconsideration.

    (a) The Administrator may invite public comment or seek a response 
from the party at whose request the final action was taken before 
deciding a petition for reconsideration submitted under Sec. 211.57.
    (b) The Administrator may reaffirm, modify, or revoke the final 
action without further proceedings and shall issue notification of his 
decision to the petitioner and other interested parties or publish a 
notice in the Federal Register. Each petition for reconsideration shall 
be decided not later than 4 months after receipt. Petitions for 
reconsideration relating to the same rule may be consolidated for 
decision. In the event the Administrator determines to reconsider a 
final action, and appropriate notice is published in the Federal 
Register.



Sec. 211.61  Informal safety inquiries.

    The Administrator may conduct informal safety inquiries to collect 
information on selected topics relating to railroad safety. A notice of 
each such inquiry will be published in the Federal Register outlining 
the area of inquiry and inviting interested persons to assist by 
submitting written material or participating in informal public 
conferences and discussions. Upon completion of the inquiry, the 
Administrator will review the information obtained and may, on his own 
motion, initiate a rulemaking proceeding under Sec. 211.13 or take 
whatever other action he deems appropriate.



    Subpart F--Interim Procedures for the Review of Emergency Orders

    Authority: Secs. 203 and 208(a), 84 Stat. 972, 974-975 (45 U.S.C. 
432, 437(a)) and 5 U.S.C. 554-559.

    Source: 44 FR 13029, Mar. 9, 1979, unless otherwise noted.



Sec. 211.71  General.

    (a) This subpart consists of interim procedures for the review of 
emergency orders issued under section 203 of the Federal Railroad Safety 
Act of 1970, supplementing Sec. 211.47 of this part.
    (b) Proceedings under this subpart are subject to the requirements 
of 5 U.S.C. 554-559.
    (c) Notwithstanding Sec. 211.1 of this part, as used in this subpart 
Administrator means the Federal Railroad Administrator or Deputy 
Administrator.



Sec. 211.73  Presiding officer; powers.

    (a) An administrative hearing for the review of an emergency order 
is presided over by the Administrator or by an administrative law judge 
designated at the request of FRA pursuant to 5 CFR 930.213.
    (b) The presiding officer may exercise the powers of the FRA to 
regulate the conduct of the hearing and associated proceedings for the 
purpose of achieving a prompt and fair determination of all material 
issues in controversy.
    (c) The final decision of the presiding officer shall set forth 
findings and conclusions based on the administrative record. That 
decision may set aside, modify or affirm the requirements of the 
emergency order under review.
    (d) Except as provided in Sec. 211.77, the decision of the presiding 
officer is administratively final.



Sec. 211.75  Evidence.

    (a) The Federal Rules of Evidence for United States Courts and 
Magistrates shall be employed as general guidelines for the introduction 
of evidence in proceedings under this subpart. However, except as 
provided in paragraph (b) of this section, all relevant and probative 
evidence offered by a party shall be received in evidence.
    (b) The presiding officer may deny the admission of evidence which 
is determined to be--
    (1) Unduly repetitive; or
    (2) So extensive and lacking in relevance or probative effect that 
its admission would impair the prompt, orderly, and fair resolution of 
the proceeding.



Sec. 211.77  Appeal to the Administrator.

    (a) Any party aggrieved by the final decision of a presiding officer 
(other than the Administrator) may appeal to the Administrator. The 
appeal must be filed within twenty (20) days from

[[Page 66]]

issuance of the presiding officer's decision and must set forth the 
specific exceptions of the party to the decision, making reference to 
the portions of the administrative record which are believed to support 
the exceptions. The notice of appeal and any supporting papers shall be 
accompanied by a certificate stating that they have been served on all 
parties to the proceeding.
    (b) [Reserved]



PART 212--STATE SAFETY PARTICIPATION REGULATIONS--Table of Contents




                           Subpart A--General

Sec.
212.1  Purpose and scope.
212.3  Definitions.
212.5  Filing.

                     Subpart B--State/Federal Roles

212.101  Program principles.
212.103  Investigative and surveillance authority.
212.105  Agreements.
212.107  Certification.
212.109  Joint planning of inspections.
212.111  Monitoring and other inspections.
212.113  Program termination.
212.115  Enforcement actions.

                  Subpart C--State Inspection Personnel

212.201  General qualifications of State inspection personnel.
212.203  Track inspector.
212.205  Apprentice track inspector.
212.207  Signal and train control inspector.
212.209  Train control inspector.
212.211  Apprentice signal and train control inspector.
212.213  Motive power and equipment (MP&E) inspector.
212.215  Locomotive inspector.
212.217  Car inspector.
212.219  Apprentice MP&E inspector.
212.221  Operating practices inspector.
212.223  Operating practices compliance inspector.
212.225  Apprentice operating practices inspector.
212.227  Hazardous materials inspector.
212.229  Apprentice hazardous materials inspector.
212.231  Highway-rail grade crossing inspector.
212.233  Apprentice highway-rail grade crossing inspector.
212.235  Inapplicable qualification requirements.

    Authority: 49 U.S.C. 20103, 20106, 20105, and 20113 (formerly secs. 
202, 205, 206, and 208, of the Federal Railroad Safety Act of 1970, as 
amended (45 U.S.C. 431, 434, 435, and 436)); and 49 CFR 1.49.

    Source: 47 FR 41051, Sept. 16, 1982, unless otherwise noted.



                           Subpart A--General



Sec. 212.1  Purpose and scope.

    This part establishes standards and procedures for State 
participation in investigative and surveillance activities under the 
Federal railroad safety laws and regulations.



Sec. 212.3  Definitions.

    As used in this part:
    (a) Administrator means the Federal Railroad Administrator or the 
Deputy Administrator or the delegate of either of them.
    (b) Associate Administrator means the Associate Administrator for 
Safety, Federal Railroad Administration (FRA), or the Deputy Associate 
Administrator for Safety, FRA.
    (c) FRA means the Federal Railroad Administration.
    (d) Federal railroad safety laws means the following enactments, 
together with regulations and orders issued under their authority:
    (1) The Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 
421, 431-441);
    (2) The Safety Appliance Acts, as amended (45 U.S.C. 1-16);
    (3) The Locomotive Inspection Act, as amended (45 U.S.C. 22-34);
    (4) The Signal Inspection Act, as amended (49 U.S.C. 26);
    (5) The Accident Reports Act, as amended (45 U.S.C. 38-42);
    (6) The Hours of Service Act, as amended (45 U.S.C. 61-64(b); and
    (7) The Hazardous Materials Transportation Act (49 app. U.S.C. 1801 
et seq.), as it pertains to shipment or transportation by railroad.
    (e) Manufacturer means a person that manufactures, fabricates, 
marks, maintains, reconditions, repairs, or tests containers which are 
represented, marked, certified, or sold for use in the bulk 
transportation of hazardous materials by railroad.

[[Page 67]]

    (f) Shipper means a person that offers a hazardous material for 
transportation or otherwise causes it to be transported.
    (g) Planned compliance inspections means investigative and 
surveillance activities described in the annual work plan required by 
Sec. 212.109 of this part that provide basic surveillance of railroad 
facilities, equipment and/or operations for the purpose of determining 
the level of compliance with relevant Federal safety requirements.

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]



Sec. 212.5  Filing.

    Each State agency desiring to conduct investigative and surveillance 
activities must submit to the Associate Administrator for Safety, 
Federal Railroad Administration, 400 Seventh Street, SW., Washington, DC 
20590, the documentation which contains the information prescribed by 
Secs. 212.105 and 212.107.



                     Subpart B--State/Federal Roles



Sec. 212.101  Program principles.

    (a) The purpose of the national railroad safety program is to 
promote safety in all areas of railroad operations in order to reduce 
deaths, injuries and damage to property resulting from railroad 
accidents.
    (b)(1) The national railroad safety program is carried out in part 
through the issuance of mandatory Federal safety requirements and 
through inspection efforts designed to monitor compliance with those 
requirements. FRA and State inspections determine the extent to which 
the railroads, shippers, and manufacturers have fulfilled their 
obligations with respect to inspection, maintenance, training, and 
supervision. The FRA and participating States do not conduct inspections 
of track, equipment, signal systems, operating practices, and hazardous 
materials handling for the railroads, shippers, and manufacturers.
    (2) The national railroad safety program is also carried out through 
routine inspections, accident investigations, formal and informal 
educational efforts, complaint investigations, safety assessments, 
special inquiries, regulatory development, research and similar 
initiatives.
    (c) It is the policy of the FRA to maintain direct oversight of 
railroad, shipper, and manufacturer conditions and practices relevant to 
safety by conducting inspections and investigations in concert with 
participating State agencies.
    (d) The principal role of the State Safety Participation Program in 
the national railroad safety effort is to provide an enhanced 
investigative and surveillance capability through assumption, by 
participating State agencies, of responsibility for planned routine 
compliance inspections. The FRA encourages further State contributions 
to the national railroad safety program consistent with overall program 
needs, individual State capabilities, and the willingness of the States 
to undertake additional investigative and surveillance activities.
    (e) It is the policy of the FRA to promote the growth and vitality 
of the State Safety Participation Program through liaison with State 
government, coordination of Federal and State investigative and 
surveillance activities, and training of inspection personnel.

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]



Sec. 212.103  Investigative and surveillance authority.

    (a) Subject to the requirements of this part, a State agency with 
jurisdiction under State law may participate in investigative and 
surveillance activities concerning Federal railroad safety laws and 
regulations by entering into an agreement under Sec. 212.105 for the 
exercise of specified authority.
    (b) Subject to requirements of this part, a State agency with 
jurisdiction under State law may participate in investigative and 
surveillance activities with respect to particular rules, regulations, 
orders or standards issued under the regulatory authority of the Federal 
Railroad Safety Act of 1970 by filing an annual certification under 
Sec. 212.107.

[[Page 68]]



Sec. 212.105  Agreements.

    (a) Scope. The principal method by which States may participate in 
investigative and surveillance activities is by agreement with FRA. An 
agreement may delegate investigative and surveillance authority with 
respect to all or any part of the Federal railroad safety laws.
    (b) Duration. An agreement may be for a fixed term or for an 
indefinite duration.
    (c) Amendments. An agreement may be amended to expand or contract 
its scope by consent of FRA and the State.
    (d) Common terms. Each agreement entered into under this section 
provides that:
    (1) The State agency is delegated certain specified authority with 
respect to investigative and surveillance activities;
    (2) The delgation is effective only to the extent it is carried out 
through personnel recognized by the State and the FRA (pursuant to 
subpart C of this part) to be qualified to perform the particular 
investigative and surveillance activities to which the personnel are 
assigned; and
    (3) The State agency agrees to provide the capability necessary to 
assure coverage of facilities, equipment, and operating practices 
through planned routine compliance inspections for all, or a specified 
part of, the territory of the State.
    (e) Request for agreement. A request for agreement shall contain the 
following information:
    (1) An opinion of the counsel for the State agency stating that:
    (i) The agency has jurisdiction over the safety practices of the 
facilities, equipment, rolling stock, and operations of railroads in 
that State and whether the agency has jurisdiction over shippers and 
manufacturers;
    (ii) The agency has the authority and capability to conduct 
investigative and surveillance activities in connection with the rules, 
regulations, orders, and standards issued by the Administrator under the 
Federal railroad safety laws; and
    (iii) State funds may be used for this purpose.
    (2) A statement that the State agency has been furnished a copy of 
each Federal safety statute, rule, regulation, order, or standard 
pertinent to the State's participation;
    (3) The names of the railroads operating in the State together with 
the number of miles of main and branch lines operated by each railroad 
in the State;
    (4) The name, title and telephone number of the person designated by 
the agency to coordinate the program; and
    (5) A description of the organization, programs, and functions of 
the agency with respect to railroad safety.
    (f) Developmental agreement. Consistent with national program 
requirements, the Associate Administrator may enter into an agreement 
under this section prior to the qualification of inspection personnel of 
the State under subpart C of this part. In such a case, the agreement 
shall (1) specify the date at which the State will assume investigative 
and surveillance duties, and (2) refer to any undertaking by the FRA to 
provide training for State inspection personnel, including a schedule 
for the training courses that will be made available.
    (g) Action on request. The Associate Administrator responds to a 
request for agreement by entering into an agreement based on the 
request, by declining the request, or by suggesting modifications.

(Approved by the Office of Management and Budget under control number 
2130-0509)

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]



Sec. 212.107  Certification.

    (a) Scope. In the event the FRA and the State agency do not agree on 
terms for the participation of the State under Sec. 212.105 of this part 
and the State wishes to engage in investigative and surveillance 
activities with respect to any rule, regulation, order, or standard 
issued under the authority of the Federal Railroad Safety Act of 1970, 
the State shall file an annual certification with respect to such 
activities.
    (b) Content. The annual certification shall be filed not less than 
60 days before the beginning of the Federal fiscal year to which it 
applies, shall contain the information required by Sec. 212.105(e) of 
this part and, in addition, shall certify that:

[[Page 69]]

    (1) The State agency has the authority and capability to conduct 
investigative and surveillance activities under the requirements of this 
part with respect to each rule, regulation, order or standard for which 
certification is submitted; and
    (2) The State agency will, at a minimum, conduct planned compliance 
inspections meeting the level of effort prescribed in the applicable 
appendix to this part.
    (c) Action on certification. The Associate Administrator responds to 
the filing of an annual certification within 60 days of its receipt by 
accepting it or by rejecting it for cause stated.
    (d) Delegation of authority. Acceptance of an annual certification 
constitutes a delegation of authority to conduct investigative and 
surveillance activities only to the extent that the delegation is 
carried out through personnel recognized by the State and the FRA 
(pursuant to subpart C of this part) to be qualified to perform the 
particular investigative and surveillance activities to which the 
personnel are assigned.

(Approved by the Office of Management and Budget under control number 
2130-0509)



Sec. 212.109  Joint planning of inspections.

    Prior to the beginning of each calendar year, each participating 
State applying for grant assistance under subpart D of this part shall 
develop, in conjunction with the FRA Regional Director of the region in 
which the State is located, an annual work plan for the conduct of 
investigative and surveillance activities by the State agency. The plan 
shall include a program of inspections designed to monitor the 
compliance of the railroads, shippers, and manufacturers operating 
within the State (or portion thereof) with applicable Federal railroad 
safety laws and regulations. In the event the participating State and 
the FRA Regional Director cannot agree on an annual work plan, the 
Associate Administrator for Safety shall review the matter.

(Approved by the Office of Management and Budget under control number 
2130-0509)

[57 FR 28115, June 24, 1992]



Sec. 212.111  Monitoring and other inspections.

    (a) It is the policy of the FRA to monitor State investigative and 
surveillance practices at the program level.
    (b) It is the policy of the FRA to coordinate its direct inspection 
and investigative functions in participating States with the responsible 
State agency, providing prior advice to the States whenever practicable.
    (c) The FRA may conduct such monitoring of State investigative and 
surveillance practices and such other inspection and investigation as 
may be necessary to aid in the enforcement of the Federal railroad 
safety laws.



Sec. 212.113  Program termination.

    (a) A State agency participating in investigative and surveillance 
activities by agreement or certification shall provide thirty (30) days 
notice of its intent to terminate its participation.
    (b) The Administrator may, on his own initiative, terminate the 
participation of a State agency if, after at least thirty (30) days 
notice an opportunity for oral hearing under section 553 of title 5 
U.S.C., the State agency does not establish that it has complied and is 
complying with:
    (1) The requirements of this part;
    (2) Relevant directives, enforcement manuals, and written 
interpretations of law and regulations provided by the FRA for guidance 
of the program; and
    (3) The rule of national uniformity of laws, rules, regulations, 
orders, and standards relating to railroad safety as expressed in 
section 205 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 434).



Sec. 212.115  Enforcement actions.

    (a) Except as provided in paragraph (b) of this section, the FRA 
reserves exclusive authority to assess and compromise penalties, to 
issue emergency orders and compliance orders, institute or cause to be 
instituted actions for collection of civil penalties or for injunctive 
relief, and to commence any and all other enforcement actions under the 
Federal railroad safety laws.

[[Page 70]]

    (b)(1) Section 207(a) of the Federal Railroad Safety Act of 1970, as 
amended (45 U.S.C. 436(a)), authorizes a participating State to bring an 
action for assessment and collection of a civil penalty in a Federal 
district court of proper venue, if the FRA has not acted on a request 
for civil penalty assessment originated by the State, within sixty (60) 
days of receipt, by assessing the penalty or by determining in writing 
that no violation occurred.
    (2) Section 207(b) of the Federal Railroad Safety Act of 1970, as 
amended (45 U.S.C. 436(b)), authorizes a participating State to bring an 
action for injunctive relief in a Federal district court of proper 
venue, if the FRA has not acted on a request to initiate such an action 
within fifteen (15) days of receipt, by referring the matter to the 
Attorney General for litigation, by undertaking other enforcement 
action, or by determining in writing that no violation has occurred.
    (3) For purposes of this paragraph, a request for legal action is 
deemed to be received when a legally sufficient investigative report 
specifying the action requested is received by the designated FRA 
offices.
    (c)(1) Requests for civil penalty assessments and other 
administrative actions shall be submitted to the FRA Regional Director 
for Railroad Safety for the FRA region in which the State is located.
    (2) Requests for the institution of injunctive actions shall be 
submitted simultaneously to (i) the FRA Regional Director for Railroad 
Safety for the FRA region in which the State is located and (ii) the 
Enforcement Division, Office of Chief Counsel, FRA, Washington, DC 
20590.



                  Subpart C--State Inspection Personnel



Sec. 212.201  General qualifications of State inspection personnel.

    (a) This subpart prescribes the minimum qualification requirements 
for State railroad safety inspectors, compliance inspectors and 
inspector apprentices. A State agency may establish more stringent or 
additional requirements for its employees.
    (b) An inspector, compliance inspector, or apprentice inspector 
shall be recognized as qualified under this part by the State agency and 
the Associate Administrator prior to assuming the responsibilities of 
the position.
    (c) Each inspector, compliance inspectors and apprentice inspector 
shall be a bona fide employee of the State agency.
    (d) Each inspector, compliance inspector, and apprentice inspector 
shall demonstrate:
    (1) The ability to read and comprehend written materials such as 
training and enforcement manuals, regulations, operating and safety 
rules of the railroad, and similar materials;
    (2) The ability to compose narrative reports of investigative 
findings that are clear, complete, and grammatically acceptable;
    (3) The ability to record data on standard report forms with a high 
degree of accuracy;
    (4) The ability to communicate orally; and
    (5) Basic knowledge of rail transportation functions, the 
organization of railroad, shipper, and manufacturer companies, and 
standard industry rules for personal safety.
    (e) Each inspector shall demonstrate a thorough knowledge of:
    (1) Railroad rules, practices, record systems, and terminology 
common to operating and maintenance functions; and
    (2) The scope and major requirements of all of the Federal railroad 
safety laws and regulations.
    (f) In addition to meeting the requirements of this section, each 
inspector and apprentice inspector shall meet the applicable 
requirements of Secs. 212.203 through 212.229 of this subpart.

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]



Sec. 212.203  Track inspector.

    (a) The track inspector is required, at a minimum, to be able to 
conduct independent inspections of track structures for the purpose of 
determining compliance with the Track Safety Standards (49 CFR part 
213), to make reports of those inspections, and to recommend the 
institution of enforcement actions

[[Page 71]]

when appropriate to promote compliance.
    (b) The track inspector is required, at a minimum to have at least 
four years of recent experience in track construction or maintenance. A 
bachelor's degree in engineering or a related technical specialization 
may be substituted for two of the four years of this experience 
requirement and successful completion of the apprentice training program 
may be substituted for the four years of this experience requirement.
    (c) The track inspector shall demonstrate the following specific 
qualifications:
    (1) A comprehensive knowledge of track nomenclature, track 
inspection techniques, track maintenance methods, and track equipment;
    (2) The ability to understand and detect deviations from:
    (i) Track maintenance standards accepted in the industry; and
    (ii) The Track Safety Standards (49 CFR part 213).
    (3) Knowledge of operating practices and vehicle/track interaction 
sufficient to understand the safety significance of deviations and 
combinations of deviations; and
    (4) Specialized knowledge of the requirements of the Track Safety 
Standards, including the remedial action required to bring defective 
track into compliance with the standards.



Sec. 212.205  Apprentice track inspector.

    (a) The apprentice track inspector must be enrolled in a program of 
training prescribed by the Associate Administrator leading to 
qualification as a track inspector. The apprentice track inspector may 
not participate in investigative and surveillance activities, except as 
an assistant to a qualified State or FRA inspector while accompanying 
that qualified inspector.
    (b) An apprentice track inspector shall demonstrate basic knowledge 
of track inspection techniques, track maintenance methods, and track 
equipment prior to being enrolled in the program.



Sec. 212.207  Signal and train control inspector.

    (a) The signal and train control inspector is required, at a 
minimum, to be able to conduct independent inspections of all types of 
signal and train control systems for the purpose of determining 
compliance with the Rules, Standards and Instructions for Railroad 
Signal Systems (49 CFR part 236), to make reports of those inspections, 
and to recommend the institution of enforcement actions when appropriate 
to promote compliance.
    (b) The signal and train inspector is required, at a minimum, to 
have at least four years of recent experience in signal construction or 
maintenance. A bachelor's degree in electrical engineering or a related 
technical specialization may be substituted for two of the four years of 
this experience requirement and successful completion of the apprentice 
training program may be substituted for the four years of this 
requirement.
    (c) The signal and train control inspector shall demonstrate the 
following specific qualifications:
    (1) A comprehensive knowledge of signal and train control systems, 
maintenance practices, test and inspection techniques;
    (2) The ability to understand and detect deviations from:
    (i) Signal and train control maintenance standards accepted in the 
industry; and
    (ii) The Rules, Standards and Instructions for Railroad Signal 
Systems (49 CFR part 236).
    (3) The ability to examine plans and records, to make inspections of 
signal train control systems and to determine adequacy of stopping 
distances from prescribed speeds;
    (4) Knowledge of operating practices and signal systems sufficient 
to understand the safety significance of deviations and combination of 
deviations; and
    (5) Specialized knowledge of the requirements of the Rules, 
Standards and Instructions for Railroad Signal Systems, including the 
remedial action required to bring signal and train control systems into 
compliance with the standards.



Sec. 212.209  Train control inspector.

    (a) The train control inspector is required, at a minimum, to be 
able to conduct independent inspections of

[[Page 72]]

automatic cab signal, automatic train stop, and automatic train control 
devices on board locomotives for the purpose of determining compliance 
with subpart E of the Rules, Standards and Instructions for Railroad 
Signal Systems (49 CFR part 236) and to recommend the institution of 
enforcement action when appropriate to promote compliance.
    (b) The train control inspector is required, at a minimum, to have 
at least four years of recent experience in locomotive construction or 
maintenance. A bachelor's degree in electrical engineering or a related 
technical specialization may be substituted for two of the four years of 
this experience requirement and successful completion of the apprentice 
training program may be substituted for the four year experience 
requirement.
    (c) The train control inspector shall demonstrate the following 
specific qualifications:
    (1) A comprehensive knowledge of the various train control systems 
used on board locomotives, locomotive air brake systems and test and 
inspection procedures;
    (2) The ability to understand and detect deviations from:
    (i) Train control maintenance standards accepted in the industry; 
and
    (ii) Subpart E of the Rules, Standards and Instructions for Railroad 
Signal Systems (49 CFR part 236);
    (3) Knowledge of operating practices and train control systems 
sufficient to understand the safety significance of deviations and 
combinations of deviations; and
    (4) Specialized knowledge of the requirements of subpart E of the 
Rules, Standards and Instructions for Railroad Signal Systems, including 
the remedial action required to bring train control systems used on 
board locomotives into compliance with the standards.



Sec. 212.211  Apprentice signal and train control inspector.

    (a) The apprentice signal and train control inspector must be 
enrolled in a program of training prescribed by the Associate 
Administrator leading to qualification as a signal and train control 
inspector. The apprentice inspector may not participate in the 
investigative and surveillance activities, except as an assistant to a 
qualified State or FRA inspector while accompanying that qualified 
inspector.
    (b) Prior to being enrolled in the program the apprentice inspector 
shall demonstrate:
    (1) Working knowledge of basic electricity and the ability to use 
electrical test equipment in direct current and alternating current 
circuits; and
    (2) A basic knowledge of signal and train control inspection and 
maintenance methods and procedures.



Sec. 212.213  Motive power and equipment (MP&E) inspector.

    (a) The MP&E inspector is required, at a minimum, to be able to 
conduct independent inspections of railroad equipment for the purpose of 
determining compliance with all sections of the Freight Car Safety 
Standards (49 CFR part 215), Safety Glazing Standards (49 CFR part 223), 
Locomotive Safety Standards (49 CFR part 229), Safety Appliance 
Standards (49 CFR part 231), and Power Brake Standards (49 CFR part 
232), to make reports of those inspections and to recommend the 
institution of enforcement actions when appropriate to promote 
compliance.
    (b) The MP&E inspector is required, at a minimum, to have at least 
four years of recent experience in the construction or maintenance of 
railroad rolling equipment. A bachelor's degree in engineering or a 
related technical specialization may be substituted for two of the four 
years of this experience requirement and successful completion of the 
apprentice training program may be substituted for the four year 
experience requirement.
    (c) The MP&E inspector shall demonstrate the following 
qualifications:
    (1) A comprehensive knowledge of construction, testing, inspecting 
and repair of railroad freight cars, passenger cars, locomotives and air 
brakes;
    (2) The ability to understand and detect deviations from:
    (i) Railroad equipment maintenance standards accepted in the 
industry; and

[[Page 73]]

    (ii) The Freight Car Safety Standards, Safety Glazing Standards, 
Locomotive Safety Standards, Safety Appliance Standards and Power Brake 
Standards.
    (3) The knowledge of railroad operating procedures associated with 
the operation of freight cars, passenger cars, locomotives and air 
brakes sufficient to understand the safety significance of deviations 
and combinations of deviations; and
    (4) Specialized knowledge of proper remedial action to be taken in 
order to bring defective freight cars, passenger cars, locomotives, and 
air brakes into compliance with applicable Federal standards.



Sec. 212.215  Locomotive inspector.

    (a) The locomotive inspector is required, at a minimum, to be able 
to conduct independent inspections of locomotives and air brake systems 
for the purpose of determining compliance with applicable sections of 
the Safety Glazing Standards (49 CFR part 223), Locomotive Safety 
Standards (49 CFR part 229), Safety Appliance Standards (49 CFR part 
231) and Power Brake Standards (49 CFR part 232), to make reports of 
those inspections and to recommend the institution of enforcement 
actions when appropriate to promote compliance.
    (b) The locomotive inspector is required, at a minimum, to have at 
least four years of experience in locomotive construction or 
maintenance. A bachelor's degree in mechanical engineering or a related 
technical specialization may be substituted for two of the four years of 
this experience requirement and successful completion of the apprentice 
training program may be substituted for the four year experience 
requirement.
    (c) The locomotive inspector shall demonstrate the following 
specific qualifications:
    (1) A comprehensive knowledge of construction, testing, inspecting 
and repair of locomotive and air brakes;
    (2) The ability to understand and detect deviations from:
    (i) Railroad equipment maintenance standards accepted in the 
industry; and
    (ii) Safety Glazing Standards, Locomotive Safety Standards, Safety 
Appliance Standards and Power Brake Standards;
    (3) The knowledge of railroad operating procedures associated with 
the operation of locomotives and air brakes sufficient to understand the 
safety significance of deviations and combinations of deviations; and
    (4) Specialized knowledge of proper remedial action to be taken in 
order to bring defective locomotives, and air brakes into compliance 
with applicable Federal standards.



Sec. 212.217  Car inspector.

    (a) The car inspector is required, at a minimum, to be able to 
conduct independent inspections of railroad rolling stock for the 
purpose of determining compliance with all sections of the Freight Car 
Safety Standards (49 CFR part 215), Safety Glazing Standards (49 CFR 
part 223), Safety Appliance Standards (49 CFR part 231) and Power Brake 
Standards (49 CFR part 232), to make reports of those inspections and to 
recommend the institution of enforcement actions when appropriate to 
promote compliance.
    (b) The car inspector is required, at a minimum, to have at least 
two years of recent experience in freight car or passenger car 
construction, maintenance or inspection. Successful completion of the 
apprentice training program may be substituted for this two year 
experience requirement.
    (c) The car inspector shall demonstrate the following specific 
qualifications:
    (1) A comprehensive knowledge of the construction and testing of 
freight and passenger cars and air brakes;
    (2) The ability to understand and detect deviations from:
    (i) Railroad freight and passenger car maintenance standards 
accepted in the industry; and
    (ii) The Freight Car Safety Standards (49 CFR part 215), Safety 
Glazing Standards (49 CFR part 223), Safety Appliance Standards (49 CFR 
part 231) and Power Brake Standards (49 CFR part 232);
    (3) The knowledge of railroad operating procedures associated with 
the operation of freight and passenger cars and air brakes sufficient to 
understand

[[Page 74]]

the safety significance of deviations and combinations of deviations; 
and
    (4) Specialized knowledge of proper remedial action to be taken in 
order to bring defective freight and passenger car equipment and air 
brakes into compliance with applicable Federal standards.



Sec. 212.219  Apprentice MP&E inspector.

    (a) The apprentice MP&E inspector must be enrolled in a program of 
training prescribed by the Associate Administrator leading to 
qualification as an MP&E inspector. The apprentice may not participate 
in investigative and surveillance activities, except as an assistant to 
a qualified State or FRA inspector while accompanying that qualified 
inspector.
    (b) An apprentice MP&E inspector shall demonstrate basic knowledge 
of railroad equipment and air brake inspection, testing and maintenance, 
prior to being enrolled in the program.



Sec. 212.221  Operating practices inspector.

    (a) The operating practices inspector is required, at a minimum, to 
be able to conduct independent inspections for the purpose of 
determining compliance with all sections of the Federal operating 
practice regulations (49 CFR parts 217, 218, 219, 220, 221, 225 and 228) 
and the Hours of Service Act (45 U.S.C. 61-64b), to make reports of 
those inspections, and to recommend the institution of enforcement 
actions when appropriate to promote compliance.
    (b) The operating practices inspector is required at a minimum to 
have at least four years of recent experience in developing or 
administering railroad operating rules. Successful completion of the 
apprentice training program may be substituted for this four year 
experience requirement.
    (c) The operating practices inspector shall demonstrate the 
following specific qualifications:
    (1) A comprehensive knowledge of railroad operating practices, 
railroad operating rules, duties of railroad employees, and general 
railroad nomenclature;
    (2) The ability to understand and detect deviations from:
    (i) Railroad operating rules accepted in the industry; and
    (ii) Federal operating practice regulations;
    (3) Knowledge of operating practices and rules sufficient to 
understand the safety significance of deviations; and
    (4) Specialized knowledge of the requirements of the Federal 
operating practices regulations listed in paragraph (a) of this section, 
including the remedial action required to bring railroad operations into 
compliance with the regulations.

[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]



Sec. 212.223  Operating practices compliance inspector.

    (a) The operating practices compliance inspector is required, at a 
minimum, to be able to conduct independent inspections for the purpose 
of determining compliance with the requirements of the following:
    (1) Operating Rules--blue flag (49 CFR part 218);
    (2) Control of Alcohol and Drug Use (49 CFR part 219);
    (3) Rear End Marking Device Regulations (49 CFR part 221);
    (4) Railroad accidents/incidents: reports classification and 
investigations (49 CFR part 225); and
    (5) Hours of Service Act (45 U.S.C. 61-64b) and implementing 
regulations (49 CFR part 228); to make reports of those inspections and 
to recommend the institution of enforcement actions when appropriate to 
promote compliance.
    (b) The operating practices compliance inspector is required, at a 
minimum, to have at least two years of recent experience in developing 
or administering railroad operating rules. Successful completion of the 
apprentice training program may be substituted for the two year 
experience requirement.
    (c) The compliance inspector shall demonstrate the following 
specific qualifications.
    (1) A basic knowledge of railroad operations, duties of railroad 
employees and general railroad safety as it relates to the protection of 
railroad employees;
    (2) A basic knowledge of railroad rules and practices;

[[Page 75]]

    (3) The ability to understand and detect deviations from the 
requirements cited in paragraph (a) of this section; and
    (4) Specialized knowledge of the requirements of the Federal 
operating practices regulations listed in paragraph (a) of this section, 
including the remedial action required to bring defective conditions 
into compliance with the applicable Federal standards.

[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]



Sec. 212.225  Apprentice operating practices inspector.

    (a) The apprentice operating practices inspector must be enrolled in 
a program of training prescribed by the Associate Administrator leading 
to qualification as an inspector. The apprentice inspector may not 
participate in investigative and surveillance activities, except as an 
assistant to a qualified State or FRA inspector while accompanying that 
qualified inspector.
    (b) An apprentice operating practices inspector shall demonstrate 
basic knowledge of railroad operating practices, railroad operating 
rules and general duties of railroad employees prior to being enrolled 
in the program.



Sec. 212.227  Hazardous materials inspector.

    (a) The hazardous materials inspector is required, at a minimum, to 
be able to conduct independent inspections to determine compliance with 
all pertinent sections of the Federal hazardous materials regulations 
(49 CFR parts 171 through 174, and 179), to make reports of those 
inspections and findings, and to recommend the institution of 
enforcement actions when appropriate to promote compliance.
    (b) The hazardous materials inspector is required, at a minimum, to 
have at least two years of recent experience in developing, 
administering, or performing managerial functions related to compliance 
with the hazardous materials regulations; four years of recent 
experience in performing functions related to compliance with the 
hazardous materials regulations; or a bachelor's degree in a related 
technical specialization. Successful completion of the apprentice 
training program may be substituted for this requirement.
    (c) The hazardous materials inspector shall demonstrate the 
following specific qualifications:
    (1) A comprehensive knowledge of the transportation and operating 
procedures employed in the railroad, shipping, or manufacturing 
industries associated with the transportation of hazardous materials;
    (2) Knowledge and ability to understand and detect deviations from 
the Department of Transportation's Hazardous Materials Regulations, 
including Federal requirements and industry standards for the 
manufacturing of bulk packaging used in the transportation of hazardous 
materials by railroad;
    (3) Knowledge of the physical and chemical properties and chemical 
hazards associated with hazardous materials that are transported by 
railroad;
    (4) Knowledge of the proper remedial actions required to bring 
railroad, shipper, and/or manufacturing facilities into compliance with 
the Federal regulations; and
    (5) Knowledge of the proper remedial actions required when a 
hazardous materials transportation accident or incident occurs.

[57 FR 28115, June 24, 1992]



Sec. 212.229  Apprentice hazardous materials inspector.

    (a) The apprentice hazardous materials inspector must be enrolled in 
a program of training prescribed by the Associate Administrator for 
Safety leading to qualification as a hazardous materials inspector. The 
apprentice may not participate in investigative and surveillance 
activities, except as an assistant to a qualified State or FRA inspector 
while accompanying that qualified inspector.
    (b) An apprentice hazardous materials inspector shall demonstrate a 
basic knowledge of the chemical hazards associated with hazardous 
materials that are transported by railroad, including requirements such 
as shipping papers, marking, labeling, placarding, and the manufacturing 
and

[[Page 76]]

maintenance of packagings associated with these shipments.

[57 FR 28116, June 24, 1992]



Sec. 212.231  Highway-rail grade crossing inspector.

    (a) The highway-rail grade crossing inspector is required, at a 
minimum, to be able to conduct independent inspections of all types of 
highway-rail grade crossing warning systems for the purpose of 
determining compliance with Grade Crossing Signal System Safety Rules 
(49 CFR part 234), to make reports of those inspections, and to 
recommend institution of enforcement actions when appropriate to promote 
compliance.
    (b) The highway-rail grade crossing inspector is required, at a 
minimum, to have at least four years of recent experience in highway-
rail grade crossing construction or maintenance. A bachelor's degree in 
engineering or a related technical specialization may be substituted for 
two of the four years of this experience requirement. Successful 
completion of an apprentice training program under Sec. 212.233 may be 
substituted for the four years of this experience requirement.
    (c) The highway-rail grade crossing inspector shall demonstrate the 
following specific qualifications:
    (1) A comprehensive knowledge of highway-rail grade crossing 
nomenclature, inspection techniques, maintenance requirements, and 
methods;
    (2) The ability to understand and detect deviations from:
    (i) Grade crossing signal system maintenance, inspection and testing 
standards accepted in the industry; and
    (ii) The Grade Crossing Signal System Safety Rules (49 CFR part 
234);
    (3) Knowledge of operating practices and highway-rail grade crossing 
systems sufficient to understand the safety significance of deviations 
and combinations of deviations from Sec. 212.231(c)(2) (i) and (ii);
    (4) Specialized knowledge of the requirements of the Grade Crossing 
Signal System Safety Rules (49 CFR part 234), including the remedial 
action required to bring highway-rail grade crossing signal systems into 
compliance with those Rules;
    (5) Specialized knowledge of highway-rail grade crossing standards 
contained in the Manual on Uniform Traffic Control Devices; and
    (6) Knowledge of railroad signal systems sufficient to ensure that 
highway-rail grade crossing warning systems and inspections of those 
systems do not adversely affect the safety of railroad signal systems.
    (d) A State signal and train control inspector qualified under this 
part and who has demonstrated the ability to understand and detect 
deviations from the Grade Crossing Signal System Safety Rules (49 CFR 
part 234) is deemed to meet all requirements of this section and is 
qualified to conduct independent inspections of all types of highway-
rail grade crossing warning systems for the purpose of determining 
compliance with Grade Crossing Signal System Safety Rules (49 CFR part 
234), to make reports of those inspections, and to recommend institution 
of enforcement actions when appropriate to promote compliance.

[59 FR 50104, Sept. 30, 1994]



Sec. 212.233  Apprentice highway-rail grade crossing inspector.

    (a) An apprentice highway-rail grade crossing inspector shall be 
enrolled in a program of training prescribed by the Associate 
Administrator for Safety leading to qualification as a highway-rail 
grade crossing inspector. The apprentice inspector may not participate 
in investigative and surveillance activities, except as an assistant to 
a qualified State or FRA inspector while accompanying that qualified 
inspector.
    (b) Prior to being enrolled in the program the apprentice inspector 
shall demonstrate:
    (1) Working basic knowledge of electricity;
    (2) The ability to use electrical test equipment in direct current 
and alternating current circuits; and
    (3) A basic knowledge of highway-rail grade crossing inspection and 
maintenance methods and procedures.

[59 FR 50104, Sept. 30, 1994]

[[Page 77]]



Sec. 212.235  Inapplicable qualification requirements.

    The Associate Administrator may determine that a specific 
requirement of this subpart is inapplicable to an identified position 
created by a State agency if it is not relevant to the actual duties of 
the position. The determination is made in writing.

[47 FR 41051, Sept. 16, 1982. Redesignated at 57 FR 28115, June 24, 
1992. Further redesignated at 59 FR 50104, Sept. 30, 1994]



PART 213--TRACK SAFETY STANDARDS--Table of Contents


                           Subpart A--General

Sec.
213.1  Scope of part.
213.2  Preemptive effect.
213.3  Application.
213.4  Excepted track.
213.5  Responsibility for compliance.
213.7  Designation of qualified persons to supervise certain renewals 
          and inspect track.
213.9  Classes of track: operating speed limits.
213.11  Restoration or renewal of track under traffic conditions.
213.13  Measuring track not under load.
213.15  Penalties.
213.17  Waivers.
213.19  Information collection.



                           Subpart B--Roadbed

213.31  Scope.
213.33  Drainage.
213.37  Vegetation.



                        Subpart C--Track Geometry

213.51  Scope.
213.53  Gage.
213.55  Alinement.
213.57  Curves; elevation and speed limitations.
213.59  Elevation of curved track; runoff.
213.63  Track surface.



                       Subpart D--Track Structure

213.101  Scope.
213.103  Ballast; general.
213.109  Crossties.
213.113  Defective rails.
213.115  Rail end mismatch.
213.119  Continuous welded rail (CWR); general.
213.121  Rail joints.
213.122  Torch cut rail.
213.123  Tie plates.
213.127  Rail fastening systems.
213.133  Turnouts and track crossings generally.
213.135  Switches.
213.137  Frogs.
213.139  Spring rail frogs.
213.141  Self-guarded frogs.
213.143  Frog guard rails and guard faces; gage.



          Subpart E--Track Appliances and Track-Related Devices

213.201  Scope.
213.205  Derails



                          Subpart F--Inspection

213.231  Scope.
213.233  Track inspections.
213.235  Inspection of switches, track crossings, and lift rail 
          assemblies or other transition devices on moveable bridges.
213.237  Inspection of rail.
213.239  Special inspections.
213.241  Inspection records.



        Subpart G--Train Operations at Track Classes 6 and Higher

213.301  Scope of subpart.
213.303  Responsibility for compliance.
213.305  Designation of qualified individuals; general qualifications.
213.307  Class of track: operating speed limits.
213.309  Restoration or renewal of track under traffic conditions.
213.311  Measuring track not under load.
213.317  Waivers.
213.319  Drainage.
213.321  Vegetation.
213.323  Track gage.
213.327  Alinement.
213.329  Curves, elevation and speed limitations.
213.331  Track surface.
213.333  Automated vehicle inspection systems.
213.334  Ballast; general.
213.335  Crossties.
213.337  Defective rails.
213.339  Inspection of rail in service.
213.341  Initial inspection of new rail and welds.
213.343  Continuous welded rail (CWR).
213.345  Vehicle qualification testing.
213.347  Automotive or railroad crossings at grade.
213.349  Rail end mismatch.
213.351  Rail joints.
213.352  Torch cut rail.

[[Page 78]]

213.353  Turnouts, crossovers, and lift rail assemblies or other 
          transition devices on moveable bridges.
213.355  Frog guard rails and guard faces; gage.
213.357  Derails.
213.359  Track stiffness.
213.361  Right of way.
213.365  Visual inspections.
213.367  Special inspections.
213.369  Inspection records.

Appendix A to Part 213--Maximum Allowable Curving Speeds
Appendix B to Part 213--Schedule of Civil Penalties

    Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461; and 49 
CFR 1.49(m).

    Source: 63 FR 34029, June 22, 1998, unless otherwise noted.



                           Subpart A--General



Sec. 213.1  Scope of part.

    (a) This part prescribes minimum safety requirements for railroad 
track that is part of the general railroad system of transportation. The 
requirements prescribed in this part apply to specific track conditions 
existing in isolation. Therefore, a combination of track conditions, 
none of which individually amounts to a deviation from the requirements 
in this part, may require remedial action to provide for safe operations 
over that track. This part does not restrict a railroad from adopting 
and enforcing additional or more stringent requirements not inconsistent 
with this part.
    (b) Subparts A through F apply to track Classes 1 through 5. Subpart 
G and 213.2, 213.3, and 213.15 apply to track over which trains are 
operated at speeds in excess of those permitted over Class 5 track.



Sec. 213.2  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of these regulations preempts any 
State law, regulation, or order covering the same subject matter, except 
an additional or more stringent law, regulation, or order that is 
necessary to eliminate or reduce an essentially local safety hazard; is 
not incompatible with a law, regulation, or order of the United States 
Government; and that does not impose an unreasonable burden on 
interstate commerce.



Sec. 213.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all standard gage track in the general railroad system of 
transportation.
    (b) This part does not apply to track--
    (1) Located inside an installation which is not part of the general 
railroad system of transportation; or
    (2) Used exclusively for rapid transit operations in an urban area 
that are not connected with the general railroad system of 
transportation.



Sec. 213.4  Excepted track.

    A track owner may designate a segment of track as excepted track 
provided that--
    (a) The segment is identified in the timetable, special 
instructions, general order, or other appropriate records which are 
available for inspection during regular business hours;
    (b) The identified segment is not located within 30 feet of an 
adjacent track which can be subjected to simultaneous use at speeds in 
excess of 10 miles per hour;
    (c) The identified segment is inspected in accordance with 
213.233(c) and 213.235 at the frequency specified for Class 1 track;
    (d) The identified segment of track is not located on a bridge 
including the track approaching the bridge for 100 feet on either side, 
or located on a public street or highway, if railroad cars containing 
commodities required to be placarded by the Hazardous Materials 
Regulations (49 CFR part 172), are moved over the track; and
    (e) The railroad conducts operations on the identified segment under 
the following conditions:
    (1) No train shall be operated at speeds in excess of 10 miles per 
hour;
    (2) No occupied passenger train shall be operated;
    (3) No freight train shall be operated that contains more than five 
cars required to be placarded by the Hazardous Materials Regulations (49 
CFR part 172); and
    (4) The gage on excepted track shall not be more than 4 feet 10\1/4\ 
inches. This paragraph (e)(4) is applicable September 21, 1999.

[[Page 79]]

    (f) A track owner shall advise the appropriate FRA Regional Office 
at least 10 days prior to removal of a segment of track from excepted 
status.



Sec. 213.5  Responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, any owner 
of track to which this part applies who knows or has notice that the 
track does not comply with the requirements of this part, shall--
    (1) Bring the track into compliance;
    (2) Halt operations over that track; or
    (3) Operate under authority of a person designated under 
Sec. 213.7(a), who has at least one year of supervisory experience in 
railroad track maintenance, subject to conditions set forth in this 
part.
    (b) If an owner of track to which this part applies designates a 
segment of track as ``excepted track'' under the provisions of 
Sec. 213.4, operations may continue over that track without complying 
with the provisions of subparts B, C, D, and E of this part, unless 
otherwise expressly stated.
    (c) If an owner of track to which this part applies assigns 
responsibility for the track to another person (by lease or otherwise), 
written notification of the assignment shall be provided to the 
appropriate FRA Regional Office at least 30 days in advance of the 
assignment. The notification may be made by any party to that 
assignment, but shall be in writing and include the following--
    (1) The name and address of the track owner;
    (2) The name and address of the person to whom responsibility is 
assigned (assignee);
    (3) A statement of the exact relationship between the track owner 
and the assignee;
    (4) A precise identification of the track;
    (5) A statement as to the competence and ability of the assignee to 
carry out the duties of the track owner under this part; and
    (6) A statement signed by the assignee acknowledging the assignment 
to him of responsibility for purposes of compliance with this part.
    (d) The Administrator may hold the track owner or the assignee or 
both responsible for compliance with this part and subject to penalties 
under Sec. 213.15.
    (e) A common carrier by railroad which is directed by the Surface 
Transportation Board to provide service over the track of another 
railroad under 49 U.S.C. 11123 is considered the owner of that track for 
the purposes of the application of this part during the period the 
directed service order remains in effect.
    (f) When any person, including a contractor for a railroad or track 
owner, performs any function required by this part, that person is 
required to perform that function in accordance with this part.



Sec. 213.7  Designation of qualified persons to supervise certain renewals and inspect track.

    (a) Each track owner to which this part applies shall designate 
qualified persons to supervise restorations and renewals of track under 
traffic conditions. Each person designated shall have--
    (1) At least--
    (i) 1 year of supervisory experience in railroad track maintenance; 
or
    (ii) A combination of supervisory experience in track maintenance 
and training from a course in track maintenance or from a college level 
educational program related to track maintenance;
    (2) Demonstrated to the owner that he or she--
    (i) Knows and understands the requirements of this part;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or safely 
compensate for those deviations; and
    (3) Written authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements in this part.
    (b) Each track owner to which this part applies shall designate 
qualified persons to inspect track for defects. Each person designated 
shall have--
    (1) At least--
    (i) 1 year of experience in railroad track inspection; or

[[Page 80]]

    (ii) A combination of experience in track inspection and training 
from a course in track inspection or from a college level educational 
program related to track inspection;
    (2) Demonstrated to the owner that he or she--
    (i) Knows and understands the requirements of this part;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or safely 
compensate for those deviations; and
    (3) Written authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements of this part, pending review by a qualified person 
designated under paragraph (a) of this section.
    (c) Persons not fully qualified to supervise certain renewals and 
inspect track as outlined in paragraphs (a) and (b) of this section, but 
with at least one year of maintenance-of-way or signal experience, may 
pass trains over broken rails and pull aparts provided that--
    (1) The track owner determines the person to be qualified and, as 
part of doing so, trains, examines, and re-examines the person 
periodically within two years after each prior examination on the 
following topics as they relate to the safe passage of trains over 
broken rails or pull aparts: rail defect identification, crosstie 
condition, track surface and alinement, gage restraint, rail end 
mismatch, joint bars, and maximum distance between rail ends over which 
trains may be allowed to pass. The sole purpose of the examination is to 
ascertain the person's ability to effectively apply these requirements 
and the examination may not be used to disqualify the person from other 
duties. A minimum of four hours training is adequate for initial 
training;
    (2) The person deems it safe and train speeds are limited to a 
maximum of 10 m.p.h. over the broken rail or pull apart;
    (3) The person shall watch all movements over the broken rail or 
pull apart and be prepared to stop the train if necessary; and
    (4) Person(s) fully qualified under Sec. 213.7 of this part are 
notified and dispatched to the location promptly for the purpose of 
authorizing movements and effecting temporary or permanent repairs.
    (d) With respect to designations under paragraphs (a), (b), and (c) 
of this section, each track owner shall maintain written records of--
    (1) Each designation in effect;
    (2) The basis for each designation; and
    (3) Track inspections made by each designated qualified person as 
required by Sec. 213.241. These records shall be kept available for 
inspection or copying by the Federal Railroad Administration during 
regular business hours.



Sec. 213.9  Classes of track: operating speed limits.

    (a) Except as provided in paragraph (b) of this section and 
Secs. 213.57(b), 213.59(a), 213.113(a), and 213.137(b) and (c), the 
following maximum allowable operating speeds apply--

                           [In miles per hour]
------------------------------------------------------------------------
                                       The maximum        The maximum
 Over track that meets all of the       allowable          allowable
  requirements prescribed in this    operating speed    operating speed
            part for--                 for freight       for passenger
                                       trains is--        trains is--
------------------------------------------------------------------------
Excepted track....................                 10                N/A
Class 1 track.....................                 10                 15
Class 2 track.....................                 25                 30
Class 3 track.....................                 40                 60
Class 4 track.....................                 60                 80
Class 5 track.....................                 80                 90
------------------------------------------------------------------------

    (b) If a segment of track does not meet all of the requirements for 
its intended class, it is reclassified to the next lowest class of track 
for which it does meet all of the requirements of this part. However, if 
the segment of

[[Page 81]]

track does not at least meet the requirements for Class 1 track, 
operations may continue at Class 1 speeds for a period of not more than 
30 days without bringing the track into compliance, under the authority 
of a person designated under Sec. 213.7(a), who has at least one year of 
supervisory experience in railroad track maintenance, after that person 
determines that operations may safely continue and subject to any 
limiting conditions specified by such person.



Sec. 213.11  Restoration or renewal of track under traffic conditions.

    If during a period of restoration or renewal, track is under traffic 
conditions and does not meet all of the requirements prescribed in this 
part, the work on the track shall be under the continuous supervision of 
a person designated under Sec. 213.7(a) who has at least one year of 
supervisory experience in railroad track maintenance, and subject to any 
limiting conditions specified by such person. The term ``continuous 
supervision'' as used in this section means the physical presence of 
that person at a job site. However, since the work may be performed over 
a large area, it is not necessary that each phase of the work be done 
under the visual supervision of that person.



Sec. 213.13  Measuring track not under load.

    When unloaded track is measured to determine compliance with 
requirements of this part, the amount of rail movement, if any, that 
occurs while the track is loaded must be added to the measurements of 
the unloaded track.



Sec. 213.15  Penalties.

    (a) Any person who violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least $500 and not more than $11,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. ``Person'' means an entity of any type 
covered under 1 U.S.C. 1, including but not limited to the following: a 
railroad; a manager, supervisor, official, or other employee or agent of 
a railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any independent contractor providing 
goods or services to a railroad; any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor; and anyone held 
by the Federal Railroad Administrator to be responsible under 
Sec. 213.5(d) or Sec. 213.303(c). Each day a violation continues shall 
constitute a separate offense. See appendix B to this part for a 
statement of agency civil penalty policy.
    (b) Any person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.



Sec. 213.17  Waivers.

    (a) Any owner of track to which this part applies, or other person 
subject to this part, may petition the Federal Railroad Administrator 
for a waiver from any or all requirements prescribed in this part. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for a waiver under this section shall be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that a waiver is in the public 
interest and is consistent with railroad safety, the Administrator may 
grant the exemption subject to any conditions the Administrator deems 
necessary. Where a waiver is granted, the Administrator publishes a 
notice containing the reasons for granting the waiver.



213.19  Information collection.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and are 
assigned OMB control number 2130-0010.

[[Page 82]]

    (b) The information collection requirements are found in the 
following sections: Secs. 213.4, 213.5, 213.7, 213.17, 213.57, 213.119, 
213.122, 213.233, 213.237, 213.241, 213.303, 213.305, 213.317, 213.329, 
213.333, 213.339, 213.341, 213.343, 213.345, 213.353, 213.361, 213.369.



                           Subpart B--Roadbed



Sec. 213.31  Scope.

    This subpart prescribes minimum requirements for roadbed and areas 
immediately adjacent to roadbed.



Sec. 213.33  Drainage.

    Each drainage or other water carrying facility under or immediately 
adjacent to the roadbed shall be maintained and kept free of 
obstruction, to accommodate expected water flow for the area concerned.



Sec. 213.37  Vegetation.

    Vegetation on railroad property which is on or immediately adjacent 
to roadbed shall be controlled so that it does not--
    (a) Become a fire hazard to track-carrying structures;
    (b) Obstruct visibility of railroad signs and signals:
    (1) Along the right-of-way, and
    (2) At highway-rail crossings; (This paragraph (b)(2) is applicable 
September 21, 1999.)
    (c) Interfere with railroad employees performing normal trackside 
duties;
    (d) Prevent proper functioning of signal and communication lines; or
    (e) Prevent railroad employees from visually inspecting moving 
equipment from their normal duty stations.



                        Subpart C--Track Geometry



Sec. 213.51  Scope.

    This subpart prescribes requirements for the gage, alinement, and 
surface of track, and the elevation of outer rails and speed limitations 
for curved track.



Sec. 213.53  Gage.

    (a) Gage is measured between the heads of the rails at right-angles 
to the rails in a plane five-eighths of an inch below the top of the 
rail head.
    (b) Gage shall be within the limits prescribed in the following 
table--

----------------------------------------------------------------------------------------------------------------
             Class of track                 The gage must be at least--             But not more than--
----------------------------------------------------------------------------------------------------------------
Excepted track..........................  N/A............................  4'10\1/4\".
Class 1 track...........................  4'8"...........................  4'10".
Class 2 and 3 track.....................  4'8"...........................  4'9\3/4\".
Class 4 and 5 track.....................  4'8"...........................  4'9\1/2\".
----------------------------------------------------------------------------------------------------------------



Sec. 213.55  Alinement.

    Alinement may not deviate from uniformity more than the amount 
prescribed in the following table:

----------------------------------------------------------------------------------------------------------------
                                                           Tangent track                Curved track
                                                        --------------------------------------------------------
                                                          The deviation of   The deviation of   The deviation of
                                                           the mid-offset    the mid-ordinate   the mid-ordinate
                     Class of track                        from a 62-foot     from a 31-foot     from a 62-foot
                                                          line\1\ may not    chord\2\ may not   chord\2\ may not
                                                           be more than--     be more than--     be more than--
                                                              (inches)           (inches)           (inches)
----------------------------------------------------------------------------------------------------------------
Class 1 track..........................................                  5            \3\ N/A                  5
Class 2 track..........................................                  3            \3\ N/A                  3
Class 3 track..........................................             1\3/4\             1\1/4\             1\3/4\
Class 4 track..........................................             1\1/2\                  1             1\1/2\
Class 5 track..........................................              \3/4\              \1/2\              \5/8\
----------------------------------------------------------------------------------------------------------------
\1\ The ends of the line shall be at points on the gage side of the line rail, five-eighths of an inch below the
  top of the railhead. Either rail may be used as the line rail, however, the same rail shall be used for the
  full length of that tangential segment of track.
\2\ The ends of the chord shall be at points on the gage side of the outer rail, five-eighths of an inch below
  the top of the railhead.
\3\ N/A--Not Applicable.


[[Page 83]]



Sec. 213.57  Curves; elevation and speed limitations.

    (a) The maximum crosslevel on the outside rail of a curve may not be 
more than 8 inches on track Classes 1 and 2 and 7 inches on Classes 3 
through 5. Except as provided in Sec. 213.63, the outside rail of a 
curve may not be lower than the inside rail. (The first sentence of 
paragraph (a) is applicable September 21, 1999.)
    (b)(1) The maximum allowable operating speed for each curve is 
determined by the following formula--
[GRAPHIC] [TIFF OMITTED] TR22JN98.001

Where--

Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches).\1\
---------------------------------------------------------------------------

    \1\ Actual elevation for each 155 foot track segment in the body of 
the curve is determined by averaging the elevation for 10 points through 
the segment at 15.5 foot spacing. If the curve length is less than 155 
feet, average the points through the full length of the body of the 
curve.
---------------------------------------------------------------------------

D = Degree of curvature (degrees).\2\
---------------------------------------------------------------------------

    \2\ Degree of curvature is determined by averaging the degree of 
curvature over the same track segment as the elevation.

    (2) Table 1 of Appendix A is a table of maximum allowable operating 
speed computed in accordance with this formula for various elevations 
and degrees of curvature.
    (c)(1) For rolling stock meeting the requirements specified in 
paragraph (d) of this section, the maximum operating speed for each 
curve may be determined by the following formula--
[GRAPHIC] [TIFF OMITTED] TR22JN98.002

Where--

Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches).\1\
D = Degree of curvature (degrees).\2\

    (2) Table 2 of Appendix A is a table of maximum allowable operating 
speed computed in accordance with this formula for various elevations 
and degrees of curvature.
    (d) Qualified equipment may be operated at curving speeds determined 
by the formula in paragraph (c) of this section, provided each specific 
class of equipment is approved for operation by the Federal Railroad 
Administration and the railroad demonstrates that:
    (1) When positioned on a track with a uniform 4-inch superelevation, 
the roll angle between the floor of the equipment and the horizontal 
does not exceed 5.7 degrees; and
    (2) When positioned on a track with a uniform 6 inch superelevation, 
no wheel of the equipment unloads to a value of 60 percent of its static 
value on perfectly level track, and the roll angle between the floor of 
the equipment and the horizontal does not exceed 8.6 degrees.
    (3) The track owner shall notify the Federal Railroad Administrator 
no less than 30 calendar days prior to the proposed implementation of 
the higher curving speeds allowed under the formula in paragraph (c) of 
this section. The notification shall be in writing and shall contain, at 
a minimum, the following information--
    (i) A complete description of the class of equipment involved, 
including schematic diagrams of the suspension systems and the location 
of the center of gravity above top of rail;
    (ii) A complete description of the test procedure \3\ and 
instrumentation used to qualify the equipment and the maximum values for 
wheel unloading and roll angles which were observed during testing;
---------------------------------------------------------------------------

    \3\ The test procedure may be conducted in a test facility whereby 
all the wheels on one side (right or left) of the equipment are 
alternately raised and lowered by 4 and 6 inches and the vertical wheel 
loads under each wheel are measured and a level is used to record the 
angle through which the floor of the equipment has been rotated.
---------------------------------------------------------------------------

    (iii) Procedures or standards in effect which relate to the 
maintenance of the suspension system for the particular class of 
equipment; and
    (iv) Identification of line segment on which the higher curving 
speeds are proposed to be implemented.
    (e) A track owner, or an operator of a passenger or commuter 
service, who

[[Page 84]]

provides passenger or commuter service over trackage of more than one 
track owner with the same class of equipment may provide written 
notification to the Federal Railroad Administrator with the written 
consent of the other affected track owners.
    (f) Equipment presently operating at curving speeds allowed under 
the formula in paragraph (c) of this section, by reason of conditional 
waivers granted by the Federal Railroad Administration, shall be 
considered to have successfully complied with the requirements of 
paragraph (d) of this section.
    (g) A track owner or a railroad operating above Class 5 speeds, may 
request approval from the Federal Railroad Administrator to operate 
specified equipment at a level of cant deficiency greater than four 
inches in accordance with Sec. 213.329(c) and (d) on curves in Class 1 
through 5 track which are contiguous to the high speed track provided 
that--
    (1) The track owner or railroad submits a test plan to the Federal 
Railroad Administrator for approval no less than thirty calendar days 
prior to any proposed implementation of the higher curving speeds. The 
test plan shall include an analysis and determination of carbody 
acceleration safety limits for each vehicle type which indicate wheel 
unloading of 60 percent in a steady state condition and 80 percent in a 
transient (point by point) condition. Accelerometers shall be laterally-
oriented and floor-mounted near the end of a representative vehicle of 
each type;
    (2) Upon FRA approval of a test plan, the track owner or railroad 
conducts incrementally increasing train speed test runs over the curves 
in the identified track segment(s) to demonstrate that wheel unloading 
is within the limits prescribed in paragraph (g)(1) of this section;
    (3) Upon FRA approval of a cant deficiency level, the track owner or 
railroad inspects the curves in the identified track segment with a 
Track Geometry Measurement System (TGMS) qualified in accordance with 
Sec. 213.333 (b) through (g) at an inspection frequency of at least 
twice annually with not less than 120 days interval between inspections; 
and
    (4) The track owner or railroad operates an instrumented car having 
dynamic response characteristics that are representative of other 
equipment assigned to service or a portable device that monitors on-
board instrumentation on trains over the curves in the identified track 
segment at the revenue speed profile at a frequency of at least once 
every 90-day period with not less than 30 days interval between 
inspections. The instrumented car or the portable device shall monitor a 
laterally-oriented accelerometer placed near the end of the vehicle at 
the floor level. If the carbody lateral acceleration measurement exceeds 
the safety limits prescribed in paragraph (g)(1), the railroad shall 
operate trains at curving speeds in accordance with paragraph (b) or (c) 
of this section; and
    (5) The track owner or railroad shall maintain a copy of the most 
recent exception printouts for the inspections required under paragraphs 
(g)(3) and (4) of this section.

[63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998]



Sec. 213.59  Elevation of curved track; runoff.

    (a) If a curve is elevated, the full elevation shall be provided 
throughout the curve, unless physical conditions do not permit. If 
elevation runoff occurs in a curve, the actual minimum elevation shall 
be used in computing the maximum allowable operating speed for that 
curve under Sec. 213.57(b).
    (b) Elevation runoff shall be at a uniform rate, within the limits 
of track surface deviation prescribed in Sec. 213.63, and it shall 
extend at least the full length of the spirals. If physical conditions 
do not permit a spiral long enough to accommodate the minimum length of 
runoff, part of the runoff may be on tangent track.



Sec. 213.63  Track surface.

    Each owner of the track to which this part applies shall maintain 
the surface of its track within the limits prescribed in the following 
table:

[[Page 85]]



----------------------------------------------------------------------------------------------------------------
                                                                               Class of track
                                                          ------------------------------------------------------
                      Track surface                            1          2          3          4          5
                                                            (inches)   (inches)   (inches)   (inches)   (inches)
----------------------------------------------------------------------------------------------------------------
The runoff in any 31 feet of rail at the end of a raise       3\1/2\          3          2     1\1/2\          1
 may not be more than....................................
The deviation from uniform profile on either rail at the           3     2\3/4\     2\1/4\          2     1\1/4\
 mid-ordinate of a 62-foot chord may not be more than....
The deviation from zero crosslevel at any point on                 3          2     1\3/4\     1\1/4\          1
 tangent or reverse crosslevel elevation on curves may
 not be more than........................................
The difference in crosslevel between any two points less           3     2\1/4\          2     1\3/4\     1\1/2\
 than 62 feet apart may not be more than* 1,  2..........
* Where determined by engineering decision prior to the            2     1\3/4\     1\1/4\          1      \3/4\
 promulgation of this rule, due to physical restrictions
 on spiral length and operating practices and experience,
 the variation in crosslevel on spirals per 31 feet may
 not be more than........................................
----------------------------------------------------------------------------------------------------------------
\1\ Except as limited by Sec.  213.57(a), where the elevation at any point in a curve equals or exceeds 6
  inches, the difference in crosslevel within 62 feet between that point and a point with greater elevation may
  not be more than 1\1/2\ inches. (Footnote 1 is applicable September 21, 1999.)
\2\ However, to control harmonics on Class 2 through 5 jointed track with staggered joints, the crosslevel
  differences shall not exceed 1\1/4\ inches in all of six consecutive pairs of joints, as created by 7 low
  joints. Track with joints staggered less than 10 feet shall not be considered as having staggered joints.
  Joints within the 7 low joints outside of the regular joint spacing shall not be considered as joints for
  purposes of this footnote. (Footnote 2 is applicable September 21, 1999.)


[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]



                       Subpart D--Track Structure



Sec. 213.101  Scope.

    This subpart prescribes minimum requirements for ballast, crossties, 
track assembly fittings, and the physical conditions of rails.



Sec. 213.103  Ballast; general.

    Unless it is otherwise structurally supported, all track shall be 
supported by material which will --
    (a) Transmit and distribute the load of the track and railroad 
rolling equipment to the subgrade;
    (b) Restrain the track laterally, longitudinally, and vertically 
under dynamic loads imposed by railroad rolling equipment and thermal 
stress exerted by the rails;
    (c) Provide adequate drainage for the track; and
    (d) Maintain proper track crosslevel, surface, and alinement.



Sec. 213.109  Crossties.

    (a) Crossties shall be made of a material to which rail can be 
securely fastened.
    (b) Each 39 foot segment of track shall have--
    (1) A sufficient number of crossties which in combination provide 
effective support that will--
    (i) Hold gage within the limits prescribed in Sec. 213.53(b);
    (ii) Maintain surface within the limits prescribed in Sec. 213.63; 
and
    (iii) Maintain alinement within the limits prescribed in 
Sec. 213.55.
    (2) The minimum number and type of crossties specified in paragraphs 
(c) and (d) of this section effectively distributed to support the 
entire segment; and
    (3) At least one crosstie of the type specified in paragraphs (c) 
and (d) of this section that is located at a joint location as specified 
in paragraph (f) of this section.
    (c) Each 39 foot segment of: Class 1 track shall have five 
crossties; Classes 2 and 3 track shall have eight crossties; and Classes 
4 and 5 track shall have 12 crossties, which are not:
    (1) Broken through;
    (2) Split or otherwise impaired to the extent the crossties will 
allow the ballast to work through, or will not hold spikes or rail 
fasteners;
    (3) So deteriorated that the tie plate or base of rail can move 
laterally more than \1/2\ inch relative to the crossties; or
    (4) Cut by the tie plate through more than 40 percent of a ties' 
thickness.
    (d) Each 39 foot segment of track shall have the minimum number and 
type of crossties as indicated in the following table (this paragraph 
(d) is applicable September 21, 2000).

[[Page 86]]



------------------------------------------------------------------------
                                                                Turnouts
                                                    Tangent       and
                                                   track and     curved
                 Class of track                   curves 2      over 2
                                                    degrees     degrees
------------------------------------------------------------------------
Class 1 track..................................            5           6
Class 2 track..................................            8           9
Class 3 track..................................            8          10
Class 4 and 5 track............................           12          14
------------------------------------------------------------------------

    (e) Crossties counted to satisfy the requirements set forth in the 
table in paragraph (d) of this section shall not be--
    (1) Broken through;
    (2) Split or otherwise impaired to the extent the crossties will 
allow the ballast to work through, or will not hold spikes or rail 
fasteners;
    (3) So deteriorated that the tie plate or base of rail can move 
laterally \1/2\ inch relative to the crossties; or
    (4) Cut by the tie plate through more than 40 percent of a 
crosstie's thickness (this paragraph (e) is applicable September 21, 
2000).
    (f) Class 1 and Class 2 track shall have one crosstie whose 
centerline is within 24 inches of each rail joint location, and Classes 
3 through 5 track shall have one crosstie whose centerline is within 18 
inches of each rail joint location or, two crossties whose centerlines 
are within 24 inches either side of each rail joint location. The 
relative position of these ties is described in the following diagrams:

[GRAPHIC] [TIFF OMITTED] TR22JN98.003

Each rail joint in Classes 1 and 2 track shall be supported by at least 
 one crosstie specified in paragraphs (c) and (d) of this section whose 
                  centerline is within 48" shown above.
[GRAPHIC] [TIFF OMITTED] TR22JN98.004


[[Page 87]]



   Each rail joint in Classes 3 through 5 track shall be supported by 
either at least one crosstie specified in paragraphs (c) and (d) of this 
         section whose centerline is within 36" shown above, or:
[GRAPHIC] [TIFF OMITTED] TR22JN98.005

Two crossties, one on each side of the rail joint, whose centerlines are 
           within 24" of the rail joint location shown above.

    (g) For track constructed without crossties, such as slab track, 
track connected directly to bridge structural components and track over 
servicing pits, the track structure shall meet the requirements of 
paragraphs (b)(1)(i), (ii), and (iii) of this section.

[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]



Sec. 213.113  Defective rails.

    (a) When an owner of track to which this part applies learns, 
through inspection or otherwise, that a rail in that track contains any 
of the defects listed in the following table, a person designated under 
Sec. 213.7 shall determine whether or not the track may continue in use. 
If he determines that the track may continue in use, operation over the 
defective rail is not permitted until--
    (1) The rail is replaced; or
    (2) The remedial action prescribed in the table is initiated.

[[Page 88]]

[GRAPHIC] [TIFF OMITTED] TN28SE98.059


    Notes A. Assign person designated under Sec. 213.7 to visually 
supervise each operation over defective rail.
    A2. Assign person designated under Sec. 213.7 to make visual 
inspection. After a visual inspection, that person may authorize 
operation to continue without continuous visual

[[Page 89]]

supervision at a maximum of 10 m.p.h. for up to 24 hours prior to 
another such visual inspection or replacement or repair of the rail.
    B. Limit operating speed over defective rail to that as authorized 
by a person designated under Sec. 213.7(a), who has at least one year of 
supervisory experience in railroad track maintenance. The operating 
speed cannot be over 30 m.p.h. or the maximum allowable speed under 
Sec. 213.9 for the class of track concerned, whichever is lower.
    C. Apply joint bars bolted only through the outermost holes to 
defect within 20 days after it is determined to continue the track in 
use. In the case of Classes 3 through 5 track, limit operating speed 
over defective rail to 30 m.p.h. until joint bars are applied; 
thereafter, limit speed to 50 m.p.h. or the maximum allowable speed 
under Sec. 213.9 for the class of track concerned, whichever is lower. 
When a search for internal rail defects is conducted under Sec. 213.237, 
and defects are discovered in Classes 3 through 5 which require remedial 
action C, the operating speed shall be limited to 50 m.p.h., or the 
maximum allowable speed under Sec. 213.9 for the class of track 
concerned, whichever is lower, for a period not to exceed 4 days. If the 
defective rail has not been removed from the track or a permanent repair 
made within 4 days of the discovery, limit operating speed over the 
defective rail to 30 m.p.h. until joint bars are applied; thereafter, 
limit speed to 50 m.p.h. or the maximum allowable speed under Sec. 213.9 
for the class of track concerned, whichever is lower.
    D. Apply joint bars bolted only through the outermost holes to 
defect within 10 days after it is determined to continue the track in 
use. In the case of Classes 3 through 5 track, limit operating speed 
over the defective rail to 30 m.p.h. or less as authorized by a person 
designated under Sec. 213.7(a), who has at least one year of supervisory 
experience in railroad track maintenance, until joint bars are applied; 
thereafter, limit speed to 50 m.p.h. or the maximum allowable speed 
under Sec. 213.9 for the class of track concerned, whichever is lower.
    E. Apply joint bars to defect and bolt in accordance with 
Sec. 213.121(d) and (e).
    F. Inspect rail 90 days after it is determined to continue the track 
in use.
    G. Inspect rail 30 days after it is determined to continue the track 
in use.
    H. Limit operating speed over defective rail to 50 m.p.h. or the 
maximum allowable speed under Sec. 213.9 for the class of track 
concerned, whichever is lower.
    I. Limit operating speed over defective rail to 30 m.p.h. or the 
maximum allowable speed under Sec. 213.9 for the class of track 
concerned, whichever is lower.

    (b) As used in this section--
    (1) Transverse fissure means a progressive crosswise fracture 
starting from a crystalline center or nucleus inside the head from which 
it spreads outward as a smooth, bright, or dark, round or oval surface 
substantially at a right angle to the length of the rail. The 
distinguishing features of a transverse fissure from other types of 
fractures or defects are the crystalline center or nucleus and the 
nearly smooth surface of the development which surrounds it.
    (2) Compound fissure means a progressive fracture originating in a 
horizontal split head which turns up or down in the head of the rail as 
a smooth, bright, or dark surface progressing until substantially at a 
right angle to the length of the rail. Compound fissures require 
examination of both faces of the fracture to locate the horizontal split 
head from which they originate.
    (3) Horizontal split head means a horizontal progressive defect 
originating inside of the rail head, usually one-quarter inch or more 
below the running surface and progressing horizontally in all 
directions, and generally accompanied by a flat spot on the running 
surface. The defect appears as a crack lengthwise of the rail when it 
reaches the side of the rail head.
    (4) Vertical split head means a vertical split through or near the 
middle of the head, and extending into or through it. A crack or rust 
streak may show under the head close to the web or pieces may be split 
off the side of the head.
    (5) Split web means a lengthwise crack along the side of the web and 
extending into or through it.
    (6) Piped rail means a vertical split in a rail, usually in the web, 
due to failure of the shrinkage cavity in the ingot to unite in rolling.
    (7) Broken base means any break in the base of the rail.
    (8) Detail fracture means a progressive fracture originating at or 
near the surface of the rail head. These fractures should not be 
confused with transverse fissures, compound fissures, or other defects 
which have internal origins. Detail fractures may arise from shelly 
spots, head checks, or flaking.
    (9) Engine burn fracture means a progressive fracture originating in 
spots where driving wheels have slipped on top of the rail head. In 
developing downward they frequently resemble the

[[Page 90]]

compound or even transverse fissures with which they should not be 
confused or classified.
    (10) Ordinary break means a partial or complete break in which there 
is no sign of a fissure, and in which none of the other defects 
described in this paragraph (b) are found.
    (11) Damaged rail means any rail broken or injured by wrecks, 
broken, flat, or unbalanced wheels, slipping, or similar causes.
    (12) Flattened rail means a short length of rail, not at a joint, 
which has flattened out across the width of the rail head to a depth of 
\3/8\ inch or more below the rest of the rail. Flattened rail 
occurrences have no repetitive regularity and thus do not include 
corrugations, and have no apparent localized cause such as a weld or 
engine burn. Their individual length is relatively short, as compared to 
a condition such as head flow on the low rail of curves.
    (13) Bolt hole crack means a crack across the web, originating from 
a bolt hole, and progressing on a path either inclined upward toward the 
rail head or inclined downward toward the base. Fully developed bolt 
hole cracks may continue horizontally along the head/web or base/web 
fillet, or they may progress into and through the head or base to 
separate a piece of the rail end from the rail. Multiple cracks 
occurring in one rail end are considered to be a single defect. However, 
bolt hole cracks occurring in adjacent rail ends within the same joint 
must be reported as separate defects.
    (14) Defective weld means a field or plant weld containing any 
discontinuities or pockets, exceeding 5 percent of the rail head area 
individually or 10 percent in the aggregate, oriented in or near the 
transverse plane, due to incomplete penetration of the weld metal 
between the rail ends, lack of fusion between weld and rail end metal, 
entrainment of slag or sand, under-bead or other shrinkage cracking, or 
fatigue cracking. Weld defects may originate in the rail head, web, or 
base, and in some cases, cracks may progress from the defect into either 
or both adjoining rail ends.
    (15) Head and web separation means a progressive fracture, 
longitudinally separating the head from the web of the rail at the head 
fillet area.

[63 FR 34029, June 22, 1998; 63 FR 51639, Sept. 28, 1998]



Sec. 213.115  Rail end mismatch.

    Any mismatch of rails at joints may not be more than that prescribed 
by the following table--

------------------------------------------------------------------------
                                     Any mismatch of rails at joints may
                                      not be more than the following--
                                   -------------------------------------
          Class of track             On the tread of    On the gage side
                                      the rail ends     of the rail ends
                                          (inch)             (inch)
------------------------------------------------------------------------
Class 1 track.....................              \1/4\              \1/4\
Class 2 track.....................              \1/4\             \3/16\
Class 3 track.....................             \3/16\             \3/16\
Class 4 and 5 track...............              \1/8\              \1/8\
------------------------------------------------------------------------



Sec. 213.119  Continuous welded rail (CWR); general.

    Each track owner with track constructed of CWR shall have in effect 
and comply with written procedures which address the installation, 
adjustment, maintenance and inspection of CWR, and a training program 
for the application of those procedures, which shall be submitted to the 
Federal Railroad Administration by March 22, 1999. FRA reviews each plan 
for compliance with the following--
    (a) Procedures for the installation and adjustment of CWR which 
include--
    (1) Designation of a desired rail installation temperature range for 
the geographic area in which the CWR is located; and
    (2) De-stressing procedures/methods which address proper attainment 
of the desired rail installation temperature range when adjusting CWR.
    (b) Rail anchoring or fastening requirements that will provide 
sufficient

[[Page 91]]

restraint to limit longitudinal rail and crosstie movement to the extent 
practical, and specifically addressing CWR rail anchoring or fastening 
patterns on bridges, bridge approaches, and at other locations where 
possible longitudinal rail and crosstie movement associated with 
normally expected train-induced forces, is restricted.
    (c) Procedures which specifically address maintaining a desired rail 
installation temperature range when cutting CWR including rail repairs, 
in-track welding, and in conjunction with adjustments made in the area 
of tight track, a track buckle, or a pull-apart. Rail repair practices 
shall take into consideration existing rail temperature so that--
    (1) When rail is removed, the length installed shall be determined 
by taking into consideration the existing rail temperature and the 
desired rail installation temperature range; and
    (2) Under no circumstances should rail be added when the rail 
temperature is below that designated by paragraph (a)(1) of this 
section, without provisions for later adjustment.
    (d) Procedures which address the monitoring of CWR in curved track 
for inward shifts of alinement toward the center of the curve as a 
result of disturbed track.
    (e) Procedures which control train speed on CWR track when--
    (1) Maintenance work, track rehabilitation, track construction, or 
any other event occurs which disturbs the roadbed or ballast section and 
reduces the lateral or longitudinal resistance of the track; and
    (2) In formulating the procedures under this paragraph (e), the 
track owner shall--
    (i) Determine the speed required, and the duration and subsequent 
removal of any speed restriction based on the restoration of the 
ballast, along with sufficient ballast re-consolidation to stabilize the 
track to a level that can accommodate expected train-induced forces. 
Ballast re-consolidation can be achieved through either the passage of 
train tonnage or mechanical stabilization procedures, or both; and
    (ii) Take into consideration the type of crossties used.
    (f) Procedures which prescribe when physical track inspections are 
to be performed to detect buckling prone conditions in CWR track. At a 
minimum, these procedures shall address inspecting track to identify--
    (1) Locations where tight or kinky rail conditions are likely to 
occur;
    (2) Locations where track work of the nature described in paragraph 
(e)(1) of this section have recently been performed; and
    (3) In formulating the procedures under this paragraph (f), the 
track owner shall--
    (i) Specify the timing of the inspection; and
    (ii) Specify the appropriate remedial actions to be taken when 
buckling prone conditions are found.
    (g) The track owner shall have in effect a comprehensive training 
program for the application of these written CWR procedures, with 
provisions for periodic re-training, for those individuals designated 
under Sec. 213.7 of this part as qualified to supervise the 
installation, adjustment, and maintenance of CWR track and to perform 
inspections of CWR track.
    (h) The track owner shall prescribe recordkeeping requirements 
necessary to provide an adequate history of track constructed with CWR. 
At a minimum, these records must include:
    (1) Rail temperature, location and date of CWR installations. This 
record shall be retained for at least one year; and
    (2) A record of any CWR installation or maintenance work that does 
not conform with the written procedures. Such record shall include the 
location of the rail and be maintained until the CWR is brought into 
conformance with such procedures.
    (i) As used in this section--
    (1) Adjusting/de-stressing means the procedure by which a rail's 
temperature is re-adjusted to the desired value. It typically consists 
of cutting the rail and removing rail anchoring devices, which provides 
for the necessary expansion and contraction, and then re-assembling the 
track.
    (2) Buckling incident means the formation of a lateral mis-alinement 
sufficient in magnitude to constitute a deviation from the Class 1 
requirements

[[Page 92]]

specified in Sec. 213.55 of this part. These normally occur when rail 
temperatures are relatively high and are caused by high longitudinal 
compressive forces.
    (3) Continuous welded rail (CWR) means rail that has been welded 
together into lengths exceeding 400 feet.
    (4) Desired rail installation temperature range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull-
apart during extreme cold weather.
    (5) Disturbed track means the disturbance of the roadbed or ballast 
section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    (6) Mechanical stabilization means a type of procedure used to 
restore track resistance to disturbed track following certain 
maintenance operations. This procedure may incorporate dynamic track 
stabilizers or ballast consolidators, which are units of work equipment 
that are used as a substitute for the stabilization action provided by 
the passage of tonnage trains.
    (7) Rail anchors means those devices which are attached to the rail 
and bear against the side of the crosstie to control longitudinal rail 
movement. Certain types of rail fasteners also act as rail anchors and 
control longitudinal rail movement by exerting a downward clamping force 
on the upper surface of the rail base.
    (8) Rail temperature means the temperature of the rail, measured 
with a rail thermometer.
    (9) Tight/kinky rail means CWR which exhibits minute alinement 
irregularities which indicate that the rail is in a considerable amount 
of compression.
    (10) Train-induced forces means the vertical, longitudinal, and 
lateral dynamic forces which are generated during train movement and 
which can contribute to the buckling potential.
    (11) Track lateral resistance means the resistance provided to the 
rail/crosstie structure against lateral displacement.
    (12) Track longitudinal resistance means the resistance provided by 
the rail anchors/rail fasteners and the ballast section to the rail/
crosstie structure against longitudinal displacement.

[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998; 63 FR 49382, 
Sept. 15, 1998]



Sec. 213.121  Rail joints.

    (a) Each rail joint, insulated joint, and compromise joint shall be 
of a structurally sound design and dimensions for the rail on which it 
is applied.
    (b) If a joint bar on Classes 3 through 5 track is cracked, broken, 
or because of wear allows excessive vertical movement of either rail 
when all bolts are tight, it shall be replaced.
    (c) If a joint bar is cracked or broken between the middle two bolt 
holes it shall be replaced.
    (d) In the case of conventional jointed track, each rail shall be 
bolted with at least two bolts at each joint in Classes 2 through 5 
track, and with at least one bolt in Class 1 track.
    (e) In the case of continuous welded rail track, each rail shall be 
bolted with at least two bolts at each joint.
    (f) Each joint bar shall be held in position by track bolts 
tightened to allow the joint bar to firmly support the abutting rail 
ends and to allow longitudinal movement of the rail in the joint to 
accommodate expansion and contraction due to temperature variations. 
When no-slip, joint-to-rail contact exists by design, the requirements 
of this paragraph do not apply. Those locations when over 400 feet in 
length, are considered to be continuous welded rail track and shall meet 
all the requirements for continuous welded rail track prescribed in this 
part.
    (g) No rail shall have a bolt hole which is torch cut or burned in 
Classes 2 through 5 track. For Class 2 track, this paragraph (g) is 
applicable September 21, 1999.
    (h) No joint bar shall be reconfigured by torch cutting in Classes 3 
through 5 track.



Sec. 213.122  Torch cut rail.

    (a) Except as a temporary repair in emergency situations no rail 
having a torch cut end shall be used in Classes 3 through 5 track. When 
a rail end is torch cut in emergency situations, train speed over that 
rail end shall not exceed the maximum allowable for Class 2 track. For 
existing torch cut

[[Page 93]]

rail ends in Classes 3 through 5 track the following shall apply--
    (1) Within one year of September 21, 1998, all torch cut rail ends 
in Class 5 track shall be removed;
    (2) Within two years of September 21, 1998, all torch cut rail ends 
in Class 4 track shall be removed; and
    (3) Within one year of September 21, 1998, all torch cut rail ends 
in Class 3 track over which regularly scheduled passenger trains 
operate, shall be inventoried by the track owner.
    (b) Following the expiration of the time limits specified in 
paragraphs (a)(1), (2), and (3) of this section, any torch cut rail end 
not removed from Classes 4 and 5 track, or any torch cut rail end not 
inventoried in Class 3 track over which regularly scheduled passenger 
trains operate, shall be removed within 30 days of discovery. Train 
speed over that rail end shall not exceed the maximum allowable for 
Class 2 track until removed.



Sec. 213.123  Tie plates.

    (a) In Classes 3 through 5 track where timber crossties are in use 
there shall be tie plates under the running rails on at least eight of 
any 10 consecutive ties.
    (b) In Classes 3 through 5 track no metal object which causes a 
concentrated load by solely supporting a rail shall be allowed between 
the base of the rail and the bearing surface of the tie plate. This 
paragraph (b) is applicable September 21, 1999.)



Sec. 213.127  Rail fastening systems.

    Track shall be fastened by a system of components which effectively 
maintains gage within the limits prescribed in Sec. 213.53(b). Each 
component of each such system shall be evaluated to determine whether 
gage is effectively being maintained.



Sec. 213.133  Turnouts and track crossings generally.

    (a) In turnouts and track crossings, the fastenings shall be intact 
and maintained so as to keep the components securely in place. Also, 
each switch, frog, and guard rail shall be kept free of obstructions 
that may interfere with the passage of wheels.
    (b) Classes 3 through 5 track shall be equipped with rail anchoring 
through and on each side of track crossings and turnouts, to restrain 
rail movement affecting the position of switch points and frogs. For 
Class 3 track, this paragraph (b) is applicable September 21, 1999.)
    (c) Each flangeway at turnouts and track crossings shall be at least 
1\1/2\ inches wide.



Sec. 213.135  Switches.

    (a) Each stock rail must be securely seated in switch plates, but 
care shall be used to avoid canting the rail by overtightening the rail 
braces.
    (b) Each switch point shall fit its stock rail properly, with the 
switch stand in either of its closed positions to allow wheels to pass 
the switch point. Lateral and vertical movement of a stock rail in the 
switch plates or of a switch plate on a tie shall not adversely affect 
the fit of the switch point to the stock rail. Broken or cracked switch 
point rails will be subject to the requirements of Sec. 213.113, except 
that where remedial actions C, D, or E require the use of joint bars, 
and joint bars cannot be placed due to the physical configuration of the 
switch, remedial action B will govern, taking into account any added 
safety provided by the presence of reinforcing bars on the switch 
points.
    (c) Each switch shall be maintained so that the outer edge of the 
wheel tread cannot contact the gage side of the stock rail.
    (d) The heel of each switch rail shall be secure and the bolts in 
each heel shall be kept tight.
    (e) Each switch stand and connecting rod shall be securely fastened 
and operable without excessive lost motion.
    (f) Each throw lever shall be maintained so that it cannot be 
operated with the lock or keeper in place.
    (g) Each switch position indicator shall be clearly visible at all 
times.
    (h) Unusually chipped or worn switch points shall be repaired or 
replaced. Metal flow shall be removed to insure proper closure.
    (i) Tongue & Plain Mate switches, which by design exceed Class 1 and 
excepted track maximum gage limits, are

[[Page 94]]

permitted in Class 1 and excepted track.



Sec. 213.137  Frogs.

    (a) The flangeway depth measured from a plane across the wheel-
bearing area of a frog on Class 1 track shall not be less than 1\3/8\ 
inches, or less than 1\1/2\ inches on Classes 2 through 5 track.
    (b) If a frog point is chipped, broken, or worn more than five-
eighths inch down and 6 inches back, operating speed over the frog shall 
not be more than 10 m.p.h..
    (c) If the tread portion of a frog casting is worn down more than 
three-eighths inch below the original contour, operating speed over that 
frog shall not be more than 10 m.p.h..
    (d) Where frogs are designed as flange-bearing, flangeway depth may 
be less than that shown for Class 1 if operated at Class 1 speeds.



Sec. 213.139  Spring rail frogs.

    (a) The outer edge of a wheel tread shall not contact the gage side 
of a spring wing rail.
    (b) The toe of each wing rail shall be solidly tamped and fully and 
tightly bolted.
    (c) Each frog with a bolt hole defect or head-web separation shall 
be replaced.
    (d) Each spring shall have compression sufficient to hold the wing 
rail against the point rail.
    (e) The clearance between the holddown housing and the horn shall 
not be more than one-fourth of an inch.



Sec. 213.141  Self-guarded frogs.

    (a) The raised guard on a self-guarded frog shall not be worn more 
than three-eighths of an inch.
    (b) If repairs are made to a self-guarded frog without removing it 
from service, the guarding face shall be restored before rebuilding the 
point.



Sec. 213.143  Frog guard rails and guard faces; gage.

    The guard check and guard face gages in frogs shall be within the 
limits prescribed in the following table--

----------------------------------------------------------------------------------------------------------------
                                           Guard check gage  The distance
                                          between the gage line of a frog
                                            to the guard line \1\ of its   Guard face gage  The distance between
                                            guard rail or guarding face,    guard lines \1\, measured across the
             Class of track                 measured across the track at     track at right angles to the gage
                                           right angles to the gage line      line \2\, may not be more than--
                                            \2\, may not be less than--
 
----------------------------------------------------------------------------------------------------------------
Class 1 track...........................  4'6\1/8\"......................  4' 5\1/4\"
Class 2 track...........................  4'6\1/4\"......................  4' 5\1/8\"
Class 3 and 4 track.....................  4' 6\3/8\".....................  4'5\1/8\"
Class 5 track...........................  4'6\1/2\"......................  4' 5"
----------------------------------------------------------------------------------------------------------------
\1\ A line along that side of the flangeway which is nearer to the center of the track and at the same elevation
  as the gage line.
\2\ A line \5/8\ inch below the top of the center line of the head of the running rail, or corresponding
  location of the tread portion of the track structure.


  [GRAPHIC] [TIFF OMITTED] TR22JN98.006
  

[[Page 95]]

[GRAPHIC] [TIFF OMITTED] TR22JN98.007




          Subpart E--Track Appliances and Track-Related Devices



Sec. 213.201  Scope.

    This subpart prescribes minimum requirements for certain track 
appliances and track-related devices.



Sec. 213.205  Derails.

    (a) Each derail shall be clearly visible.
    (b) When in a locked position, a derail shall be free of lost motion 
which would prevent it from performing its intended function.
    (c) Each derail shall be maintained to function as intended.
    (d) Each derail shall be properly installed for the rail to which it 
is applied. (This paragraph (d) is applicable September 21, 1999.)



                          Subpart F--Inspection



Sec. 213.231  Scope.

    This subpart prescribes requirements for the frequency and manner of 
inspecting track to detect deviations from the standards prescribed in 
this part.



Sec. 213.233  Track inspections.

    (a) All track shall be inspected in accordance with the schedule 
prescribed in paragraph (c) of this section by a person designated under 
Sec. 213.7.
    (b) Each inspection shall be made on foot or by riding over the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 miles per hour when passing over track crossings and turnouts, 
otherwise, the inspection vehicle speed shall be at the sole discretion 
of the inspector, based on track conditions and inspection requirements. 
When riding over the track in a vehicle, the inspection will be subject 
to the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track upon which the inspector is riding;
    (2) Two inspectors in one vehicle may inspect up to four tracks at a 
time provided that the inspectors' visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 feet 
from the track upon which the inspectors are riding;
    (3) Each main track is actually traversed by the vehicle or 
inspected on foot at least once every two weeks, and each siding is 
actually traversed by the vehicle or inspected on foot at least once 
every month. On high density commuter railroad lines where track time 
does not permit an on track vehicle inspection, and where track centers 
are 15 foot or less, the requirements of this paragraph (b)(3) will not 
apply; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) Each track inspection shall be made in accordance with the 
following schedule--

[[Page 96]]



------------------------------------------------------------------------
       Class of track             Type of track      Required frequency
------------------------------------------------------------------------
Excepted track and Class 1,   Main track and        Weekly with at least
 2, and 3 track.               sidings.              3 calendar days
                                                     interval between
                                                     inspections, or
                                                     before use, if the
                                                     track is used less
                                                     than once a week,
                                                     or twice weekly
                                                     with at least 1
                                                     calendar day
                                                     interval between
                                                     inspections, if the
                                                     track carries
                                                     passenger trains or
                                                     more than 10
                                                     million gross tons
                                                     of traffic during
                                                     the preceding
                                                     calendar year.
Excepted track and Class 1,   Other than main       Monthly with at
 2, and 3 track.               track and sidings.    least 20 calendar
                                                     days interval
                                                     between
                                                     inspections.
Class 4 and 5 track.........  ....................  Twice weekly with at
                                                     least 1 calendar
                                                     day interval
                                                     between
                                                     inspections.
------------------------------------------------------------------------

    (d) If the person making the inspection finds a deviation from the 
requirements of this part, the inspector shall immediately initiate 
remedial action.

    Note to Sec. 213.233: Except as provided in paragraph (b) of this 
section, no part of this section will in any way be construed to limit 
the inspector's discretion as it involves inspection speed and sight 
distance.



Sec. 213.235  Inspection of switches, track crossings, and lift rail assemblies or other transition devices on moveable bridges.

    (a) Except as provided in paragraph (c) of this section, each 
switch, turnout, track crossing, and moveable bridge lift rail assembly 
or other transition device shall be inspected on foot at least monthly.
    (b) Each switch in Classes 3 through 5 track that is held in 
position only by the operating mechanism and one connecting rod shall be 
operated to all of its positions during one inspection in every 3 month 
period.
    (c) In the case of track that is used less than once a month, each 
switch, turnout, track crossing, and moveable bridge lift rail assembly 
or other transition device shall be inspected on foot before it is used.



Sec. 213.237  Inspection of rail.

    (a) In addition to the track inspections required by Sec. 213.233, a 
continuous search for internal defects shall be made of all rail in 
Classes 4 through 5 track, and Class 3 track over which passenger trains 
operate, at least once every 40 million gross tons (mgt) or once a year, 
whichever interval is shorter. On Class 3 track over which passenger 
trains do not operate such a search shall be made at least once every 30 
mgt or once a year, whichever interval is longer. (This paragraph (a) is 
applicable January 1, 1999.
    (b) Inspection equipment shall be capable of detecting defects 
between joint bars, in the area enclosed by joint bars.
    (c) Each defective rail shall be marked with a highly visible 
marking on both sides of the web and base.
    (d) If the person assigned to operate the rail defect detection 
equipment being used determines that, due to rail surface conditions, a 
valid search for internal defects could not be made over a particular 
length of track, the test on that particular length of track cannot be 
considered as a search for internal defects under paragraph (a) of this 
section. (This paragraph (d) is not retroactive to tests performed prior 
to September 21, 1998.
    (e) If a valid search for internal defects cannot be conducted for 
reasons described in paragraph (d) of this section, the track owner 
shall, before the expiration of time or tonnage limits--
    (1) Conduct a valid search for internal defects;
    (2) Reduce operating speed to a maximum of 25 miles per hour until 
such time as a valid search for internal defects can be made; or
    (3) Remove the rail from service.



Sec. 213.239  Special inspections.

    In the event of fire, flood, severe storm, or other occurrence which 
might have damaged track structure, a special inspection shall be made 
of the track involved as soon as possible after the occurrence and, if 
possible, before the operation of any train over that track.

[[Page 97]]



Sec. 213.241  Inspection records.

    (a) Each owner of track to which this part applies shall keep a 
record of each inspection required to be performed on that track under 
this subpart.
    (b) Each record of an inspection under Secs. 213.4, 213.233, and 
213.235 shall be prepared on the day the inspection is made and signed 
by the person making the inspection. Records shall specify the track 
inspected, date of inspection, location and nature of any deviation from 
the requirements of this part, and the remedial action taken by the 
person making the inspection. The owner shall designate the location(s) 
where each original record shall be maintained for at least one year 
after the inspection covered by the record. The owner shall also 
designate one location, within 100 miles of each state in which they 
conduct operations, where copies of records which apply to those 
operations are either maintained or can be viewed following 10 days 
notice by the Federal Railroad Administration.
    (c) Rail inspection records shall specify the date of inspection, 
the location and nature of any internal defects found, the remedial 
action taken and the date thereof, and the location of any intervals of 
track not tested per Sec. 213.237(d). The owner shall retain a rail 
inspection record for at least two years after the inspection and for 
one year after remedial action is taken.
    (d) Each owner required to keep inspection records under this 
section shall make those records available for inspection and copying by 
the Federal Railroad Administration.
    (e) For purposes of compliance with the requirements of this 
section, an owner of track may maintain and transfer records through 
electronic transmission, storage, and retrieval provided that--
    (1) The electronic system be designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or other means, which uniquely 
identify the initiating person as the author of that record. No two 
persons shall have the same electronic identity;
    (2) The electronic storage of each record shall be initiated by the 
person making the inspection within 24 hours following the completion of 
that inspection;
    (3) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (4) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment;
    (5) The electronic system shall provide for the maintenance of 
inspection records as originally submitted without corruption or loss of 
data;
    (6) Paper copies of electronic records and amendments to those 
records, that may be necessary to document compliance with this part 
shall be made available for inspection and copying by the Federal 
Railroad Administration at the locations specified in paragraph (b) of 
this section; and
    (7) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections.



        Subpart G--Train Operations at Track Classes 6 and Higher



Sec. 213.301  Scope of subpart.

    This subpart applies to all track used for the operation of trains 
at a speed greater than 90 m.p.h. for passenger equipment and greater 
than 80 m.p.h. for freight equipment.



Sec. 213.303  Responsibility for compliance.

    (a) Any owner of track to which this subpart applies who knows or 
has notice that the track does not comply with the requirements of this 
subpart, shall--
    (1) Bring the track into compliance; or
    (2) Halt operations over that track.
    (b) If an owner of track to which this subpart applies assigns 
responsibility for the track to another person (by lease or otherwise), 
notification of the assignment shall be provided to the appropriate FRA 
Regional Office at least 30 days in advance of the assignment. The 
notification may be made by any

[[Page 98]]

party to that assignment, but shall be in writing and include the 
following--
    (1) The name and address of the track owner;
    (2) The name and address of the person to whom responsibility is 
assigned (assignee);
    (3) A statement of the exact relationship between the track owner 
and the assignee;
    (4) A precise identification of the track;
    (5) A statement as to the competence and ability of the assignee to 
carry out the duties of the track owner under this subpart;
    (6) A statement signed by the assignee acknowledging the assignment 
to that person of responsibility for purposes of compliance with this 
subpart.
    (c) The Administrator may hold the track owner or the assignee or 
both responsible for compliance with this subpart and subject to the 
penalties under Sec. 213.15.
    (d) When any person, including a contractor for a railroad or track 
owner, performs any function required by this part, that person is 
required to perform that function in accordance with this part.



Sec. 213.305  Designation of qualified individuals; general qualifications.

    Each track owner to which this subpart applies shall designate 
qualified individuals responsible for the maintenance and inspection of 
track in compliance with the safety requirements prescribed in this 
subpart. Each individual, including a contractor or an employee of a 
contractor who is not a railroad employee, designated to:
    (a) Supervise restorations and renewals of track shall meet the 
following minimum requirements:
    (1) At least;
    (i) Five years of responsible supervisory experience in railroad 
track maintenance in track Class 4 or higher and the successful 
completion of a course offered by the employer or by a college level 
engineering program, supplemented by special on the job training 
emphasizing the techniques to be employed in the supervision, 
restoration, and renewal of high speed track; or
    (ii) A combination of at least one year of responsible supervisory 
experience in track maintenance in Class 4 or higher and the successful 
completion of a minimum of 80 hours of specialized training in the 
maintenance of high speed track provided by the employer or by a college 
level engineering program, supplemented by special on the job training 
provided by the employer with emphasis on the maintenance of high speed 
track; or
    (iii) A combination of at least two years of experience in track 
maintenance in track Class 4 or higher and the successful completion of 
a minimum of 120 hours of specialized training in the maintenance of 
high speed track provided by the employer or by a college level 
engineering program supplemented by special on the job training provided 
by the employer with emphasis on the maintenance of high speed track.
    (2) Demonstrate to the track owner that the individual:
    (i) Knows and understands the requirements of this subpart;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or safely 
compensate for those deviations; and
    (3) Be authorized in writing by the track owner to prescribe 
remedial actions to correct or safely compensate for deviations from the 
requirements of this subpart and successful completion of a recorded 
examination on this subpart as part of the qualification process.
    (b) Inspect track for defects shall meet the following minimum 
qualifications:
    (1) At least:
    (i) Five years of responsible experience inspecting track in Class 4 
or above and the successful completion of a course offered by the 
employer or by a college level engineering program, supplemented by 
special on the job training emphasizing the techniques to be employed in 
the inspection of high speed track; or
    (ii) A combination of at least one year of responsible experience in 
track inspection in Class 4 or above and the successful completion of a 
minimum of 80 hours of specialized training in the

[[Page 99]]

inspection of high speed track provided by the employer or by a college 
level engineering program, supplemented by special on the job training 
provided by the employer with emphasis on the inspection of high speed 
track; or
    (iii) A combination of at least two years of experience in track 
maintenance in Class 4 or above and the successful completion of a 
minimum of 120 hours of specialized training in the inspection of high 
speed track provided by the employer or from a college level engineering 
program, supplemented by special on the job training provided by the 
employer with emphasis on the inspection of high speed track.
    (2) Demonstrate to the track owner that the individual:
    (i) Knows and understands the requirements of this subpart;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or safely 
compensate for those deviations; and
    (3) Be authorized in writing by the track owner to prescribe 
remedial actions to correct or safely compensate for deviations from the 
requirements in this subpart and successful completion of a recorded 
examination on this subpart as part of the qualification process.
    (c) Individuals designated under paragraphs (a) or (b) of this 
section that inspect continuous welded rail (CWR) track or supervise the 
installation, adjustment, and maintenance of CWR in accordance with the 
written procedures established by the track owner shall have:
    (1) Current qualifications under either paragraph (a) or (b) of this 
section;
    (2) Successfully completed a training course of at least eight hours 
duration specifically developed for the application of written CWR 
procedures issued by the track owner; and
    (3) Demonstrated to the track owner that the individual:
    (i) Knows and understands the requirements of those written CWR 
procedures;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or safely 
compensate for those deviations; and
    (4) Written authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements in those procedures and successful completion of a recorded 
examination on those procedures as part of the qualification process. 
The recorded examination may be written, or it may be a computer file 
with the results of an interactive training course.
    (d) Persons not fully qualified to supervise certain renewals and 
inspect track as outlined in paragraphs (a), (b) and (c) of this 
section, but with at least one year of maintenance of way or signal 
experience, may pass trains over broken rails and pull aparts provided 
that--
    (1) The track owner determines the person to be qualified and, as 
part of doing so, trains, examines, and re-examines the person 
periodically within two years after each prior examination on the 
following topics as they relate to the safe passage of trains over 
broken rails or pull aparts: rail defect identification, crosstie 
condition, track surface and alinement, gage restraint, rail end 
mismatch, joint bars, and maximum distance between rail ends over which 
trains may be allowed to pass. The sole purpose of the examination is to 
ascertain the person's ability to effectively apply these requirements 
and the examination may not be used to disqualify the person from other 
duties. A minimum of four hours training is adequate for initial 
training;
    (2) The person deems it safe, and train speeds are limited to a 
maximum of 10 m.p.h. over the broken rail or pull apart;
    (3) The person shall watch all movements over the broken rail or 
pull apart and be prepared to stop the train if necessary; and
    (4) Person(s) fully qualified under Sec. 213.305 of this subpart are 
notified and dispatched to the location as soon as practicable for the 
purpose of authorizing movements and effectuating temporary or permanent 
repairs.
    (e) With respect to designations under paragraphs (a), (b), (c) and 
(d) of

[[Page 100]]

this section, each track owner shall maintain written records of:
    (1) Each designation in effect;
    (2) The basis for each designation, including but not limited to:
    (i) The exact nature of any training courses attended and the dates 
thereof;
    (ii) The manner in which the track owner has determined a successful 
completion of that training course, including test scores or other 
qualifying results;
    (3) Track inspections made by each individual as required by 
Sec. 213.369. These records shall be made available for inspection and 
copying by the Federal Railroad Administration during regular business 
hours.

[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]



Sec. 213.307  Class of track: operating speed limits.

    (a) Except as provided in paragraph (b) of this section and 
Secs. 213.329, 213.337(a) and 213.345(c), the following maximum 
allowable operating speeds apply:

------------------------------------------------------------------------
     Over track that meets all of the          The maximum allowable
 requirements prescribed in this subpart    operating speed for trains 1
                  for--                                 is--
------------------------------------------------------------------------
Class 6 track............................  110 m.p.h.
Class 7 track............................  125 m.p.h.
Class 8 track............................  160 m.p.h.\2\
Class 9 track............................  200 m.p.h.
------------------------------------------------------------------------
1 Freight may be transported at passenger train speeds if the following
  conditions are met:
(1) The vehicles utilized to carry such freight are of equal dynamic
  performance and have been qualified in accordance with Sections
  213.345 and 213.329(d) of this subpart.
(2) The load distribution and securement in the freight vehicle will not
  adversely affect the dynamic performance of the vehicle. The axle
  loading pattern is uniform and does not exceed the passenger
  locomotive axle loadings utilized in passenger service operating at
  the same maximum speed.
(3) No carrier may accept or transport a hazardous material, as defined
  at 49 CFR 171.8, except as provided in Column 9A of the Hazardous
  Materials Table (49 CFR 172.101) for movement in the same train as a
  passenger-carrying vehicle or in Column 9B of the Table for movement
  in a train with no passenger-carrying vehicles.
2 Operating speeds in excess of 150 m.p.h. are authorized by this part
  only in conjunction with a rule of particular applicability addressing
  other safety issues presented by the system.

    (b) If a segment of track does not meet all of the requirements for 
its intended class, it is to be reclassified to the next lower class of 
track for which it does meet all of the requirements of this subpart. If 
a segment does not meet all of the requirements for Class 6, the 
requirements for Classes 1 through 5 apply.



Sec. 213.309  Restoration or renewal of track under traffic conditions.

    (a) Restoration or renewal of track under traffic conditions is 
limited to the replacement of worn, broken, or missing components or 
fastenings that do not affect the safe passage of trains.
    (b) The following activities are expressly prohibited under traffic 
conditions:
    (1) Any work that interrupts rail continuity, e.g., as in joint bar 
replacement or rail replacement;
    (2) Any work that adversely affects the lateral or vertical 
stability of the track with the exception of spot tamping an isolated 
condition where not more than 15 lineal feet of track are involved at 
any one time and the ambient air temperature is not above 95 degrees 
Fahrenheit; and
    (3) Removal and replacement of the rail fastenings on more than one 
tie at a time within 15 feet.



Sec. 213.311  Measuring track not under load.

    When unloaded track is measured to determine compliance with 
requirements of this subpart, evidence of rail movement, if any, that 
occurs while the track is loaded shall be added to the measurements of 
the unloaded track.



Sec. 213.317  Waivers.

    (a) Any owner of track to which this subpart applies may petition 
the Federal Railroad Administrator for a waiver from any or all 
requirements prescribed in this subpart.
    (b) Each petition for a waiver under this section shall be filed in 
the manner and contain the information required by Secs. 211.7 and 211.9 
of this chapter.
    (c) If the Administrator finds that a waiver is in the public 
interest and is consistent with railroad safety, the Administrator may 
grant the waiver subject to any conditions the Administrator deems 
necessary. Where a waiver is granted, the Administrator publishes a 
notice containing the reasons for granting the waiver.

[[Page 101]]



Sec. 213.319  Drainage.

    Each drainage or other water carrying facility under or immediately 
adjacent to the roadbed shall be maintained and kept free of 
obstruction, to accommodate expected water flow for the area concerned.



Sec. 213.321  Vegetation.

    Vegetation on railroad property which is on or immediately adjacent 
to roadbed shall be controlled so that it does not --
    (a) Become a fire hazard to track-carrying structures;
    (b) Obstruct visibility of railroad signs and signals:
    (1) Along the right of way, and
    (2) At highway-rail crossings;
    (c) Interfere with railroad employees performing normal trackside 
duties;
    (d) Prevent proper functioning of signal and communication lines; or
    (e) Prevent railroad employees from visually inspecting moving 
equipment from their normal duty stations.



Sec. 213.323  Track gage.

    (a) Gage is measured between the heads of the rails at right-angles 
to the rails in a plane five-eighths of an inch below the top of the 
rail head.
    (b) Gage shall be within the limits prescribed in the following 
table:

------------------------------------------------------------------------
                                                                   The
                                                                  change
                                                                 of gage
                                                                  within
         Class of track           The gage must   But not more   31 feet
                                  be at least--      than--        must
                                                                  not be
                                                                 greater
                                                                  than--
------------------------------------------------------------------------
6..............................  '8"...........  4'9\1/4\".....   \1/2\"
7..............................  4'8"..........  4'9\1/4\".....   \1/2\"
8..............................  4'8"..........  4'9\1/4\".....   \1/2\"
9..............................  4'8\1/4\".....  4'9\1/4\".....   \1/2\"
------------------------------------------------------------------------



Sec. 213.327  Alinement.

    (a) Uniformity at any point along the track is established by 
averaging the measured mid-chord offset values for nine consecutive 
points centered around that point and which are spaced according to the 
following table:

------------------------------------------------------------------------
                Chord length                           Spacing
------------------------------------------------------------------------
31'........................................  7'9"
62'........................................  15'6"
124'.......................................  31'0"
------------------------------------------------------------------------

    (b) For a single deviation, alinement may not deviate from 
uniformity more than the amount prescribed in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                   The deviation   The deviation   The deviation
                                                                       from            from            from
                                                                   uniformity of   uniformity of   uniformity of
                                                                   the mid-chord   the mid-chord   the mid-chord
                         Class of track                            offset for a    offset for a    offset for a
                                                                   31-foot chord   62-foot chord  124-foot chord
                                                                    may not be      may not be      may not be
                                                                    more than--     more than--     more than--
                                                                     (inches)        (inches)        (inches)
----------------------------------------------------------------------------------------------------------------
6...............................................................           \1/2\           \3/4\          1\1/2\
7...............................................................           \1/2\           \1/2\          1\1/4\
8...............................................................           \1/2\           \1/2\           \3/4\
9...............................................................           \1/2\           \1/2\           \3/4\
----------------------------------------------------------------------------------------------------------------

    (c) For three or more non-overlapping deviations from uniformity in 
track alinement occurring within a distance equal to five times the 
specified chord length, each of which exceeds the limits in the 
following table, each owner of the track to which this subpart applies 
shall maintain the alinement of the track within the limits prescribed 
for each deviation:

----------------------------------------------------------------------------------------------------------------
                                                                   The deviation   The deviation   The deviation
                                                                       from            from            from
                                                                   uniformity of   uniformity of   uniformity of
                                                                   the mid-chord   the mid-chord   the mid-chord
                         Class of track                            offset for a    offset for a    offset for a
                                                                   31-foot chord   62-foot chord  124-foot chord
                                                                    may not be      may not be      may not be
                                                                    more than--     more than--     more than--
                                                                     (inches)        (inches)        (inches)
----------------------------------------------------------------------------------------------------------------
6...............................................................           \3/8\           \1/2\               1

[[Page 102]]

 
7...............................................................           \3/8\           \3/8\           \7/8\
8...............................................................           \3/8\           \3/8\           \1/2\
9...............................................................           \3/8\           \3/8\           \1/2\
----------------------------------------------------------------------------------------------------------------



Sec. 213.329  Curves, elevation and speed limitations.

    (a) The maximum crosslevel on the outside rail of a curve may not be 
more than 7 inches. The outside rail of a curve may not be more than \1/
2\ inch lower than the inside rail.
    (b) (1) The maximum allowable operating speed for each curve is 
determined by the following formula:
[GRAPHIC] [TIFF OMITTED] TR22JN98.009

Where--

Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches) \4\.
---------------------------------------------------------------------------

    \4\ Actual elevation for each 155 foot track segment in the body of 
the curve is determined by averaging the elevation for 10 points through 
the segment at 15.5 foot spacing. If the curve length is less than 155 
feet, average the points through the full length of the body of the 
curve. If Eu exceeds 4 inches, the Vmax formula applies to 
the spirals on both ends of the curve.
---------------------------------------------------------------------------

D = Degree of curvature (degrees) \5\.
---------------------------------------------------------------------------

    \5\ Degree of curvature is determined by averaging the degree of 
curvature over the same track segment as the elevation.
---------------------------------------------------------------------------

3 = 3 inches of unbalance.

    (2) Appendix A includes tables showing maximum allowable operating 
speeds computed in accordance with this formula for various elevations 
and degrees of curvature for track speeds greater than 90 m.p.h.
    (c) For rolling stock meeting the requirements specified in 
paragraph (d) of this section, the maximum operating speed for each 
curve may be determined by the following formula:
[GRAPHIC] [TIFF OMITTED] TR22JN98.008

Where--

Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches) \4\.
D = Degree of curvature (degrees) \5\.
Eu = Unbalanced elevation (inches).

    (d) Qualified equipment may be operated at curving speeds determined 
by the formula in paragraph (c) of this section, provided each specific 
class of equipment is approved for operation by the Federal Railroad 
Administration and the railroad demonstrates that--
    (1) When positioned on a track with uniform superelevation, 
Ea, reflecting the intended target cant deficiency, 
Eu, no wheel of the equipment unloads to a value of 60 
percent or less of its static value on perfectly level track and, for 
passenger-carrying equipment, the roll angle between the floor of the 
vehicle and the horizontal does not exceed 5.7 degrees.
    (2) When positioned on a track with a uniform 7-inch superelevation, 
no wheel unloads to a value less than 60% of its static value on 
perfectly level track and, for passenger-carrying equipment, the angle, 
measured about the roll axis, between the floor of the vehicle and the 
horizontal does not exceed 8.6 degrees.
    (e) The track owner shall notify the Federal Railroad Administrator 
no less than thirty calendar days prior to any proposed implementation 
of the higher curving speeds allowed when the ``Eu'' term, 
above, will exceed three inches. This notification shall be in writing 
and shall contain, at a minimum, the following information:

[[Page 103]]

    (1) A complete description of the class of equipment involved, 
including schematic diagrams of the suspension system and the location 
of the center of gravity above top of rail;
    (2) A complete description of the test procedure \6\ and 
instrumentation used to qualify the equipment and the maximum values for 
wheel unloading and roll angles which were observed during testing;
---------------------------------------------------------------------------

    \6\ The test procedure may be conducted in a test facility whereby 
all wheels on one side (right or left) of the equipment are raised or 
lowered by six and then seven inches, the vertical wheel loads under 
each wheel are measured and a level is used to record the angle through 
which the floor of the vehicle has been rotated.
---------------------------------------------------------------------------

    (3) Procedures or standards in effect which relate to the 
maintenance of the suspension system for the particular class of 
equipment;
    (4) Identification of line segment on which the higher curving 
speeds are proposed to be implemented.
    (f) A track owner, or an operator of a passenger or commuter 
service, who provides passenger or commuter service over trackage of 
more than one track owner with the same class of equipment, may provide 
written notification to the Federal Railroad Administrator with the 
written consent of the other affected track owners.

[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]



Sec. 213.331  Track surface.

    (a) For a single deviation in track surface, each owner of the track 
to which this subpart applies shall maintain the surface of its track 
within the limits prescribed in the following table:

------------------------------------------------------------------------
                                            Class of track
                             -------------------------------------------
        Track surface             6          7          8          9
                               (inches)   (inches)   (inches)   (inches)
------------------------------------------------------------------------
The deviation from uniform            1          1      \3/4\      \1/2\
 \1\ profile on either rail
 at the midordinate of a 31-
 foot chord may not be more
 than.......................
The deviation from uniform            1          1          1      \3/4\
 profile on either rail at
 the midordinate of a 62-
 foot chord may not be more
 than.......................
The deviation from uniform       1\3/4\     1\1/2\     1\1/4\     1\1/4\
 profile on either rail at
 the midordinate of a 124-
 foot chord may not be more
 than.......................
The difference in crosslevel     1\1/2\     1\1/2\     1\1/2\     1\1/2\
 between any two points less
 than 62 feet apart may not
 be more than \2\...........
------------------------------------------------------------------------
\1\ Uniformity for profile is established by placing the midpoint of the
  specified chord at the point of maximum measurement.
\2\ However, to control harmonics on jointed track with staggered
  joints, the crosslevel differences shall not exceed 1\1/4\ inches in
  all of six consecutive pairs of joints, as created by 7 joints. Track
  with joints staggered less than 10 feet shall not be considered as
  having staggered joints. Joints within the 7 low joints outside of the
  regular joint spacing shall not be considered as joints for purposes
  of this footnote.

    (b) For three or more non-overlapping deviations in track surface 
occurring within a distance equal to five times the specified chord 
length, each of which exceeds the limits in the following table, each 
owner of the track to which this subpart applies shall maintain the 
surface of the track within the limits prescribed for each deviation:

------------------------------------------------------------------------
                                            Class of track
                             -------------------------------------------
        Track surface             6          7          8          9
                               (inches)   (inches)   (inches)   (inches)
------------------------------------------------------------------------
The deviation from uniform        \3/4\      \3/4\      \1/2\      \3/8\
 profile on either rail at
 the midordinate of a 31-
 foot chord may not be more
 than.......................
The deviation from uniform        \3/4\      \3/4\      \3/4\      \1/2\
 profile on either rail at
 the midordinate of a 62-
 foot chord may not be more
 than.......................
The deviation from uniform       1\1/4\          1      \7/8\      \7/8\
 profile on either rail at
 the midordinate of a 124-
 foot chord may not be more
 than.......................
------------------------------------------------------------------------


[[Page 104]]



Sec. 213.333  Automated vehicle inspection systems.

    (a) For track Class 7, a qualifying Track Geometry Measurement 
System (TGMS) vehicle shall be operated at least twice within 120 
calendar days with not less than 30 days between inspections. For track 
Classes 8 and 9, it shall be operated at least twice within 60 days with 
not less than 15 days between inspections.
    (b) A qualifying TGMS shall meet or exceed minimum design 
requirements which specify that--
    (1) Track geometry measurements shall be taken no more than 3 feet 
away from the contact point of wheels carrying a vertical load of no 
less than 10,000 pounds per wheel;
    (2) Track geometry measurements shall be taken and recorded on a 
distance-based sampling interval which shall not exceed 2 feet; and
    (3) Calibration procedures and parameters are assigned to the system 
which assure that measured and recorded values accurately represent 
track conditions. Track geometry measurements recorded by the system 
shall not differ on repeated runs at the same site at the same speed 
more than 1/8 inch.
    (c) A qualifying TGMS shall be capable of measuring and processing 
the necessary track geometry parameters, at an interval of no more than 
every 2 feet, which enables the system to determine compliance with: 
Sec. 213.323, Track gage; Sec. 213.327, Alinement; Sec. 213.329, Curves; 
elevation and speed limitations; and Sec. 213.331, Track surface.
    (d) A qualifying TGMS shall be capable of producing, within 24 hours 
of the inspection, output reports that --
    (1) Provide a continuous plot, on a constant-distance axis, of all 
measured track geometry parameters required in paragraph (c) of this 
section;
    (2) Provide an exception report containing a systematic listing of 
all track geometry conditions which constitute an exception to the class 
of track over the segment surveyed.
    (e) The output reports required under paragraph (c) of this section 
shall contain sufficient location identification information which 
enable field forces to easily locate indicated exceptions.
    (f) Following a track inspection performed by a qualifying TGMS, the 
track owner shall, within two days after the inspection, field verify 
and institute remedial action for all exceptions to the class of track.
    (g) The track owner shall maintain for a period of one year 
following an inspection performed by a qualifying TGMS, copy of the plot 
and the exception printout for the track segment involved, and 
additional records which:
    (1) Specify the date the inspection was made and the track segment 
involved; and
    (2) Specify the location, remedial action taken, and the date 
thereof, for all listed exceptions to the class.
    (h) For track Classes 8 and 9, a qualifying Gage Restraint 
Measurement System (GRMS) shall be operated at least once annually with 
at least 180 days between inspections to continuously compare loaded 
track gage to unloaded gage under a known loading condition. The lateral 
capacity of the track structure shall not permit a gage widening ratio 
(GWR) greater than 0.5 inches.
    (i) A GRMS shall meet or exceed minimum design requirements which 
specify that--
    (1) Gage restraint shall be measured between the heads of the rail--
    (i) At an interval not exceeding 16 inches;
    (ii) Under an applied vertical load of no less than 10,000 pounds 
per rail;
    (iii) Under an applied lateral load which provides for lateral/
vertical load ratio of between 0.5 and 1.25 \7\, and a load severity 
greater than 3,000 pounds but less than 8,000 pounds per rail. Load 
severity is defined by the formula--
---------------------------------------------------------------------------

    \7\ GRMS equipment using load combinations developing L/V ratios 
which exceed 0.8 shall be operated with caution to protect against the 
risk of wheel climb by the test wheelset.

---------------------------------------------------------------------------
S = L -cV

where:

S = Load severity, defined as the lateral load applied to the fastener 
system (pounds).
L = Actual lateral load applied (pounds).

[[Page 105]]

c = Coefficient of friction between rail/tie which is assigned a nominal 
value of (0.4).
V = Actual vertical load applied (pounds).

    (2) The measured gage value shall be converted to a gage widening 
ratio (GWR) as follows:
[GRAPHIC] [TIFF OMITTED] TR22JN98.010

Where:

UTG=Unloaded track gage measured by the GRMS vehicle at a point no less 
than 10 feet from any lateral or vertical load application.
LTG=Loaded track gage measured by the GRMS vehicle at the point of 
application of the lateral load.
L=Actual lateral load applied (pounds).
    (j) At least one vehicle in one train per day operating in Classes 8 
and 9 shall be equipped with functioning on-board truck frame and 
carbody accelerometers. Each track owner shall have in effect written 
procedures for the notification of track personnel when on-board 
accelerometers on trains in Classes 8 and 9 indicate a possible track-
related condition.
    (k) For track Classes 7 , 8 and 9, an instrumented car having 
dynamic response characteristics that are representative of other 
equipment assigned to service or a portable device that monitors on-
board instrumentation on trains shall be operated over the track at the 
revenue speed profile at a frequency of at least twice within 60 days 
with not less than 15 days between inspections. The instrumented car or 
the portable device shall monitor vertically and laterally oriented 
accelerometers placed near the end of the vehicle at the floor level. In 
addition, accelerometers shall be mounted on the truck frame. If the 
carbody lateral, carbody vertical, or truck frame lateral safety limits 
in the following table of vehicle/track interaction safety limits are 
exceeded, speeds will be reduced until these safety limits are not 
exceeded.
    (l) For track Classes 8 and 9, an instrumented car having dynamic 
response characteristics that are representative of other equipment 
assigned to service shall be operated over the track at the revenue 
speed profile annually with not less than 180 days between inspections. 
The instrumented car shall be equipped with functioning instrumented 
wheelsets to measure wheel/rail forces. If the wheel/rail force limits 
in the following table of vehicle/track interaction safety limits are 
exceeded, speeds will be reduced until these safety limits are not 
exceeded.
    (m) The track owner shall maintain a copy of the most recent 
exception printouts for the inspections required under paragraphs (k) 
and (l) of this section.

[[Page 106]]

[GRAPHIC] [TIFF OMITTED] TC15NO91.207

    \1\ The lateral and vertical wheel forces shall be measured with 
instrumented wheelsets with the measurements processed through a low 
pass filter with a minimum cut-off frequency of 25 Hz. The sample rate 
for wheel force data shall be at least 250 samples/sec.
    \2\ Carbody lateral and vertical accelerations shall be measured 
near the car ends at the floor level.
    \3\ Truck accelerations in the lateral direction shall be measured 
on the truck frame. The measurements shall be processed through a filter 
having a pass band of 0.5 to 10 Hz.
    \4\ Truck hunting is defined as a sustained cyclic oscillation of 
the truck which is evidenced by lateral accelerations in excess of 0.4 g 
root mean square (mean-removed) for 2 seconds.
[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]



Sec. 213.334  Ballast; general.

    Unless it is otherwise structurally supported, all track shall be 
supported by material which will--
    (a) Transmit and distribute the load of the track and railroad 
rolling equipment to the subgrade;
    (b) Restrain the track laterally, longitudinally, and vertically 
under dynamic loads imposed by railroad rolling equipment and thermal 
stress exerted by the rails;
    (c) Provide adequate drainage for the track; and
    (d) Maintain proper track crosslevel, surface, and alinement.

[[Page 107]]



Sec. 213.335  Crossties.

    (a) Crossties shall be made of a material to which rail can be 
securely fastened.
    (b) Each 39 foot segment of track shall have--
    (1) A sufficient number of crossties which in combination provide 
effective support that will--
    (i) Hold gage within the limits prescribed in Sec. 213.323(b);
    (ii) Maintain surface within the limits prescribed in Sec. 213.331; 
and
    (iii) Maintain alinement within the limits prescribed in 
Sec. 213.327.
    (2) The minimum number and type of crossties specified in paragraph 
(c) of this section effectively distributed to support the entire 
segment; and
    (3) Crossties of the type specified in paragraph (c) of this section 
that are(is) located at a joint location as specified in paragraph (e) 
of this section.
    (c) For non-concrete tie construction, each 39 foot segment of Class 
6 track shall have fourteen crossties; Classes 7, 8 and 9 shall have 18 
crossties which are not--
    (1) Broken through;
    (2) Split or otherwise impaired to the extent the crossties will 
allow the ballast to work through, or will not hold spikes or rail 
fasteners;
    (3) So deteriorated that the tie plate or base of rail can move 
laterally \3/8\ inch relative to the crossties;
    (4) Cut by the tie plate through more than 40 percent of a 
crosstie's thickness;
    (5) Configured with less than 2 rail holding spikes or fasteners per 
tie plate; or
    (6) So unable, due to insufficient fastener toeload, to maintain 
longitudinal restraint and maintain rail hold down and gage.
    (d) For concrete tie construction, each 39 foot segment of Class 6 
track shall have fourteen crossties, Classes 7, 8 and 9 shall have 16 
crossties which are not--
    (1) So deteriorated that the prestress strands are ineffective or 
withdrawn into the tie at one end and the tie exhibits structural cracks 
in the rail seat or in the gage of track;
    (2) Configured with less than 2 fasteners on the same rail;
    (3) So deteriorated in the vicinity of the rail fastener such that 
the fastener assembly may pull out or move laterally more than \3/8\ 
inch relative to the crosstie;
    (4) So deteriorated that the fastener base plate or base of rail can 
move laterally more than \3/8\ inch relative to the crossties;
    (5) So deteriorated that rail seat abrasion is sufficiently deep so 
as to cause loss of rail fastener toeload;
    (6) Completely broken through; or
    (7) So unable, due to insufficient fastener toeload, to maintain 
longitudinal restraint and maintain rail hold down and gage.
    (e) Class 6 track shall have one non-defective crosstie whose 
centerline is within 18 inches of the rail joint location or two 
crossties whose center lines are within 24 inches either side of the 
rail joint location. Class 7, 8, and 9 track shall have two non-
defective ties within 24 inches each side of the rail joint.
    (f) For track constructed without crossties, such as slab track and 
track connected directly to bridge structural components, the track 
structure shall meet the requirements of paragraphs (b)(1)(i), (ii), and 
(iii) of this section.
    (g) In Classes 7, 8 and 9 there shall be at least three non-
defective ties each side of a defective tie.
    (h) Where timber crossties are in use there shall be tie plates 
under the running rails on at least nine of 10 consecutive ties.
    (i) No metal object which causes a concentrated load by solely 
supporting a rail shall be allowed between the base of the rail and the 
bearing surface of the tie plate.



Sec. 213.337  Defective rails.

    (a) When an owner of track to which this part applies learns, 
through inspection or otherwise, that a rail in that track contains any 
of the defects listed in the following table, a person designated under 
Sec. 213.305 shall determine whether or not the track may continue in 
use. If the person determines that the track may continue in use, 
operation over the defective rail is not permitted until--
    (1) The rail is replaced; or

[[Page 108]]

    (2) The remedial action prescribed in the table is initiated--
    [GRAPHIC] [TIFF OMITTED] TN28SE98.059
    


[[Page 109]]


    Notes: A. Assign person designated under Sec. 213.305 to visually 
supervise each operation over defective rail.
    A2. Assign person designated under Sec. 213.305 to make visual 
inspection. That person may authorize operation to continue without 
visual supervision at a maximum of 10 m.p.h. for up to 24 hours prior to 
another such visual inspection or replacement or repair of the rail.
    B. Limit operating speed over defective rail to that as authorized 
by a person designated under Sec. 213.305(a)(1)(i) or (ii). The 
operating speed cannot be over 30 m.p.h.
    C. Apply joint bars bolted only through the outermost holes to 
defect within 20 days after it is determined to continue the track in 
use. Limit operating speed over defective rail to 30 m.p.h. until joint 
bars are applied; thereafter, limit speed to 50 m.p.h. When a search for 
internal rail defects is conducted under Sec. 213.339 and defects are 
discovered which require remedial action C, the operating speed shall be 
limited to 50 m.p.h., for a period not to exceed 4 days. If the 
defective rail has not been removed from the track or a permanent repair 
made within 4 days of the discovery, limit operating speed over the 
defective rail to 30 m.p.h. until joint bars are applied; thereafter, 
limit speed to 50 m.p.h.
    D. Apply joint bars bolted only through the outermost holes to 
defect within 10 days after it is determined to continue the track in 
use. Limit operating speed over the defective rail to 30 m.p.h. or less 
as authorized by a person designated under Sec. 213.305(a)(1)(i) or (ii) 
until joint bars are applied; thereafter, limit speed to 50 m.p.h.
    E. Apply joint bars to defect and bolt in accordance with 
Sec. 213.351(d) and (e).
    F. Inspect rail 90 days after it is determined to continue the track 
in use.
    G. Inspect rail 30 days after it is determined to continue the track 
in use.
    H. Limit operating speed over defective rail to 50 m.p.h.
    I. Limit operating speed over defective rail to 30 m.p.h.

    (b) As used in this section--
    (1) Transverse fissure means a progressive crosswise fracture 
starting from a crystalline center or nucleus inside the head from which 
it spreads outward as a smooth, bright, or dark, round or oval surface 
substantially at a right angle to the length of the rail. The 
distinguishing features of a transverse fissure from other types of 
fractures or defects are the crystalline center or nucleus and the 
nearly smooth surface of the development which surrounds it.
    (2) Compound fissure means a progressive fracture originating in a 
horizontal split head which turns up or down in the head of the rail as 
a smooth, bright, or dark surface progressing until substantially at a 
right angle to the length of the rail. Compound fissures require 
examination of both faces of the fracture to locate the horizontal split 
head from which they originate.
    (3) Horizontal split head means a horizontal progressive defect 
originating inside of the rail head, usually one-quarter inch or more 
below the running surface and progressing horizontally in all 
directions, and generally accompanied by a flat spot on the running 
surface. The defect appears as a crack lengthwise of the rail when it 
reaches the side of the rail head.
    (4) Vertical split head means a vertical split through or near the 
middle of the head, and extending into or through it. A crack or rust 
streak may show under the head close to the web or pieces may be split 
off the side of the head.
    (5) Split web means a lengthwise crack along the side of the web and 
extending into or through it.
    (6) Piped rail means a vertical split in a rail, usually in the web, 
due to failure of the shrinkage cavity in the ingot to unite in rolling.
    (7) Broken base means any break in the base of the rail.
    (8) Detail fracture means a progressive fracture originating at or 
near the surface of the rail head. These fractures should not be 
confused with transverse fissures, compound fissures, or other defects 
which have internal origins. Detail fractures may arise from shelly 
spots, head checks, or flaking.
    (9) Engine burn fracture means a progressive fracture originating in 
spots where driving wheels have slipped on top of the rail head. In 
developing downward they frequently resemble the compound or even 
transverse fissures with which they should not be confused or 
classified.
    (10) Ordinary break means a partial or complete break in which there 
is no sign of a fissure, and in which none of the other defects 
described in this paragraph (b) are found.
    (11) Damaged rail means any rail broken or injured by wrecks, 
broken, flat, or unbalanced wheels, slipping, or similar causes.

[[Page 110]]

    (12) Flattened rail means a short length of rail, not a joint, which 
has flattened out across the width of the rail head to a depth of \3/8\ 
inch or more below the rest of the rail. Flattened rail occurrences have 
no repetitive regularity and thus do not include corrugations, and have 
no apparent localized cause such as a weld or engine burn. Their 
individual length is relatively short, as compared to a condition such 
as head flow on the low rail of curves.
    (13) Bolt hole crack means a crack across the web, originating from 
a bolt hole, and progressing on a path either inclined upward toward the 
rail head or inclined downward toward the base. Fully developed bolt 
hole cracks may continue horizontally along the head/web or base/web 
fillet, or they may progress into and through the head or base to 
separate a piece of the rail end from the rail. Multiple cracks 
occurring in one rail end are considered to be a single defect. However, 
bolt hole cracks occurring in adjacent rail ends within the same joint 
shall be reported as separate defects.
    (14) Defective weld means a field or plant weld containing any 
discontinuities or pockets, exceeding 5 percent of the rail head area 
individually or 10 percent in the aggregate, oriented in or near the 
transverse plane, due to incomplete penetration of the weld metal 
between the rail ends, lack of fusion between weld and rail end metal, 
entrainment of slag or sand, under-bead or other shrinkage cracking, or 
fatigue cracking. Weld defects may originate in the rail head, web, or 
base, and in some cases, cracks may progress from the defect into either 
or both adjoining rail ends.
    (15) Head and web separation means a progressive fracture, 
longitudinally separating the head from the web of the rail at the head 
fillet area.

[63 FR 34029, June 22, 1998; 63 FR 51638, Sept. 28, 1998]



Sec. 213.339  Inspection of rail in service.

    (a) A continuous search for internal defects shall be made of all 
rail in track at least twice annually with not less than 120 days 
between inspections.
    (b) Inspection equipment shall be capable of detecting defects 
between joint bars, in the area enclosed by joint bars.
    (c) Each defective rail shall be marked with a highly visible 
marking on both sides of the web and base.
    (d) If the person assigned to operate the rail defect detection 
equipment being used determines that, due to rail surface conditions, a 
valid search for internal defects could not be made over a particular 
length of track, the test on that particular length of track cannot be 
considered as a search for internal defects under Sec. 213.337(a).
    (e) If a valid search for internal defects cannot be conducted for 
reasons described in paragraph (d) of this section, the track owner 
shall, before the expiration of time limits--
    (1) Conduct a valid search for internal defects;
    (2) Reduce operating speed to a maximum of 25 miles per hour until 
such time as a valid search for internal defects can be made; or
    (3) Remove the rail from service.



Sec. 213.341  Initial inspection of new rail and welds.

    The track owner shall provide for the initial inspection of newly 
manufactured rail, and for initial inspection of new welds made in 
either new or used rail. A track owner may demonstrate compliance with 
this section by providing for:
    (a) In-service inspection--A scheduled periodic inspection of rail 
and welds that have been placed in service, if conducted in accordance 
with the provisions of Sec. 213.339, and if conducted not later than 90 
days after installation, shall constitute compliance with paragraphs (b) 
and (c) of this section;
    (b) Mill inspection--A continuous inspection at the rail 
manufacturer's mill shall constitute compliance with the requirement for 
initial inspection of new rail, provided that the inspection equipment 
meets the applicable requirements specified in Sec. 213.339. The track 
owner shall obtain a copy of the manufacturer's report of inspection and 
retain it as a record until the rail receives its first scheduled 
inspection under Sec. 213.339;
    (c) Welding plant inspection--A continuous inspection at a welding 
plant, if

[[Page 111]]

conducted in accordance with the provisions of paragraph (b) of this 
section, and accompanied by a plant operator's report of inspection 
which is retained as a record by the track owner, shall constitute 
compliance with the requirements for initial inspection of new rail and 
plant welds, or of new plant welds made in used rail; and
    (d) Inspection of field welds--An initial inspection of field welds, 
either those joining the ends of CWR strings or those made for isolated 
repairs, shall be conducted not less than one day and not more than 30 
days after the welds have been made. The initial inspection may be 
conducted by means of portable test equipment. The track owner shall 
retain a record of such inspections until the welds receive their first 
scheduled inspection under Sec. 213.339.
    (e) Each defective rail found during inspections conducted under 
paragraph (a) or (d) of this section shall be marked with highly visible 
markings on both sides of the web and base and the remedial action as 
appropriate under Sec. 213.337 will apply.



Sec. 213.343  Continuous welded rail (CWR).

    Each track owner with track constructed of CWR shall have in effect 
and comply with written procedures which address the installation, 
adjustment, maintenance and inspection of CWR, and a training program 
for the application of those procedures, which shall be submitted to the 
Federal Railroad Administration by March 21, 1999. FRA reviews each plan 
for compliance with the following--
    (a) Procedures for the installation and adjustment of CWR which 
include--
    (1) Designation of a desired rail installation temperature range for 
the geographic area in which the CWR is located; and
    (2) De-stressing procedures/methods which address proper attainment 
of the desired rail installation temperature range when adjusting CWR.
    (b) Rail anchoring or fastening requirements that will provide 
sufficient restraint to limit longitudinal rail and crosstie movement to 
the extent practical, and specifically addressing CWR rail anchoring or 
fastening patterns on bridges, bridge approaches, and at other locations 
where possible longitudinal rail and crosstie movement associated with 
normally expected train-induced forces, is restricted.
    (c) Procedures which specifically address maintaining a desired rail 
installation temperature range when cutting CWR including rail repairs, 
in-track welding, and in conjunction with adjustments made in the area 
of tight track, a track buckle, or a pull-apart. Rail repair practices 
shall take into consideration existing rail temperature so that--
    (1) When rail is removed, the length installed shall be determined 
by taking into consideration the existing rail temperature and the 
desired rail installation temperature range; and
    (2) Under no circumstances should rail be added when the rail 
temperature is below that designated by paragraph (a)(1) of this 
section, without provisions for later adjustment.
    (d) Procedures which address the monitoring of CWR in curved track 
for inward shifts of alinement toward the center of the curve as a 
result of disturbed track.
    (e) Procedures which control train speed on CWR track when --
    (1) Maintenance work, track rehabilitation, track construction, or 
any other event occurs which disturbs the roadbed or ballast section and 
reduces the lateral and/or longitudinal resistance of the track; and
    (2) In formulating the procedures under this paragraph (e), the 
track owner shall--
    (i) Determine the speed required, and the duration and subsequent 
removal of any speed restriction based on the restoration of the 
ballast, along with sufficient ballast re-consolidation to stabilize the 
track to a level that can accommodate expected train-induced forces. 
Ballast re-consolidation can be achieved through either the passage of 
train tonnage or mechanical stabilization procedures, or both; and
    (ii) Take into consideration the type of crossties used.
    (f) Procedures which prescribe when physical track inspections are 
to be performed to detect buckling prone

[[Page 112]]

conditions in CWR track. At a minimum, these procedures shall address 
inspecting track to identify --
    (1) Locations where tight or kinky rail conditions are likely to 
occur;
    (2) Locations where track work of the nature described in paragraph 
(e)(1) of this section have recently been performed; and
    (3) In formulating the procedures under this paragraph (f), the 
track owner shall--
    (i) Specify the timing of the inspection; and
    (ii) Specify the appropriate remedial actions to be taken when 
buckling prone conditions are found.
    (g) The track owner shall have in effect a comprehensive training 
program for the application of these written CWR procedures, with 
provisions for periodic re-training, for those individuals designated 
under Sec. 213.305(c) of this part as qualified to supervise the 
installation, adjustment, and maintenance of CWR track and to perform 
inspections of CWR track.
    (h) The track owner shall prescribe recordkeeping requirements 
necessary to provide an adequate history of track constructed with CWR. 
At a minimum, these records shall include:
    (1) Rail temperature, location and date of CWR installations. This 
record shall be retained for at least one year; and
    (2) A record of any CWR installation or maintenance work that does 
not conform with the written procedures. Such record shall include the 
location of the rail and be maintained until the CWR is brought into 
conformance with such procedures.
    (i) As used in this section--
    (1) Adjusting/de-stressing means the procedure by which a rail's 
temperature is re-adjusted to the desired value. It typically consists 
of cutting the rail and removing rail anchoring devices, which provides 
for the necessary expansion and contraction, and then re-assembling the 
track.
    (2) Buckling incident means the formation of a lateral mis-alinement 
sufficient in magnitude to constitute a deviation of 5 inches measured 
with a 62-foot chord. These normally occur when rail temperatures are 
relatively high and are caused by high longitudinal compressive forces.
    (3) Continuous welded rail (CWR) means rail that has been welded 
together into lengths exceeding 400 feet.
    (4) Desired rail installation temperature range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull-
apart during extreme cold weather.
    (5) Disturbed track means the disturbance of the roadbed or ballast 
section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    (6) Mechanical stabilization means a type of procedure used to 
restore track resistance to disturbed track following certain 
maintenance operations. This procedure may incorporate dynamic track 
stabilizers or ballast consolidators, which are units of work equipment 
that are used as a substitute for the stabilization action provided by 
the passage of tonnage trains.
    (7) Rail anchors means those devices which are attached to the rail 
and bear against the side of the crosstie to control longitudinal rail 
movement. Certain types of rail fasteners also act as rail anchors and 
control longitudinal rail movement by exerting a downward clamping force 
on the upper surface of the rail base.
    (8) Rail temperature means the temperature of the rail, measured 
with a rail thermometer.
    (9) Tight/kinky rail means CWR which exhibits minute alinement 
irregularities which indicate that the rail is in a considerable amount 
of compression.
    (10) Train-induced forces means the vertical, longitudinal, and 
lateral dynamic forces which are generated during train movement and 
which can contribute to the buckling potential.
    (11) Track lateral resistance means the resistance provided to the 
rail/crosstie structure against lateral displacement.
    (12) Track longitudinal resistance means the resistance provided by 
the

[[Page 113]]

rail anchors/rail fasteners and the ballast section to the rail/crosstie 
structure against longitudinal displacement.

[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]



Sec. 213.345  Vehicle qualification testing.

    (a) All rolling stock types which operate at Class 6 speeds and 
above shall be qualified for operation for their intended track classes 
in order to demonstrate that the vehicle dynamic response to track 
alinement and geometry variations are within acceptable limits to assure 
safe operation. Rolling stock operating in Class 6 within one year prior 
to the promulgation of this subpart shall be considered as being 
successfully qualified for Class 6 track and vehicles presently 
operating at Class 7 speeds by reason of conditional waivers shall be 
considered as qualified for Class 7.
    (b) The qualification testing shall ensure that, at any speed less 
than 10 m.p.h. above the proposed maximum operating speed, the equipment 
will not exceed the wheel/rail force safety limits and the truck lateral 
accelerations specified in Sec. 213.333, and the testing shall 
demonstrate the following:
    (1) The vertical acceleration, as measured by a vertical 
accelerometer mounted on the car floor, shall be limited to no greater 
than 0.55g single event, peak-to-peak.
    (2) The lateral acceleration, as measured by a lateral accelerometer 
mounted on the car floor, shall be limited to no greater than 0.3g 
single event, peak-to-peak; and
    (3) The combination of the lateral acceleration (L) and the vertical 
acceleration (V) within any period of two consecutive seconds as 
expressed by the square root of (V2 + L2) shall be 
limited to no greater than 0.604, where L may not exceed 0.3g and V may 
not exceed 0.55g.
    (c) To obtain the test data necessary to support the analysis 
required in paragraphs (a) and (b) of this section, the track owner 
shall have a test plan which shall consider the operating practices and 
conditions, signal system, road crossings and trains on adjacent tracks 
during testing. The track owner shall establish a target maximum testing 
speed (at least 10 m.p.h. above the maximum proposed operating speed) 
and target test and operating conditions and conduct a test program 
sufficient to evaluate the operating limits of the track and equipment. 
The test program shall demonstrate vehicle dynamic response as speeds 
are incrementally increased from acceptable Class 6 limits to the target 
maximum test speeds. The test shall be suspended at that speed where any 
of the safety limits specified in paragraph (b) are exceeded.
    (d) At the end of the test, when maximum safe operating speed is 
known along with permissible levels of cant deficiency, an additional 
run shall be made with the subject equipment over the entire route 
proposed for revenue service at the speeds the railroad will request FRA 
to approve for such service and a second run again at 10 m.p.h. above 
this speed. A report of the test procedures and results shall be 
submitted to FRA upon the completions of the tests. The test report 
shall include the design flange angle of the equipment which shall be 
used for the determination of the lateral to vertical wheel load safety 
limit for the track/vehicle interaction safety measurements required per 
Sec. 213.333(l).
    (e) As part of the submittal required in paragraph (d) of the 
section, the operator shall include an analysis and description of the 
signal system and operating practices to govern operations in Classes 7 
and 8. This statement shall include a statement of sufficiency in these 
areas for the class of operation. Operation at speeds in excess of 150 
m.p.h. is authorized only in conjunction with a rule of particular 
applicability addressing other safety issues presented by the system.
    (f) Based on test results and submissions, FRA will approve a 
maximum train speed and value of cant deficiency for revenue service.

[63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998]



Sec. 213.347  Automotive or railroad crossings at grade.

    (a) There shall be no at-grade (level) highway crossings, public or 
private, or rail-to-rail crossings at-grade on Class 8 and 9 track.

[[Page 114]]

    (b) If train operation is projected at Class 7 speed for a track 
segment that will include rail-highway grade crossings, the track owner 
shall submit for FRA's approval a complete description of the proposed 
warning/barrier system to address the protection of highway traffic and 
high speed trains. Trains shall not operate at Class 7 speeds over any 
track segment having highway-rail grade crossings unless:
    (1) An FRA-approved warning/barrier system exists on that track 
segment; and
    (2) All elements of that warning/barrier system are functioning.



Sec. 213.349  Rail end mismatch.

    Any mismatch of rails at joints may not be more than that prescribed 
by the following table--

------------------------------------------------------------------------
                                             Any mismatch of rails at
                                            joints may not be more than
                                                  the following--
                                         -------------------------------
             Class of track                                 On the gage
                                           On the tread     side of the
                                            of the rail      rail ends
                                            ends (inch)       (inch)
------------------------------------------------------------------------
Class 6, 7, 8 and 9.....................           \1/8\           \1/8\
------------------------------------------------------------------------



Sec. 213.351  Rail joints.

    (a) Each rail joint, insulated joint, and compromise joint shall be 
of a structurally sound design and dimensions for the rail on which it 
is applied.
    (b) If a joint bar is cracked, broken, or because of wear allows 
excessive vertical movement of either rail when all bolts are tight, it 
shall be replaced.
    (c) If a joint bar is cracked or broken between the middle two bolt 
holes it shall be replaced.
    (d) Each rail shall be bolted with at least two bolts at each joint.
    (e) Each joint bar shall be held in position by track bolts 
tightened to allow the joint bar to firmly support the abutting rail 
ends and to allow longitudinal movement of the rail in the joint to 
accommodate expansion and contraction due to temperature variations. 
When no-slip, joint-to-rail contact exists by design, the requirements 
of this section do not apply. Those locations, when over 400 feet long, 
are considered to be continuous welded rail track and shall meet all the 
requirements for continuous welded rail track prescribed in this 
subpart.
    (f) No rail shall have a bolt hole which is torch cut or burned.
    (g) No joint bar shall be reconfigured by torch cutting.



Sec. 213.352  Torch cut rail.

    (a) Except as a temporary repair in emergency situations no rail 
having a torch cut end shall be used. When a rail end with a torch cut 
is used in emergency situations, train speed over that rail shall not 
exceed the maximum allowable for Class 2 track. All torch cut rail ends 
in Class 6 shall be removed within six months of September 21, 1998.
    (b) Following the expiration of the time limits specified in 
paragraph (a) of this section, any torch cut rail end not removed shall 
be removed within 30 days of discovery. Train speed over that rail shall 
not exceed the maximum allowable for Class 2 track until removed.



Sec. 213.353  Turnouts, crossovers and lift rail assemblies or other transition devices on moveable bridges.

    (a) In turnouts and track crossings, the fastenings must be intact 
and maintained so as to keep the components securely in place. Also, 
each switch, frog, and guard rail shall be kept free of obstructions 
that may interfere with the passage of wheels. Use of rigid rail 
crossings at grade is limited per Sec. 213.347.
    (b) Track shall be equipped with rail anchoring through and on each 
side of track crossings and turnouts, to restrain rail movement 
affecting the position of switch points and frogs. Elastic fasteners 
designed to restrict longitudinal rail movement are considered rail 
anchoring.
    (c) Each flangeway at turnouts and track crossings shall be at least 
1\1/2\ inches wide.

[[Page 115]]

    (d) For all turnouts and crossovers, and lift rail assemblies or 
other transition devices on moveable bridges, the track owner shall 
prepare an inspection and maintenance Guidebook for use by railroad 
employees which shall be submitted to the Federal Railroad 
Administration. The Guidebook shall contain at a minimum--
    (1) Inspection frequency and methodology including limiting 
measurement values for all components subject to wear or requiring 
adjustment.
    (2) Maintenance techniques.
    (e) Each hand operated switch shall be equipped with a redundant 
operating mechanism for maintaining the security of switch point 
position.



Sec. 213.355  Frog guard rails and guard faces; gage.

    The guard check and guard face gages in frogs shall be within the 
limits prescribed in the following table--

----------------------------------------------------------------------------------------------------------------
                                           Guard check gage--The distance
                                          between the gage line of a frog
                                             to the guard line 1 of its    Guard face gage--The distance between
             Class of track                 guard rail or guarding face,     guard lines,1 measured across the
                                            measured across the track at     track at right angles to the gage
                                          right angles to the gage line,2      line,2 may not be more than--
                                               may not be less than--
----------------------------------------------------------------------------------------------------------------
Class 6 track...........................  4'6\1/2\"......................  4'5"
Class 7 track...........................  4'6\1/2\"......................  4'5"
Class 8 track...........................  4'6\1/2\"......................  4'5"
Class 9 track...........................  4'6\1/2\"......................  4' 5"
----------------------------------------------------------------------------------------------------------------
1 A line along that side of the flangeway which is nearer to the center of the track and at the same elevation
  as the gage line.
2 A line \5/8\ inch below the top of the center line of the head of the running rail, or corresponding location
  of the tread portion of the track structure.



Sec. 213.357  Derails.

    (a) Each track, other than a main track, which connects with a Class 
7, 8 or 9 main track shall be equipped with a functioning derail of the 
correct size and type, unless railroad equipment on the track, because 
of grade characteristics cannot move to foul the main track.
    (b) For the purposes of this section, a derail is a device which 
will physically stop or divert movement of railroad rolling stock or 
other railroad on-track equipment past the location of the device.
    (c) Each derail shall be clearly visible. When in a locked position, 
a derail shall be free of any lost motion which would prevent it from 
performing its intended function.
    (d) Each derail shall be maintained to function as intended.
    (e) Each derail shall be properly installed for the rail to which it 
is applied.
    (f) If a track protected by a derail is occupied by standing 
railroad rolling stock, the derail shall be in derailing position.
    (g) Each derail on a track which is connected to a Class 7, 8 or 9 
main track shall be interconnected with the signal system.



Sec. 213.359  Track stiffness.

    (a) Track shall have a sufficient vertical strength to withstand the 
maximum vehicle loads generated at maximum permissible train speeds, 
cant deficiencies and surface defects. For purposes of this section, 
vertical track strength is defined as the track capacity to constrain 
vertical deformations so that the track shall return following maximum 
load to a configuration in compliance with the vehicle/track interaction 
safety limits and geometry requirements of this subpart.
    (b) Track shall have sufficient lateral strength to withstand the 
maximum thermal and vehicle loads generated at maximum permissible train 
speeds, cant deficiencies and lateral alinement defects. For purposes of 
this section lateral track strength is defined as the track capacity to 
constrain lateral deformations so that track shall return following 
maximum load to a configuration in compliance with the vehicle/track 
interaction safety limits and geometry requirements of this subpart.



Sec. 213.361  Right of way.

    The track owner in Class 8 and 9 shall submit a barrier plan, termed 
a ``right-of-way plan,'' to the Federal Railroad Administration for 
approval.

[[Page 116]]

At a minimum, the plan will contain provisions in areas of demonstrated 
need for the prevention of--
    (a) Vandalism;
    (b) Launching of objects from overhead bridges or structures into 
the path of trains; and
    (c) Intrusion of vehicles from adjacent rights of way.



Sec. 213.365  Visual inspections.

    (a) All track shall be visually inspected in accordance with the 
schedule prescribed in paragraph (c) of this section by a person 
designated under Sec. 213.305.
    (b) Each inspection shall be made on foot or by riding over the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 miles per hour when passing over track crossings and turnouts, 
otherwise, the inspection vehicle speed shall be at the sole discretion 
of the inspector, based on track conditions and inspection requirements. 
When riding over the track in a vehicle, the inspection will be subject 
to the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track upon which the inspector is riding;
    (2) Two inspectors in one vehicle may inspect up to four tracks at a 
time provided that the inspector's visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 feet 
from the track upon which the inspectors are riding;
    (3) Each main track is actually traversed by the vehicle or 
inspected on foot at least once every two weeks, and each siding is 
actually traversed by the vehicle or inspected on foot at least once 
every month. On high density commuter railroad lines where track time 
does not permit an on track vehicle inspection, and where track centers 
are 15 foot or less, the requirements of this paragraph (b)(3) will not 
apply; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) Each track inspection shall be made in accordance with the 
following schedule--

------------------------------------------------------------------------
             Class of track                     Required frequency
------------------------------------------------------------------------
6, 7, and 8............................  Twice weekly with at least 2
                                          calendar-day's interval
                                          between inspections.
9......................................  Three times per week.
------------------------------------------------------------------------

    (d) If the person making the inspection finds a deviation from the 
requirements of this part, the person shall immediately initiate 
remedial action.
    (e) Each switch, turnout, track crossing, and lift rail assemblies 
on moveable bridges shall be inspected on foot at least weekly. The 
inspection shall be accomplished in accordance with the Guidebook 
required under Sec. 213.353.
    (f) In track Classes 8 and 9, if no train traffic operates for a 
period of eight hours, a train shall be operated at a speed not to 
exceed 100 miles per hour over the track before the resumption of 
operations at the maximum authorized speed.

[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]



Sec. 213.367  Special inspections.

    In the event of fire, flood, severe storm, temperature extremes or 
other occurrence which might have damaged track structure, a special 
inspection shall be made of the track involved as soon as possible after 
the occurrence and, if possible, before the operation of any train over 
that track.



Sec. 213.369  Inspection records.

    (a) Each owner of track to which this part applies shall keep a 
record of each inspection required to be performed on that track under 
this subpart.
    (b) Except as provided in paragraph (e) of this section, each record 
of an inspection under Sec. 213.365 shall be prepared on the day the 
inspection is made and signed by the person making the inspection. 
Records shall specify the track inspected, date of inspection, location 
and nature of any deviation

[[Page 117]]

from the requirements of this part, and the remedial action taken by the 
person making the inspection. The owner shall designate the location(s) 
where each original record shall be maintained for at least one year 
after the inspection covered by the record. The owner shall also 
designate one location, within 100 miles of each state in which they 
conduct operations, where copies of record which apply to those 
operations are either maintained or can be viewed following 10 days 
notice by the Federal Railroad Administration.
    (c) Rail inspection records shall specify the date of inspection, 
the location and nature of any internal defects found, the remedial 
action taken and the date thereof, and the location of any intervals of 
track not tested per Sec. 213.339(d). The owner shall retain a rail 
inspection record for at least two years after the inspection and for 
one year after remedial action is taken.
    (d) Each owner required to keep inspection records under this 
section shall make those records available for inspection and copying by 
the Federal Railroad Administrator.
    (e) For purposes of compliance with the requirements of this 
section, an owner of track may maintain and transfer records through 
electronic transmission, storage, and retrieval provided that--
    (1) The electronic system be designed such that the integrity of 
each record maintained through appropriate levels of security such as 
recognition of an electronic signature, or other means, which uniquely 
identify the initiating person as the author of that record. No two 
persons shall have the same electronic identity;
    (2) The electronic storage of each record shall be initiated by the 
person making the inspection within 24 hours following the completion of 
that inspection;
    (3) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (4) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment;
    (5) The electronic system shall provide for the maintenance of 
inspection records as originally submitted without corruption or loss of 
data; and
    (6) Paper copies of electronic records and amendments to those 
records, that may be necessary to document compliance with this part, 
shall be made available for inspection and copying by the FRA and track 
inspectors responsible under Sec. 213.305. Such paper copies shall be 
made available to the track inspectors and at the locations specified in 
paragraph (b) of this section.
    (7) Track inspection records shall be kept available to persons who 
performed the inspection and to persons performing subsequent 
inspections.
    (f) Each vehicle/track interaction safety record required under 
Sec. 213.333 (g), and (m) shall be made available for inspection and 
copying by the FRA at the locations specified in paragraph (b) of this 
section.

        Appendix A to Part 213--Maximum Allowable Curving Speeds

[[Page 118]]



                                                            Table 1.--Three Inches Unbalance
                                                           [Elevation of outer rail (inches)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Degree of curvature             0      \1/2\      1      1\1/2\     2      2\1/2\     3      3\1/2\     4      4\1/2\     5      5\1/2\     6
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                      (12) Maximum allowable operating speed (mph)
 
0 deg.30'..........................       93      100      107      113      120      125      131      136      141      146      151      156      160
0 deg.40'..........................       80       87       93       98      103      109      113      118      122      127      131      135      139
0 deg.50'..........................       72       78       83       88       93       97      101      106      110      113      117      121      124
1 deg.00'..........................       66       71       76       80       85       89       93       96      100      104      107      110      113
1 deg.15'..........................       59       63       68       72       76       79       83       86       89       93       96       99      101
1 deg.30'..........................       54       58       62       66       69       72       76       79       82       85       87       90       93
1 deg.45'..........................       50       54       57       61       64       67       70       73       76       78       81       83       86
2 deg.00'..........................       46       50       54       57       60       63       66       68       71       73       76       78       80
2 deg.15'..........................       44       47       50       54       56       59       62       64       67       69       71       74       76
2 deg.30'..........................       41       45       48       51       54       56       59       61       63       66       68       70       72
2 deg.45'..........................       40       43       46       48       51       54       56       58       60       62       65       66       68
3 deg.00'..........................       38       41       44       46       49       51       54       56       58       60       62       64       66
3 deg.15'..........................       36       39       42       45       47       49       51       54       56       57       59       61       63
3 deg.30'..........................       35       38       40       43       45       47       50       52       54       55       57       59       61
3 deg.45'..........................       34       37       39       41       44       46       48       50       52       54       55       57       59
4 deg.00'..........................       33       35       38       40       42       44       46       48       50       52       54       55       57
4 deg.30'..........................       31       33       36       38       40       42       44       45       47       49       50       52       54
5 deg.00'..........................       29       32       34       36       38       40       41       43       45       46       48       49       51
5 deg.30'..........................       28       30       32       34       36       38       40       41       43       44       46       47       48
6 deg.00'..........................       27       29       31       33       35       36       38       39       41       42       44       45       46
6 deg.30'..........................       26       28       30       31       33       35       36       38       39       41       42       43       45
7 deg.00'..........................       25       27       29       30       32       34       35       36       38       39       40       42       43
8 deg.00'..........................       23       25       27       28       30       31       33       34       35       37       38       39       40
9 deg.00'..........................       22       24       25       27       28       30       31       32       33       35       36       37       38
10 deg.00'.........................       21       22       24       25       27       28       29       31       32       33       34       35       36
11 deg.00'.........................       20       21       23       24       26       27       28       29       30       31       32       33       34
12 deg.00'.........................       19       20       22       23       24       26       27       28       29       30       31       32       33
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                             Table 2.--Four Inches Unbalance
                                                           [Elevation of outer rail (inches)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Degree of curvature             0      \1/2\      1      1\1/2\     2      2\1/2\     3      3\1/2\     4      4\1/2\     5      5\1/2\     6
--------------------------------------------------------------------------------------------------------------------------------------------------------
 

[[Page 119]]

 
                                                      (12) Maximum allowable operating speed (mph)
0 deg.30'..........................      107      113      120      125      131      136      141      146      151      156      160      165      169
0 deg.40'..........................       93       98      104      109      113      118      122      127      131      135      139      143      146
0 deg.50'..........................       83       88       93       97      101      106      110      113      117      121      124      128      131
1 deg.00'..........................       76       80       85       89       93       96      100      104      107      110      113      116      120
1 deg.15'..........................       68       72       76       79       83       86       89       93       96       99      101      104      107
1 deg.30'..........................       62       65       69       72       76       79       82       85       87       90       93       95       98
1 deg.45'..........................       57       61       64       67       70       73       76       78       81       83       86       88       90
2 deg.00'..........................       53       57       60       63       65       68       71       73       76       78       80       82       85
2 deg.15'..........................       50       53       56       59       62       64       67       69       71       73       76       78       80
2 deg.30'..........................       48       51       53       56       59       61       63       65       68       70       72       74       76
2 deg.45'..........................       46       48       51       53       56       58       60       62       64       66       68       70       72
3 deg.00'..........................       44       46       49       51       53       56       58       60       62       64       65       67       69
3 deg.15'..........................       42       44       47       49       51       53       55       57       59       61       63       65       66
3 deg.30'..........................       40       43       45       47       49       52       53       55       57       59       61       62       64
3 deg.45'..........................       39       41       44       46       48       50       52       53       55       57       59       60       62
4 deg.00'..........................       38       40       42       44       46       48       50       52       53       55       57       58       60
4 deg.30'..........................       36       38       40       42       44       45       47       49       50       52       53       55       56
5 deg.00'..........................       34       36       38       40       41       43       45       46       48       49       51       52       53
5 deg.30'..........................       32       34       36       38       39       41       43       44       46       47       48       50       51
6 deg.00'..........................       31       33       35       36       38       39       41       42       44       45       46       48       49
6 deg.30'..........................       30       31       33       35       36       38       39       41       42       43       44       46       47
7 deg.00'..........................       29       30       32       34       35       36       38       39       40       42       43       44       45
8 deg.00'..........................       27       28       30       31       33       34       35       37       38       39       40       41       42
9 deg.00'..........................       25       27       28       30       31       32       33       35       36       37       38       39       40
10 deg.00'.........................       24       25       27       28       29       30       32       33       34       35       36       37       38
11 deg.00'.........................       23       24       25       27       28       29       30       31       32       33       34       35       36
12 deg.00'.........................       22       23       24       26       27       28       29       30       31       32       33       34       35
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 120]]

           Appendix B to Part 213--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation     Violation \1\
------------------------------------------------------------------------
Subpart A--General:
    213.4(a) Excepted track \2\.........          $2,500          $5,000
    213.4(b) Excepted track \2\.........           2,500           5,000
    213.4(c) Excepted track \2\.........           2,500           5,000
    213.4(d) Excepted track \2\.........           2,500           5,000
    213.4(e):
        (1) Excepted track .............           5,000           7,500
        (2) Excepted track .............           7,000          10,000
        (3) Excepted track .............           7,000          10,000
        (4) Excepted track .............           5,000           7,500
    213.4(f) Excepted track.............           2,000           4,000
    213.7 Designation of qualified                 1,000           2,000
     persons to supervise certain
     renewals and inspect track.........
    213.9 Classes of track: Operating              2,500           2,500
     speed limits.......................
    213.11 Restoration or renewal of               2,500           2,500
     track under traffic conditions.....
    213.13 Measuring track not under               1,000           2,000
     load...............................
Subpart B--Roadbed:
    213.33 Drainage.....................           2,500           5,000
    213.37 Vegetation...................           1,000           2,000
Subpart C--Track Geometry:
    213.53 Gage.........................           5,000           7,500
    13.55 Alinement.....................           5,000           7,500
    213.57 Curves; elevation and speed             2,500           5,000
     limitations........................
    213.59 Elevation of curved track;              2,500           2,500
     runoff.............................
213.63 Track surface....................           5,000           7,500
Subpart D--Track surface:
    213.103 Ballast; general............           2,500           5,000
    213.109 Crossties
        (a) Material used...............           1,000           2,000
        (b) Distribution of ties........           2,500           5,000
        (c) Sufficient number of                   1,000           2,000
         nondefective ties..............
        (d) Joint ties..................           2,500           5,000
        (e) Track constructed without              2,500           5,000
         crossties......................
    213.113 Defective rails.............           5,000           7,500
    213.115 Rail end mismatch...........           2,500           5,000
    213.119 Continuous welded rail
        (a) through (h).................           5,000           7,500
    213.121 (a) Rail joints.............           2,500           5,000
    213.121 (b) Rail joints.............           2,500           5,000
    213.121 (c) Rail joints.............           5,000           7,500
    213.121 (d) Rail joints.............           2,500           5,000
    213.121 (e) Rail joints.............           2,500           5,000
    213.121 (f) Rail joints.............           2,500           5,000
    213.121 (g) Rail joints.............           2,500           5,000
    213.121 (h) Rail joints.............           5,000           7,500
    213.122 Torch cut rail..............           2,500           5,000
    213.123 Tie plates..................           1,000           2,000
    213.127 Rail fastenings.............           2,500           5,000
    213.133 Turnouts and track                     1,000           1,000
     crossings, generally...............
    213.135 Switches:
        (a) through (g).................           2,500           5,000
        (h) chipped or worn points......           5,000           7,500
    213.137 Frogs.......................           2,500           5,000
    213.139 Spring rail frogs...........           2,500           5,000
    213.141 Self-guarded frogs..........           2,500           5,000
    213.143 Frog guard rails and guard             2,500           5,000
     faces; gage........................
Subpart E--Track appliances and track-
 related devices:
    213.205 Derails.....................           2,500           5,000
Subpart F--Inspection:
    213.233 Track inspections...........           2,000           4,000
    213.235 Switches, crossings,                   2,000           4,000
     transition devices.................
    213.237 Inspection of rail..........           2,500           5,000
    213.239 Special inspections.........           2,500           5,000
    213.241 Inspection records..........           1,000           1,000
Subpart G--High Speed:
    213.305 Designation of qualified               1,000           2,000
     individuals; general qualifications
    213.307 Class of track; operating              2,500           5,000
     speed limits.......................
    213.309 Restoration or renewal of              2,500           5,000
     track under traffic conditions.....
    213.311 Measuring track not under              1,000           2,000
     load...............................
    213.319 Drainage....................           2,500           5,000
    213.321 Vegetation..................           1,000           2,000
    213.323 Track gage..................           5,000           7,500

[[Page 121]]

 
    213.327 Alinement...................           5,000           7,500
    213.329 Curves, elevation and speed            2,500           5,000
     limits.............................
    213.331 Track surface...............           5,000           7,500
    213.333 Automated vehicle inspection           5,000           7,500
     systems............................
    213.335 Crossties
        (a) Material used...............           1,000           2,000
        (b) Distribution of ties........           2,500           5,000
        (c) Sufficient number of                   1,000           2,000
         nondefective ties, non-concrete
        (d) Sufficient number of                   1,000           2,000
         nondefective concrete ties.....
        (e) Joint ties..................           2,500           5,000
        (f) Track constructed without              2,500           5,000
         crossties......................
        (g) Non-defective ties                     2,500           5,000
         surrounding defective ties.....
        (h) Tie plates..................           2,500           5,000
        (i) Tie plates..................           1,000           2,000
    213.337 Defective rails.............           5,000           7,500
    213.339 Inspection of rail in                  2,500           5,000
     service............................
    213.341 Inspection of new rail......           2,500           5,000
    213.343 Continuous welded rail (a)             5,000           7,500
     through (h)........................
    213.345 Vehicle qualification                  5,000           7,500
     testing (a) through (b)............
        (c) through (e).................           2,500           5,000
    213.347 Automotive or railroad                 5,000           7,500
     crossings at grade.................
    213.349 Rail end mismatch...........           2,500           5,000
    213.351 (a) Rail joints.............           2,500           5,000
    213.351 (b) Rail joints.............           2,500           5,000
    213.351 (c) Rail joints.............           5,000           7,500
     213.351 (d) Rail joints............           2,500           5,000
    213.351 (e) Rail joints.............           2,500           5,000
    213.351 (f) Rail joints.............           5,000           7,500
    213.351 (g) Rail joints.............           5,000           7,500
    213. 352 Torch cut rails............           2,500           5,000
    213.353 Turnouts, crossovers,                  1,000           2,000
     transition devices.................
    213.355 Frog guard rails and guard             2,500           5,000
     faces; gage........................
    213.357 Derails.....................           2,500           5,000
    213.359 Track stiffness.............           5,000           7,500
    213.361 Right of way................           5,000           7,500
    213.365 Visual inspections..........           2,500           5,000
    213.367 Special inspections.........           2,500           5,000
    213.369 Inspections records.........           2,000           4,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR Part 209, Appendix A.
\2\ In addition to assessment of penalties for each instance of
  noncompliance with the requirements identified by this footnote, track
  segments designated as excepted track that are or become ineligible
  for such designation by virtue of noncompliance with any of the
  requirements to which this footnote applies are subject to all other
  requirements of Part 213 until such noncompliance is remedied.

[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]



PART 214--RAILROAD WORKPLACE SAFETY--Table of Contents




                           Subpart A--General

Sec.
214.1  Purpose and scope.
214.3  Application.
214.4  Preemptive effect.
214.5  Responsibility for compliance.
214.7  Definitions.

                Subpart B--Bridge Worker Safety Standards

214.101  Purpose and scope.
214.103  Fall protection, generally.
214.105  Fall protection systems standards and practices.
214.107  Working over or adjacent to water.
214.109  Scaffolding.
214.111  Personal protective equipment, generally.
214.113  Head protection.
214.115  Foot protection.
214.117  Eye and face protection.

                  Subpart C--Roadway Worker Protection

214.301  Purpose and scope.
214.302  Information and collection requirements.
214.303  Railroad on-track safety programs, generally.
214.305  Compliance dates.
214.307  Review and approval of individual on-track safety programs by 
          FRA.
214.309  On-track safety program documents.
214.311  Responsibility of employers.
214.313  Responsibility of individual roadway workers.
214.315  Supervision and communication.

[[Page 122]]

214.317  On-track safety procedures, generally.
214.319  Working limits, generally.
214.321  Exclusive track occupancy.
214.323  Foul time.
214.325  Train coordination.
214.327  Inaccessible track.
214.329  Train approach warning provided by watchmen/lookouts.
214.331  Definite train location.
214.333  Informational line-ups of trains.
214.335  On-track safety procedures for roadway work groups.
214.337  On-track safety procedures for lone workers.
214.339  Audible warning from trains.
214.341  Roadway maintenance machines.
214.343  Training and qualification, general.
214.345  Training for all roadway workers.
214.347  Training and qualification for lone workers.
214.349  Training and qualification of watchmen/lookouts.
214.351  Training and qualification of flagmen.
214.353  Training and qualification of roadway workers who provide on-
          track safety for roadway work groups.
214.355  Training and qualification in on-track safety for operators of 
          roadway maintenance machines.

Appendix A to Part 214--Schedule of Civil Penalties

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

    Source: 57 FR 28127, June 24, 1992, unless otherwise noted.



                           Subpart A--General



Sec. 214.1  Purpose and scope.

    (a) The purpose of this part is to prevent accidents and casualties 
to employees involved in certain railroad inspection, maintenance and 
construction activities.
    (b) This part prescribes minimum Federal safety standards for the 
railroad workplace safety subjects addressed herein. This part does not 
restrict a railroad or railroad contractor from adopting and enforcing 
additional or more stringent requirements not inconsistent with this 
part.



Sec. 214.3  Application.

    This part applies to railroads that operate rolling equipment on 
track that is part of the general railroad system of transportation.



Sec. 214.4   Preemptive effect.

    Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 434)), issuance of the regulations in this 
part preempts any State law, rule, regulation, order, or standard 
covering the same subject matter, except a provision directed at an 
essentially local safety hazard that is not incompatible with this part 
and that does not unreasonably burden on interstate commerce.

[61 FR 65975, Dec. 16, 1996]



Sec. 214.5  Responsibility for compliance.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that penalties may be assessed against individuals only for willful 
violations, and where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury, 
or has caused death or injury, a penalty not to exceed $22,000 per 
violation may be assessed. See appendix A to this part for a statement 
of agency civil penalty policy.

[57 FR 28127, June 24, 1992, as amended at 63 FR 11620, Mar. 10, 1998]



Sec. 214.7  Definitions.

    Adjacent tracks mean two or more tracks with track centers spaced 
less than 25 feet apart.
    Anchorage means a secure point of attachment for lifelines, lanyards 
or deceleration devices that is independent of the means of supporting 
or suspending the employee.
    Body belt means a strap that can be secured around the waist or body 
and attached to a lanyard, lifeline, or deceleration device.

[[Page 123]]

    Body harness means a device with straps that is secured about the 
employee in a manner so as to distribute the fall arrest forces over (at 
least) the thighs, shoulders, pelvis, waist, and chest and that can be 
attached to a lanyard, lifeline, or deceleration device.
    Class I, Class II, and Class III have the meaning assigned by, Title 
49 Code of Federal Regulations part 1201, General Instructions 1-1.
    Competent person means one who is capable of identifying existing 
and predictable hazards in the workplace and who is authorized to take 
prompt corrective measures to eliminate them.
    Control operator means the railroad employee in charge of a remotely 
controlled switch or derail, an interlocking, or a controlled point, or 
a segment of controlled track.
    Controlled track means track upon which the railroad's operating 
rules require that all movements of trains must be authorized by a train 
dispatcher or a control operator.
    Deceleration device means any mechanism, including, but not limited 
to, rope grabs, ripstitch lanyards, specially woven lanyards, tearing or 
deforming lanyards, and automatic self-retracting lifelines/lanyards 
that serve to dissipate a substantial amount of energy during a fall 
arrest, or otherwise limit the energy on an employee during fall arrest.
    Definite train location means a system for establishing on-track 
safety by providing roadway workers with information about the earliest 
possible time that approaching trains may pass specific locations as 
prescribed in Sec. 214.331 of this part.
    Effective securing device when used in relation to a manually 
operated switch or derail means one which is:
    (a) Vandal resistant;
    (b) Tamper resistant; and
    (c) Designed to be applied, secured, uniquely tagged and removed 
only by the class, craft or group of employees for whom the protection 
is being provided.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this part.
    Employer means a railroad, or a contractor to a railroad, that 
directly engages or compensates individuals to perform any of the duties 
defined in this part.
    Equivalent means alternative designs, materials, or methods that the 
railroad or railroad contractor can demonstrate will provide equal or 
greater safety for employees than the means specified in this part.
    Exclusive track occupancy means a method of establishing working 
limits on controlled track in which movement authority of trains and 
other equipment is withheld by the train dispatcher or control operator, 
or restricted by flagmen, as prescribed in Sec. 214.321 of this part.
    Flagman when used in relation to roadway worker safety means an 
employee designated by the railroad to direct or restrict the movement 
of trains past a point on a track to provide on-track safety for roadway 
workers, while engaged solely in performing that function.
    Foul time is a method of establishing working limits on controlled 
track in which a roadway worker is notified by the train dispatcher or 
control operator that no trains will operate within a specific segment 
of controlled track until the roadway worker reports clear of the track, 
as prescribed in Sec. 214.323 of this part.
    Fouling a track means the placement of an individual or an item of 
equipment in such proximity to a track that the individual or equipment 
could be struck by a moving train or on-track equipment, or in any case 
is within four feet of the field side of the near running rail.
    Free fall means the act of falling before the personal fall arrest 
system begins to apply force to arrest the fall.
    Free fall distance means the vertical displacement of the fall 
arrest attachment point on the employee's body belt or body harness 
between onset of the fall and the point at which the system begins to 
apply force to arrest the fall. This distance excludes deceleration 
distance and lifeline and lanyard elongation, but includes any 
deceleration device slide distance or self-retracting lifeline/lanyard 
extension before they operate and fall arrest forces occur.

[[Page 124]]

    Inaccessible track means a method of establishing working limits on 
non-controlled track by physically preventing entry and movement of 
trains and equipment.
    Individual train detection means a procedure by which a lone worker 
acquires on-track safety by seeing approaching trains and leaving the 
track before they arrive and which may be used only under circumstances 
strictly defined in this part.
    Informational line-up of trains means information provided in a 
prescribed format to a roadway worker by the train dispatcher regarding 
movements of trains authorized or expected on a specific segment of 
track during a specific period of time.
    Lanyard means a flexible line of rope, wire rope, or strap that is 
used to secure a body belt or body harness to a deceleration device, 
lifeline, or anchorage.
    Lifeline means a component of a fall arrest system consisting of a 
flexible line that connects to an anchorage at one end to hang 
vertically (vertical lifeline) or to an anchorage at both ends to 
stretch horizontally (horizontal lifeline), and that serves as a means 
for connecting other components of a personal fall arrest system to the 
anchorage.
    Lone worker means an individual roadway worker who is not being 
afforded on-track safety by another roadway worker, who is not a member 
of a roadway work group, and who is not engaged in a common task with 
another roadway worker.
    Non-controlled track means track upon which trains are permitted by 
railroad rule or special instruction to move without receiving 
authorization from a train dispatcher or control operator.
    On-track safety means a state of freedom from the danger of being 
struck by a moving railroad train or other railroad equipment, provided 
by operating and safety rules that govern track occupancy by personnel, 
trains and on-track equipment.
    Personal fall arrrest system means a system used to arrest the fall 
of an employee from a working level. It consists of an anchorage, 
connectors, body harness or body belt, lanyard, deceleration device, 
lifeline, or combination of these.
    Qualified means a status attained by an employee who has 
successfully completed any required training for, has demonstrated 
proficiency in, and has been authorized by the employer to perform the 
duties of a particular position or function.
    Railroad means all forms of non-highway ground transportation that 
run on rails or electro-magnetic guideways, including (1) commuter or 
other short-haul rail passenger service in a metropolitan or suburban 
area, 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.
    Railroad bridge means a structure supporting one or more railroad 
tracks above land or water with a span length of 12 feet or more 
measured along the track centerline. This term applies to the entire 
structure between the faces of the backwalls of abutments or equivalent 
components, regardless of the number of spans, and includes all such 
structures, whether of timber, stone, concrete, metal, or any 
combination thereof.
    Railroad bridge worker or bridge worker means any employee of, or 
employee of a contractor of, a railroad owning or responsible for the 
construction, inspection, testing, or maintenance of a bridge whose 
assigned duties, if performed on the bridge, include inspection, 
testing, maintenance, repair, construction, or reconstruction of the 
track, bridge structural members, operating mechanisms and water traffic 
control systems, or signal, communication, or train control systems 
integral to that bridge.
    Restricted speed means a speed that will permit a train or other 
equipment to stop within one-half the range of vision of the person 
operating the train or other equipment, but not exceeding 20 miles per 
hour, unless further restricted by the operating rules of the railroad.

[[Page 125]]

    Roadway maintenance machine means a device powered by any means of 
energy other than hand power which is being used on or near railroad 
track for maintenance, repair, construction or inspection of track, 
bridges, roadway, signal, communications, or electric traction systems. 
Roadway maintenance machines may have road or rail wheels or may be 
stationary.
    Roadway work group means two or more roadway workers organized to 
work together on a common task.
    Roadway worker means any employee of a railroad, or of a contractor 
to a railroad, whose duties include inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts as defined in this 
section.
    Self-retracting lifeline/lanyard means a deceleration device that 
contains a drum-wound line that may be slowly extracted from, or 
retracted onto, the drum under slight tension during normal employee 
movement, and which, after onset of a fall, automatically locks the drum 
and arrests the fall.
    Snap-hook means a connector comprised of a hook-shaped member with a 
normally closed keeper, that may be opened to permit the hook to receive 
an object and, when released, automatically closes to retain the object.
    Train approach warning means a method of establishing on-track 
safety by warning roadway workers of the approach of trains in ample 
time for them to move to or remain in a place of safety in accordance 
with the requirements of this part.
    Train coordination means a method of establishing working limits on 
track upon which a train holds exclusive authority to move whereby the 
crew of that train yields that authority to a roadway worker.
    Train dispatcher means the railroad employee assigned to control and 
issue orders governing the movement of trains on a specific segment of 
railroad track in accordance with the operating rules of the railroad 
that apply to that segment of track.
    Watchman/lookout means an employee who has been annually trained and 
qualified to provide warning to roadway workers of approaching trains or 
on-track equipment. Watchmen/lookouts shall be properly equipped to 
provide visual and auditory warning such as whistle, air horn, white 
disk, red flag, lantern, fusee. A watchman/lookout's sole duty is to 
look out for approaching trains/on-track equipment and provide at least 
fifteen seconds advanced warning to employees before arrival of trains/
on-track equipment.
    Working limits means a segment of track with definite boundaries 
established in accordance with this part upon which trains and engines 
may move only as authorized by the roadway worker having control over 
that defined segment of track. Working limits may be established through 
``exclusive track occupancy,'' ``inaccessible track,'' ``foul time'' or 
``train coordination'' as defined herein.

[57 FR 28127, June 24, 1992, as amended at 61 FR 65975, Dec. 16, 1996]



                Subpart B--Bridge Worker Safety Standards



Sec. 214.101  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties arising from the performance of work on railroad bridges.
    (b) This subpart prescribes minimum railroad safety rules for 
railroad employees performing work on bridges. Each railroad and 
railroad contractor may prescribe additional or more stringent operating 
rules, safety rules, and other special instructions not inconsistent 
with this subpart.
    (c) These provisions apply to all railroad employees, railroads, and 
railroad contractors performing work on railroad bridges.
    (d) Any working conditions involving the protection of railroad 
employees working on railroad bridges not within the subject matter 
addressed by this chapter, including respiratory protection, hazard 
communication, hearing protection, welding and lead exposure standards, 
shall be governed by the regulations of the U.S. Department of

[[Page 126]]

Labor, Occupational Safety and Health Administration.



Sec. 214.103  Fall protection, generally.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, when employees work twelve feet or more above the ground or 
water surface, they shall be provided and shall use a personal fall 
arrest system or safety net system. All fall protection systems required 
by this section shall conform to the standards set forth in Sec. 214.105 
of this subpart.
    (b)(1) This section shall not apply if the installation of the fall 
arrest system poses a greater exposure to risk than the work to be 
performed. In any action brought by FRA to enforce the fall protection 
requirements, the railroad or railroad contractor shall have the burden 
of proving that the installation of such device poses greater exposure 
to risk than performance of the work itself.
    (2) This section shall not apply to employees engaged in inspection 
of railroad bridges conducted in full compliance with the following 
conditions:
    (i) The railroad or railroad contractor has a written program in 
place that requires training in, adherence to, and use of safe 
procedures associated with climbing techniques and procedures to be 
used;
    (ii) The employee to whom this exception applies has been trained 
and qualified according to that program to perform bridge inspections, 
has been previously and voluntarily designated to perform inspections 
under the provisions of that program, and has accepted the designation;
    (iii) The employee to whom this exception applies is familiar with 
the appropriate climbing techniques associated with all bridge 
structures the employee is responsible for inspecting;
    (iv) The employee to whom this exception applies is engaged solely 
in moving on or about the bridge or observing, measuring, and recording 
the dimensions and condition of the bridge and its components; and
    (v) The employee to whom this exception applies is provided all 
equipment necessary to meet the needs of safety, including any 
specialized or alternative systems required.
    (c) This section shall not apply where employees are working on a 
railroad bridge equipped with walkways and railings of sufficient 
height, width, and strength to prevent a fall, provided that the 
employee does not work beyond the railings, over the side of the bridge, 
on ladders or other elevation devices, or where gaps or holes exist 
through which a body could fall. Where used in place of fall protection 
as provided for in Sec. 214.105, this paragraph (c) is satisfied by:
    (1) Walkways and railings meeting the standards set forth in the 
American Railway Engineering Association's Manual for Railway 
Engineering; and
    (2) Roadways attached to railroad bridges, provided that employees 
on the roadway deck work or move at a distance of six feet or more from 
the edge of the roadway deck, or from an opening through which a person 
could fall.
    (d) This section shall not apply where employees are performing 
repairs or inspections of a minor nature that are completed by working 
exclusively between the outside rails, including, but not limited to, 
routine welding, spiking, anchoring, spot surfacing, and joint bolt 
replacement.

[57 FR 28127, June 24, 1992, as amended at 59 FR 30883, June 16, 1994]



Sec. 214.105  Fall protection systems standards and practices.

    (a) General requirements. All fall protection systems required by 
this subpart shall conform to the following:
    (1) Fall protection systems shall be used only for employee fall 
protection.
    (2) Any fall protection system subjected to impact loading shall be 
immediately and permanently removed from service unless fully inspected 
and determined by a competent person to be undamaged and suitable for 
reuse.
    (3) All fall protection system components shall be protected from 
abrasions, corrosion, or any other form of deterioration.
    (4) All fall protection system components shall be inspected prior 
to each use for wear, damage, corrosion, mildew, and other 
deterioration. Defective components shall be permanently removed from 
service.

[[Page 127]]

    (5) Prior to use and after any component or system is changed, 
employees shall be trained in the application limits of the equipment, 
proper hook-up, anchoring and tie-off techniques, methods of use, and 
proper methods of equipment inspection and storage.
    (6) The railroad or railroad contractor shall provide for prompt 
rescue of employees in the event of a fall.
    (7) Connectors shall have a corrosion-resistant finish, and all 
surfaces and edges shall be smooth to prevent damage to interfacing 
parts of the system.
    (8) Connectors shall be drop forged, pressed or formed steel, or 
made of equivalent-strength materials.
    (9) Anchorages, including single- and double-head anchors, shall be 
capable of supporting at least 5,000 pounds per employee attached, or 
shall be designed, installed, and used under the supervision of a 
qualified person as part of a complete personal fall protection system 
that maintains a safety factor of at least two.
    (b) Personal fall arrest systems. All components of a personal fall 
arrest system shall conform to the following standards:
    (1) Lanyards and vertical lifelines that tie off one employee shall 
have a minimum breaking strength of 5,000 pounds.
    (2) Self-retracting lifelines and lanyards that automatically limit 
free fall distance to two feet or less shall have components capable of 
sustaining a minimum static tensile load of 3,000 pounds applied to the 
device with the lifeline or lanyard in the fully extended position.
    (3) Self-retracting lifelines and lanyards that do not limit free 
fall distance to two feet or less, ripstitch, and tearing and deformed 
lanyards shall be capable of withstanding 5,000 pounds applied to the 
device with the lifeline or lanyard in the fully extended position.
    (4) Horizontal lifelines shall be designed, installed, and used 
under the supervision of a competent person, as part of a complete 
personal fall arrest system that maintains a safety factor of at least 
two.
    (5) Lifelines shall not be made of natural fiber rope.
    (6) The personal fall arrest system shall limit the maximum 
arresting force on an employee to 900 pounds when used with a body belt.
    (7) The personal fall arrest system shall limit the maximum 
arresting force on an employee to 1,800 pounds when used with a body 
harness.
    (8) The personal fall arrest system shall bring an employee to a 
complete stop and limit maximum deceleration distance an employee 
travels to 3.5 feet.
    (9) The personal fall arrest system shall have sufficient strength 
to withstand twice the potential impact energy of an employee free 
falling a distance of six feet, or the free fall distance permitted by 
the system, whichever is less.
    (10) The personal fall arrest system shall be arranged so that an 
employee cannot free fall more than six feet and cannot contact the 
ground or any lower horizontal surface of the bridge.
    (11) Personal fall arrest systems shall be worn with the attachment 
point of the body belt located in the center of the wearer's back, and 
the attachment point of the body harness located in the center of the 
wearer's back near shoulder level, or above the wearer's head.
    (12) When vertical lifelines are used, each employee shall be 
provided with a separate lifeline.
    (13) Devices used to connect to a horizontal lifeline that may 
become a vertical lifeline shall be capable of locking in either 
direction.
    (14) Dee-rings and snap-hooks shall be capable of sustaining a 
minimum tensile load of 3,600 pounds without cracking, breaking, or 
taking permanent deformation.
    (15) Dee-rings and snap-hooks shall be capable of sustaining a 
minimum tensile load of 5,000 pounds.
    (16) Snap-hooks shall not be connected to each other.
    (17) Snap-hooks shall be dimensionally compatible with the member to 
which they are connected to prevent unintentional disengagement, or 
shall be a locking snap-hook designed to prevent unintentional 
disengagement.
    (18) Unless of a locking type, snap-hooks shall not be engaged:

[[Page 128]]

    (i) Directly next to webbing, rope, or wire rope;
    (ii) To each other;
    (iii) To a dee-ring to which another snap-hook or other connector is 
attached;
    (iv) To a horizontal lifeline; or
    (v) To any object that is incompatibly shaped or dimensioned in 
relation to the snap-hook so that unintentional disengagement could 
occur.
    (c) Safety net systems. Use of safety net systems shall conform to 
the following standards and practices:
    (1) Safety nets shall be installed as close as practicable under the 
walking/working surface on which employees are working, but shall not be 
installed more than 30 feet below such surface.
    (2) If the distance from the working surface to the net exceeds 30 
feet, employees shall be protected by personal fall arrest systems.
    (3) The safety net shall be installed such that any fall from the 
working surface to the net is unobstructed.
    (4) Except as provided in this subsection, safety nets and net 
installations shall be drop-tested at the jobsite after initial 
installation and before being used as a fall protection system, whenever 
relocated, after major repair, and at six-month intervals if left in one 
place. The drop-test shall consist of a 400-pound bag of sand 30 inches, 
plus or minus two inches, in diameter dropped into the net from the 
highest (but not less than 3\1/2\ feet) working surface on which 
employees are to be protected.
    (i) When the railroad or railroad contractor demonstrates that a 
drop-test is not feasible and, as a result, the test is not performed, 
the railroad or railroad contractor, or designated competent person, 
shall certify that the net and its installation are in compliance with 
the provisions of this section by preparing a certification record prior 
to use of the net.
    (ii) The certification shall include an identification of the net, 
the date it was determined that the net was in compliance with this 
section, and the signature of the person making this determination. Such 
person's signature shall certify that the net and its installation are 
in compliance with this section. The most recent certification for each 
net installation shall be available at the jobsite where the subject net 
is located.
    (5) Safety nets and their installations shall be capable of 
absorbing an impact force equal to that produced by the drop test 
specified in this section.
    (6) The safety net shall be installed such that there is no contact 
with surfaces or structures below the net when subjected to an impact 
force equal to the drop test specified in this section.
    (7) Safety nets shall extend outward from the outermost projection 
of the work surface as follows:
    (i) When the vertical distance from the working level to the 
horizontal plane of the net is 5 feet or less, the minimum required 
horizontal distance of the outer edge of the net beyond the edge of the 
working surface is 8 feet.
    (ii) When the vertical distance from the working level to the 
horizontal plane of the net is more than 5 feet, but less than 10 feet, 
the minimum required horizontal distance of the outer edge of the net 
beyond the edge of the working surface is 10 feet.
    (iii) When the vertical distance from the working level to the 
horizontal plane of the net is more than 10 feet, the minimum required 
horizontal distance of the outer edge of the net beyond the edge of the 
working surface is 13 feet.
    (8) Defective nets shall not be used. Safety nets shall be inspected 
at least once a week for mildew, wear, damage, and other deterioration. 
Defective components shall be removed permanently from service.
    (9) Safety nets shall be inspected after any occurrence that could 
affect the integrity of the safety net system.
    (10) Tools, scraps, or other materials that have fallen into the 
safety net shall be removed as soon as possible, and at least before the 
next work shift.
    (11) Each safety net shall have a border rope for webbing with a 
minimum breaking strength of 5,000 pounds.
    (12) The maximum size of each safety net mesh opening shall not 
exceed 36 square inches and shall not be longer than 6 inches on any 
side measured center-to-center of mesh ropes or webbing. All mesh 
crossing shall be secured to prevent enlargement of the mesh opening.

[[Page 129]]

    (13) Connections between safety net panels shall be as strong as 
integral net components and shall be spaced not more than 6 inches 
apart.



Sec. 214.107  Working over or adjacent to water.

    (a) Employees working over or adjacent to water with a depth of four 
feet or more, or where the danger of drowning exists, shall be provided 
and shall use life vests or buoyant work vests in compliance with U.S. 
Coast Guard requirements in 46 CFR 160.047, 160.052, and 160.053. Life 
preservers in compliance with U.S. Coast Guard requirements in 46 CFR 
160.055 shall also be within ready access. This section shall not apply 
to employees using personal fall arrest systems or safety nets that 
comply with this subpart.
    (b) Life vests or bouyant work vests shall not be required when 
employees are conducting inspections that involve climbing structures 
above or below the bridge deck.
    (c) Prior to each use, all flotation devices shall be inspected for 
defects that reduce their strength or bouyancy by designated individuals 
trained by the railroad or railroad contractor. Defective units shall 
not be used.
    (d) Where life vests are required by paragraph (a) of this section, 
ring buoys with at least 90 feet of line shall be provided and readily 
available for emergency rescue operations. Distance between ring buoys 
shall not exceed 200 feet.
    (e) Where life vests are required, at least one lifesaving skiff, 
inflatable boat, or equivalent device shall be immediately available. If 
it is determined by a competent person that environmental conditions, 
including weather, water speed, and terrain, merit additional 
protection, the skiff or boat shall be manned.



Sec. 214.109  Scaffolding.

    (a) Scaffolding used in connection with railroad bridge maintenance, 
inspection, testing, and construction shall be constructed and 
maintained in a safe condition and meet the following minimum 
requirements:
    (1) Each scaffold and scaffold component, except suspension ropes 
and guardrail systems, but including footings and anchorage, shall be 
capable of supporting, without failure, its own weight and at least four 
times the maximum intended load applied or transmitted to that scaffold 
or scaffold component.
    (2) Guardrail systems shall be capable of withstanding, without 
failure, a force of at least 200 pounds applied within two inches of the 
top edge, in any outward or downward direction, at any point along the 
top edge.
    (3) Top edge height of toprails, or equivalent guardrail system 
member, shall be 42 inches, plus or minus three inches. Supports shall 
be at intervals not to exceed eight feet. Toeboards shall be a minimum 
of four inches in height.
    (4) Midrails, screens, mesh, intermediate vertical members, solid 
panels, and equivalent structural members shall be capable of 
withstanding, without failure, a force of at least 150 pounds applied in 
any downward or outward direction at any point along the midrail or 
other member.
    (5) Midrails shall be installed at a height midway between the top 
edge of the guardrail system and the walking/working level.
    (b) Scaffolds shall not be altered or moved while they are occupied. 
This paragraph does not apply to vertical movements of mobile scaffolds 
that are designed to move vertically while occupied.
    (c) An access ladder or equivalent safe access shall be provided.
    (d) All exposed surfaces shall be prepared and cleared to prevent 
injury due to laceration, puncture, tripping, or falling hazard.
    (e) All scaffold design, construction, and repair shall be completed 
by competent individuals trained and knowledgeable about design 
criteria, intended use, structural limitations, and procedures for 
proper repair.
    (f) Manually propelled mobile ladder stands and scaffolds shall 
conform to the following:
    (1) All manually propelled mobile ladder stands and scaffolds shall 
be capable of carrying the design load.
    (2) All ladder stands, scaffolds, and scaffold components shall be 
capable of supporting, without failure, displacement, or settlement, its 
own weight

[[Page 130]]

and at least four times the maximum intended load applied or transmitted 
to that ladder stand, scaffold, or scaffold component.
    (3) All exposed surfaces shall be free from sharp edges or burrs.
    (4) The maximum work level height shall not exceed four times the 
minimum or least base dimensions of any mobile ladder stand or scaffold. 
Where the basic mobile unit does not meet this requirement, suitable 
outrigger frames shall be employed to achieve this least base dimension, 
or equivalent provisions shall be made to guy or brace the unit against 
tipping.
    (5) The minimum platform width for any work level shall not be less 
than 20 inches for mobile scaffolds (towers). Ladder stands shall have a 
minimum step width of 16 inches. The steps of ladder stands shall be 
fabricated from slip resistant treads.
    (6) Guardrails and midrails shall conform to the requirements listed 
in paragraph (a) of this section.
    (7) A climbing ladder or stairway shall be provided for proper 
access and egress, and shall be affixed or built into the scaffold and 
so located that in its use it will not have a tendency to tip the 
scaffold.
    (8) Wheels or casters shall be capable of supporting, without 
failure, at least four times the maximum intended load applied or 
transmitted to that component. All scaffold casters shall be provided 
with a positive wheel and/or swivel lock to prevent movement. Ladder 
stands shall have at least two of the four casters and shall be of the 
swivel type.



Sec. 214.111  Personal protective equipment, generally.

    With the exception of foot protection, the railroad or railroad 
contractor shall provide and the employee shall use all appropriate 
personal protective equipment described in this subpart in all 
operations where there is exposure to hazardous conditions, or where 
this subpart indicates the need for using such equipment to reduce 
hazards to railroad employees. The railroad or railroad contractor shall 
require the use of foot protection when the potential for foot injury 
exists.

[59 FR 30883, June 16, 1994]



Sec. 214.113  Head protection.

    (a) Railroad employees working in areas where there is a possible 
danger of head injury from impact, or from falling or flying objects, or 
from electrical shock and burns, shall be provided and shall wear 
protective helmets.
    (b) Helmets for the protection of railroad employees against impact 
and penetration of falling and flying objects, or from high voltage 
electrical shock and burns shall conform to the national consensus 
standards for industrial head protection (American National Standards 
Institute, American National Standard Z89.1-1986, Protective Headwear 
for Industrial Workers). This incorporation by reference was approved by 
the Director of the Federal Register in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. Copies may be obtained from the American National 
Standards Institute, 11 West 42nd Street, New York, NY 10036. Copies may 
be inspected at the Federal Railroad Administration, Docket Clerk, 400 
7th Street, SW., Washington, DC, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.

[57 FR 28127, June 24, 1992, as amended at 59 FR 30883, June 16, 1994]



Sec. 214.115  Foot protection.

    (a) The railroad or railroad contractor shall require railroad 
employees to wear foot protection equipment when potential foot injury 
may result from impact, falling or flying objects, electrical shock or 
burns, or other hazardous condition.
    (b) Safety-toe footwear for railroad employees shall conform to the 
national consensus standards for safety-toe footwear (American National 
Standards Institute, American National Standard Z41-1991, Standard for 
Personal Protection--Protective Footwear). This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
obtained from the American National Standards Institute, 11 West 42nd 
Street, New York, NY 10036. Copies may be inspected at the Federal 
Railroad Administration, Docket

[[Page 131]]

Clerk, 400 7th Street, SW., Washington, DC, or at the Office of the 
Federal Register, 800 North Capitol Street, NW., suite 700, Washington, 
DC.

[57 FR 28127, June 24, 1992, as amended at 59 FR 30883, June 16, 1994]



Sec. 214.117  Eye and face protection.

    (a) Railroad employees shall be provided and shall wear eye and face 
protection equipment when potential eye or face injury may result from 
physical, chemical, or radiant agents.
    (b) Eye and face protection equipment required by this section shall 
conform to the national consensus standards for occupational and 
educational eye and face protection (American National Standards 
Institute, American National Standard Z87.1-1989, Practice for 
Occupational and Educational Eye and Face Protection). This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the American National Standards Institute, 11 West 
42nd Street, New York, NY 10036. Copies may be inspected at the Federal 
Railroad Administration, Docket Clerk, 400 7th Street, SW., Washington, 
DC, or at the Office of the Federal Register, 800 North Capitol Street, 
NW., suite 700, Washington, DC.
    (c) Face and eye protection equipment required by this section shall 
be kept clean and in good repair. Use of equipment with structural or 
optical defects is prohibited.
    (d) Railroad employees whose vision requires the use of corrective 
lenses, when required by this regulation to wear eye protection, shall 
be protected by goggles or spectacles of one of the following types:
    (i) Spectacles whose protective lenses provide optical correction 
the frame of which includes shielding against objects reaching the 
wearer's eyes around the lenses;
    (ii) Goggles that can be worn over corrective lenses without 
disturbing the adjustment of the lenses; or
    (iii) Goggles that incorporate corrective lenses mounted behind the 
protective lenses.

[57 FR 28127, June 24, 1992, as amended at 59 FR 30884, June 16, 1994]



                  Subpart C--Roadway Worker Protection

    Source: 61 FR 65976, Dec. 16, 1996, unless otherwise noted.



Sec. 214.301  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties caused by moving railroad cars, locomotives or roadway 
maintenance machines striking roadway workers or roadway maintenance 
machines.
    (b) This subpart prescribes minimum safety standards for roadway 
workers. Each railroad and railroad contractor may prescribe additional 
or more stringent operating rules, safety rules, and other special 
instructions that are consistent with this subpart.
    (c) This subpart prescribes safety standards related to the movement 
of roadway maintenance machines where such movements affect the safety 
of roadway workers. This subpart does not otherwise affect movements of 
roadway maintenance machines that are conducted under the authority of a 
train dispatcher, a control operator, or the operating rules of the 
railroad.



Sec. 214.302  Information and collection requirements.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995, Public Law 104-13, Sec. 2, 109 Stat.163 
(1995) (codified as revised at 44 U.S.C. Secs. 3501-3520), and are 
assigned OMB control number 2130-0539. FRA may not conduct or sponsor 
and a respondent is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.
    (b) The information collection requirements are found in the 
following sections: Secs. 214.303, 214.307, 214.309, 214.311, 214.313, 
214.315, 214.319, 214.321,

[[Page 132]]

214.323, 214.325, 214.327, 214.329, 214.331, 214.335, 214.341.



Sec. 214.303  Railroad on-track safety programs, generally.

    (a) Each railroad to which this part applies shall adopt and 
implement a program that will afford on-track safety to all roadway 
workers whose duties are performed on that railroad. Each such program 
shall provide for the levels of protection specified in this subpart.
    (b) Each on-track safety program adopted to comply with this part 
shall include procedures to be used by each railroad for monitoring 
effectiveness of and compliance with the program.



Sec. 214.305  Compliance dates.

    Each program adopted by a railroad shall comply not later than the 
date specified in the following schedule:
    (a) For each Class I railroad (including National Railroad Passenger 
Corporation) and each railroad providing commuter service in a 
metropolitan or suburban area, March 15, 1997.
    (b) For each Class II railroad, April 15, 1997.
    (c) For each Class III railroad, switching and terminal railroad, 
and any railroad not otherwise classified, May 15, 1997.
    (d) For each railroad commencing operations after the pertinent date 
specified in this section, the date on which operations commence.



Sec. 214.307  Review and approval of individual on-track safety programs by FRA.

    (a) Each railroad shall notify, in writing, the Associate 
Administrator for Safety, Federal Railroad Administration, RRS-15, 400 
Seventh Street SW, Washington, DC 20590, not less than one month before 
its on-track safety program becomes effective. The notification shall 
include the effective date of the program, the address of the office at 
which the program documents are available for review and photocopying by 
representatives of the Federal Railroad Administrator, and the name, 
title, address and telephone number of the primary person to be 
contacted with regard to review of the program. This notification 
procedure shall also apply to subsequent changes to a railroad's on-
track safety program.
    (b) After receipt of the notification from the railroad, the Federal 
Railroad Administration will conduct a formal review of the on-track 
safety program. The Federal Railroad Administration will notify the 
primary railroad contact person of the results of the review, in 
writing, whether the on-track safety program or changes to the program 
have been approved by the Administrator, and if not approved, the 
specific points in which the program or changes are deficient.
    (c) A railroad's on-track safety program will take effect by the 
established compliance dates in Sec. 214.305, without regard to the date 
of review or approval by the Federal Railroad Administration. Changes to 
a railroad's program will take effect on dates established by each 
railroad without regard to the date of review and approval by the 
Federal Railroad Administration.



Sec. 214.309  On-track safety program documents.

    Rules and operating procedures governing track occupancy and 
protection shall be maintained together in one manual and be readily 
available to all roadway workers. Each roadway worker responsible for 
the on-track safety of others, and each lone worker, shall be provided 
with and shall maintain a copy of the program document.



Sec. 214.311  Responsibility of employers.

    (a) Each employer is responsible for the understanding and 
compliance by its employees with its rules and the requirements of this 
part.
    (b) Each employer shall guarantee each employee the absolute right 
to challenge in good faith whether the on-track safety procedures to be 
applied at the job location comply with the rules of the operating 
railroad, and to remain clear of the track until the challenge is 
resolved.
    (c) Each employer shall have in place a written procedure to achieve 
prompt and equitable resolution of challenges made in accordance with 
Secs. 214.311(b) and 214.313(d).

[[Page 133]]



Sec. 214.313  Responsibility of individual roadway workers.

    (a) Each roadway worker is responsible for following the on-track 
safety rules of the railroad upon which the roadway worker is located.
    (b) A roadway worker shall not foul a track except when necessary 
for the performance of duty.
    (c) Each roadway worker is responsible to ascertain that on-track 
safety is being provided before fouling a track.
    (d) Each roadway worker may refuse any directive to violate an on-
track safety rule, and shall inform the employer in accordance with 
Sec. 214.311 whenever the roadway worker makes a good faith 
determination that on-track safety provisions to be applied at the job 
location do not comply with the rules of the operating railroad.



Sec. 214.315  Supervision and communication.

    (a) When an employer assigns duties to a roadway worker that call 
for that employee to foul a track, the employer shall provide the 
employee with a job briefing that includes information on the means by 
which on-track safety is to be provided, and instruction on the on-track 
safety procedures to be followed.
    (b) A job briefing for on-track safety shall be deemed complete only 
after the roadway worker has acknowledged understanding of the on-track 
safety procedures and instructions presented.
    (c) Every roadway work group whose duties require fouling a track 
shall have one roadway worker designated by the employer to provide on-
track safety for all members of the group. The designated person shall 
be qualified under the rules of the railroad that conducts train 
operations on those tracks to provide the protection necessary for on-
track safety of each individual in the group. The responsible person may 
be designated generally, or specifically for a particular work 
situation.
    (d) Before any member of a roadway work group fouls a track, the 
designated person providing on-track safety for the group under 
paragraph (c) of this section shall inform each roadway worker of the 
on- track safety procedures to be used and followed during the 
performance of the work at that time and location. Each roadway worker 
shall again be so informed at any time the on-track safety procedures 
change during the work period. Such information shall be given to all 
roadway workers affected before the change is effective, except in cases 
of emergency. Any roadway workers who, because of an emergency, cannot 
be notified in advance shall be immediately warned to leave the fouling 
space and shall not return to the fouling space until on-track safety is 
re-established.
    (e) Each lone worker shall communicate at the beginning of each duty 
period with a supervisor or another designated employee to receive a job 
briefing and to advise of his or her planned itinerary and the 
procedures that he or she intends to use for on-track safety. When 
communication channels are disabled, the job briefing shall be conducted 
as soon as possible after the beginning of the work period when 
communications are restored.



Sec. 214.317  On-track safety procedures, generally.

    Each employer subject to the provisions of this part shall provide 
on-track safety for roadway workers by adopting a program that contains 
specific rules for protecting roadway workers that comply with the 
provisions of Secs. 214.319 through 214.337 of this part.



Sec. 214.319  Working limits, generally.

    Working limits established on controlled track shall conform to the 
provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323 
Foul time, or Sec. 214. 325 Train coordination. Working limits 
established on non-controlled track shall conform to the provision of 
Sec. 214.327 Inaccessible track. Working limits established under any 
procedure shall, in addition, conform to the following provisions:
    (a) Only a roadway worker who is qualified in accordance with 
Sec. 214.353 of this part shall establish or have control over working 
limits for the purpose of establishing on-track safety.
    (b) Only one roadway worker shall have control over working limits 
on any one segment of track.

[[Page 134]]

    (c) All affected roadway workers shall be notified before working 
limits are released for the operation of trains. Working limits shall 
not be released until all affected roadway workers have either left the 
track or have been afforded on-track safety through train approach 
warning in accordance with Sec. 214.329 of this subpart.



Sec. 214.321  Exclusive track occupancy.

    Working limits established on controlled track through the use of 
exclusive track occupancy procedures shall comply with the following 
requirements:
    (a) The track within working limits shall be placed under the 
control of one roadway worker by either:
    (1) Authority issued to the roadway worker in charge by the train 
dispatcher or control operator who controls train movements on that 
track,
    (2) Flagmen stationed at each entrance to the track within working 
limits and instructed by the roadway worker in charge to permit the 
movement of trains and equipment into the working limits only as 
permitted by the roadway worker in charge, or
    (3) The roadway worker in charge causing fixed signals at each 
entrance to the working limits to display an aspect indicating ``Stop.''
    (b) An authority for exclusive track occupancy given to the roadway 
worker in charge of the working limits shall be transmitted on a written 
or printed document directly, by relay through a designated employee, in 
a data transmission, or by oral communication, to the roadway worker by 
the train dispatcher or control operator in charge of the track.
    (1) Where authority for exclusive track occupancy is transmitted 
orally, the authority shall be written as received by the roadway worker 
in charge and repeated to the issuing employee for verification.
    (2) The roadway worker in charge of the working limits shall 
maintain possession of the written or printed authority for exclusive 
track occupancy while the authority for the working limits is in effect.
    (3) The train dispatcher or control operator in charge of the track 
shall make a written or electronic record of all authorities issued to 
establish exclusive track occupancy.
    (c) The extent of working limits established through exclusive track 
occupancy shall be defined by one of the following physical features 
clearly identifiable to a locomotive engineer or other person operating 
a train or railroad equipment:
    (1) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits;
    (2) A fixed signal that displays an aspect indicating ``Stop'';
    (3) A station shown in the time-table, and identified by name with a 
sign, beyond which train movement is prohibited by train movement 
authority or the provisions of a direct train control system.
    (4) A clearly identifiable milepost sign beyond which train movement 
is prohibited by train movement authority or the provisions of a direct 
train control system; or
    (5) A clearly identifiable physical location prescribed by the 
operating rules of the railroad that trains may not pass without proper 
authority.
    (d) Movements of trains and roadway maintenance machines within 
working limits established through exclusive track occupancy shall be 
made only under the direction of the roadway worker having control over 
the working limits. Such movements shall be restricted speed unless a 
higher speed has been specifically authorized by the roadway worker in 
charge of the working limits.



Sec. 214.323  Foul time.

    Working limits established on controlled track through the use of 
foul time procedures shall comply with the following requirements:
    (a) Foul time may be given orally or in writing by the train 
dispatcher or control operator only after that employee has withheld the 
authority of all trains to move into or within the working limits during 
the foul time period.
    (b) Each roadway worker to whom foul time is transmitted orally 
shall repeat the track number, track limits and time limits of the foul 
time to the issuing employee for verification before the foul time 
becomes effective.

[[Page 135]]

    (c) The train dispatcher or control operator shall not permit the 
movement of trains or other on-track equipment onto the working limits 
protected by foul time until the roadway worker who obtained the foul 
time has reported clear of the track.



Sec. 214.325  Train coordination.

    Working limits established by a roadway worker through the use of 
train coordination shall comply with the following requirements:
    (a) Working limits established by train coordination shall be within 
the segments of track or tracks upon which only one train holds 
exclusive authority to move.
    (b) The roadway worker who establishes working limits by train 
coordination shall communicate with a member of the crew of the train 
holding the exclusive authority to move, and shall determine that:
    (1) The train is visible to the roadway worker who is establishing 
the working limits,
    (2) The train is stopped,
    (3) Further movements of the train will be made only as permitted by 
the roadway worker in charge of the working limits while the working 
limits remain in effect, and
    (4) The crew of the train will not give up its exclusive authority 
to move until the working limits have been released to the train crew by 
the roadway worker in charge of the working limits.



Sec. 214.327  Inaccessible track.

    (a) Working limits on non-controlled track shall be established by 
rendering the track within working limits physically inaccessible to 
trains at each possible point of entry by one of the following features:
    (1) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits;
    (2) A switch or derail aligned to prevent access to the working 
limits and secured with an effective securing device by the roadway 
worker in charge of the working limits;
    (3) A discontinuity in the rail that precludes passage of trains or 
engines into the working limits;
    (4) Working limits on controlled track that connects directly with 
the inaccessible track, established by the roadway worker in charge of 
the working limits on the inaccessible track; or
    (5) A remotely controlled switch aligned to prevent access to the 
working limits and secured by the control operator of such remotely 
controlled switch by application of a locking or blocking device to the 
control of that switch, when:
    (i) The control operator has secured the remotely controlled switch 
by applying a locking or blocking device to the control of the switch, 
and
    (ii) The control operator has notified the roadway worker who has 
established the working limits that the requested protection has been 
provided, and
    (iii) The control operator is not permitted to remove the locking or 
blocking device from the control of the switch until receiving 
permission to do so from the roadway worker who established the working 
limits.
    (b) Trains and roadway maintenance machines within working limits 
established by means of inaccessible track shall move only under the 
direction of the roadway worker in charge of the working limits, and 
shall move at restricted speed.
    (c) No operable locomotives or other items of on-track equipment, 
except those present or moving under the direction of the roadway worker 
in charge of the working limits, shall be located within working limits 
established by means of inaccessible track.



Sec. 214.329  Train approach warning provided by watchmen/lookouts.

    Roadway workers in a roadway work group who foul any track outside 
of working limits shall be given warning of approaching trains by one or 
more watchmen/lookouts in accordance with the following provisions:
    (a) Train approach warning shall be given in sufficient time to 
enable each roadway worker to move to and occupy a previously arranged 
place of safety not less than 15 seconds before a train moving at the 
maximum speed authorized on that track can pass the location of the 
roadway worker.

[[Page 136]]

    (b) Watchmen/lookouts assigned to provide train approach warning 
shall devote full attention to detecting the approach of trains and 
communicating a warning thereof, and shall not be assigned any other 
duties while functioning as watchmen/lookouts.
    (c) The means used by a watchman/lookout to communicate a train 
approach warning shall be distinctive and shall clearly signify to all 
recipients of the warning that a train or other on-track equipment is 
approaching.
    (d) Every roadway worker who depends upon train approach warning for 
on-track safety shall maintain a position that will enable him or her to 
receive a train approach warning communicated by a watchman/lookout at 
any time while on-track safety is provided by train approach warning.
    (e) Watchmen/lookouts shall communicate train approach warnings by a 
means that does not require a warned employee to be looking in any 
particular direction at the time of the warning, and that can be 
detected by the warned employee regardless of noise or distraction of 
work.
    (f) Every roadway worker who is assigned the duties of a watchman/
lookout shall first be trained, qualified and designated in writing by 
the employer to do so in accordance with the provisions of Sec. 214.349.
    (g) Every watchman/lookout shall be provided by the employer with 
the equipment necessary for compliance with the on-track safety duties 
which the watchman/lookout will perform.



Sec. 214.331  Definite train location.

    A roadway worker may establish on-track safety by using definite 
train location only where permitted by and in accordance with the 
following provisions:
    (a) A Class I railroad or a commuter railroad may only use definite 
train location to establish on-track safety at points where such 
procedures were in use on January 15, 1997.
    (b) Each Class I or commuter railroad shall include in its on-track 
safety program for approval by FRA in accordance with Sec. 214.307 of 
this part a schedule for phase-out of the use of definite train location 
to establish on-track safety.
    (c) A railroad other than a Class I or commuter railroad may use 
definite train location to establish on-track safety on subdivisions 
only where:
    (1) Such procedures were in use on January 15, 1997, or
    (2) The number of trains operated on the subdivision does not 
exceed:
    (i) Three during any nine-hour period in which roadway workers are 
on duty, and
    (ii) Four during any twelve-hour period in which roadway workers are 
on duty.
    (d) Definite train location shall only be used to establish on-track 
safety according to the following provisions:
    (1) Definite train location information shall be issued only by the 
one train dispatcher who is designated to authorize train movements over 
the track for which the information is provided.
    (2) A definite train location list shall indicate all trains to be 
operated on the track for which the list is provided, during the time 
for which the list is effective.
    (3) Trains not shown on the definite train location list shall not 
be operated on the track for which the list is provided, during the time 
for which the list is effective, until each roadway worker to whom the 
list has been issued has been notified of the train movement, has 
acknowledged the notification to the train dispatcher, and has canceled 
the list. A list thus canceled shall then be invalid for on-track 
safety.
    (4) Definite train location shall not be used to establish on-track 
safety within the limits of a manual interlocking, or on track over 
which train movements are governed by a Traffic Control System or by a 
Manual Block System.
    (5) Roadway workers using definite train location for on-track 
safety shall not foul a track within ten minutes before the earliest 
time that a train is due to depart the last station at which time is 
shown in approach to the roadway worker's location nor until that train 
has passed the location of the roadway worker.
    (6) A railroad shall not permit a train to depart a location 
designated in a

[[Page 137]]

definite train location list before the time shown therein.
    (7) Each roadway worker who uses definite train location to 
establish on-track safety must be qualified on the relevant physical 
characteristics of the territory for which the train location 
information is provided.



Sec. 214.333  Informational line-ups of trains.

    (a) A railroad is permitted to include informational line-ups of 
trains in its on-track safety program for use only on subdivisions of 
that railroad upon which such procedure was in effect on March 14, 1996.
    (b) Each procedure for the use of informational line-ups of trains 
found in an on-track safety program shall include all provisions 
necessary to protect roadway workers using the procedure against being 
struck by trains or other on-track equipment.
    (c) Each on-track safety program that provides for the use of 
informational line-ups shall include a schedule for discontinuance of 
the procedure by a definite date.



Sec. 214.335  On-track safety procedures for roadway work groups.

    (a) No employer subject to the provisions of this part shall require 
or permit a roadway worker who is a member of a roadway work group to 
foul a track unless on-track safety is provided by either working 
limits, train approach warning, or definite train location in accordance 
with the applicable provisions of Secs. 214.319, 214.321, 213.323, 
214.325, 214.327, 214.329 and 214.331 of this part.
    (b) No roadway worker who is a member of a roadway work group shall 
foul a track without having been informed by the roadway worker 
responsible for the on-track safety of the roadway work group that on-
track safety is provided.
    (c) Roadway work groups engaged in large-scale maintenance or 
construction shall be provided with train approach warning in accordance 
with Sec. 214.327 for movements on adjacent tracks that are not included 
within working limits.



Sec. 214.337  On-track safety procedures for lone workers.

    (a) A lone worker who fouls a track while performing routine 
inspection or minor correction may use individual train detection to 
establish on-track safety only where permitted by this section and the 
on-track safety program of the railroad.
    (b) A lone worker retains an absolute right to use on-track safety 
procedures other than individual train detection if he or she deems it 
necessary, and to occupy a place of safety until such other form of on-
track safety can be established.
    (c) Individual train detection may be used to establish on-track 
safety only:
    (1) By a lone worker who has been trained, qualified, and designated 
to do so by the employer in accordance with Sec. 214.347 of this 
subpart;
    (2) While performing routine inspection and minor correction work;
    (3) On track outside the limits of a manual interlocking, a 
controlled point, or a remotely controlled hump yard facility;
    (4) Where the lone worker is able to visually detect the approach of 
a train moving at the maximum speed authorized on that track, and move 
to a previously determined place of safety, not less than 15 seconds 
before the train would arrive at the location of the lone worker;
    (5) Where no power-operated tools or roadway maintenance machines 
are in use within the hearing of the lone worker; and
    (6) Where the ability of the lone worker to hear and see approaching 
trains and other on-track equipment is not impaired by background noise, 
lights, precipitation, fog, passing trains, or any other physical 
conditions.
    (d) The place of safety to be occupied by a lone worker upon the 
approach of a train may not be on a track, unless working limits are 
established on that track.
    (e) A lone worker using individual train detection for on-track 
safety while fouling a track may not occupy a position or engage in any 
activity that would interfere with that worker's ability to maintain a 
vigilant lookout for, and detect the approach of, a train

[[Page 138]]

moving in either direction as prescribed in this section.
    (f) A lone worker who uses individual train detection to establish 
on-track safety shall first complete a written Statement of On-track 
Safety. The Statement shall designate the limits of the track for which 
it is prepared and the date and time for which it is valid. The 
statement shall show the maximum authorized speed of trains within the 
limits for which it is prepared, and the sight distance that provides 
the required warning of approaching trains. The lone worker using 
individual train detection to establish on-track safety shall produce 
the Statement of On-track Safety when requested by a representative of 
the Federal Railroad Administrator.



Sec. 214.339  Audible warning from trains.

    Each railroad shall require that the locomotive whistle be sounded, 
and the locomotive bell be rung, by trains approaching roadway workers 
on or about the track. Such audible warning shall not substitute for on-
track safety procedures prescribed in this part.



Sec. 214.341  Roadway maintenance machines.

    (a) Each employer shall include in its on-track safety program 
specific provisions for the safety of roadway workers who operate or 
work near roadway maintenance machines. Those provisions shall address:
    (1) Training and qualification of operators of roadway maintenance 
machines.
    (2) Establishment and issuance of safety procedures both for general 
application and for specific types of machines.
    (3) Communication between machine operators and roadway workers 
assigned to work near or on roadway maintenance machines.
    (4) Spacing between machines to prevent collisions.
    (5) Space between machines and roadway workers to prevent personal 
injury.
    (6) Maximum working and travel speeds for machines dependent upon 
weather, visibility, and stopping capabilities.
    (b) Instructions for the safe operation of each roadway machine 
shall be provided and maintained with each machine large enough to carry 
the instruction document.
    (1) No roadway worker shall operate a roadway maintenance machine 
without having been trained in accordance with Sec. 214.355.
    (2) No roadway worker shall operate a roadway maintenance machine 
without having complete knowledge of the safety instructions applicable 
to that machine.
    (3) No employer shall assign roadway workers to work near roadway 
machines unless the roadway worker has been informed of the safety 
procedures applicable to persons working near the roadway machines and 
has acknowledged full understanding.
    (c) Components of roadway maintenance machines shall be kept clear 
of trains passing on adjacent tracks. Where operating conditions permit 
roadway maintenance machines to be less than four feet from the rail of 
an adjacent track, the on-track safety program of the railroad shall 
include the procedural instructions necessary to provide adequate 
clearance between the machine and passing trains.



Sec. 214.343  Training and qualification, general.

    (a) No employer shall assign an employee to perform the duties of a 
roadway worker, and no employee shall accept such assignment, unless 
that employee has received training in the on-track safety procedures 
associated with the assignment to be performed, and that employee has 
demonstrated the ability to fulfill the responsibilities for on-track 
safety that are required of an individual roadway worker performing that 
assignment.
    (b) Each employer shall provide to all roadway workers in its employ 
initial or recurrent training once every calendar year on the on-track 
safety rules and procedures that they are required to follow.
    (c) Railroad employees other than roadway workers, who are 
associated with on-track safety procedures, and whose primary duties are 
concerned with the movement and protection of trains, shall be trained 
to perform

[[Page 139]]

their functions related to on-track safety through the training and 
qualification procedures prescribed by the operating railroad for the 
primary position of the employee, including maintenance of records and 
frequency of training.
    (d) Each employer of roadway workers shall maintain written or 
electronic records of each roadway worker qualification in effect. Each 
record shall include the name of the employee, the type of qualification 
made, and the most recent date of qualification. These records shall be 
kept available for inspection and photocopying by the Federal Railroad 
Administrator during regular business hours.



Sec. 214.345  Training for all roadway workers.

    The training of all roadway workers shall include, as a minimum, the 
following:
    (a) Recognition of railroad tracks and understanding of the space 
around them within which on-track safety is required.
    (b) The functions and responsibilities of various persons involved 
with on-track safety procedures.
    (c) Proper compliance with on-track safety instructions given by 
persons performing or responsible for on-track safety functions.
    (d) Signals given by watchmen/lookouts, and the proper procedures 
upon receiving a train approach warning from a lookout.
    (e) The hazards associated with working on or near railroad tracks, 
including review of on-track safety rules and procedures.



Sec. 214.347  Training and qualification for lone workers.

    Each lone worker shall be trained and qualified by the employer to 
establish on-track safety in accordance with the requirements of this 
section, and must be authorized to do so by the railroad that conducts 
train operations on those tracks.
    (a) The training and qualification for lone workers shall include, 
as a minimum, consideration of the following factors:
    (1) Detection of approaching trains and prompt movement to a place 
of safety upon their approach.
    (2) Determination of the distance along the track at which trains 
must be visible in order to provide the prescribed warning time.
    (3) Rules and procedures prescribed by the railroad for individual 
train detection, establishment of working limits, and definite train 
location.
    (4) On-track safety procedures to be used in the territory on which 
the employee is to be qualified and permitted to work alone.
    (b) Initial and periodic qualification of a lone worker shall be 
evidenced by demonstrated proficiency.



Sec. 214.349  Training and qualification of watchmen/lookouts.

    (a) The training and qualification for roadway workers assigned the 
duties of watchmen/lookouts shall include, as a minimum, consideration 
of the following factors:
    (1) Detection and recognition of approaching trains.
    (2) Effective warning of roadway workers of the approach of trains.
    (3) Determination of the distance along the track at which trains 
must be visible in order to provide the prescribed warning time.
    (4) Rules and procedures of the railroad to be used for train 
approach warning.
    (b) Initial and periodic qualification of a watchman/lookout shall 
be evidenced by demonstrated proficiency.



Sec. 214.351  Training and qualification of flagmen.

    (a) The training and qualification for roadway workers assigned the 
duties of flagmen shall include, as a minimum, the content and 
application of the operating rules of the railroad pertaining to giving 
proper stop signals to trains and holding trains clear of working 
limits.
    (b) Initial and periodic qualification of a flagman shall be 
evidenced by demonstrated proficiency.

[[Page 140]]



Sec. 214.353  Training and qualification of roadway workers who provide on-track safety for roadway work groups.

    (a) The training and qualification of roadway workers who provide 
for the on-track safety of groups of roadway workers through 
establishment of working limits or the assignment and supervision of 
watchmen/lookouts or flagmen shall include, as a minimum:
    (1) All the on-track safety training and qualification required of 
the roadway workers to be supervised and protected.
    (2) The content and application of the operating rules of the 
railroad pertaining to the establishment of working limits.
    (3) The content and application of the rules of the railroad 
pertaining to the establishment or train approach warning.
    (4) The relevant physical characteristics of the territory of the 
railroad upon which the roadway worker is qualified.
    (b) Initial and periodic qualification of a roadway worker to 
provide on track safety for groups shall be evidenced by a recorded 
examination.



Sec. 214.355  Training and qualification in on-track safety for operators of roadway maintenance machines.

    (a) The training and qualification of roadway workers who operate 
roadway maintenance machines shall include, as a minimum:
    (1) Procedures to prevent a person from being struck by the machine 
when the machine is in motion or operation.
    (2) Procedures to prevent any part of the machine from being struck 
by a train or other equipment on another track.
    (3) Procedures to provide for stopping the machine short of other 
machines or obstructions on the track.
    (4) Methods to determine safe operating procedures for each machine 
that the operator is expected to operate.
    (b) Initial and periodic qualification of a roadway worker to 
operate roadway maintenance machines shall be evidenced by demonstrated 
proficiency.

         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                    Section                      Violation     Willful
------------------------------------------------------------------------
   Subpart B--Bridge Worker Safety Standards
 
214.103 Fall protection:
  (i) Failure to provide fall protection......       $5,000      $10,000
  (ii) Failure to use fall protection.........  ...........        2,500
214.105 Standards and practices:
  (a) General:
    (1) Fall protection used for other                2,500        5,000
     purposes.................................
    (2) Failure to remove from service........        2,500        5,000
    (3) Failure to protect from deterioration.        2,500        5,000
    (4) Failure to inspect and remove.........        5,000       10,000
    (5) Failure to train......................        5,000       10,000
    (6) Failure to provide for prompt rescue..        5,000       10,000
    (7) Failure to prevent damage.............        2,500        5,000
    (8) Failure to use proper connectors......        2,500        5,000
    (9) Failure to use proper anchorages......        2,500        5,000
  (b) Fall arrest system:
    (1)-(17) Failure to provide conforming            2,500        5,000
     equipment................................
  (c) Safety net systems:
    (1) Failure to install close to workplace.        2,500        5,000
    (2) Failure to provide fall arrest if over        5,000       10,000
     30 feet..................................
    (3) Failure to provide for unobstructed           5,000       10,000
     fall.....................................
    (4) Failure to test.......................        2,500        5,000
    (5) Failure to use proper equipment.......        2,500        5,000
    (6) Failure to prevent contact with               5,000       10,000
     surface below............................
    (7) Failure to properly install...........        5,000       10,000
    (8) Failure to remove defective nets......        5,000       10,000
    (9) Failure to inspect....................        5,000       10,000
    (10) Failure to remove objects............        1,000        2,500
    (11)-(13) Failure to use conforming               2,500       10,000
     equipment................................
214.107 Working over water:
  (a)(i) Failure to provide life vest.........        5,000       10,000
    (ii) Failure to use life vest.............  ...........        1,500
  (c) Failure to inspect......................        2,500        5,000
  (e)(i) Failure to provide ring bouys........        5,000       10,000

[[Page 141]]

 
    (ii) Failure to use ring bouys............  ...........        1,500
  (f)(i) Failure to provide skiff.............        1,000        2,500
    (ii) Failure to use skiff.................  ...........        1,500
214.109 Scaffolding:
  (a)-(f) Failure to provide conforming               2,500        5,000
   equipment..................................
214.113 Head protection:
  (a)(i) Failure to provide...................        2,500        5,000
    (ii) Failure to use.......................  ...........        1,500
  (b) or (c) Failure to provide conforming            2,500        5,000
   equipment..................................
214.115 Foot protection:
  (a)(i) Failure to require use of............        2,500        5,000
    (ii) Failure to use.......................  ...........        1,500
214.117 Eye and face protection:
  (a)(i) Failure to provide...................        2,500        5,000
    (ii) Failure to use.......................  ...........        1,500
  (b) Failure to use conforming equipment.....        2,500        5,000
  (c) Use of defective equipment..............        2,500        5,000
  (d) Failure to provide for corrective lenses        2,500        5,000
  Subpart C-- Roadway Worker Protection Rule
 
214.303 Railroad on-track safety programs,
 generally:
  (a) Failure of a railroad to implement an On-      10,000       20,000
   track Safety Program.......................
  (b) On-track Safety Program of a railroad           5,000       10,000
   includes no internal monitoring procedure..
214.305 Compliance Dates:
  Failure of a railroad to comply by the              5,000       10,000
   specified dates............................
214.307 Review and approval of individual on-
 track safety programs by FRA:
  (a)(i) Failure to notify FRA of adoption of         1,000        5,000
   On-track Safety Program....................
    (ii) Failure to designate primary person          1,000        2,000
     to contact for program review............
214.309 On-track safety program documents:
  (1) On-track Safety Manual not provided to          2,000        5,000
   prescribed employees.......................
  (2) On-track Safety Program documents issued        2,000        5,000
   in fragments...............................
214.311 Responsibility of employers:
  (b) Roadway worker required by employer to          5,000       10,000
   foul a track during an unresolved challenge
  (c) Roadway workers not provided with               5,000       10,000
   written procedure to resolve challenges of
   on-track safety procedures.................
214.313 Responsibility of individual roadway
 workers:
  (b) Roadway worker fouling a track when not   ...........        1,000
   necessary in the performance of duty.......
  (c) Roadway worker fouling a track without    ...........        1,500
   ascertaining that provision is made for on-
   track safety...............................
  (d) Roadway worker failing to notify          ...........        3,000
   employer of determination of improper on-
   track safety provisions....................
214.315 Supervision and communication:
  (a) Failure of employer to provide job              2,000       10,000
   briefing...................................
  (b) Incomplete job briefing.................        2,000        5,000
  (c)(i) Failure to designate roadway worker          2,000        5,000
   in charge of roadway work group............
    (ii) Designation of more than one roadway         1,000        2,000
     worker in charge of one roadway work
     group....................................
    (iii) Designation of non-qualified roadway        3,000        6,000
     worker in charge of roadway work group...
  (d)(i) Failure to notify roadway workers of         3,000        6,000
   on-track safety procedures in effect.......
    (ii) Incorrect information provided to            3,000        6,000
     roadway workers regarding on-track safety
     procedures in effect.....................
    (iii) Failure to notify roadway workers of        3,000        6,000
     change in on-track safety procedures.....
  (e)(i) Failure of lone worker to communicate  ...........        1,500
   with designated employee for daily job
   briefing...................................
    (ii) Failure of employer to provide means         3,000        6,000
     for lone worker to receive daily job
     briefing.................................
214.317 On-track safety procedures, generally:
    On-track safety rules conflict with this          5,000       10,000
     part.....................................
214.319 Working limits, generally:
  (a) Non-qualified roadway worker in charge          5,000       10,000
   of working limits..........................
  (b) More than one roadway worker in charge          2,000        5,000
   of working limits on the same track segment
  (c)(1) Working limits released without              5,000       10,000
   notifying all affected roadway workers.....
    (2) Working limits released before all            5,000       10,000
     affected roadway workers are otherwise
     protected................................
214.321 Exclusive track occupancy:
  (b) Improper transmission of authority for          2,000        5,000
   exclusive track occupancy..................
  (b)(1) Failure to repeat authority for        ...........        1,500
   exclusive track occupancy to issuing
   employee...................................
    (2) Failure to retain possession of         ...........        1,000
     written authority for exclusive track
     occupancy................................
    (3) Failure to record authority for         ...........        2,000
     exclusive track occupancy when issued....
  (c) Limits of exclusive track occupancy not         2,000        4,000
   identified by proper physical features.....
  (d)(1) Movement authorized into limits of           5,000       10,000
   exclusive track occupancy without authority
   of roadway worker in charge................
    (2) Movement authorized within limits of          5,000       10,000
     exclusive track occupancy without
     authority of roadway worker in charge....
    (3) Movement within limits of exclusive           5,000       10,000
     track occupancy exceeding restricted
     speed without authority of roadway worker
     in charge................................
214.323 Foul time:
  (a) Foul time authority overlapping movement        5,000       10,000
   authority of train or equipment............

[[Page 142]]

 
  (b) Failure to repeat foul time authority to  ...........        1,500
   issuing employee...........................
214.325 Train coordination:
  (a) Train coordination limits established           1,500        4,000
   where more than one train is authorized to
   operate....................................
  (b)(1) Train coordination established with    ...........        1,500
   train not visible to roadway worker at the
   time.......................................
    (2) Train coordination established with     ...........        1,500
     moving train.............................
    (3) Coordinated train moving without              2,000        5,000
     authority of roadway worker in charge....
    (4) Coordinated train releasing movement          3,000        6,000
     authority while working limits are in
     effect...................................
214.327 Inaccessible track:
  (a) Improper control of entry to                    3,000        6,000
   inaccessible track.........................
    (5) Remotely controlled switch not                3,000        6,000
     properly secured by control operator.....
  (b) Train or equipment moving within                3,000        6,000
   inaccessible track limits without
   permission of roadway worker in charge.....
  (c) Unauthorized train or equipment located         2,000        5,000
   within inaccessible track limits...........
214.329 Train approach warning provided by
 watchmen/lookouts:
  (a) Failure to give timely warning of         ...........        5,000
   approaching train..........................
  (b)(1) Failure of watchman/lookout to give    ...........        3,000
   full attention to detecting approach of
   train......................................
    (2) Assignment of other duties to watchman/       3,000        5,000
     lookout..................................
  (c) Failure to provide proper warning signal        2,000        5,000
   devices....................................
  (d) Failure to maintain position to receive   ...........        2,000
   train approach warning signal..............
  (e) Failure to communicate proper warning           1,500        3,000
   signal.....................................
  (f)(1) Assignment of non-qualified person as        3,000        5,000
   watchman/lookout...........................
    (2) Non-qualified person accepting          ...........        1,500
     assignment as watchman/lookout...........
  (g) Failure to properly equip a watchman/           2,000        4,000
   lookout....................................
214.331 Definite train location:
  (a) Definite train location established             3,000        5,000
   where prohibited...........................
  (b) Failure to phase out definite train             3,000        5,000
   location by required date..................
  (d)(1) Train location information issued by         2,000        5,000
   unauthorized person........................
    (2) Failure to include all trains operated        3,000        5,000
     on train location list...................
    (5) Failure to clear a by ten minutes at    ...........        2,000
     the last station at which time is shown..
    (6) Train passing station before time             3,000        5,000
     shown in train location list.............
    (7) Non-qualified person using definite           2,000        3,000
     train location to establish on- track
     safety...................................
214.333 Informational line-ups of trains:
  (a) Informational line-ups of trains used           3,000        5,000
   for on-track safety where prohibited.......
  (b) Informational line-up procedures                5,000       10,000
   inadequate to protect roadway workers......
  (c) Failure to discontinue informational            5,000       10,000
   line-ups by required date..................
214.335 On-track safety procedures for roadway
 work groups :
  (a) Failure to provide on-track safety for a        3,000        5,000
   member of a roadway work group.............
  (b) Member of roadway work group fouling a    ...........        2,000
   track without authority of employee in
   charge.....................................
  (c) Failure to provide train approach               3,000        5,000
   warning or working limits on adjacent track
   where required.............................
214.337 On-track safety procedures for lone
 workers:
  (b) Failure by employer to permit individual        5,000       10,000
   discretion in use of individual train
   detection..................................
  (c)(1) Individual train detection used by           2,000        4,000
   non-qualified employee.....................
    (2) Use of individual train detection       ...........        2,000
     while engaged in heavy or distracting
     work.....................................
    (3) Use of individual train detection in    ...........        2,000
     controlled point or manual interlocking..
    (4) Use of individual train detection with  ...........        2,000
     insufficient visibility..................
    (5) Use of individual train detection with  ...........        2,000
     interfering noise........................
    (6) Use of individual train detection       ...........        3,000
     while a train is passing.................
  (d) Failure to maintain access to place of    ...........        2,000
   safety clear of live tracks................
  (e) Lone worker unable to maintain vigilant   ...........        2,000
   lookout....................................
  (f)(1) Failure to prepare written statement   ...........        1,500
   of on-track safety.........................
    (2) Incomplete written statement of on-     ...........        1,000
     track safety.............................
    (3) Failure to produce written statement    ...........        1,500
     of on-track safety to FRA................
214.339 Audible warning from trains:
  (a) Failure to require audible warning from         2,000        4,000
   trains.....................................
  (b) Failure of train to give audible warning        1,000        3,000
   where required.............................
214.341 Roadway maintenance machines:
  (a) Failure of on-track safety program to           3,000        5,000
   include provisions for safety near roadway
   maintenance machines.......................
  (b) Failure to provide operating                    2,000        4,000
   instructions...............................
    (1) Assignment of non-qualified employee          2,000        5,000
     to operate machine.......................
    (2) Operator unfamiliar with safety               2,000        5,000
     instructions for machine.................
    (3) Roadway worker working with unfamiliar        2,000        5,000
     machine..................................
  (c) Roadway maintenance machine not clear of        3,000        6,000
   passing trains.............................
214.343 Training and qualification, general:
  (a)(1) Failure of railroad program to               5,000       10,000
   include training provisions................
    (2) Failure to provide initial training...        3,000        6,000
  (b) Failure to provide annual training......        2,500        5,000
  (c) Assignment of non-qualified railroad            4,000        8,000
   employees to provide on-track safety.......
  (d)(1) Failure to maintain records of               2,000        4,000
   qualifications.............................
    (2) Incomplete records of qualifications..        1,000        3,000
    (3) Failure to provide records of                 2,000        4,000
     qualifications to FRA....................

[[Page 143]]

 
214.345 Training for all roadway workers
214.347 Training and qualification for lone
 workers
214.349 Training and qualification of watchmen/
 lookouts
214.351 Training and qualification of flagmen
214.353 Training and qualification of roadway
 workers who provide on-track safety for
 roadway work groups
214.355 Training and qualification in on-track
 safety for operators of roadway maintenance
 machines
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.

[57 FR 28127, June 24, 1992, as amended at 61 FR 65981, Dec. 16, 1996; 
63 FR 11620, Mar. 10, 1998]



PART 215--RAILROAD FREIGHT CAR SAFETY STANDARDS--Table of Contents




                           Subpart A--General

Sec.
215.1  Scope of part.
215.3  Application.
215.5  Definitions.
215.7  Prohibited acts.
215.9  Movement of defective cars for repair.
215.11  Designated inspectors.
215.13  Pre-departure inspection.
215.15  Periodic inspection.

                    Subpart B--Freight Car Components

215.101  Scope.

                            Suspension System

215.103  Defective wheel.
215.105  Defective axle.
215.107  Defective plain bearing box: General.
215.109  Defective plain bearing box: Journal lubrication system.
215.111  Defective plain bearing.
215.113  Defective plain bearing wedge.
215.115  Defective roller bearing.
215.117  Defective roller bearing adapter.
215.119  Defective freight car truck.

                               Car Bodies

215.121  Defective car body.

                              Draft System

215.123  Defective couplers.
215.125  Defective uncoupling device.
215.127  Defective draft arrangement.
215.129  Defective cushioning device.

                     Subpart C--Restricted Equipment

215.201  Scope.
215.203  Restricted cars.

                          Subpart D--Stenciling

215.301  General.
215.303  Stenciling of restricted cars.
215.305  Stenciling of maintenance-of-way equipment.

Appendix A to Part 215--Railroad Freight Car Components
Appendix B to Part 215--Schedule of Civil Penalties
Appendix C to Part 215--FRA Freight Car Standards Defect Code
Appendix D to Part 215--Pre-Departure Inspection Procedure

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

    Source: 44 FR 77340, Dec. 31, 1979, unless otherwise noted.



                           Subpart A--General



Sec. 215.1  Scope of part.

    This part prescribes minimum Federal safety standards for railroad 
freight cars.



Sec. 215.3  Application.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
this part applies to each railroad freight car in service on:
    (1) Standard gage track of a railroad; or
    (2) Any other standard gage track while the car is being operated 
by, or is otherwise under the control of, a railroad.
    (b) Sections 215.15 and 215.303 of this part do not apply to any 
car:
    (1) Owned by a Canadian or Mexican Railroad; and
    (2) Having a Canadian or Mexican reporting mark and car number.
    (c) This part does not apply to a railroad freight car that is:
    (1) Operated solely on track inside an industrial or other non-
railroad installation; or
    (2) Used exclusively in dedicated service as defined in 
Sec. 215.5(d) of this part; or
    (3) Maintenance-of-way equipment (including self-propelled 
maintenance-of-way equipment) if that equipment is

[[Page 144]]

not used in revenue service and is stenciled in accordance with 
Sec. 215.305 of this part.



Sec. 215.5  Definitions.

    As used in this part:
    (a) Break means a fracture resulting in complete separation into 
parts;
    (b) Cracked means fractured without complete separation into parts, 
except that castings with shrinkage cracks or hot tears that do not 
significantly diminish the strength of the member are not considered to 
be ``cracked'';
    (c) Railroad freight car means a car designed to carry freight, or 
railroad personnel, by rail and includes a:
    (1) Box car;
    (2) Refrigerator car;
    (3) Ventilator car;
    (4) Stock car;
    (5) Gondola car;
    (6) Hopper car;
    (7) Flat car;
    (8) Special car;
    (9) Caboose car;
    (10) Tank car; and
    (11) Yard car.
    (d) Dedicated service means the exclusive assignment of cars to the 
transportation of freight between specified points under the following 
conditions:
    (1) The cars are operated--
    (i) Primarily on track that is inside an industrial or other non-
railroad installation; and
    (ii) Only occasionally over track of a railroad;
    (2) The cars are not operated--
    (i) At speeds of more than 15 miles per hour; and
    (ii) Over track of a railroad--
    (A) For more than 30 miles in one direction; or
    (B) On a round trip of more than 60 miles;
    (3) The cars are not freely interchanged among railroads;
    (4) The words ``Dedicated Service'' are stenciled, or otherwise 
displayed, in clearly legible letters on each side of the car body;
    (5) The cars have been examined and found safe to operate in 
dedicated service; and
    (6) The railroad must--
    (i) Notify the FRA in writing that the cars are to be operated in 
dedicated service;
    (ii) Identify in that notice--
    (A) The railroads affected;
    (B) The number and type of cars involved;
    (C) The commodities being carried; and
    (D) The territorial and speed limits within which the cars will be 
operated; and
    (iii) File the notice required by this paragraph not less than 30 
days before the cars operate in dedicated service;
    (e) In service when used in connection with a railroad freight car, 
means each railroad freight car subject to this part unless the car:
    (1) Has a ``bad order'' or ``home shop for repairs'' tag or card 
containing the prescribed information attached to each side of the car 
and is being handled in accordance with Sec. 215.9 of this part;
    (2) Is in a repair shop or on a repair track;
    (3) Is on a storage track and is empty; or
    (4) Has been delivered in interchange but has not been accepted by 
the receiving carrier.
    (f) Railroad 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, 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.
    (g) State inspector means an inspector who is participating in 
investigative and surveillance activities under section 206 of the 
Federal Railroad Safety Act of 1970 (45 U.S.C. 435).

[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26710, Apr. 21, 1980; 
54 FR 33228, Aug. 14, 1989]



Sec. 215.7  Prohibited acts.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad;

[[Page 145]]

any owner, manufacturer, lessor, or lessee of railroad equipment, track, 
or facilities; any independent contractor providing goods or services to 
a railroad; and any employee of such owner, manufacturer, lessor, 
lessee, or independent contractor) who violates any requirement of this 
part or causes the violation of any such requirement is subject to a 
civil penalty of at least $500 and not more than $11,000 per violation, 
except that: Penalties may be assessed against individuals only for 
willful violations, and, where a grossly negligent violation or a 
pattern of repeated violations has created an imminent hazard of death 
or injury to persons, or has caused death or injury, a penalty not to 
exceed $22,000 per violation may be assessed. Each day a violation 
continues shall constitute a separate offense. See appendix B to this 
part for a statement of agency civil penalty policy.

[53 FR 28599, July 28, 1988, as amended at 53 FR 52925, Dec. 29, 1988; 
63 FR 11620, Mar. 10, 1998]



Sec. 215.9  Movement of defective cars for repair.

    (a) A railroad freight car which has any component described as 
defective in this part may be moved to another location for repair only 
after the railroad has complied with the following:
    (1) A person designated under Sec. 215.11 shall determine:
    (i) That it is safe to move the car; and
    (ii) The maximum speed and other restrictions necessary for safely 
conducting the movement;
    (2)(i) The person in charge of the train in which the car is to be 
moved shall be notified in writing and inform all other crew members of 
the presence of the defective car and the maximum speed and other 
restrictions determined under paragraph (a)(1)(ii) of this section.
    (ii) A copy of the tag or card described in paragraph (a)(3) of this 
section may be used to provide the notification required by paragraph 
(a)(2)(i) of this section.
    (3) A tag or card bearing the words ``bad order'' or ``home shop for 
repairs'' and containing the following information, shall be securely 
attached to each side of the car--
    (i) The reporting mark and car number;
    (ii) The name of the inspecting railroad;
    (iii) The inspection location and date;
    (iv) The nature of each defect;
    (v) Movement restrictions;
    (vi) The destination for shopping or repair; and
    (vii) The signature of a person designated under Sec. 215.11.
    (b)(1) The tag or card required by paragraph (a)(3) of this section 
may only be removed from the car by a person designated under 
Sec. 215.11 of this part.
    (2) A record or copy of each tag or card attached to or removed from 
a car shall be retained for 90 days and, upon request, shall be made 
available within 15 calendar days for inspection by FRA or State 
inspectors.
    (3) Each tag or card removed from a car shall contain a notification 
stating the date, location, reason for its removal, and the signature of 
the person who removed it from the car. These recordkeeping requirements 
have been approved by the Office of Management and Budget in accordance 
with the Federal Reports Act of 1942.
    (c) Movement of a freight car under paragraph (a) of this section 
may be made only for the purpose of effecting repairs. If the car is 
empty, it may not be placed for loading. If the car is loaded, it may 
not be placed for unloading unless unloading is consistent with 
determinations made and restrictions imposed under paragraph (a)(1) of 
this section and--
    (1) The car is consigned for a destination on the line of haul 
between the point where the car was found defective and the point where 
repairs are made; or
    (2) Unloading is necessary for the safe repair of the car.
    (d) Nothing in this section authorizes the movement of a freight car 
subject to a Special Notice for Repairs unless the movement is made in 
accordance with the restrictions contained in the Special Notice.

[44 FR 77340, Dec. 31, 1979; 45 FR 26710, Apr. 21, 1980]

[[Page 146]]



Sec. 215.11  Designated inspectors.

    (a) Each railroad that operates railroad freight cars to which this 
part applies shall designate persons qualified to inspect railroad 
freight cars for compliance with this part and to make the 
determinations required by Sec. 215.9 of this part.
    (b) Each person designated under this section shall have 
demonstrated to the railroad a knowledge and ability to inspect railroad 
freight cars for compliance with the requirements of this part and to 
make the determinations required by Sec. 215.9 of this part.
    (c) With respect to designations under this section, each railroad 
shall maintain written records of:
    (1) Each designation in effect; and
    (2) The basis for each designation.

[45 FR 26710, Apr. 21, 1980]



Sec. 215.13  Pre-departure inspection.

    (a) At each location where a freight car is placed in a train, the 
freight car shall be inspected before the train departs. This inspection 
may be made before or after the car is placed in the train.
    (b) At a location where an inspector designated under Sec. 215.11 is 
on duty for the purpose of inspecting freight cars, the inspection 
required by paragraph (a) of this section shall be made by that 
inspector to determine whether the car is in compliance with this part.
    (c) At a location where a person designated under Sec. 215.11 is not 
on duty for the purpose of inspecting freight cars, the inspection 
required by paragraph (a) shall, as a minimum, be made for those 
conditions set forth in appendix D to this part.
    (d) Performance of the inspection prescribed by this section does 
not relieve a railroad of its liability under Sec. 215.7 for failure to 
comply with any other provision of this part.

[45 FR 26710, Apr. 21, 1980]



Sec. 215.15  Periodic inspection.

    (a) After June 30, 1980, a railroad may not place or continue in 
service a freight car that has not received an initial periodic 
inspection in accordance with 49 CFR 215.25, as in effect on October 6, 
1976 (41 FR 44044), unless--
    (1) The car is a high utilization car built or reconditioned after 
December 31, 1977; or
    (2) The car is a non-high utilization car built or reconditioned 
after December 31, 1971.
    (b) A freight car that has received an initial periodic inspection 
under paragraph (a) of this section shall be stenciled to so indicate in 
accordance with 49 CFR 215.11 and appendix C of this part, as in effect 
on October 6, 1976 (41 FR 44044). This stenciling need not be retained 
on the car after June 30, 1981.
    (c) As used in this section, ``high utilization car'' means a car--
    (1) Specifically equipped to carry trucks, automobiles, containers, 
trailers, or removable trailer bodies for the transportation of freight; 
or
    (2) Assigned to a train that operates in a continuous round trip 
cycle between the same two points.



                    Subpart B--Freight Car Components



Sec. 215.101  Scope.

    This subpart contains safety requirements prohibiting a railroad 
from placing or continuing in service a freight car that has certain 
defective components.

                            Suspension System



Sec. 215.103  Defective wheel.

    A railroad may not place or continue in service a car, if--
    (a) A wheel flange on the car is worn to a thickness of \7/8\ of an 
inch, or less, at a point \3/8\ of an inch above the tread of the wheel;
    (b) The height of a wheel flange on the car, from the tread to the 
top of the flange, is 1\1/2\ inches, or more;
    (c) The thickness of a rim of a wheel on the car is \11/16\ of an 
inch, or less;
    (d) A wheel rim, flange, plate, or hub area on the car has a crack 
or break;
    (e) A wheel on the car has a chip or gouge in the flange that is 
1\1/2\ inches in length and \1/2\ inch in width, or more;
    (f) A wheel on the car has--
    (1) A slid flat or shelled spot that is more than 2\1/2\ inches in 
length; or
    (2) Two adjoining flat or shelled spots each of which is more than 
two inches in length;

[[Page 147]]

    (g) A wheel on the car shows evidence of being loose such as oil 
seepage on the back hub or back plate;
    (h) A wheel on the car shows signs of having been overheated as 
evidenced by a reddish brown discoloration, to a substantially equal 
extent on both the front and the back face of the rim, that extends on 
either face more than four inches into the plate area measured from the 
inner edge of the front or back face of the rim; or,
    (i) A wheel on the car has been welded unless the car is being moved 
for repair in accordance with Sec. 215.9 of this part.

[44 FR 77340, Dec. 31, 1979, as amended at 50 FR 13382, Apr. 4, 1985]



Sec. 215.105  Defective axle.

    A railroad may not place or continue in service a car, if--
    (a) An axle on the car has a crack or is broken;
    (b) An axle on the car has a gouge in the surface that is--
    (1) Between the wheel seats; and
    (2) More than one-eighth inch in depth;
    (c) An axle on the car, used in conjunction with a plain bearing, 
has an end collar that is broken or cracked;
    (d) A journal on the car shows evidence of overheating, as evidenced 
by a pronounced blue black discoloration; or
    (e) The surface of the plain bearing journal on the axle, or the 
fillet on the axle, has--
    (1) A ridge;
    (2) A depression;
    (3) A circumferential score;
    (4) Corrugation;
    (5) A scratch;
    (6) A continuous streak;
    (7) Pitting;
    (8) Rust; or
    (9) Etching.



Sec. 215.107  Defective plain bearing box: General.

    A railroad may not place or continue in service a car, if the car 
has--
    (a) A plain bearing box that does not contain visible free oil;
    (b) A plain bearing box lid that is missing, broken, or open except 
to receive servicing; or
    (c) A plain bearing box containing foreign matter, such as dirt, 
sand, or coal dust, that can reasonably be expected to--
    (1) Damage the bearing; or
    (2) Have a detrimental effect on the lubrication of the journal and 
the bearings.



Sec. 215.109  Defective plain bearing box: Journal lubrication system.

    A railroad may not place or continue in service a car, if the car 
has a plain bearing box with a lubricating pad that--
    (a) Has a tear extending half the length or width of the pad, or 
more;
    (b) Shows evidence of having been scorched, burned, or glazed;
    (c) Contains decaying or deteriorated fabric that impairs proper 
lubrication of the pad;
    (d) Has--
    (1) An exposed center core (except by design); or
    (2) Metal parts contacting the journal; or
    (e) Is--
    (1) Missing; or
    (2) Not in contact with the journal.



Sec. 215.111  Defective plain bearing.

    A railroad may not place or continue in service a car, if the car 
has a plain bearing--
    (a) That is missing, cracked, or broken;
    (b) On which the bearing liner--
    (1) Is loose; or
    (2) Has a broken out piece; or
    (c) That shows signs of having been overheated, as evidenced by--
    (1) Melted babbitt;
    (2) Smoke from hot oil; or
    (3) Journal surface damage.



Sec. 215.113  Defective plain bearing wedge.

    A railroad may not place or continue in service a car, if a plain 
bearing wedge on that car is--
    (a) Missing;
    (b) Cracked;
    (c) Broken; or
    (d) Not located in its design position.



Sec. 215.115  Defective roller bearing.

    (a) A railroad may not place or continue in service a car, if the 
car has--

[[Page 148]]

    (1) A roller bearing that shows signs of having been overheated as 
evidenced by--
    (i) Discoloration; or
    (ii) Other telltale signs of overheating such as damage to the seal 
or distortion of any bearing component;
    (2) A roller bearing with a--
    (i) Loose or missing cap screw; or
    (ii) Broken, missing, or improperly applied cap screw lock; or
    (3) A roller bearing with a seal that is loose or damaged, or 
permits leakage of lubricant in clearly formed droplets.
    (b)(1) A railroad may not continue in service a car that has a 
roller bearing whose truck was involved in a derailment unless the 
bearing has been inspected and tested by:
    (i) Visual examination to determine whether it shows any sign of 
damage; and
    (ii) Spinning freely its wheel set or manually rotating the bearing 
to determine whether the bearing makes any unusual noise.
    (2) The roller bearing shall be disassembled from the axle and 
inspected internally if--
    (i) It shows any external sign of damage;
    (ii) It makes any unusual noise when its wheel set is spun freely or 
the bearing is manually rotated;
    (iii) Its truck was involved in a derailment at a speed of more than 
10 miles per hour; or
    (iv) Its truck was dragged on the ground for more than 200 feet.
    (3) Each defective roller bearing shall be repaired or replaced 
before the car is placed back in service.

[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26711, Apr. 21, 1980]



Sec. 215.117  Defective roller bearing adapter.

    A railroad may not place or continue in service a car, if the car 
has a roller bearing adapter that is--
    (a) Cracked or broken;
    (b) Not in its design position; or
    (c) Worn on the crown of the adapter to the extent that the frame 
bears on the relief portion of the adapter, as shown in the figure below 
(see figure 1).



Sec. 215.119  Defective freight car truck.

    A railroad may not place or continue in service a car, if the car 
has--
    (a) A side frame or bolster that--
    (1) Is broken; or
    (2) Has a crack of \1/4\ of an inch or more in the transverse 
direction on a tension member;
    (b) A truck equipped with a snubbing device that is ineffective, as 
evidenced by--
    (1) A snubbing friction element that is worn beyond a wear 
indicator;
    (2) A snubber wear plate that is loose, missing (except by design), 
or worn through;
    (3) A broken or missing snubber activating spring; or

[[Page 149]]

[GRAPHIC] [TIFF OMITTED] TC01AP91.002

    (4) Snubber unit that is broken, or in the case of hydraulic units, 
is broken or leaking clearly formed droplets of oil or other fluid.
    (c) A side bearing in any of the following conditions:
    (1) Part of the side bearing assembly is missing or broken;
    (2) The bearings at one end of the car, on both sides, are in 
contact with the body bolster (except by design);
    (3) The bearings at one end of the car have a total clearance from 
the body bolster of more than \3/4\ of an inch; or
    (4) At diagonally opposite sides of the car, the bearings have a 
total clearance from the body bolsters of more than \3/4\ of an inch;
    (d) Truck springs--
    (1) That do not maintain travel or load;
    (2) That are compressed solid; or
    (3) More than one outer spring of which is broken, or missing, in 
any spring cluster;
    (e) Interference between the truck bolster and the center plate that 
prevents proper truck rotations; or
    (f) Brake beam shelf support worn so excessively that it does not 
support the brake beam.

                               Car Bodies



Sec. 215.121  Defective car body.

    A railroad may not place or continue in service a car, if:
    (a) Any portion of the car body, truck, or their appurtenances 
(except wheels) has less than a 2\1/2\ inch clearance from the top of 
rail;
    (b) The car center sill is:
    (1) Broken;
    (2) Cracked more than 6 inches; or
    (3) Permanently bent or buckled more than 2\1/2\ inches in any six 
foot length;
    (c) The car has a coupler carrier that is:
    (1) Broken;
    (2) Missing;
    (3) Non-resilient and the coupler has a type F head.
    (d) After December 1, 1983, the car is a box car and its side doors 
are not equipped with operative hangers, or the

[[Page 150]]

equivalent, to prevent the doors from becoming disengaged.
    (e) The car has a center plate:
    (1) That is not properly secured;
    (2) Any portion of which is missing; or
    (3) That is broken; or
    (4) That has two or more cracks through its cross section 
(thickness) at the edge of the plate that extend to the portion of the 
plate that is obstructed from view while the truck is in place; or
    (f) The car has a broken sidesill, crossbearer, or body bolster.

[44 FR 77340, Dec. 31, 1979, as amended at 47 FR 53737, Dec. 29, 1982]

                              Draft System



Sec. 215.123  Defective couplers.

    A railroad may not place or continue in service a car, if--
    (a) The car is equipped with a coupler shank that is bent out of 
alignment to the extent that the coupler will not couple automatically 
with the adjacent car;
    (b) The car has a coupler that has a crack in the highly stressed 
junction area of the shank and head as shown in the figure below (see 
figure 2).
    (c) The car has a coupler knuckle that is broken or cracked on the 
inside pulling face of the knuckle.
    (d) The car has a knuckle pin or knuckle thrower that is:
    (1) Missing; or
    (2) Inoperative; or
    (e) The car has a coupler retainer pin lock that is--

[[Page 151]]

[GRAPHIC] [TIFF OMITTED] TC01AP91.003

    (1) Missing; or
    (2) Broken; or
    (f) The car has a coupler with any of the following conditions:
    (1) The locklift is inoperative;
    (2) The coupler assembly does not have anticreep protection to 
prevent unintentional unlocking of the coupler lock; or
    (3) The coupler lock is--
    (i) Missing;
    (ii) Inoperative;
    (iii) Bent;
    (iv) Cracked; or
    (v) Broken.



Sec. 215.125  Defective uncoupling device.

    A railroad may not place or continue in service a car, if the car 
has an uncoupling device without sufficient vertical and lateral 
clearance to prevent--
    (a) Fouling on curves; or
    (b) Unintentional uncouplings.



Sec. 215.127  Defective draft arrangement.

    A railroad may not place or continue in service a car, if--
    (a) The car has a draft gear that is inoperative;
    (b) The car has a broken yoke;
    (c) An end of car cushioning unit is--
    (1) Leaking clearly formed droplets; or
    (2) Inoperative;
    (d) A vertical coupler pin retainer plate--
    (1) Is missing (except by design); or
    (2) Has a missing fastener;
    (e) The car has a draft key, or draft key retainer, that is--

[[Page 152]]

    (1) Inoperative; or
    (2) Missing; or
    (f) The car has a missing or broken follower plate.



Sec. 215.129  Defective cushioning device.

    A railroad may not place or continue in service a car if it has a 
cushioning device that is--
    (a) Broken;
    (b) Inoperative; or
    (c) Missing a part--

unless its sliding components have been effectively immobilized.



                     Subpart C--Restricted Equipment



Sec. 215.201  Scope.

    This subpart contains requirements restricting the use of certain 
railroad freight cars.



215.203  Restricted cars.

    (a) This section restricts the operation of any railroad freight car 
that is--
    (1) More than 50 years old, measured from the date of original 
construction;
    (2) Equipped with any design or type component listed in appendix A 
to this part; or
    (3) Equipped with a Duryea underframe constructed before April 1, 
1950, except for a caboose which is operated as the last car in a train.
    (b) A railroad may not place or continue in service a railroad 
freight car described in paragraph (a) of this section, except under 
conditions approved by the Federal Railroad Administrator.
    (c) A railroad may petition the Administrator to continue in service 
a car described in paragraph (a) of this section. Each petition shall be
    (1) Be submitted not less than 90 days before the car is to be 
operated;
    (2) Be submitted in triplicate; and
    (3) State or describe the following:
    (i) The name and principal business address of the petitioning 
railroad.
    (ii) The name and address of the entity that controls the operation 
and maintenance of the car involved.
    (iii) The number, type, capacity, reporting marks, and car numbers 
of the cars, their condition, status, and age measured from the date of 
original construction.
    (iv) The design, type component, or other item that causes the car 
to be restricted.
    (v) The maximum load the cars would carry.
    (vi) The maximum speed at which the cars would be operated.
    (vii) That each car has been examined and found to be safe to 
operate under the conditions set forth in the petition.
    (viii) The territorial limits within which the cars are to be 
operated and the name of each railroad that will receive the cars in 
interchange.



                          Subpart D--Stenciling



Sec. 215.301  General.

    The railroad or private car owner reporting mark, the car number, 
and built date shall be stenciled, or otherwise displayed, in clearly 
legible letters and numbers not less than seven inches high, except 
those of the built date which shall not be less than one inch high:
    (a) On each side of each railroad freight car body; and
    (b) In the case of a tank car, in any location that is visible to a 
person walking at track level beside the car.



Sec. 215.303  Stenciling of restricted cars.

    (a) Each restricted railroad freight car that is described in 
Sec. 215.205(a) of this part shall be stenciled, or marked--
    (1) In clearly legible letters; and
    (2) In accordance with paragraphs (b) and (c) of this section.
    (b) The letter ``R'' shall be--
    (1) Placed immediately below or to the right of the car number;
    (2) The same color as the reporting mark; and
    (3) The same size as the reporting mark.
    (c) The following terms, to the extent needed to completely indicate 
the basis for the restricted operation of the car, shall be placed on 
the car following the symbol ``R'' in letters not less than one inch 
high:
    (1) Age.
    (2) Coupler.
    (3) Draft.
    (4) Bearings.
    (5) Truck.

[[Page 153]]

    (6) Underframe.
    (7) Wheels.
    (8) Yoke.



Sec. 215.305  Stenciling of maintenance-of-way equipment.

    (a) Maintenance-of-way equipment (including self-propelled 
maintenance-of-way equipment) described in Sec. 215.3(c)(3) shall be 
stenciled, or marked--
    (1) In clearly legible letters; and
    (2) In accordance with paragraph (b) of this section.
    (b) The letters ``MW'' must be--
    (1) At least 2 inches high; and
    (2) Placed on each side of the car.

[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26711, Apr. 21, 1980]

         Appendix A to Part 215--Railroad Freight Car Components

    List of components whose use is restricted by Sec. 215.203 of this 
part.

A.  Air brakes:
    The ``K'' type.

B.  Axles:
    1. Former AAR alternate standard tubular type.
    2. Axle with letters ``RJ'' stamped on the end of the journal.

C.  Couplers:
    1. AAR type ``D'', top or bottom operated.
    2. AAR type ``E'' with 5'' by 7'' shank.

D.  Draft arrangement:
    1. Miner FR-16 and FR-19-F draft gears.
    2. Farlow draft attachment.

E.  Plain journal bearings:
    Cartridge type.

F.  Roller bearings:
    1. Nippon Sieko Kabushiki Kaish (NSK) size 6\1/2\'' by 12'' (marked 
``AAR 11'').
    2. Hyatt cylindrical bearing, all sizes (marked ``AAR 2'').
    3. SKF ``Piggybacker'' spherical roller, size 6'' by 11'' (marked 
``AAR 7'').

G.  Trucks:
    1. Arch bar type.
    2. Truck with cast steel pedestal side frame, short wheel base, and 
no bolster.

H.  Truck bolsters:
    1. A bolster with one of the following pattern numbers listed 
according to manufacturer:

------------------------------------------------------------------------
                                       Dresser                Lenoir car
               A.S.F.                (Symington)   Birdsboro     works
------------------------------------------------------------------------
21183-B............................      BO 5234        1458     CS-184.
                                                        1468
21183-N............................      BO 5263        1471     CS-611.
                                         BO 7076
21648-C............................    BO 7076-A
22056-E............................      BO 7115
------------------------------------------------------------------------

    2. Bolster cast before 1927.
    3. Bolster without an identification mark or pattern number.
I.  1.  Truck side frames:
    A side frame with one of the following pattern numbers listed 
according to manufacturer:

------------------------------------------------------------------------
                                       National
               A.S.F.                  castings     Buckeye    Dominion
------------------------------------------------------------------------
7273................................    33793-1B      3-1776     TF-5100
7323................................  ..........       F-420
21362 (cast prior to June 1941).....
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                               Canadian
      Pittsburgh steel foundry          Scullin   Bettendorf     steel
                                         steel                  foundry
------------------------------------------------------------------------
31673...............................   42-CS-180      UT 456       26565
4-1862..............................
3-1674..............................        4665
4-2045..............................        4770
12897...............................        4942
12921...............................        5220
21263...............................        5364
                                          5364-C
                                          5364-E
                                          5811-A
                                          5869-B
                                          6577-A
------------------------------------------------------------------------

    2. Side frame cast before 1927.
    3. Side frame without an identification mark or pattern number.
    4. Side frame with an ``I'', ``T'', or ``L'' section compression or 
tension member.
J.  Wheels:
    1. Cast iron wheel.
    2. Cast steel wheel marked ``AAR X-2.''
    3. Southern cast steel wheel manufactured before May 7, 1958.
    4. Griffin, three-riser cast steel wheel, ball rim design, 70-ton 
capacity.
    5. Griffin, three-riser cast steel wheel, two-wear, 70- and 50-ton 
capacity, 33 inch, (marked X-5 or CS-2).
    6. Wrought steel wheel manufactured before 1927, as indicated by 
marking on wheel.
    7. Cast steel wheel marked AAR X-4.
    8. Davis cast steel wheel.
    9. One-wear, 70-ton Southern (ABEX) U1 cast steel wheels dated May 
7, 1958 through December 31, 1969.
    A.  Wheels dated May 7, 1958, to January 1, 1964, are marked with 
the symbol ``70T'' cast on the back of the wheel plate; they are not 
marked ``U-1.''

[[Page 154]]

    B.  Wheels dated January 1, 1964 through December 31, 1969, are 
marked with the symbols ``CJ-33'' and ``U-1'' or ``70T'' and ``U-1'' 
cast on the back of the wheel plate.
K.  Yokes:
    1. Riveted type.
    2. Keyless type.
    3. Vertical key type.

         Appendix B to Part 215--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
Subpart A--General:
    215.9 Movement for repair:
        (a), (c)..............................        (\1\)        (\1\)
        (b)...................................       $2,500       $5,000
    215.11  Designation of qualified persons..        2,500        5,000
    215.13  Pre-departure inspection..........        2,000        4,000
Subpart B--Freight Car Components:
    215.103  Defective wheel:
        (a) Flange thickness of:
            (1) 7/8'' or less but more than           2,500        5,000
             \13/16\''........................
            (2) \13/16\'' or less.............        5,000        7,500
        (b) Flange height of:
            (1) 1\1/2\'' or greater but less          2,500        5,000
             than 1\5/8\''....................
            (2) 1\5/8\'' or more..............        5,000        7,500
        (c) Rim thickness of:
            (1) \11/16\'' or less but more            2,500        5,000
             than \5/8\''.....................
            (2) \5/8\'' or less...............        5,000        7,500
        (d) Wheel rim, flange plate hub width:
            (1) Crack of less than 1''........        2,500        5,000
            (2) Crack of 1'' or more..........        5,000        7,500
            (3) Break.........................        5,000        7,500
        (e) Chip or gouge in flange of:
            (1) 1\1/2\'' or more but less than        2,500        5,000
             1\5/8\'' in length; and \1/2\''
             or more but less than \5/8\'' in
             width............................
            (2) 1\5/8\'' or more in length; or        5,000        7,500
             \5/8\'' or more in width.........
        (f) Slid flat or shelled spot(s):
            (1)(i) One spot more than 2\1/            2,500        5,000
             2\'', but less than 3'', in
             length...........................
              (ii) One spot 3'' or more in            5,000        7,500
             length...........................
            (2)(i) Two adjoining spots each of        2,500        5,000
             which is more than 2'' but less
             than 2\1/2\'' in length..........
              (ii) Two adjoining spots both of        5,000        7,500
             which are at least 2'' in length,
             if either spot is 2\1/2\'', or
             more in length...................
        (g) Loose on axle                             6,000        8,500
        (h) Overheated; discoloration
         extending:
            (1) more than 4'' but less than           2,500        5,000
             4\1/2\''.........................
            (2) 4\1/2\'' or more..............        5,000        7,500
        (i) Welded                                    5,000        7,500
    215.105  Defective axle:
        (a)(1) Crack of 1'' or less...........        2,500        5,000
          (2) Crack of more than 1''..........        5,000        7,500
          (3) Break...........................        6,000        8,500
        (b) Gouge in surface that is between          2,500        5,000
         the wheel seats and is more than \1/
         8\'' in depth........................
        (c) End collar with crack or break....        2,500        5,000
        (d) Journal overheated................        5,000        7,500
        (e) Journal surface has: a ridge; a           2,500        5,000
         depression; a circumferential score;
         corrugation; a scratch; a continuous
         streak; pitting; rust; or etching....
    215.107  Defective plain bearing box:
     general:
        (a)(1) No visible free oil............        1,500        3,000
          (2) Lubricating pad dry (no                 5,000        7,500
         expression of oil observed when pad
         is compressed).......................
        (b) Box lid is missing, broken, or            1,000        2,000
         open except to receive servicing.....
        (c) Contains foreign matter that can          2,500        5,000
         be expected to damage the bearing or
         have a detrimental effect on the
         lubrication of the journal and
         bearing..............................
    215.109  Defective plain bearing box:
     journal lubrication system:
        (a) Lubricating pad has a tear........        1,000        2,000
        (b) Lubricating pad scorched, burned,         2,500        5,000
         or glazed............................
        (c) Lubricating pad contains decaying         2,500        5,000
         or deteriorating fabric..............

[[Page 155]]

 
        (d) Lubricating pad has an exposed            2,500        5,000
         center core or metal parts contacting
         the journal..........................
        (e) Lubricating pad is missing or not         5,000        7,500
         in contact with the journal..........
    215.111  Defective plain bearing:
        (a) Missing...........................        5,000        7,500
        (b) Bearing liner is loose or has             2,500        5,000
         piece broken out.....................
        (c) Overheated........................        5,000        7,500
    215.113  Defective plain bearing wedge:
        (a) Missing...........................        5,000        7,500
        (b) Cracked...........................        2,500        5,000
        (c) Broken............................        5,000        7,500
        (d) Not located in its design position        5,000        7,500
    215.115  Defective roller bearing:
        (a)(1) Overheated.....................        5,000        7,500
          (2) (i) Cap screw(s) loose..........        2,500        5,000
              (ii) Cap screw lock broken,             1,000        2,000
             missing or improperly applied....
          (3) Seal is loose or damaged, or            2,500        5,000
         permits leakage of lubricant.........
        (b)(1) Not inspected and tested after         2,500        5,000
         derailment...........................
          (2) Not disassembled after                  2,500        5,000
         derailment...........................
          (3) Not repaired or replaced after          5,000        7,500
         derailment...........................
    215.117  Defective roller bearing adapter:
        (a) Cracked or broken.................        2,500        5,000
        (b) Not in its design position........        5,000        7,500
        (c) Worn on the crown.................        2,500        5,000
    215.119  Defective freight car truck:
        (a)(1) A side frame or bolster that is        5,000        7,500
         broken...............................
          (2)(i) Side frame or bolster with           2,500        5,000
         crack of: \1/4\'' or more, but less
         than 1''.............................
              (ii) 1'' or more................        5,000        7,500
        (b) A snubbing device that is                 2,500        5,000
         ineffective or missing...............
        (c) Side bearing(s):
            (1) Assembly missing or broken....        5,000        7,500
            (2) In contact except by design...        5,000        7,500
            (3), (4) Total clearance at one
             end or at diagonally opposite
             sides of:........................
              (i) more than \3/4\'' but not           2,500        5,000
             more than 1''....................
              (ii) more than 1''..............        5,000        7,500
        (d) Truck spring(s):
            (1) Do not maintain travel or load        2,500        5,000
            (2) Compressed solid..............        2,500        5,000
            (3) Outer truck springs broken or
             missing:
              (i) Two outer springs...........        2,500        5,000
              (ii) Three or more outer springs        5,000        7,500
        (e) Truck bolster-center plate                5,000        7,500
         interference.........................
        (f) Brake beam shelf support worn.....        2,500        5,000
    215.121  Defective car body:
        (a) Has less than 2\1/2\'' clearance          2,500        5,000
         from the top of rail.................
        (b) Car center sill is:
            (1) Broken........................        6,000        8,500
            (2) Cracked more than 6''.........        2,500        5,000
            (3) Bent or buckled more than 2\1/        2,500        5,000
             2\'' in any 6' length............
        (c) Coupler carrier that is broken or         2,500        5,000
         missing..............................
        (d) Car door not equipped with                5,000        7,500
         operative safety hangers.............
        (e)(1) Center plate not properly              5,000        7,500
         secured..............................
          (2) Portion missing.................        2,500        5,000
          (3) Broken..........................        5,000        7,500
          (4) Two or more cracks..............        2,500        5,000
        (f) Broken sidesill, crossbearer, or          2,500        5,000
         body bolster.........................
    215.123  Defective couplers:
        (a) Shank bent out of alignment.......        1,000        2,000
        (b) Crack in highly stressed junction         2,500        5,000
         area.................................
        (c) Coupler knuckle broken or cracked.        2,500        5,000
        (d) Coupler knuckle pin or thrower            2,500        5,000
         that is missing or inoperative.......
        (e) Coupler retainer pin lock that is         1,000        2,000
         missing or broken....................

[[Page 156]]

 
        (f) Coupler with following conditions:        2,500        5,000
         locklift inoperative; no anticreep
         protection; or coupler lock is
         missing, inoperative, bent, cracked,
         or broken............................
    215.125  Defective uncoupling device......        2,500        5,000
    215.127  Defective draft arrangement:
        (a) Draft gear that is inoperative....        2,500        5,000
        (b) Yoke that is broken...............        2,500        5,000
        (c) End of car cushioning unit is             2,500        5,000
         leaking or inoperative...............
        (d) Vertical coupler pin retainer             5,000        7,500
         plate missing or has missing fastner.
        (e) Draft key or draft key retainer           5,000        7,500
         that is inoperative or missing.......
        (f) Follower plate that is missing or         2,500        5,000
         broken...............................
    215.129  Defective cushioning device......        2,500        5,000
Subpart C--Restricted equipment:
    215.203  Restricted cars..................        2,500        5,000
Subpart D--Stencilling:
    215.301  General..........................        1,000        2,000
    215.303  Stencilling of restricted cars...        1,000        2,000
    215.305  Stencilling of maintenance-of-way        1,000        2,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations
  are discovered with respect to a single freight car that is placed or
  continued in service by a railroad, the appropriate penalties set
  forth above are aggregated up to a maximum of $10,000 per day.
  However, a failure to perform, with respect to a particular freight
  car, the predeparture inspection required by Sec.  215.13 of this part
  will be treated as a violation separate and distinct from, and in
  addition to, any substantive violative conditions found on the car.
  The Administrator reserves the right to assess a penalty of up to
  $22,000 for any violation where circumstances warrant. See 49 CFR part
  209, appendix A.
Failure to observe any condition for movement set forth in paragraphs
  (a) and (c) of Sec.  215.9 will deprive the railroad of the benefit of
  the movement-for-repair provision and make the railroad and any
  responsible individuals liable for penalty under the particular
  regulatory section(s) concerning the substantive defect(s) present on
  the freight car at the time of movement.
Maintenance-of-way equipment not stenciled in accordance with Sec.
  215.305 is subject to all requirements of this part. See Sec.
  215.3(c)(3).


[53 FR 52925, Dec. 29, 1988, as amended at 63 FR 11620, Mar. 10, 1998]

      Appendix C to Part 215--FRA Freight Car Standards Defect Code

    The following defect code has been established for use by FRA and 
State inspectors to report defects observed during inspection of freight 
cars. The purpose of the code is to establish a uniform language among 
FRA, States, and the railroad industry that will facilitate 
communication, recordkeeping, and statistical analyses. The code may not 
be substituted for the description of defects on bad order tags affixed 
to cars being moved for repair under Sec. 215.9. However, it may be used 
to supplement that description.

                                  Index

                                 General

215.009  Improper Movement of Defective Cars.
215.011  Designation of Qualified Persons.
215.013  Failure to Perform a Pre-departure Inspection.
215.015  Failure to Complete Initial Periodic Inspection as Required.

                         Freight Car Components

                            Suspension System

215.103  Defective Wheel.
215.105  Defective Axle.
215.107  Defective Plain Bearing Box: General.
215.109  Defective Plain Bearing Box: Journal Lubrication System.
215.111  Defective Plain Bearing.
215.113  Defective Plain Bearing Wedge.
215.115  Defective Roller Bearing.
215.117  Defective Roller Bearing Adapter.
215.119  Defective Freight Car Truck.

                               Car Bodies

215.121  Defective Car Body.

                              Draft System

215.123  Defective Couplers.
215.125  Defective Uncoupling Device.
215.127  Defective Draft Arrangement.
215.129  Defective Cushioning Device.

                          Restricted Equipment

215.203  Restricted Cars.

                               Stenciling

215.301  Improper Stenciling.
215.303  Improper Stenciling of Restricted Cars.
215.305  Improper Stenciling of Maintenance-of-Way Equipment.

                         Description of Defects

215.009  Failure to meet conditions for movement of defective cars for 
          repairs.
215.011  Designation of Qualified Persons.
    (A)(1) Railroad fails to designate persons qualified to inspect 
freight cars;
    (2) Persons designated does not have knowledge and ability to 
inspect freight cars for compliance with the requirements of this part.

[[Page 157]]

    (B) Railroad fails to maintain written record of:
    (1) Each designation in effect;
    (2) The basis for this designation.
215.013  Failure to perform pre-departure inspection.
215.015  Periodic Inspection.
    (A) Railroad fails to perform the periodic inspection as required by 
June 30, 1980 on:
    (1) High utilization car built prior to December 31, 1977;
    (2) Non-high utilization car built prior to December 31, 1971;
    (B) A freight car improperly stenciled for periodic inspection.
215.103  Defective Wheel.
    (A)(1) Flanges \7/8\'' or less at \3/8\'' above the tread;
    (2) Flanges \13/16\'' or less at \3/8\'' above the tread;
    (3) Flanges \3/4\'' or less at \3/8\'' above the tread;
    (B)(1) Flange is 1\1/2\'' or more from the tread to top of flange;
    (2) Flange is 1\5/8\'' or more from the tread to top of flange;
    (3) Flange is 1\3/4\''.
    (C)(1) Rim thickness is \11/16\'' or less;
    (2) Rim thickness is \5/8\'' or less;
    (3) Rim thickness is \9/16\'' or less;
    (D) Wheel cracked or broken in: (1) rim, (2) flange, (3) plate or 
(4) hub area.
    (E) Wheel chip or gouge in flange:
    (1) 1\1/2\'' length and \1/2\'' in width or more;
    (2) 1\5/8\'' length and \5/8\'' in width or more;
    (3) 1\3/4\'' in length and \3/4\'' in width or more.
    (F) Wheel has slid flat spot or shelled spot:
    (1) 2\1/2\'' in length or more;
    (2) Has two adjoining flat spots each of which is 2'' in length or 
greater;
    (3) A single flat spot 3'' in length or more;
    (4) Has two adjoining flat spots one of which is at least 2'' in 
length and the other is 2\1/2\'' or greater.
    (G) Has a loose wheel.
    (H) Overheated with discoloration extending: (1) More than 4''; (2) 
4\1/2\'' or more.
    (I) A welded wheel on car that is not moving for repairs.
215.105  Defective Axle.
    (A) Cracked or broken:
    (1) Cracked 1' or less;
    (2) Cracked greater than 1'';
    (3) Broken or cracked with visible separation of metal.
    (B) Gouge between wheel seats more than \1/8\'' in depth:
    (C) Broken or cracked end collar on plain bearing axle.
    (D) Overheated journal.
    (E) Surface of plain bearing journal or fillet has (1) ridge, (2) 
depression, (3) circumferential score, (4) corrugation, (5) scratch, (6) 
continuous streak, (7) pitting, (8) rust, (9) etching.
215.107  Defective plain bearing box.
    (A) (1) Does not contain visible free oil;
    (2) A journal box with dry pad.
    (B) Lid is missing, broken or open except to receive service.
    (C) Box has foreign matter that will damage bearing or prevent 
lubrication.
215.109  Defective plain bearing box: journal lubrication system.
    (A) Pad torn half the length or width.
    (B) Scorched, burned or glazed.
    (C) Contains decaying or deteriorated fabric.
    (D) Has exposed core except by design of metal parts in contact with 
journal.
    (E)(1) Missing;
    (2) Not in contact with journal.
215.111  Defective plain bearing.
    (A) Missing, cracked or broken.
    (B)(1) Bearing lining is loose;
    (2) Broken out piece.
    (C) Overheated as evidenced by:
    (1) Melted babbit;
    (2) Smoke from hot oil;
    (3) Journal surface damaged.
215.113  Defective plain bearing wedge.
    (A) Missing.
    (B) Cracked.
    (C) Broken.
    (D) Not located in design position.
215.115  Defective roller bearing.
    (A)(1) Overheated;
    (2) Loose or missing cap screw;
    (3) Roller bearing seal loose or damaged permitting loss of 
lubricant;
    (4) Two or more missing cap screws.
    (B)(1) Failure to inspect if involved in derailment;
    (2) Failure to disassemble if required under this part;
    (3) Failure to repair or replace defective roller bearings.
215.117  Defective roller bearing adapter.
    (A) Cracked or broken.
    (B) Not in design position.
    (C) Worn excessively as shown on Figure 1 in relief portion.
215.119  Defective freight car trucks.
    (A)(1) Side frame or bolster broken;
    (2) Cracked \1/4\'' or more in transverse direction on tension 
member;
    (3) Cracked 1'' or more in transverse direction on tension member.
    (B) Has ineffective snubbing devices.
    (C)(1) Missing or broken side bearing;
    (2) Side bearing in contact except by design;
    (3) Excessive side bearing clearance at one end of car;
    (4) Excessive side bearing clearance on opposite sides at diagonal 
ends of car.
    (D)(1) Has truck springs that will not maintain travel or load;
    (2) Truck springs that are compressed solid;
    (3) Has two springs broken in a cluster;
    (4) Has three or more springs broken.

[[Page 158]]

    (E) Truck bolster and center plate interference preventing rotation.
    (F) Has broken beam shelf supports worn so that shelf will not 
support beam.
215.121  Defective car body.
    (A) Improper clearance--less than 2\1/2\'' from top of rail.
    (B) Center sill is:
    (1) Broken;
    (2) Cracked more than 6'';
    (3) Bent or buckled more than 2\1/2\'' in any 6-foot length.
    (C) Coupler carrier is:
    (1) Broken;
    (2) Missing;
    (3) Non-resilient when used with coupler with F head.
    (D) Car door not equipped with operative safety hangers.
    (E) If center plate:
    (1) Any portion missing;
    (2) Broken or cracked as defined in this part.
    (F) Broken side sills, crossbars or body bolster.
215.123  Defective couplers.
    (A) Coupler shank bent.
    (B) Coupler cracked in highly stressed area of head and shank.
    (C) Coupler knuckle broken.
    (D) Coupler knuckle pin or knuckle throw:
    (1) Missing;
    (2) Inoperative.
    (E) Coupler retainer pin lock:
    (1) Missing;
    (2) Broken.
    (F)(1) Coupler locklift is inoperative;
    (2) No anti-creep protection;
    (3) Coupler lock is (i) missing, (ii) inoperative, (iii) bent, (iv) 
cracked or (v) broken.
215.125  Defective uncoupling device.
    (A) Fouling on curve.
    (B) Unintentional uncoupling.
215.127  Defective draft arrangement.
    (A) Draft gear inoperative.
    (B) Broken yoke.
    (C) End of car cushioning unit:
    (1) Leaking;
    (2) Inoperative.
    (D) Vertical coupler pin retainer plate:
    (1) Missing;
    (2) Has missing fastener.
    (E) Draft key or key retainer:
    (1) Inoperative;
    (2) Missing.
    (F) Follower plate missing or broken.
215.129  Defective cushioning device unless effectively immobilized.
    (A) Broken.
    (B) Inoperative.
    (C) Missing parts.
215.203  Operating a restricted car, except under conditions approved by 
          FRA.

                               Stenciling

215.301  Failure to stencil car number and built date on freight car as 
          required.
215.303  Failure to stencil restricted car as required.
215.305  Failure to stencil maintenance-of-way equipment as required.

       Appendix D to Part 215--Pre-departure Inspection Procedure

    At each location where a freight car is placed in a train and a 
person designated under Sec. 215.11 is not on duty for the purpose of 
inspecting freight cars, the freight car shall, as a minimum, be 
inspected for the imminently hazardous conditions listed below that are 
likely to cause an accident or casualty before the train arrives at its 
destination. These conditions are readily discoverable by a train crew 
member in the course of a customary inspection.
    1. Car body:
    (a) Leaning or listing to side.
    (b) Sagging downward.
    (c) Positioned improperly on truck.
    (d) Object dragging below.
    (e) Object extending from side.
    (f) Door insecurely attached.
    (g) Broken or missing safety appliance.
    (h) Lading leaking from a placarded hazardous material car.
    2. Insecure coupling.
    3. Overheated wheel or journal.
    4. Broken or extensively cracked wheel.
    5. Brake that fails to release.
    6. Any other apparent safety hazard likely to cause an accident or 
casualty before the train arrives at its destination.

[45 FR 26711, Apr. 21, 1980]



PART 216--SPECIAL NOTICE AND EMERGENCY ORDER PROCEDURES: RAILROAD TRACK, LOCOMOTIVE AND EQUIPMENT--Table of Contents




                           Subpart A--General

Sec.
216.1  Application.
216.3  Definitions.
216.5  Delegation and general provisions.
216.7  Penalties.

                  Subpart B--Special Notice for Repairs

216.11  Special notice for repairs--railroad freight car.
216.13  Special notice for repairs--locomotive.
216.14  Special notice for repairs--passenger equipment.
216.15  Special notice for repairs--track class.
216.17  Appeals.

[[Page 159]]

                    Subpart C--Emergency Order--Track

216.21  Notice of track conditions.
216.23  Consideration of recommendation.
216.25  Issuance and review of emergency order.
216.27  Reservation of authority and discretion.

    Authority: 49 U.S.C. 20102-04, 20111, 20133, 20137-38, 20141, 20143, 
20301-02, 20701-02, 21301-02, 21304; 49 CFR 1.49(c), (m).

    Source: 41 FR 18657, May 6, 1976, unless otherwise noted.



                           Subpart A--General



Sec. 216.1  Application.

    (a) This part applies, according to its terms, to each railroad that 
uses or operates--
    (1) A railroad freight car subject to part 215 of this chapter;
    (2) A locomotive subject to 49 U.S.C. chapter 207 (49 U.S.C. 20701-
03); or
    (3) Railroad passenger equipment subject to part 238 of this 
chapter.
    (b) This part applies, according to its terms, to each railroad 
owning track subject to part 213 of this chapter.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]



Sec. 216.3  Definitions.

    As used in this part--
    (a) FRA means the Federal Railroad Administration.
    (b) State means a State participating in investigative and 
surveillance activities under 49 U.S.C. 20105.
    (c) Inspector includes FRA Regional Supervisors of Inspectors.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]



Sec. 216.5  Delegation and general provisions.

    (a) The Administrator has delegated to the appropriate FRA and State 
personnel the authority to implement this part.
    (b) Communications to the Administrator relating to the operation of 
this part should be submitted in triplicate to the Docket Clerk, Office 
of Chief Counsel, Federal Railroad Administration, Washington, DC 20590.
    (c) The notices prescribed in Secs. 216.11, 216.13, 216.14, 216.15, 
and 216.21 of this part are issued on standard FRA forms indicating the 
particular subject matter. An inspector issues a notice by delivering it 
to an appropriate officer or agent immediately responsible for the 
affected locomotive, car, or track.

[41 FR 18657, May 6, 1976, as amended at 41 FR 43153, Sept. 30, 1976; 64 
FR 25659, May 12, 1999]



Sec. 216.7  Penalties.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that: Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. Each day a violation continues shall 
constitute a separate offense. See 49 CFR part 209, appendix A.

[53 FR 28599, July 28, 1988, as amended at 63 FR 11620, Mar. 10, 1998]



                  Subpart B--Special Notice for Repairs

    Editorial Note: Nomenclature changes to subpart B of part 216 appear 
at 64 FR 25659, May 12, 1999.



Sec. 216.11  Special notice for repairs--railroad freight car.

    (a) When an FRA Motive Power and Equipment Inspector or a State 
Equipment Inspector determines that a railroad freight car is not in 
conformity with the requirements of the FRA Freight Car Safety Standards 
set forth in part 215 of this chapter and that it is unsafe for further 
service, he notifies

[[Page 160]]

the railroad in writing that the car is not in serviceable condition. 
The Special Notice sets out and describes the defects that cause the car 
to be in unserviceable condition. After receipt of the Special Notice, 
the railroad shall remove the car from service until it is restored to 
serviceable condition. The car may not be deemed to be in serviceable 
condition until it complies with all applicable requirements of part 215 
of this chapter.
    (b) The railroad shall notify the FRA Regional Administrator in 
writing when the equipment is returned to service, specifying the 
repairs completed.
    (c) A railroad freight car subject to the notice prescribed in 
paragraph (a) of this section may be moved from the place where it was 
found to be unsafe for further service to the nearest available point 
where the car can be repaired, if such movement is necessary to make 
such repairs. However, the movement is subject to the further 
restrictions of Sec. 215.9 of this chapter.

[41 FR 18657, May 6, 1976, as amended at 41 FR 43153, Sept. 30, 1976]



Sec. 216.13  Special notice for repairs--locomotive.

    (a) When an FRA Motive Power and Equipment Inspector or State 
Equipment Inspector determines a locomotive is not safe to operate in 
the service to which it is put, whether by reason of nonconformity with 
the FRA Railroad Locomotive Safety Standards set forth in part 229 of 
this chapter or the FRA Railroad Locomotive Inspection Regulations set 
forth in part 230 of this chapter or by reason of any other condition 
rendering the locomotive unsafe, he or she will notify the railroad in 
writing that the locomotive is not in serviceable condition. After 
receipt of the Special Notice, the railroad shall remove the locomotive 
from service until it is restored to serviceable condition. The 
locomotive may not be deemed to be in serviceable condition until it 
complies with all applicable requirements of parts 229 and 230 of this 
chapter and until all additional deficiencies identified in the Special 
Notice have been corrected.
    (b) The carrier shall notify the FRA Regional Administrator in 
writing when the locomotive is returned to service, specifying the 
repairs completed. The carrier officer or employee directly responsible 
for the repairs shall subscribe this writing under oath.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]



Sec. 216.14  Special notice for repairs--passenger equipment.

    (a) When an FRA Motive Power and Equipment Inspector or a State 
Equipment Inspector determines that railroad passenger equipment is not 
in conformity with one or more of the requirements of the FRA Passenger 
Equipment Safety Standards set forth in part 238 of this chapter and 
that it is unsafe for further service, he or she will issue a written 
Special Notice to the railroad that the equipment is not in serviceable 
condition. The Special Notice describes the defect or defects that cause 
the equipment to be in unserviceable condition. After receipt of the 
Special Notice, the railroad shall remove the equipment from service 
until it is restored to serviceable condition. The equipment may not be 
deemed in serviceable condition until it complies with all applicable 
requirements of part 238 of this chapter.
    (b) The railroad shall notify in writing the FRA Regional 
Administrator for the FRA region in which the Special Notice was issued 
when the equipment is returned to service, specifying the repairs 
completed.
    (c) Railroad passenger equipment subject to a Special Notice may be 
moved from the place where it was found to be unsafe for further service 
to the nearest available point where the equipment can be repaired, if 
such movement is necessary to make the repairs. However, the movement is 
subject to the further restrictions of Secs. 238.15 and 238.17 of this 
chapter.

[64 FR 25659, May 12, 1999]



Sec. 216.15  Special notice for repairs--track class.

    (a) When an FRA Track Inspector or State Track Inspector determines 
that track does not comply with the requirements for the class at which 
the track is being operated, as defined in the Track Safety Standards 
(49 CFR

[[Page 161]]

part 213), he notifies the railroad in writing that the track is being 
lowered in class and that operations over that track must comply with 
the speed limitations prescribed in part 213 of this chapter. The notice 
describes the conditions requiring the track to be lowered in class, 
specifies the exact location of the affected track segment, and states 
the highest class and corresponding maximum speeds at which trains may 
be operated over that track. After receipt of such notice, the speeds at 
which trains operate over that track shall not exceed the stated maximum 
permissible speeds, until such time as the track conforms to applicable 
standards for a higher class.
    (b) The railroad shall notify the FRA Regional Administrator in 
writing when the track is restored to a condition permitting operations 
at speeds authorized for a higher class, specifying the repairs 
completed.

[41 FR 43153, Sept. 30, 1976]



Sec. 216.17  Appeals.

    (a) Upon receipt of a Special Notice prescribed in Sec. 216.11, 
216.13, 216.14, or 216.15, a railroad may appeal the decision of the 
Inspector to the FRA Regional Administrator for the region in which the 
notice was given. The appeal shall be made by letter or telegram. The 
FRthe FRA Regional Administrator assigns an inspector, other than the 
inspector from whose decision the appeal is being taken, to reinspect 
the railroad freight car, locomotive, railroad passenger equipment, or 
track. The reinspection will be made immediately. If upon reinspection, 
the railroad freight car, locomotive, or passenger equipment is found to 
be in serviceable condition, or the track is found to comply with the 
requirements for the class at which it was previously operated by the 
railroad, the FRA Regional Administrator or his or her agent will 
immediately notify the railroad, whereupon the restrictions of the 
Special Notice cease to be effective. If on reinspection the decision of 
the original inspector is sustained, the FRthe FRA Regional 
Administrator notifies the railroad that the appeal has been denied.
    (b) A railroad whose appeal to the FRthe FRA Regional Administrator 
for Railroad Safety has been denied may, within thirty (30) days from 
the denial, appeal to the Administrator. After affording an opportunity 
for informal oral hearing, the Administrator may affirm, set aside, or 
modify, in whole or in part, the action of the FRthe FRA Regional 
Administrator.
    (c) The requirements of a Special Notices issued under this subpart 
shall remain in effect and be observed by railroads pending appeal to 
the FRA Regional Administrator for Railroad Safety or to the 
Administrator.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]



                    Subpart C--Emergency Order--Track



Sec. 216.21  Notice of track conditions.

    (a) When an FRA Track Inspector or State Track Inspector finds track 
conditions which may require the issuance of an Emergency order removing 
the track from service under section 203, Public Law No. 91-458, 84 
Stat. 972 (45 U.S.C. 432), the Inspector may issue a notice to the 
railroad owning the track. The notice sets out and describes the 
conditions found by the Inspector and specifies the location of defects 
on the affected track segment. The Inspector provides a copy to the FRA 
Regional Track Engineer and the FRA Regional Administrator.
    (b) In the event the railroad immediately commences repairs on the 
affected track and so advises the FRA Regional Track Engineer, the 
Regional Track Engineer assigns an Inspector to reinspect the track 
immediately on the completion of repairs. If upon reinspection the 
Inspector determines that necessary repairs have been completed, he 
withdraws the Notice of Track Conditions.



Sec. 216.23  Consideration of recommendation.

    Upon receipt of a Notice of Track Conditions issued under 
Sec. 216.21, the FRA Regional Administrator prepares a recommendation to 
the Administrator concerning the issuance of an Emergency order removing 
the affected track from service. In preparing this

[[Page 162]]

recommendation, the FRthe FRA Regional Administrator considers all 
written or other material bearing on the condition of the track received 
from the railroad within three (3) calendar days of the issuance of the 
Notice of Track Conditions and also considers the report of the FRA 
Regional Track Engineer.



Sec. 216.25  Issuance and review of emergency order.

    (a) Upon recommendation of the FRA Regional Administrator, the 
Administrator may issue an Emergency order removing from service track 
identified in the notice issued under Sec. 216.21.
    (b) As specified in section 203, Public Law No. 91-458, 84 Stat. 972 
(45 U.S.C. 432), opportunity for review of the Emergency order is 
provided in accordance with section 554 of title 5 of the U.S.C. 
Petitions for such review must be submitted in writing to the Office of 
Chief Counsel, Federal Railroad Administration, Washington, DC 20590. 
Upon receipt of a petition, FRA will immediately contact the petitioner 
and make the necessary arrangements for a conference to be held at the 
earliest date acceptable to the petitioner. At this conference, the 
petitioner will be afforded an opportunity to submit facts, arguments 
and proposals for modification or withdrawal of the Emergency order. If 
the controversy is not resolved at this conference and a hearing is 
desired, the petitioner must submit a written request for a hearing 
within fifteen (15) days after the conference. The hearing will commence 
within fourteen (14) calendar days of receipt of the request and will be 
conducted in accordance with sections 556 and 575, title 5, U.S.C.
    (c) Unless stayed or modified by the Administrator, the requirements 
of each Emergency order issued under this subpart shall remain in effect 
and be observed pending decision on a petition for review.



Sec. 216.27  Reservation of authority and discretion.

    The FRA may issue Emergency orders concerning track without regard 
to the procedures prescribed in this subpart whenever the Administrator 
determines that immediate action is required to assure the public 
safety.



PART 217--RAILROAD OPERATING RULES--Table of Contents




                           Subpart A--General

Sec.
217.1  Purpose.
217.3  Application.
217.4  Definitions.
217.5  Penalty.
217.7  Operating rules; filing and recordkeeping.
217.9  Program of operational tests and inspections; recordkeeping.
217.11  Program of instruction on operating rules; recordkeeping; 
          electronic recordkeeping.
217.13  Information collection.

Appendix A to Part 217--Schedule of Civil Penalties

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

    Source: 39 FR 41176, Nov. 25, 1974, unless otherwise noted.



                           Subpart A--General



Sec. 217.1  Purpose.

    Through the requirements of this part, the Federal Railroad 
Administration learns the condition of operating rules and practices 
with respect to trains and other rolling equipment in the railroad 
industry, and each railroad is required to instruct its employees in 
operating practices.



Sec. 217.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to railroads that operate trains or other rolling equipment on 
standard gage track which is part of the general railroad system of 
transportation.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
which is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not connected 
with the general railroad system of transportation.

[40 FR 2690, Jan. 15, 1975, as amended at 54 FR 33229, Aug. 14, 1989]

[[Page 163]]



Sec. 217.4  Definitions.

    As used in this part--
    Class I, Class II, and Class III have the meaning assigned by 
regulations of the Interstate Commerce Commission (49 CFR part 1201; 
General Instructions 1-1), as those regulations may be revised and 
applied by order of the Commission (including modifications in class 
thresholds based revenue deflator adjustments).
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    System headquarters means the location designated by the railroad as 
the general office for the railroad system.

[59 FR 43070, Aug. 22, 1994]



Sec. 217.5  Penalty.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that: Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. Each day a violation continues shall 
constitute a separate offense. See appendix A to this part for a 
statement of agency civil penalty policy.

[53 FR 28599, July 28, 1988, as amended at 53 FR 52927, Dec. 29, 1988; 
63 FR 11620, Mar. 10, 1998]



Sec. 217.7  Operating rules; filing and recordkeeping.

    (a) On or before December 21, 1994, each Class I railroad, Class II 
railroad, the National Railroad Passenger Corporation, and each railroad 
providing commuter service in a metropolitan or suburban area that is in 
operation on November 21, 1994, shall file with the Federal Railroad 
Administrator, Washington, DC 20590, one copy of its code of operating 
rules, timetables, and timetable special instructions which were in 
effect on November 21, 1994. Each Class I railroad, each Class II 
railroad, and each railroad providing commuter service in a metropolitan 
or suburban area that commences operations after November 21, 1994, 
shall file with the Administrator one copy of its code of operating 
rules, timetables, and timetable special instructions before it 
commences operations.
    (b) After November 21, 1994, each Class I railroad, each Class II 
railroad, the National Railroad Passenger Corporation, and each railroad 
providing commuter service in a metropolitan or suburban area shall file 
each new amendment to its code of operating rules, each new timetable, 
and each new timetable special instruction with the Federal Railroad 
Administrator within 30 days after it is issued.
    (c) On or after November 21, 1994, each Class III railroad and any 
other railroad subject to this part but not subject to paragraphs (a) 
and (b) of this section shall keep one copy of its current code of 
operating rules, timetables, and timetable special instructions and one 
copy of each subsequent amendment to its code of operating rules, each 
new timetable, and each new timetable special instruction, at its system 
headquarters, and shall make such records available to representatives 
of the Federal Railroad Administration for inspection and copying during 
normal business hours.

[59 FR 43070, Aug. 22, 1994]



Sec. 217.9  Program of operational tests and inspections; recordkeeping.

    (a) Requirement to conduct operational tests and inspections. Each 
railroad to

[[Page 164]]

which this part applies shall periodically conduct operational tests and 
inspections to determine the extent of compliance with its code of 
operating rules, timetables, and timetable special instructions in 
accordance with a written program retained at its system headquarters 
and at the division headquarters for each division where the tests are 
conducted.
    (b) Written program of operational tests and inspections. On or 
after November 21, 1994, or 30 days before commencing operations, 
whichever is later, each railroad to which this part applies shall 
retain one copy of its current program for periodic performance of the 
operational tests and inspections required by paragraph (a) of this 
section and one copy of each subsequent amendment to such program. These 
records shall be retained at the system headquarters of the railroad and 
at the division headquarters for each division where the tests are 
conducted, for three calendar years after the end of the calendar year 
to which they relate. These records shall be made available to 
representatives of the Federal Railroad Administration for inspection 
and copying during normal business hours. The program shall--
    (1) Provide for operational testing and inspection under the various 
operating conditions on the railroad;
    (2) Describe each type of operational test and inspection adopted, 
including the means and procedures used to carry it out;
    (3) State the purpose of each type of operational test and 
inspection;
    (4) State, according to operating divisions where applicable, the 
frequency with which each type of operational test and inspection is 
conducted;
    (5) Begin within 30 days after November 21, 1994, or the date of 
commencing operations, whichever is later; and
    (6) Include a schedule for making the program fully operative within 
210 days after it begins.
    (c) Records of individual tests and inspections. Each railroad to 
which this part applies shall keep a record of the date, time, place, 
and result of each operational test and inspection that was performed in 
accordance with its program. Each record shall specify the officer 
administering the test and inspection and each employee tested. These 
records shall be retained at the system headquarters of the railroad and 
at the division headquarters for each division where the tests are 
conducted for one calendar year after the end of the calendar year to 
which they relate. These records shall be made available to 
representatives of the Federal Railroad Administration for inspection 
and copying during normal business hours.
    (d) Annual summary on operational tests and inspections. Before 
March 1 of each calendar year, each railroad to which this part applies, 
except for a railroad with less than 400,000 total manhours, shall 
retain, at each of its division headquarters and at the system 
headquarters of the railroad, one copy of a written summary of the 
following with respect to its previous year's activities: The number, 
type, and result of each operational test and inspection, stated 
according to operating divisions where applicable, that was conducted as 
required by paragraphs (a) and (b) of this section. These records shall 
be retained for three calendar years after the end of the calendar year 
to which they relate and shall be made available to representatives of 
the Federal Railroad Administration for inspection and copying during 
normal business hours.
    (e) Electronic recordkeeping. Each railroad to which this part 
applies is authorized to retain by electronic recordkeeping the 
information prescribed in paragraphs (b) through (d) of this section, 
provided that all of the following conditions are met:
    (1) The railroad adequately limits and controls accessibility to 
such information retained in its electronic database system and 
identifies those individuals who have such access;
    (2) The railroad has a terminal at the system headquarters and at 
each division headquarters;
    (3) Each such terminal has a desk-top computer (i.e., monitor, 
central processing unit, and keyboard) and either a facsimile machine or 
a printer connected to the computer to retrieve and produce information 
in a usable format for immediate review by FRA representatives;

[[Page 165]]

    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as true 
and accurate copies of the electronically kept records; and
    (5) The railroad provides representatives of the Federal Railroad 
Administration with immediate access to these records for inspection and 
copying during normal business hours and provides printouts of such 
records upon request.

[39 FR 41176, Nov. 25, 1974, as amended at 59 FR 43070, Aug. 22, 1994]



Sec. 217.11  Program of instruction on operating rules; recordkeeping; electronic recordkeeping.

    (a) To ensure that each railroad employee whose activities are 
governed by the railroad's operating rules understands those rules, each 
railroad to which this part applies shall periodically instruct each 
such employee on the meaning and application of the railroad's operating 
rules in accordance with a written program retained at its system 
headquarters and at the division headquarters for each division where 
the employee is instructed.
    (b) On or after November 21, 1994, or 30 days before commencing 
operations, whichever is later, each railroad to which this part applies 
shall retain one copy of its current program for the periodic 
instruction of its employees as required by paragraph (a) of this 
section and one copy of each subsequent amendment to that program. The 
system headquarters of the railroad shall retain one copy of all these 
records; the division headquarters for each division where the employees 
are instructed shall retain one copy of all portions of these records 
that the division applies and enforces. These records shall be made 
available to representatives of the Federal Railroad Administration for 
inspection and copying during normal business hours. This program 
shall--
    (1) Describe the means and procedures used for instruction of the 
various classes of affected employees;
    (2) State the frequency of instruction and the basis for determining 
that frequency;
    (3) Include a schedule for completing the initial instruction of 
employees who are already employed when the program begins;
    (4) Begin within 30 days after November 21, 1994, or the date of 
commencing operations, whichever is later; and
    (5) Provide for initial instruction of each employee hired after the 
program begins.
    (c) Each railroad to which this part applies is authorized to retain 
by electronic recordkeeping its program for periodic instruction of its 
employees on operating rules provided that the requirements stated in 
Sec. 217.9(e)(1) through (5) of this part are satisfied.

[39 FR 41176, Nov. 25, 1974, as amended at 59 FR 43071, Aug. 22, 1994]



Sec. 217.13  Information collection.

    (a) The information collection requirements in this part have been 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980, Public Law 96-511, and have been 
assigned OMB control number 2130-0035.
    (b) The information collection requirements are found in the 
following sections:
    (1) Section 217.7.
    (2) Section 217.9.
    (3) Section 217.11.

[50 FR 7919, Feb. 27, 1985. Redesignated and amended at 59 FR 43071, 
Aug. 22, 1994]

         Appendix A to Part 217--Schedule Of Civil Penalties \1\
------------------------------------------------------------------------
                                                                Willful
                      Section                       Violation  violation
------------------------------------------------------------------------
217.7 Operating rules:
    (a)...........................................     $2,500     $5,000
    (b)...........................................     $2,000     $5,000
    (c)...........................................     $2,500     $5,000
217.9 Operational tests and inspections:
 
    (a) Program...................................     $5,000     $7,500
    (b) Record of program.........................      2,500     $5,000
    (c) Record of tests and inspections...........     $5,000     $7,500
    (d) Annual summary............................     $5,000     $7,500
217.11 Program of instruction on operating rules:
    (a)...........................................     $5,000     $7,500
    (b)...........................................     $2,500     $5,000
------------------------------------------------------------------------
1 A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.


[59 FR 43071, Aug. 22, 1994, as amended at 63 FR 11620, Mar. 10, 1998]

[[Page 166]]



PART 218--RAILROAD OPERATING PRACTICES--Table of Contents




                           Subpart A--General

Sec.
218.1  Purpose.
218.3  Application.
218.5  Definitions.
218.7  Waivers.
218.9  Civil penalty.
218.11  Filing, testing, and instruction.

              Subpart B--Blue Signal Protection of Workers

218.21  Scope.
218.22  Utility employee.
218.23  Blue signal display.
218.24  One-person crew.
218.25  Workers on a main track.
218.27  Workers on track other than main track.
218.29  Alternate methods of protection.
218.30  Remotely controlled switches.

             Subpart C--Protection of Trains and Locomotives

218.31  Scope.
218.35  Yard limits.
218.37  Flag protection.
218.39  Hump operations.
218.41  Noncompliance with hump operations rule.

      Subpart D--Prohibition Against Tampering With Safety Devices

218.51  Purpose.
218.53  Scope and definitions.
218.55  Tampering prohibited.
218.57  Responsibilities of individuals.
218.59  Responsibilities of railroads.
218.61  Authority to deactivate safety devices.

               Subpart E--Protection of Occupied Camp Cars

218.71  Purpose and scope.
218.73  Warning signal display.
218.75  Methods of protection for camp cars.
218.77  Remotely controlled switches.
218.79  Alternative methods of protection.
218.80  Movement of occupied camp cars.

Appendix A to Part 218--Schedule of Civil Penalties
Appendix B to Part 218--Statement of Agency Enforcement Policy on Blue 
          Signal Protection for Utility Employees
Appendix C to Part 218--Statement of Agency Enforcement Policy on 
          Tampering

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

    Source: 44 FR 2175, Jan. 10, 1979, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 218 appear at 58 FR 
43292, Aug. 16, 1993.



                           Subpart A--General



Sec. 218.1  Purpose.

    This part prescribes minimum requirements for railroad operating 
rules and practices. Each railroad may prescribe additional or more 
stringent requirements in its operating rules, timetables, timetable 
special instructions, and other special instructions.



Sec. 218.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to railroads that operate rolling equipment on standard gage 
track which is part of the general railroad system of transportation.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
which is not part of the general railroad system of transportation, or
    (2) Rapid transit operations in an urban area that are not connected 
with the general railroad system of transportation.

[44 FR 2175, Jan. 10, 1979, as amended at 53 FR 28599, July 28, 1988]



Sec. 218.5  Definitions.

    Absolute block means a block in which no train is permitted to enter 
while it is occupied by another train.
    Blue signal means a clearly distinguishable blue flag or blue light 
by day and a blue light at night. When attached to the operating 
controls of a locomotive, it need not be lighted if the inside of the 
cab area of the locomotive is sufficiently lighted so as to make the 
blue signal clearly distinguishable.
    Camp car means any on-track vehicle, including outfit, camp, or bunk 
cars or modular homes mounted on flat cars used to house rail employees. 
It does not include wreck trains.
    Car shop repair track area means one or more tracks within an area 
in which

[[Page 167]]

the testing, servicing, repair, inspection, or rebuilding of railroad 
rolling equipment is under the exclusive control of mechanical 
department personnel.
    Controlling Locomotive means a locomotive arranged as having the 
only controls over all electrical, mechanical and pneumatic functions 
for one or more locomotives, including controls transmitted by radio 
signals if so equipped. It does not include two or more locomotives 
coupled in multiple which can be moved from more than one set of 
locomotive controls.
    Designated crew member means an individual designated under the 
railroad's operating rules as the point of contact between a train or 
yard crew and a utility employee working with that crew.
    Effective locking device when used in relation to a manually 
operated switch or a derail means one which is:
    (1) Vandal resistant;
    (2) Tamper resistant; and
    (3) Capable of being locked and unlocked only by the class, craft or 
group of employees for whom the protection is being provided.
    Flagman's signals means a red flag by day and a white light at 
night, and a specified number of torpedoes and fusees as prescribed in 
the railroad's operating rules.
    Group of workers means two or more workers of the same or different 
crafts assigned to work together as a unit under a common authority and 
who are in communication with each other while the work is being done.
    Interlocking limits means the tracks between the opposing home 
signals of an interlocking.
    Locomotive means a self-propelled unit of equipment designed for 
moving other railroad rolling equipment in revenue service including a 
self-propelled unit designed to carry freight or passenger traffic, or 
both, and may consist of one or more units operated from a single 
control.
    Locomotive servicing track area means one or more tracks, within an 
area in which the testing, servicing, repair, inspection, or rebuilding 
of locomotives is under the exclusive control of mechanical department 
personnel.
    Main track means a track, other than an auxiliary track, extending 
through yards or between stations, upon which trains are operated by 
timetable or train order or both, or the use of which is governed by a 
signal system.
    Rolling equipment includes locomotives, railroad cars, and one or 
more locomotives coupled to one or more cars.
    Switch providing access means a switch which if traversed by rolling 
equipment could permit that rolling equipment to couple to the equipment 
being protected.
    Train or yard crew means one or more railroad employees assigned a 
controlling locomotive, under the charge and control of one crew member; 
called to perform service covered by Section 2 of the Hours of Service 
Act; involved with the train or yard movement of railroad rolling 
equipment they are to work with as an operating crew; reporting and 
working together as a unit that remains in close contact if more than 
one employee; and subject to the railroad operating rules and program of 
operational tests and inspections required in Secs. 217.9 and 217.11 of 
this chapter.
    Utility employee means a railroad employee assigned to and 
functioning as a temporary member of a train or yard crew whose primary 
function is to assist the train or yard crew in the assembly, 
disassembly or classification of rail cars, or operation of trains 
(subject to the conditions set forth in Sec. 218.22 of this chapter).
    Worker means any railroad employee assigned to inspect, test, 
repair, or service railroad rolling equipment, or their components, 
including brake systems. Members of train and yard crews are excluded 
except when assigned such work on railroad rolling equipment that is not 
part of the train or yard movement they have been called to operate (or 
been assigned to as ``utility employees''). Utility employees assigned 
to and functioning as temporary members of a specific train or yard crew 
(subject to the conditions set forth in Sec. 218.22 of this chapter), 
are excluded only when so assigned and functioning.

    Note: Servicing does not include supplying cabooses, locomotives, or 
passenger cars with items such as ice, drinking water, tools,

[[Page 168]]

sanitary supplies, stationery, or flagging equipment.

    Testing does not include (i) visual observations made by an employee 
positioned on or alongside a caboose, locomotive, or passenger car; or 
(ii) marker inspections made in accordance with the provisions of 
Sec. 221.16(b) of this chapter.

[58 FR 43292, Aug. 16, 1993, as amended at 60 FR 11049, Mar. 1, 1995]



Sec. 218.7  Waivers.

    (a) A railroad may petition the Federal Railroad Administration for 
a waiver of compliance with any requirement prescribed in this part.
    (b) Each petition for a waiver under this section must be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that waiver of compliance is in the 
public interest and is consistent with railroad safety, he may grant the 
waiver subject to any conditions he deems necessary. Notice of each 
waiver granted, including a statement of the reasons, therefore, is 
published in the Federal Register.



Sec. 218.9  Civil penalty.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that: Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. Each day a violation continues shall 
constitute a separate offense. See appendix A to this part for a 
statement of agency civil penalty policy.

[53 FR 28599, July 28, 1988, as amended at 53 FR 52928, Dec. 29, 1988; 
63 FR 11621, Mar. 10, 1998]



Sec. 218.11  Filing, testing, and instruction.

    The operating rules prescribed in this part, and any additional or 
more stringent requirements issued by a railroad in relation to the 
operating rules prescribed in this part, shall be subject to the 
provisions of part 217 of this chapter, Railroad Operating Rules: 
Filing, Testing, and Instruction.



              Subpart B--Blue Signal Protection of Workers



Sec. 218.21  Scope.

    This subpart prescribes minimum requirements for the protection of 
railroad employees engaged in the inspection, testing, repair, and 
servicing of rolling equipment whose activities require them to work on, 
under, or between such equipment and subjects them to the danger of 
personal injury posed by any movement of such equipment.



Sec. 218.22  Utility employee.

    (a) A utility employee shall be subject to the Hours of Service Act, 
and the requirements for training and testing, control of alcohol and 
drug use, and hours of service record keeping provided for in parts 217, 
219, and 228 of this chapter.
    (b) A utility employee shall perform service as a member of only one 
train or yard crew at any given time. Service with more than one crew 
may be sequential, but not concurrent.
    (c) A utility employee may be assigned to and serve as a member of a 
train or yard crew without the protection otherwise required by subpart 
D of part 218 of this chapter only under the following conditions:
    (1) The train or yard crew is assigned a controlling locomotive that 
is under the actual control of the assigned locomotive engineer of that 
crew;
    (2) The locomotive engineer is in the cab of the controlling 
locomotive, or,

[[Page 169]]

while the locomotive is stationary be replaced in the cab by another 
member of the same crew;
    (3) The utility employee established communication with the crew by 
contacting the designated crew member on arriving at the train (as 
defined for the purpose of this section as one or more locomotives 
coupled, with or without cars) and before commencing any duties with the 
crew.
    (4) Before each utility employee commences duties, the designated 
crew member shall provide notice to each crew member of the presence and 
identity of the utility employee. Once all crew members have 
acknowledged this notice, the designated crew member shall advise the 
utility employee that he or she is authorized to work as part of the 
crew. Thereafter, communication shall be maintained in such a manner 
that each member of the train or yard crew understands the duties to be 
performed and whether those duties will cause any crew member to go on, 
under, or between the rolling equipment; and
    (5) The utility employee is performing one or more of the following 
functions: set or release hand brakes; couple or uncouple air hoses and 
other electrical or mechanical connections; prepare rail cars for 
coupling; set wheel blocks or wheel chains; conduct air brake tests to 
include cutting air brake components in or out and position retaining 
valves; inspect, test, install, remove or replace a rear end marking 
device or end of train device. Under all other circumstances a utility 
employee working on, under, or between railroad rolling equipment must 
be provided with blue signal protection in accordance with Secs. 218.23 
through 218.30 of this part.
    (d) When the utility employee has ceased all work in connection with 
that train and is no longer on, under, or between the equipment, the 
utility employee shall notify the designated crew member. The designated 
crew member shall then provide notice to each crew member that the 
utility employee is being released from the crew. Once each crew member 
has acknowledged the notice, the designated crew member shall then 
notify the utility employee that he is released from the train or yard 
crew.
    (e) Communications required by Sec. 218.22(c)(4) and (d) shall be 
conducted between the utility employee and the designated crew member. 
This communications shall be conducted either through direct verbal 
contact, by radio in compliance with part 220 of this chapter, or by 
oral telecommunication of equivalent integrity.
    (f) No more than three utility employees may be attached to one 
train or yard crew at any given time.
    (g) Any railroad employee who is not assigned to a train or yard 
crew, or authorized to work with a crew under the conditions set forth 
by paragraph (b) of this section, is a worker required to be provided 
blue signal protection in accordance with Secs. 218.23 through 218.30 of 
this part.
    (h) Nothing in this section shall affect the alternative form of 
protection specified in Sec. 221.16 of this chapter with respect to 
inspection of rear end marking devices.

[58 FR 43293, Aug. 16, 1993, as amended at 60 FR 11050, Mar. 1, 1995]



Sec. 218.23  Blue signal display.

    (a) Blue signals displayed in accordance with Sec. 218.25, 218.27, 
or 218.29 signify that workers are on, under, or between rolling 
equipment. When so displayed--
    (1) The equipment may not be coupled to;
    (2) The equipment may not be moved, except as provided for in 
Sec. 218.29;
    (3) Other rolling equipment may not be placed on the same track so 
as to reduce or block the view of a blue signal, except as provided for 
in Sec. 218.29 (a), (b) and (c); and
    (4) Rolling equipment may not pass a displayed blue signal.
    (b) Blue signals must be displayed in accordance with Sec. 218.25, 
218.27, or 218.29 by each craft or group of workers prior to their going 
on, under, or between rolling equipment and may only be removed by the 
same craft or group that displayed them.



Sec. 218.24  One-person crew.

    (a) An engineer working alone as a one-person crew shall not perform 
duties on, under, or between rolling

[[Page 170]]

equipment, without blue signal protection that complies with Sec. 218.27 
or Sec. 218.29, unless the duties to be performed are listed in 
Sec. 218.22(c)(5) and the following protections are provided:
    (1) Each locomotive in the locomotive engineer's charge is either:
    (i) Coupled to the train or other railroad rolling equipment to be 
assisted; or
    (ii) Stopped a sufficient distance from the train or rolling 
equipment to ensure a separation of at least 50 feet; and
    (2) Before a controlling locomotive is left unattended, the one-
member crew shall secure the locomotive as follows:
    (i) The throttle is in the IDLE position;
    (ii) The generator field switch is in the OFF position;
    (iii) The reverser handle is removed (if so equipped);
    (iv) The isolation switch is in the ISOLATE position;
    (v) The locomotive independent (engine) brake valve is fully 
applied;
    (vi) The hand brake on the controlling locomotive is fully applied 
(if so equipped); and
    (vii) A bright orange engineer's tag (a tag that is a minimum of 
three by eight inches with the words ASSIGNED LOCOMOTIVE--DO NOT 
OPERATE) is displayed on the control stand of the controlling 
locomotive.
    (b) When assisting another train or yard crew with the equipment the 
other crew was assigned to operate, a single engineer must communicate 
directly, either by radio in compliance with part 220 of this chapter or 
by oral telecommunication of equivalent integrity, with the crew of the 
train to be assisted. The crews of both trains must notify each other in 
advance of all moves to be made by their respective equipment. Prior to 
attachment or detachment of the assisting locomotive(s), the crew of the 
train to be assisted must inform the single engineer that the train is 
secured against movement. The crew of the train to be assisted must not 
move the train or permit the train to move until authorized by the 
single engineer.

[60 FR 11050, Mar. 1, 1995]

    Effective Date Note: Section 218.24 was added at 60 FR 11050, Mar. 
1, 1995, effective May 15, 1995. At 60 FR 30469, June 9, 1995, 
Sec. 218.24 was suspended effective May 15, 1995.



Sec. 218.25  Workers on a main track.

    When workers are on, under, or between rolling equipment on a main 
track:
    (a) A blue signal must be displayed at each end of the rolling 
equipment; and
    (b) If the rolling equipment to be protected includes one or more 
locomotives, a blue signal must be attached to the controlling 
locomotive at a location where it is readily visible to the engineman or 
operator at the controls of that locomotive.
    (c) When emergency repair work is to be done on, under, or between a 
locomotive or one or more cars coupled to a locomotive, and blue signals 
are not available, the engineman or operator must be notified and 
effective measures must be taken to protect the workers making the 
repairs.

[44 FR 2175, Jan. 10, 1979, as amended at 48 FR 6123, Feb. 10, 1983]



Sec. 218.27  Workers on track other than main track.

    When workers are on, under, or between rolling equipment on track 
other than main track--
    (a) A blue signal must be displayed at or near each manually 
operated switch providing access to that track;
    (b) Each manually operated switch providing access to the track on 
which the equipment is located must be lined against movement to that 
track and locked with an effective locking device; and
    (c) The person in charge of the workers must have notified the 
operator of any remotely controlled switch that work is to be performed 
and have been informed by the operator that each remotely controlled 
switch providing access to the track on which the equipment is located 
has been lined against movement to that track and locked as prescribed 
in Sec. 218.30.
    (d) If rolling equipment requiring blue signal protection as 
provided for in this section is on a track equipped with one or more 
crossovers, both switches of each crossover must be lined against 
movement through the crossover toward that rolling equipment, and the 
switch of each crossover

[[Page 171]]

that provides access to the rolling equipment must be protected in 
accordance with the provisions of paragraphs (a) and (b), or (c) of this 
section.
    (e) If the rolling equipment to be protected includes one or more 
locomotives, a blue signal must be attached to the controlling 
locomotive at a location where it is readily visible to the engineman or 
operator at the controls of that locomotive.



Sec. 218.29  Alternate methods of protection.

    Instead of providing blue signal protection for workers in 
accordance with Sec. 218.27, the following methods for blue signal 
protection may be used:
    (a) When workers are on, under, or between rolling equipment in a 
locomotive servicing track area:
    (1) A blue signal must be displayed at or near each switch providing 
entrance to or departure from the area;
    (2) Each switch providing entrance to or departure from the area 
must be lined against movement to the area and locked with an effective 
locking device; and
    (3) A blue signal must be attached to each controlling locomotive at 
a location where it is readily visible to the engineman or operator at 
the controls of that locomotive;
    (4) If the speed within this area is resticted to not more than 5 
miles per hour a derail, capable of restricting access to that portion 
of a track within the area on which the rolling equipment is located, 
will fulfill the requirements of a manually operated switch in 
compliance with paragraph (a)(2) of this section when positioned at 
least 50 feet from the end of the equipment to be protected by the blue 
signal, when locked in a derailing position with an effective locking 
device, and when a blue signal is displayed at the derail;
    (5) A locomotive may be moved onto a locomotive servicing area track 
after the blue signal has been removed from the entrance switch to the 
area. However, the locomotive must be stopped short of coupling to 
another locomotive;
    (6) A locomotive may be moved off of a locomotive servicing area 
track after the blue signal has been removed from the controlling 
locomotive to be moved and from the area departure switch;
    (7) If operated by an authorized employee under the direction of the 
person in charge of the workers, a locomotive protected by blue signals 
may be repositioned within this area after the blue signal has been 
removed from the locomotive to be repositioned and the workers on the 
affected track have been notified of the movement; and
    (8) Blue signal protection removed for the movement of locomotives 
as provided in paragraphs (a) (5) and (6) of this section must be 
restored immediately after the locomotive has cleared the switch.
    (b) When workers are on, under, or between rolling equipment in a 
car shop repair track area:
    (1) A blue signal must be displayed at or near each switch providing 
entrance to or departure from the area; and
    (2) Each switch providing entrance to or departure from the area 
must be lined against movement to the area and locked with an effective 
locking device;
    (3) If the speed within this area is restricted to not more than 5 
miles per hour, a derail capable of restricting access to that portion 
of a track within the area on which the rolling equipment is located 
will fulfill the requirements of a manually operated switch in 
compliance with paragraph (a)(2) of this section when positioned at 
least 50 feet from the end of the equipment to be protected by the blue 
signal, when locked in a derailing position with an effective locking 
device and when a blue signal is displayed at the derail;
    (4) If operated by an authorized employee under the direction of the 
person in charge of the workemen, a car mover may be used to reposition 
rolling equipment within this area after workers on the affected track 
have been notified of the movement.
    (c) Except as provided in paragraphs (a) and (b) of this section, 
when workers are on, under, or between rolling equipment on any track, 
other than a main track:
    (1) A derail capable of restricting access to that portion of the 
track on which such equipment is located, will fulfill the requirements 
of a manually operated switch when positioned no

[[Page 172]]

less than 150 feet from the end so such equipment; and
    (2) Each derail must be locked in a derailing position with an 
effective locking device and a blue signal must be displayed at each 
derail.
    (d) When emergency repair work is to be done on, under, or between a 
locomotive or one or more cars coupled to a locomotive, and blue signals 
are not available, the engineman or operator at the controls of that 
locomotive must be notified and effective measures must be taken to 
protect the workers making the repairs.

[44 FR 2175, Jan. 10, 1979, as amended at 48 FR 6123, Feb. 10, 1983]



Sec. 218.30  Remotely controlled switches.

    (a) After the operator of the remotely controlled switches has 
received the notification required by Sec. 218.27(c), he must line each 
remotely controlled switch against movement to that track and apply an 
effective locking device to the lever, button, or other device 
controlling the switch before he may inform the employee in charge of 
the workers that protection has been provided.
    (b) The operator may not remove the locking device unless he has 
been informed by the person in charge of the workers that it is safe to 
do so.
    (c) The operator must maintain for 15 days a written record of each 
notification which contains the following information:
    (1) The name and craft of the employee in charge who provided the 
notification;
    (2) The number or other designation of the track involved;
    (3) The date and time the operator notified the employee in charge 
that protection had been provided in accordance with paragraph (a) of 
this section; and
    (4) The date and time the operator was informed that the work had 
been completed, and the name and craft of the employee in charge who 
provided this information.

[44 FR 2175, Jan. 10, 1979, as amended at 48 FR 6123, Feb. 10, 1983]



             Subpart C--Protection of Trains and Locomotives



Sec. 218.31  Scope.

    This subpart prescribes minimum operating rule requirements for the 
protection of railroad employees engaged in the operation of trains, 
locomotives and other rolling equipment.

[42 FR 5065, Jan. 27, 1977]



Sec. 218.35  Yard limits.

    (a) After August 1, 1977, yard limits must be designated by--
    (1) Yard limit signs, and
    (2) Timetable, train orders, or special instructions.
    (b) After August 1, 1977, each railroad must have in effect an 
operating rule which complies with the requirements set forth below:
    (1) The main tracks within yard limits may be used, clearing the 
time an approaching designated class train is due to leave the nearest 
station where time is shown. In case of failure to clear the time of 
designated class trains, protection must be provided as Sec. 218.37. In 
yard limits where main tracks are governed by block signal system rules, 
protection as prescribed by Sec. 218.37 is not required.
    (2) Trains and engines, except designated class trains, within yard 
limits must move prepared to stop within onehalf the range of vision but 
not exceeding 20 m.p.h. unless the main track is known to be clear by 
block signal indications.
    (3) Within yard limits, movements against the current of traffic on 
the main tracks must not be made unless authorized and protected by 
train order, yardmaster, or other designated official and only under the 
operating restrictions prescribed in Sec. 218.35(b)(2).
    (c) Each railroad shall designate in the operating rule prescribed 
under paragraph (b) of this section the class or classes of trains which 
shall have superiority on the main track within yard limits.

[42 FR 5065, Jan. 27, 1977]



Sec. 218.37  Flag protection.

    (a) After August 1, 1977, each railroad must have in effect an 
operating rule

[[Page 173]]

which complies with the requirements set forth below:
    (1) Except as provided in paragraph (a)(2) of this section, flag 
protection shall be provided--
    (i) When a train is moving on the main track at less than one-half 
the maximum authorized speed (including slow order limits) in that 
territory, flag protection against following trains on the same track 
must be provided by a crew member by dropping off single lighted fusees 
at intervals that do not exceed the burning time of the fusee.
    (ii) When a train is moving on the main track at more than one-half 
the maximum authorized speed (including slow order limits) in that 
territory under circumstances in which it may be overtaken, crew members 
responsible for providing protection will take into consideration the 
grade, curvature of track, weather conditions, sight distance and 
relative speed of his train to following trains and will be governed 
accordingly in the use of fusees.
    (iii) When a train stops on main track, flag protection against 
following trains on the same track must be provided as follows: A crew 
member with flagman's signals must immediately go back at least the 
distance prescribed by timetable or other instructions for the 
territory, place at least two torpedoes on the rail at least 100 feet 
apart and display one lighted fusee. He may then return one-half of the 
distance to his train where he must remain until he has stopped the 
approaching train or is recalled. When recalled, he must leave one 
lighted fusee and while returning to his train, he must also place 
single lighted fusees at intervals that do not exceed the burning time 
of the fusee. When the train departs, a crew member must leave one 
lighted fusee and until the train resumes speed not less than one-half 
the maximum authorized speed (including slow order limits) in that 
territory, he must drop off single lighted fusees at intervals that do 
not exceed the burning time of the fusee.
    (iv) When required by the railroad's operating rules, a forward crew 
member with flagman's signals must protect the front of his train 
against opposing movements by immediately going forward at least the 
distance prescribed by timetable or other instructions for the territory 
placing at least two torpedoes on the rail at least 100 feet apart, 
displaying one lighted fusee, and remaining at that location until 
recalled.
    (v) Whenever a crew member is providing flag protection, he must not 
permit other duties to interfere with the protection of his train.
    (2) Flag protection against following trains on the same track is 
not required if--
    (i) The rear of the train is protected by at least two block 
signals;
    (ii) The rear of the train is protected by an absolute block;
    (iii) The rear of the train is within interlocking limits; or
    (iv) A train order specifies that flag protection is not required.
    (v) A railroad operates only one train at any given time.
    (b) Each railroad shall designate by timetable or other instruction 
for each territory the specific distance which a crew member providing 
flag protection must go out in order to provide adequate protection for 
his train.
    (c) Whenever the use of fusees is prohibited by a Federal, State or 
local fire regulation, each railroad operating within that jurisdiction 
shall provide alternate operating procedures to assure full protection 
of trains in lieu of flag protection required by this section.

[42 FR 5065, Jan. 27, 1977, as amended at 42 FR 38362, July 28, 1977]



Sec. 218.39  Hump operations.

    After June 30, 1984, each railroad that operates a remote control 
hump yard facility must have in effect an operating rule that adopts the 
following provisions in substance:
    (a) When a train or engine service employee is required to couple an 
air hose or to adjust a coupling device and that activity will require 
that the employee place himself between pieces of rolling equipment 
located on a bowl track, the operator of any remotely controlled switch 
that provides access from the apex of the hump to the track on which the 
rolling equipment is located shall be notified;
    (b) Upon such notification, the operator of such remotely controlled 
switch

[[Page 174]]

shall line it against movement to the affected bowl track and shall 
apply a locking or blocking device to the control for that switch; and
    (c) The operator shall then notify the employee that the requested 
protection has been provided and shall remove the locking or blocking 
device only after being notified by the employee that protection is no 
longer required on that track.

(Sec. 202, 84 Stat. 971 (45 U.S.C. 431); sec. 1.49(m) of the regulations 
of the Secretary of Transportation (49 CFR 1.49(m))

[49 FR 6497, Feb. 22, 1984]



Sec. 218.41  Noncompliance with hump operations rule.

    A person (including a railroad and any manager, supervisor, 
official, or other employee or agent of a railroad) who fails to comply 
with a railroad's operating rule issued pursuant to Sec. 218.39 of this 
part is subject to a penalty, as provided in appendix A of this part.

[53 FR 52928, Dec. 29, 1988]



      Subpart D--Prohibition Against Tampering With Safety Devices

    Source: 54 FR 5492, Feb. 3, 1989, unless otherwise noted.



Sec. 218.51  Purpose.

    (a) The purpose of this subpart is to prevent accidents and 
casualties that can result from the operation of trains when safety 
devices intended to improve the safety of their movement have been 
disabled.
    (b) This subpart does not prohibit intervention with safety devices 
that is permitted:
    (1) Under the provisions of Sec. 236.566 or Sec. 236.567 of this 
chapter;
    (2) Under the provisions of Sec. 218.61 of this part; or
    (3) Under the provisions of Sec. 229.9 of this chapter, provided 
that when a locomotive is being operated under the provision of 
Sec. 229.9(b) a designated officer has been notified of the defective 
alerter or deadman pedal at the first available point of communication.

[54 FR 5492, Feb. 3, 1989, as amended at 58 FR 36613, July 8, 1993]



Sec. 218.53  Scope and definitions.

    (a) This subpart establishes standards of conduct for railroads and 
individuals who operate or permit to be operated locomotives equipped 
with one or more of the safety devices identified in paragraph (c) of 
this section.
    (b) Disable means to unlawfully render a device incapable of proper 
and effective action or to materially impair the functioning of that 
device.
    (c) Safety device means any locomotive-mounted equipment that is 
used either to assure that the locomotive operator is alert, not 
physically incapacitated, aware of and complying with the indications of 
a signal system or other operational control system or to record data 
concerning the operation of that locomotive or the train it is powering. 
See appendix B to this part for a statement of agency policy on this 
subject.



Sec. 218.55  Tampering prohibited.

    Any individual who willfully disables a safety device is subject to 
a civil penalty as provided in appendix A of this part and to 
disqualification from performing safety-sensitive functions on a 
railroad if found unfit for such duties under the procedures provided 
for in 49 CFR part 209.



Sec. 218.57  Responsibilities of individuals.

    Any individual who knowingly operates a train, or permits it to be 
operated, when the controlling locomotive of that train is equipped with 
a disabled safety device, is subject to a civil penalty as provided for 
in appendix A of this part and to disqualification from performing 
safety-sensitive functions on a railroad if found to be unfit for such 
duties. See appendix B to this part for a statement of agency 
enforcement policy concerning violations of this section.



Sec. 218.59  Responsibilities of railroads.

    Any railroad that operates a train when the controlling locomotive 
of a train is equipped with a disabled safety device is subject to a 
civil penalty as provided for in appendix A of this part.

[[Page 175]]



Sec. 218.61  Authority to deactivate safety devices.

    (a) For the purpose of this chapter, it is lawful to temporarily 
render a safety device incapable of proper or effective action or to 
materially impair its function if this action is taken as provided for 
in paragraph (b) or (c) of this section.
    (b) If a locomotive is equipped with a device to assure that the 
operator is alert or not physically incapacitated, that device may be 
deactivated when:
    (1) The locomotive is not the controlling locomotive;
    (2) The locomotive is performing switching operations and not 
hauling cars in a manner that constitutes a train movement under part 
232 of this chapter:
    (3) The locomotive is dead-in-tow; or
    (4) The locomotive is a mid-train slave unit being controlled by 
radio from a remote location.
    (c) If a locomotive is equipped with a device to record data 
concerning the operation of that locomotive and/or of the train it is 
powering, that device may be deactivated only in accordance with the 
provisions of Sec. 229.135.

[54 FR 5492, Feb. 3, 1989, as amended at 58 FR 36613, July 8, 1993]



               Subpart E--Protection of Occupied Camp Cars

    Source: 54 FR 39545, Sept. 27, 1989, unless otherwise noted.



Sec. 218.71  Purpose and scope.

    This subpart prescribes minimum requirements governing protection of 
camp cars that house railroad employees. The rule does not apply to such 
cars while they are in a train.



Sec. 218.73  Warning signal display.

    (a) Warning signals, i.e., a white disk with the words ``Occupied 
Camp Car'' in black lettering during daylight hours and an illuminated 
white signal at night, displayed in accordance with Sec. 218.75, 
Sec. 218.77, or Sec. 218.79 signify that employees are in, around, or in 
the vicinity of camp cars. Once the signals have been displayed--
    (1) The camp cars may not be moved for coupling to other rolling 
equipment or moved to another location;
    (2) Rolling equipment may not be placed on the same track so as to 
reduce or block the view of a warning signal; and
    (3) Rolling equipment may not pass a warning signal.
    (b) Warning signals indicating the presence of occupied camp cars, 
displayed in accordance with Secs. 218.75 and 218.79, shall be displayed 
by a designated occupant of the camp cars or that person's immediate 
supervisor. The signal(s) shall be displayed as soon as such cars are 
placed on the track, and such signals may only be removed by those same 
individuals prior to the time the cars are moved to another location.



Sec. 218.75  Methods of protection for camp cars.

    When camp cars requiring protection are on either main track or 
track other than main track:
    (a) A warning signal shall be displayed at or near each switch 
providing access to that track;
    (b) The person in charge of the camp car occupants shall immediately 
notify the person responsible for directing train movements on that 
portion of the railroad where the camp cars are being parked;
    (c) Once notified of the presence of camp cars and their location on 
main track or other than main track, the person responsible for 
directing train movements on that portion of the railroad where the camp 
cars are being parked shall take appropriate action to alert affected 
personnel to the presence of the cars;
    (d) Each manually operating switch providing access to track on 
which the camp cars are located shall be lined against movement to that 
track and secured with an effective locking device and spiked; and
    (e) Each remotely controlled switch providing access to the track on 
which the camp cars are located shall be protected in accordance with 
Sec. 218.77.



Sec. 218.77  Remotely controlled switches.

    (a) After the operator of the remotely controlled switch is notified 
that a

[[Page 176]]

camp car is to be placed on a particular track, he shall line such 
switch against movement to that track and apply an effective locking 
device applied to the lever, button, or other device controlling the 
switch before informing the person in charge of the camp car occupants 
that protection has been provided.
    (b) The operator may not remove the locking device until informed by 
the person in charge of the camp car occupants that protection is no 
longer required.
    (c) The operator shall maintain for 15 days a written record of each 
notification that contains the following information:
    (1) The name and craft of the employee in charge who provided the 
notification;
    (2) The number or other designation of the track involved;
    (3) The date and time the operator notified the employee in charge 
that protection had been provided in accordance with paragraph (a) of 
this section; and
    (4) The date and time the operator was informed that the work had 
been completed, and the name and craft of the employee in charge who 
provided this information.
    (d) When occupied camp cars are parked on main track, a derail, 
capable of restricting access to that portion of the track on which such 
equipment is located, shall be positioned no less than 150 feet from the 
end of such equipment and locked in a derailing position with an 
effective locking device, and a warning signal must be displayed at the 
derail.



Sec. 218.79  Alternative methods of protection.

    Instead of providing protection for occupied camp cars in accordance 
with Sec. 218.75 or Sec. 218.77, the following methods of protection may 
be used:
    (a) When occupied camp cars are on track other than main track:
    (1) A warning signal must be displayed at or near each switch 
providing access to or from the track;
    (2) Each switch providing entrance to or departure from the area 
must be lined against movement to the track and locked with an effective 
locking device; and
    (3) If the speed within this area is restricted to not more than 
five miles per hour, a derail, capable of restricting access to that 
portion of track on which the camp cars are located, will fulfill the 
requirements of a manually operated switch in compliance with paragraph 
(a)(2) of this section when positioned at least 50 feet from the end of 
the camp cars to be protected by the warning signal, when locked in a 
derailing position with an effective locking device, and when a warning 
signal is displayed at the derail.
    (b) Except as provided in paragraph (a) of this section, when 
occupied camp cars are on track other than main track:
    (1) A derail, capable of restricting access to that portion of the 
track on which such equipment is located, will fulfill the requirements 
of a manually operated switch when positioned no less than 150 feet from 
the end of such equipment; and
    (2) Each derail must be locked in a derailing position with an 
effective locking device and a warning signal must be displayed at each 
derail.



Sec. 218.80  Movement of occupied camp cars.

    Occupied cars may not be humped or flat switched unless coupled to a 
locomotive.

         Appendix A to Part 218--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
Subpart B--Blue signal protection of workmen:
    218.22 Utility employees:
        (a) Employee qualifications...........       $5,000       $7,500
        (b) Concurrent service................        5,000        7,500
        (c) Assignment conditions.............
        (1) No controlling locomotive.........        5,000        7,500
        (2) Empty cab.........................        5,000        7,500
        (3)(4) Improper communication.........        5,000        7,500
        (5) Performing functions not listed...        2,000        4,000
        (d) Improper release of utility               2,000        4,000
         employee.............................
        (f) More than three utility employees         2,000        4,000
         with one crew........................

[[Page 177]]

 
    218.23  Blue signal display                       5,000        7,500
    218.24 One-person crew:
        (a)(1) Equipment not coupled or               2,000        4,000
         insufficiently separated.............
        (a)(2) Unoccupied locomotive cab not          5,000        7,500
         secured..............................
        (b) Helper service....................        2,000        4,000
    218.25  Workmen on a main track                   5,000        7,500
    218.27  Workmen on track other than main
     track:
        (a) Protection provided except that           2,000        4,000
         signal not displayed at switch.......
        (b) through (e).......................        5,000        7,500
    218.29  Alternate methods of protection:
        (a)(1) protection provided except that        2,000        4,000
         signal not displayed at switch.......
        (a)(2) through (a)(8).................        5,000        7,500
        (b)(1) Protection provided except that        2,000        4,000
         signal not displayed at switch.......
        (b)(2) through (b)(4).................        5,000        7,500
        (c) Use of derails....................        5,000        7,500
        (d) Emergency repairs.................        5,000        7,500
    218.30  Remotely controlled switches:
        (a) and (b)...........................        5,000        7,500
        (c)...................................        1,000        2,000
Subpart C--Protection of trains and
 locomotives:
    218.35  Yard limits:
        (a) and (b)...........................        5,000        7,500
        (c)...................................        1,000        2,000
    218.37  Flag protection:
        (a)...................................        5,000        7,500
        (b) and (c)...........................        5,000        7,500
    218.39  Hump operations...................        5,000        7,500
    218.41  Noncompliance with hump operations        5,000        7,500
     rule.....................................
Subpart D--Prohibition against tampering with
 safety devices:
    218.55  Tampering.........................  ...........        7,500
    218.57  (i) Knowingly operating or                2,500  ...........
     permitting operation of disabled
     equipment................................
          (ii) Willfully operating or           ...........        5,000
         permitting operation of disabled
         equipment............................
    218.59  Operation of disabled equipment...        2,500        5,000
------------------------------------------------------------------------
\1\ Except as provided for in Sec.  218.57, a penalty may be assessed
  against an individual only for a willful violation. The Administrator
  reserves the right to assess a penalty of up to $22,000 for any
  violation where the circumstances warrant. See 49 CFR part 209,
  appendix A.


[53 FR 52928, Dec. 29, 1988, as amended at 54 FR 5492, Feb. 3, 1989; 58 
FR 43293, Aug. 16, 1993; 60 FR 11050, Mar. 1, 1995; 63 FR 11621, Mar. 
10, 1998]

 Appendix B to Part 218--Statement of Agency Enforcement Policy on Blue 
                 Signal Protection for Utility Employees

    The following examples of the application of the train or yard crew 
exclusion from required blue signal protection for utility employees are 
provided to clarify FRA's enforcement policy. In the first four 
examples, the utility employee is properly attached to and functioning 
as member of a train or yard crew and is excluded from blue signal 
protection, provided all the conditions specified in Sec. 218.22 are 
met:
    Example 1: A utility employee assists a train crew by adding or 
reducing railroad cars to or from the train. The utility employee may 
perform any duties which would normally be conducted by members of the 
train crew, i.e., setting or releasing handbrakes, coupling air hoses 
and other connections, prepare rail cars for coupling, and perform air 
brake tests.
    Example 2: A utility employee is assigned to assist a yard crew for 
the purpose of classifying and assembling railroad cars. The yard crew 
onboard their locomotive arrives at the location in the yard where the 
work is to be performed. At that time, the utility employee may attach 
himself to the yard crew and commence duties as a member of that yard 
crew.
    Example 3: A utility employee is assigned to inspect, test, remove 
and replace if necessary, a combination rear end marking device/end of 
train device on a through freight train. The utility employee attaches 
himself to the train crew after the arrival of the train and its crew at 
the location where this work is to be conducted. He may then perform 
duties as a member of that crew.
    Example 4: A railroad manager who properly attaches himself as a 
utility employee to a train or yard crew, in accordance with 
Sec. 218.22, may then function as a member of the train or yard crew 
under the exclusion provided for train and yard crews.

    Note: In the last four examples, any railroad employee, including 
regularly assigned crew members, would need blue signal protection to 
perform the described function.

    Example 5: Prior to the arrival of a through freight train, a 
utility employee installs an end-of-train device on one end of a block 
of railroad cars that are scheduled to be picked up by the freight 
train.
    Example 6: A railroad employee attaches himself to a train or yard 
crew while the crew is in the ready room preparing to take charge of 
their train. Prior to the train crew

[[Page 178]]

leaving the ready room and taking charge of the equipment, the employee 
couples air hoses and other connections between the locomotives.
    Example 7: A railroad employee is attached to a train crew after the 
train crew has taken charge of the train. It is necessary for the 
employee to perform a repair on a rail car, such as replacing a brake 
shoe, in addition to those duties normally performed by train or yard 
crew members.
    Example 8: A train or yard crew, supplemented by three utility 
employees, has an assigned locomotive and train. The regular crew, 
including the engineer, has left the train to eat lunch. The utility 
employees have remained with the train and are coupling air hoses 
between rail cars in the train.

[58 FR 43293, Aug. 16, 1993]

   Appendix C to Part 218--Statement of Agency Enforcement Policy on 
                                Tampering

    The Rail Safety Improvement Act of 1988 (Pub. L. 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. Section 21 of the RSIA requires that FRA adopt 
regulations addressing three related but distinct aspects of problems 
that can occur when safety devices are tampered with or disabled. It 
requires that FRA make it unlawful for (i) any individual to willfully 
tamper with or disable a device; (ii) any individual to knowingly 
operate or permit to be operated a train with a tampered or disabled 
device; and (iii) any railroad to operate such a train.
    Because the introduction of civil penalties against individuals 
brings FRA's enforcement of the rail safety laws into a new era and 
because the changes being introduced by this regulation are so 
significant, FRA believes that it is advisable to set forth the manner 
in which it will exercise its enforcement authority under this 
regulation.

                   Safety Devices Covered by This Rule

    FRA has employed a functional description of what constitutes a 
safety device under this rule. FRA's wording effectively identifies 
existing equipment and is sufficiently expansive to cover equipment that 
may appear in the future, particularly devices associated with advanced 
train control systems currently undergoing research testing.
    FRA has been advised by portions of the regulated community that its 
functional definition has some potential for confusing people who read 
the rule without the benefit of the preamble discussions concerning the 
meaning of this definition. Since this rule is specifically intended to 
preclude misconduct by individuals, FRA wants this rule to be easily 
comprehended by all who read it. To achieve that clarity, FRA has decide 
to specify which types of equipment it considers to be within the scope 
of this rule and provide some examples of equipment that is not covered. 
In addition, FRA is ready and willing to respond in writing to any 
inquiry about any other devices that a party believes are treated 
ambiguously under this rule. This regulation applies to a variety of 
devices including equipment known as ``event recorders,'' ``alerters,'' 
``deadman controls,'' ``automatic cab signals,'' ``cab signal 
whistles,'' ``automatic train stop equipment,'' and ``automatic train 
control equipment.'' FRA does not consider the following equipment to be 
covered by this rule: Radios; monitors for end-of-train devices; bells 
or whistles that are not connected to alerters, deadman pedals, or 
signal system devices; fans for controlling interior temperature of 
locomotive cabs; and locomotive performance monitoring devices, unless 
they record data such as train speed and air brake operations. Although 
FRA considers such devices beyond the scope of the regulation, this does 
not imply that FRA condones the disabling of such devices. FRA will not 
hesitate to include such devices at a later date should instances of 
tampering with these devices be discovered. FRA does not currently 
perceive a need to directly proscribe tampering with such devices 
because there is no history of these devices being subjected to 
tampering.

          Subsequent Operators of Trains With Disabled Devices

    Section 218.57 addresses instances in which one individual has 
tampered with a safety device and a second individual (a ``subsequent 
operator'') knowingly operates a train or permits it to be operated, 
notwithstanding the presence of the disabled or tampered-with unit. The 
most common occurrence addressed by this provision is the situation in 
which a train crew encounters a locomotive with a safety device that has 
been tampered with prior to the crew's assuming responsibility for the 
locomotive. FRA has structured this provision and its attendant 
enforcement policy to reflect the fact that instances in which one 
individual encounters a locomotive that someone else has tampered with 
are relatively infrequent occurrences.
    FRA's regulatory prohibition for subsequent operator conduct 
reflects the legal standard for individual culpability set forth in the 
RSIA. Under the relevant statutory standard (``knowingly operates or 
permits to be operated a train on which such devices have been tampered 
with or disabled by another person'')--now incorporated into 
Sec. 218.57--individuals could be held to a simple

[[Page 179]]

negligence standard of conduct, i.e., a standard of reasonable care 
under the circumstances. FRA's conclusion about the proper 
interpretation of the word ``knowingly'' stems from both normal canons 
of statutory construction and analysis of decisional law concerning the 
use of similar statutory constructs in the civil penalty context. It is 
also consistent with other Departmental interpretations of the word as 
used in similar contexts. (See 49 CFR 107.299, defining ``knowingly'' 
under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et 
seq.)
    Under that statutory language, the responsible members of the crew 
could be culpable if either (1) due to their failure to exercise 
reasonable care, they failed to determine that the safety device was not 
functioning, or (2) having ascertained that the device was not 
functioning, still elected to operate the train. Similarly, railroad 
supervisors who permit or direct that a train with a disabled device be 
operated after having learned that the safety device is not functioning 
or after having failed to use reasonable care in the performance of 
their duties could also be subject to sanction.
    However, as a matter of enforcement policy, application of a 
negligence standard in this particular context presently appears 
unwarranted. We have seen no evidence of an employee's negligent failure 
to detect another employee's tampering having caused a safety problem. 
FRA can effectively attack the known dimensions of the tampering problem 
by employing an enforcement policy that limits its enforcement actions 
to situations where individuals clearly had actual knowledge of the 
disabled device and intentionally operated the train notwithstanding 
that knowledge.
    Therefore, FRA will not take enforcement action against an 
individual under Sec. 218.57 absent a showing of such actual knowledge 
of the facts. Actual, subjective knowledge need not be demonstrated. It 
will suffice to show objectively that the alleged violator must have 
known the facts based on reasonable inferences drawn from the 
circumstances. For example, it is reasonable to infer that a person 
knows about something plainly in sight on the locomotive he is 
operating. Also, unlike the case where willfulness must be shown (see 
FRA's statement of policy at 49 CFR part 209, appendix A), knowledge of 
or reckless disregard for the law need not be shown to make out a 
violation of Sec. 218.57. The knowledge relevant here is knowledge of 
the facts constituting the violation, not knowledge of the law.
    Should FRA receive evidence indicating that a stricter enforcement 
policy is necessary to address the tampering problem, it will revise its 
enforcement policy to permit enforcement actions based only on a showing 
of the subsequent operator's negligent failure to detect the tampering, 
as the relevant provision of the RSIA permits it to do now. Any such 
change in enforcement policy will become effective only after 
publication of a revised version of this appendix.

[54 FR 5492, Feb. 3, 1989. Redesignated and amended at 58 FR 43293, Aug. 
16, 1993]



PART 219--CONTROL OF ALCOHOL AND DRUG USE--Table of Contents




                           Subpart A--General

Sec.
219.1  Purpose and scope.
219.3  Application.
219.5  Definitions.
219.7  Waivers.
219.9  Responsibility for compliance.
219.11  General conditions for chemical tests.
219.13  Preemptive effect.
219.15  [Reserved]
219.17  Construction.
219.19  [Reserved]
219.21  Information collection.
219.23  Railroad policies.

                         Subpart B--Prohibitions

219.101  Alcohol and drug use prohibited.
219.102  Prohibition on abuse of controlled substances.
219.103  Prescribed and over-the-counter drugs.
219.104  Responsive action.
219.105  Railroad's duty to prevent violations.
219.107  Consequences of unlawful refusal.

             Subpart C--Post-Accident Toxicological Testing

219.201  Events for which testing is required.
219.203  Responsibilities of railroads and employees.
219.205  Sample collection and handling.
219.206  FRA access to breath test results.
219.207  Fatality.
219.209  Reports of tests and refusals.
219.211  Analysis and follow-up.
219.213  Unlawful refusals; consequences.

                      Subpart D--Testing for Cause

219.300  Mandatory reasonable suspicion testing.
219.301  Testing for reasonable cause.
219.302  Prompt sample collection; time limitation.
219.303  Alcohol test procedures and safeguards.
219.305  Urine test procedures and safeguards.

[[Page 180]]

             Subpart E--Identification of Troubled Employees

219.401  Requirement for policies.
219.403  Voluntary referral policy.
219.405  Co-worker report policy.
219.407  Alternate policies.

                     Subpart F--Pre-employment Tests

219.501  Pre-employment tests.
219.503  Notification; records.
219.505  Refusals.

           Subpart G--Random Alcohol and Drug Testing Programs

219.601  Railroad random drug testing programs.
219.602  Administrator's determination of random drug testing rate.
219.603  Participation in drug testing.
219.605  Positive drug test results; procedures.
219.607  Railroad random alcohol testing programs.
219.608  Administrator's determination of random alcohol testing rate.
219.609  Participation in alcohol testing.
219.611  Test result indicating prohibited alcohol concentration; 
          procedures.

  Subpart H--Procedures and Safeguards for Urine Drug Testing and for 
                             Alcohol Testing

219.701  Standards for urine drug testing.
219.703  Drug testing procedures.
219.705  Drugs tested.
219.707  Review by MRO of urine drug testing results.
219.708  Employee requests for testing.
219.709  [Reserved]
219.711  Confidentiality of test results.
219.713  [Reserved]
219.715  Alcohol testing procedures.

                        Subpart I--Annual Report

219.801  Reporting alcohol misuse prevention program results in a 
          management information system.
219.803  Reporting drug misuse prevention program results in a 
          management information system.

                  Subpart J--Recordkeeping Requirements

219.901  Retention of breath alcohol testing records.
219.903  Retention of urine drug testing records.
219.905  Access to facilities and records.

Appendix A to Part 219--Schedule of Civil Penalties
Appendix B to Part 219--Designation of Laboratory for Post-Accident 
          Toxicological Testing
Appendix C to Part 219--Post-Accident Testing Sample Collection
Appendix D to Part 219--Drug Testing Management Information System (MIS) 
          Data Collection Form
Appendix D1 to Part 219  [Reserved]
Appendix D2 to Part 219--Drug Testing Management Information System 
          (MIS) ``EZ'' Data Collection Form
Appendix D3 to Part 219--Alcohol Testing Management Information System 
          (MIS) Data Collection Form
Appendix D4 to Part 219--Alcohol Testing Management Information System 
          (MIS) ``EZ'' Data Collection Form

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

    Source: 54 FR 53259, Dec. 27, 1989, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 219 appear at 59 FR 
7457, Feb. 15, 1994.



                           Subpart A--General



Sec. 219.1  Purpose and scope.

    (a) The purpose of this part is to prevent accidents and casualties 
in railroad operations that result from impairment of employees by 
alcohol or drugs.
    (b) This part prescribes minimum Federal safety standards for 
control of alcohol and drug use. This part does not restrict a railroad 
from adopting and enforcing additional or more stringent requirements 
not inconsistent with this part.



Sec. 219.3  Application.

    (a) Except as provided in paragraphs (b) and (c), this part applies 
to--
    (1) Railroads that operate rolling equipment on standard gage track 
which is part of the general railroad system of transportation; and
    (2) Railroads that provide commuter or other short-haul rail 
passenger service in a metropolitan or suburban area (as described by 
section 202(e) of the Federal Railroad Safety Act of 1970, as amended).
    (b)(1) This part does not apply to a railroad that operates only on 
track inside an installation which is not part of the general railroad 
system of transportation.
    (2) Subparts D, E, F and G do not apply to a railroad that employs 
not more than 15 employees covered by the Hours of Service Act (45 
U.S.C. 61-64b)

[[Page 181]]

and that does not operate on tracks of another railroad (or otherwise 
engage in joint operations with another railroad) except as necessary 
for purposes of interchange.
    (3) Subpart I does not apply to a railroad that has fewer than 
400,000 total manhours.
    (c) Subparts E, F and G do not apply to operations of a foreign 
railroad conducted by covered service employees whose primary place of 
service (``home terminal'') for rail transportation services is located 
outside the United States. Such operations and employees are subject to 
subparts A, B, C, and D when operating in United States territory.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7457, Feb. 15, 1994]



Sec. 219.5  Definitions.

    As used in this part--
    Alcohol means the intoxicating agent in beverage alcohol, ethanol or 
other low molecular weight alcohols including methyl or isopropyl 
alcohol.
    Alcohol concentration (or content) means the alcohol in a volume of 
breath expressed in terms of grams of alcohol per 210 liters of breath 
(as indicated by a breath test under this part) or grams of alcohol per 
100 milliliters of whole blood.
    Alcohol use means the consumption of any beverage, mixture or 
preparation, including any medication, containing alcohol.
    Class I, ``Class II,'' and ``Class III'' have the meaning assigned 
by regulations of the Interstate Commerce Commission (49 CFR Part 1201; 
General Instructions 1-1), as those regulations may be revised and 
applied by order of the Commission (including modifications in class 
thresholds based revenue deflator adjustments).
    Confirmation test means a second test, following a screening test 
with a result of .02 or greater, that provides quantitative data of 
alcohol concentration.
    Consortium means an entity, including a group or association of 
employers or contractors, that provides alcohol testing as required by 
this part or other DOT alcohol testing regulation and that acts on 
behalf of the employers.
    Controlled substance has the meaning assigned by 21 U.S.C. 802 and 
includes all substances listed on Schedules I through V as they may be 
revised from time to time (21 CFR parts 1301-1316).
    Covered employee means a person who has been assigned to perform 
service subject to the Hours of Service Act (45 U.S.C. 61-64b) during a 
duty tour, whether or not the person has performed or is currently 
performing such service, and any person who performs such service. (An 
employee is not ``covered'' within the meaning of this part exclusively 
by reason of being an employee for purposes of section 2(a)(3) of the 
Hours of Service Act, as amended (45 U.S.C. 62(a)(3)).) For the purposes 
of pre-employment testing only, the term covered employee includes a 
person applying to perform covered service.
    Co-worker means another employee of the railroad, including a 
working supervisor directly associated with a yard or train crew, such 
as a conductor or yard foreman, but not including any other railroad 
supervisor, special agent or officer.
    DOT Agency means an agency (or ``operating administration'') of the 
United States Department of Transportation administering regulations 
requiring alcohol or controlled substance testing (14 CFR parts 61, 63, 
65, 121 and 135; 49 CFR parts 199, 219, 382 and 654) in accordance with 
part 40 of this title.
    Drug means any substance (other than alcohol) that has known mind or 
function-altering effects on a human subject, specifically including any 
psychoactive substance and including, but not limited to, controlled 
substances.
    FRA means the Federal Railroad Administration, U.S. Department of 
Transportation.
    FRA representative means the Associate Administrator for Safety, 
FRA, the Associate Administrator's delegate (including a qualified State 
inspector acting under part 212 of this chapter), the Chief Counsel, 
FRA, or the Chief Counsel's delegate.
    Hazardous material means a commodity designated as a hazardous 
material by part 172 of this title.
    Impact accident means a train accident (i.e., a rail equipment 
accident involving damage in excess of the current

[[Page 182]]

reporting threshold, $6,300 for calendar years 1991 through 1996, $6,500 
for calendar year 1997, and $6,600 for calendar years 1998 trhough 1999) 
consisting of a head-on collision, a rear-end collision, a side 
collision (including a collision at a railroad crossing at grade), a 
switching collision, or impact with a deliberately-placed obstruction 
such as a bumping post. The following are not impact accidents:
    (1) An accident in which the derailment of equipment causes an 
impact with other rail equipment;
    (2) Impact of rail equipment with obstructions such as fallen trees, 
rock or snow slides, livestock, etc.; and
    (3) Raking collisions caused by derailment of rolling stock or 
operation of equipment in violation of clearance limitations.
    Independent with respect to a medical facility, means not under the 
ownership or control of the railroad and not operated or staffed by a 
salaried officer or employee of the railroad. The fact that the railroad 
pays for services rendered by a medical facility or laboratory, selects 
that entity for performing tests under this part, or has a standing 
contractual relationship with that entity to perform tests under this 
part or perform other medical examinations or tests of railroad 
employees does not, by itself, remove the facility from this definition.
    Medical facility means a hospital, clinic, physician's office, or 
laboratory where toxicological samples can be collected according to 
recognized professional standards.
    Medical practitioner means a physician or dentist licensed or 
otherwise authorized to practice by the state.
    Medical Review Officer or MRO refers to a licensed physician 
designated by the railroad who is responsible for receiving laboratory 
results generated by the railroad's drug testing program (including 
testing mandated or authorized by this part), who has knowledge of 
substance abuse disorders, and who has appropriate medical training to 
interpret and evaluate an individual's positive test result (as reported 
by the laboratory) together with his or her medical history and any 
other relevant biomedical information.
    NTSB means the National Transportation Safety Board.
    Passenger train means a train transporting persons (other than 
employees, contractors or persons riding equipment to observe or monitor 
railroad operations) in intercity passenger service, commuter or other 
short-haul service, or for excursion or recreational purposes.
    Positive rate means the number of positive results for random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part, divided by the total number of random drug 
tests conducted under this part plus the number of refusals of random 
tests required by this part.
    Possess means to have on one's person or in one's personal effects 
or under one's control. However, the concept of possession as used in 
this part does not include control by virtue of presence in the 
employee's personal residence or other similar location off of railroad 
property.
    Railroad means all forms of non-highway ground transportation that 
run on rails or electro-magnetic 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 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.
    Railroad property damage or damage to railroad property refers to 
damage to railroad property, including railroad on-track equipment, 
signals, track, track structures (including bridges and tunnels), or 
roadbed, including labor costs and all other costs for repair or 
replacement in kind. Estimated cost for replacement of railroad property 
shall be calculated as described in the FRA Guide for Preparing 
Accident/Incident Reports. (See 49 CFR 225.21.) However, replacement of 
passenger

[[Page 183]]

equipment shall be calculated based on the cost of acquiring a new unit 
for comparable service.
    Refuse to submit means that a covered employee fails to provide a 
urine sample as required by 49 CFR part 40, without a genuine inability 
to provide a specimen (as determined by a medical evaluation), after he 
or she has received notice of the requirement to be tested in accordance 
with the provisions of this part, or engages in conduct that clearly 
obstructs the testing process.
    Refuse to submit (to an alcohol test) means that a covered employee 
fails to provide adequate breath for testing without a valid medical 
explanation after he or she has received notice of the requirement to be 
tested in accordance with the provisions of this part, or engages in 
conduct that clearly obstructs the testing process.
    Reportable injury means an inury reportable under part 225 of this 
title.
    Reporting threshold means the amount specified in Sec. 225.19(e) of 
this chapter, as adjusted from time to time in accordance with appendix 
B to part 225 of this chapter. The reporting threshold for calendar 
years 1991 through 1996 is $6,300. The reporting threshold for calendar 
year 1997 is $6,500. The reporting threshold for calendar years 1998 
through 1999 is $6,600.
    Screening test means an analytical procedure to determine whether a 
covered employee may have a prohibited concentration of alcohol in his 
or her system.
    Supervisory employee means an officer, special agent, or other 
employee of the railroad who is not a co-worker and who is responsible 
for supervising or monitoring the conduct or performance of one or more 
employees.
    Train, except as context requires, means a locomotive, or more than 
one locomotive coupled, with or without cars. (A locomotive is a self-
propelled unit of equipment which can be used in train service.)
    Train accident means a passenger, freight, or work train accident 
described in Sec. 225.19(c) of this chapter (a ``rail equipment 
accident'' involving damage in excess of the current reporting 
threshold, $6,300 for calendar years 1991 through 1996, $6,500 for 
calendar year 1997, and $6,600 for calendar years 1998 through 1999), 
including an accident involving a switching movement.
    Train incident means an event involving the movement of railroad on-
track equipment that results in a casualty but in which railroad 
property damage does not exceed the reporting threshold.
    Violation rate means the number of covered employees (as reported 
under Sec. 219.801 of this part) found during random tests given under 
this part to have an alcohol concentration of .04 or greater, plus the 
number of employees who refuse a random test required by this part, 
divided by the total reported number of employees in the industry given 
random alcohol tests under this part plus the total reported number of 
employees in the industry who refuse a random test required by this 
part.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7457, Feb. 15, 1994; 59 
FR 62228, Dec. 2, 1994; 61 FR 37224, July 17, 1996; 61 FR 60634, Nov. 
29, 1996; 61 FR 67490, Dec. 23, 1996; 62 FR 63466, Dec. 1, 1997; 62 FR 
63676, Dec. 2, 1997; 63 FR 71791, Dec. 30, 1998]



Sec. 219.7  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Federal Railroad Administration for a waiver of compliance with such 
requirement.
    (b) Each petition for waiver under this section must be filed in a 
manner and contain the information required by part 211 of this chapter.
    (c) If the Administrator finds that waiver of compliance is in the 
public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any necessary conditions.



Sec. 219.9  Responsibility for compliance.

    (a) Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the

[[Page 184]]

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; where a grossly negligent violation or a pattern of repeated 
violations has created an imminent hazard of death or injury, or has 
caused death or injury, a penalty not to exceed $22,000 per violation 
may be assessed; and the standard of liability for a railroad will vary 
depending upon the requirement involved. See, e.g., Sec. 219.105, which 
shall be construed to qualify the responsibility of a railroad for the 
unauthorized conduct of an employee that violates Sec. 219.101 or 
Sec. 219.102 (while imposing a duty of due diligence to prevent such 
conduct). Each day a violation continues shall constitute a separate 
offense. See appendix A to this part for a statement of agency civil 
penalty policy.
    (b)(1) In the case of joint operations, primary responsibility for 
compliance with this part with respect to determination of events 
qualifying for breath or body fluid testing under subparts C and D of 
this part shall rest with the host railroad, and all affected employees 
shall be responsive to direction from the host railroad consistent with 
this part. However, nothing in this paragraph shall restrict the ability 
of the railroads to provide for an appropriate assignment of 
responsibility for compliance with this part as among those railroads 
through a joint operating agreement or other binding contract. FRA 
reserves the right to bring an enforcement action for noncompliance with 
applicable portions of this part against the host railroad, the 
employing railroad, or both.
    (2) Where an employee of one railroad is required to participate in 
breath or body fluid testing under subpart C or D and is subsequently 
subject to adverse action alleged to have arisen out of the required 
test (or alleged refusal thereof), necessary witnesses and documents 
available to the other railroad shall be made available to the employee 
on a reasonable basis.
    (c) Any independent contractor or other entity that performs covered 
service for a railroad has the same responsibilities as a railroad under 
this part, with respect to its employees who perform covered service. 
The entity's responsibility for compliance with this part may be 
fulfilled either directly by that entity or by the railroad's treating 
the entity's employees who perform covered service as if they were its 
own employees for purposes of this part. The responsibility for 
compliance must be clearly spelled out in the contract between the 
railroad and the other entity or in another document. In the absence of 
such a clear delineation of responsibility, FRA will hold the railroad 
and the other entity jointly and severally liable for compliance.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7458, Feb. 15, 1994; 63 
FR 11621, Mar. 10, 1998]



Sec. 219.11  General conditions for chemical tests.

    (a) Any employee who performs covered service for a railroad shall 
be deemed to have consented to testing as required in subparts B, C, D, 
and G of this part; and consent is implied by performance of such 
service.
    (b)(1) Each such employee shall participate in such testing, as 
required under the conditions set forth in this part by a representative 
of the railroad.
    (2) In any case where an employee has sustained a personal injury 
and is subject to alcohol or drug testing under this part, necessary 
medical treatment shall be accorded priority over provision of the 
breath or body fluid sample(s). No employee who is unable to urinate 
normally (based on the judgment of a medical professional that 
catheterization would be required) as a result of a personal injury, 
resulting medical treatment, or renal failure shall be required to 
provide a urine sample. Nothing in this section shall bar use of a urine 
sample made available as a result of catheterization undertaken for 
medical purposes, provided the circumstances of such collection are 
fully documented and the specimen is otherwise handled in accordance 
with the applicable requirements of this title.
    (3) Failure to remain available following an accident or casualty as 
required by company rules (i.e., being absent without leave) shall be 
considered

[[Page 185]]

a refusal to participate in testing, without regard to any subsequent 
provision of samples.
    (4) Tampering with a sample in order to prevent a valid test (e.g., 
through substitution, dilution or adulteration) constitutes a refusal to 
provide a sample.
    (c) A covered employee who is required to be tested under subpart C 
or D and who is taken to a medical facility for observation or treatment 
after an accident or incident shall be deemed to have consented to the 
release to FRA of the following:
    (1) The remaining portion of any body fluid sample taken by the 
treating facility within 12 hours of the accident or incident that is 
not required for medical purposes, together with any normal medical 
facility record(s) pertaining to the taking of such sample;
    (2) The results of any laboratory tests for alcohol or any drug 
conducted by or for the treating facility on such sample; and
    (3) The identity, dosage, and time of administration of any drugs 
administered by the treating facility prior to the time samples were 
taken by the treating facility or prior to the time samples were taken 
in compliance with this part.
    (4) The results of any breath tests for alcohol conducted by or for 
the treating facility.
    (d) An employee required to participate in body fluid testing under 
subpart C (post-accident toxicological testing) or testing subject to 
subpart H shall, if requested by the representative of the railroad or 
the medical facility (including under subpart H of this part, a non-
medical contract collector), evidence consent to taking of samples, 
their release for toxicological analysis under pertinent provisions of 
this part, and release of the test results to the railroad's Medical 
Review Officer by promptly executing a consent form, if required by the 
medical facility. The employee is not required to execute any document 
or clause waiving rights that the employee would otherwise have against 
the employer, and any such waiver is void. The employee may not be 
required to waive liability with respect to negligence on the part of 
any person participating in the collection, handling or analysis of the 
specimen or to indemnify any person for the negligence of others. Any 
consent provided consistent with this section shall be construed to 
extend only to those actions specified herein.
    (e) Nothing in this part shall be construed to authorize the use of 
physical coercion or any other deprivation of liberty in order to compel 
breath or body fluid testing.
    (f) Any railroad employee who performs service for a railroad shall 
be deemed to have consented to removal of body fluid and/or tissue 
samples necessary for toxicological analysis from the remains of such 
employee, if such employee dies within 12 hours of an accident or 
incident described in subpart C as a result of such event. This consent 
is specifically required of employees not in covered service, as well as 
employees in covered service.
    (g) Each supervisor responsible for covered employees (except a 
working supervisor within the definition of co-worker under this part) 
shall be trained in the signs and symptoms of alcohol and drug 
influence, intoxication and misuse consistent with a program of 
instruction to be made available for inspection upon demand by FRA. Such 
a program shall, at a minimum provide information concerning the acute 
behavioral and apparent physiological effects of alcohol and the major 
drug groups on the controlled substances list. The program shall also 
provide training on the qualifying criteria for post-accident testing 
contained in subpart C of this part, and the role of the supervisor in 
post-accident collections described in subpart C and appendix C of this 
part. The duration of such training shall be not less than 3 hours.
    (h) Nothing in this subpart restricts any discretion available to 
the railroad to request or require that an employee cooperate in 
additional body fluid testing. However, no such testing may be performed 
on urine or blood samples provided under this part. For purposes of this 
paragraph, all urine from a void constitutes a single sample.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7458, Feb. 15, 1994]

[[Page 186]]



Sec. 219.13  Preemptive effect.

    (a) Under section 205 of the Federal Railroad Safety Act of 1970 (45 
U.S.C. 434), issuance of these regulations preempts any State law, rule, 
regulation, order or standard covering the same subject matter, except a 
provision directed at a local hazard that is consistent with this part 
and that does not impose an undue burden on interstate commerce.
    (b) FRA does not intend by issuance of these regulations to preempt 
provisions of State criminal law that impose sanctions for reckless 
conduct that leads to actual loss of life, injury or damage to property, 
whether such provisions apply specifically to railroad employees or 
generally to the public at large.



Sec. 219.15  [Reserved]



Sec. 219.17  Construction.

    Nothing in this part--
    (a) Restricts the power of FRA to conduct investigations under 
section 208 of the Federal Railroad Safety Act of 1970, as amended; or
    (b) Creates a private right of action on the part of any person for 
enforcement of the provisions of this part or for damages resulting from 
noncompliance with this part.



Sec. 219.19  [Reserved]



Sec. 219.21  Information collection.

    (a) The information collection requirements 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 2130-0526.
    (b) The information collection requirements are found in the 
following sections:

Section 219.7.
Section 219.23.
Section 219.104.
Section 219.201.
Section 219.203.
Section 219.205.
Section 219.207.
Section 219.209.
Section 219.211.
Section 219.213.
Section 219.303.
Section 219.307.
Section 219.309.
Section 219.401.
Section 219.403.
Section 219.405.
Section 219.407.
Section 219.501.
Section 219.503.
Section 219.601.
Section 219.605.
Section 219.701.
Section 219.703.
Section 219.705.
Section 219.707.
Section 219.709.
Section 219.711.
Section 219.713.



Sec. 219.23  Railroad policies.

    (a) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad shall provide clear and unequivocal 
written notice to the employee that the test is being required under 
Federal Railroad Administration regulations. Use of the mandated DOT 
form for urine drug testing or breath analysis satisfies the 
requirements of this paragraph.
    (b) Whenever a breath or body fluid test is required of an employee 
under this part, the railroad shall provide clear, unequivocal written 
notice of the basis or bases upon which the test is required (e.g., 
reasonable suspicion, violation of a specified operating/safety rule 
enumerated in subpart D of this part, random selection, follow-up, 
etc.). Completion of the alcohol testing form or urine custody and 
control form indicating the basis of the test (prior to providing a copy 
to the employee) satisfies the requirement of this paragraph.
    (c) Use of approved forms for mandatory post-accident toxicological 
testing under subpart C of this part provides the notifications required 
under this section with respect to such tests. Use of those forms for 
any other test is prohibited.
    (d) Each railroad shall provide educational materials that explain 
the requirements of this part, and the railroad's policies and 
procedures with respect to meeting those requirements.
    (1) The railroad shall ensure that a copy of these materials is 
distributed to each covered employee prior to the start of alcohol 
testing under the railroad's alcohol misuse prevention program and to 
each person subsequently

[[Page 187]]

hired for or transferred to a covered position.
    (2) Each railroad shall provide written notice to representatives of 
employee organizations of the availability of this information.
    (e) Required content. The materials to be made available to 
employees shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the railroad to answer 
employee questions about the materials.
    (2) The classes or crafts of employees who are subject to the 
provisions of this part.
    (3) Sufficient information about the safety-sensitive functions 
performed by those employees to make clear that the period of the work 
day the covered employee is required to be in compliance with this part 
is that period when the employee is on duty and is required to perform 
or is available to perform covered service.
    (4) Specific information concerning employee conduct that is 
prohibited under subpart B of this part.
    (5) In the case of a railroad utilizing the accident/incident and 
rule violation reasonable cause testing authority provided by this part, 
prior notice (which may be combined with the notice required by 
Secs. 219.601(d)(1) and 219.607(d)(1)), to covered employees of the 
circumstances under which they will be subject to testing.
    (6) The circumstances under which a covered employee will be tested 
under this part.
    (7) The procedures that will be used to test for the presence of 
alcohol and controlled substances, protect the employee and the 
integrity of the testing processes, safeguard the validity of the test 
results, and ensure that those results are attributed to the correct 
employee.
    (8) The requirement that a covered employee submit to alcohol and 
drug tests administered in accordance with this part.
    (9) An explanation of what constitutes a refusal to submit to an 
alcohol or drug test and the attendant consequences.
    (10) The consequences for covered employees found to have violated 
subpart B of this part, including the requirement that the employee be 
removed immediately from covered service, and the procedures under 
Sec. 219.104.
    (11) The consequences for covered employees found to have an alcohol 
concentration of .02 or greater but less than .04.
    (12) Information concerning the effects of alcohol misuse on an 
individual's health, work, and personal life; signs and symptoms of an 
alcohol problem (the employee's or a coworker's); and available methods 
of evaluating and resolving problems associated with the misuse of 
alcohol, including utilization of the procedures set forth in subpart E 
of this part and the names, addresses, and telephone numbers of 
substance abuse professionals and counseling and treatment programs.
    (f) Optional provisions. The materials supplied to employees may 
also include information on additional railroad policies with respect to 
the use or possession of alcohol and drugs, including any consequences 
for an employee found to have a specific alcohol concentration, that are 
based on the railroad's authority independent of this part. Any such 
additional policies or consequences shall be clearly and obviously 
described as being based on independent authority.

[54 FR 53259, Dec. 27, 1989; 55 FR 22793, June 4, 1990, as amended at 59 
FR 7458, Feb. 15, 1994]



                         Subpart B--Prohibitions



Sec. 219.101  Alcohol and drug use prohibited.

    (a) Prohibitions. Except as provided in Sec. 219.103--
    (1) No employee may use or possess alcohol or any controlled 
substance while assigned by a railroad to perform covered service;
    (2) No employee may report for covered service, or go or remain on 
duty in covered service while--
    (i) Under the influence of or impaired by alcohol;
    (ii) Having .04 or more alcohol concentration in the breath or 
blood; or
    (iii) Under the influence of or impaired by any controlled 
substance.
    (3) No employee may use alcohol for whichever is the lesser of the 
following periods:

[[Page 188]]

    (i) Within four hours of reporting for covered service; or
    (ii) After receiving notice to report for covered service.
    (4) No employee tested under the provisions of this part whose test 
result indicates an alcohol concentration of .02 or greater but less 
than .04 shall perform or continue to perform covered service functions 
for a railroad, nor shall a railroad permit the employee to perform or 
continue to perform covered service, until the start of the employee's 
next regularly scheduled duty period, but not less than eight hours 
following administration of the test.
    (5) If an employee tested under the provisions of this part has a 
test result indicating an alcohol concentration below 0.02, the test 
shall be considered negative and is not evidence of alcohol misuse. A 
railroad shall not use a federal test result below 0.02 either as 
evidence in a company proceeding or as a basis for subsequent testing 
under company authority. A railroad may take further action to compel 
cooperation in other breath or body fluid testing only if it has an 
independent basis for doing so.
    (b) Controlled substance. ``Controlled substance'' is defined by 
Sec. 219.5 of this part. Controlled substances are grouped as follows: 
Marijuana, narcotics (such as heroin and codeine), stimulants (such as 
cocaine and amphetamines), depressants (such as barbiturates and minor 
tranquilizers), and hallucinogens (such as the drugs known as PCP and 
LSD). Controlled substances include illicit drugs (Schedule I), drugs 
that are required to be distributed only by a medical practitioner's 
prescription or other authorization (Schedules II through IV, and some 
drugs on Schedule V), and certain preparations for which distribution is 
through documented over the counter sales (Schedule V only).
    (c) Railroad rules. Nothing in this section restricts a railroad 
from imposing an absolute prohibition on the presence of alcohol or any 
drug in the body fluids of persons in its employ, whether in furtherance 
of the purpose of this part or for other purposes.
    (d) Construction. This section shall not be construed to prohibit 
the presence of an unopened container of an alcoholic beverage in a 
private motor vehicle that is not subject to use in the business of the 
railroad; nor shall it be construed to restrict a railroad from 
prohibiting such presence under its own rules.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7459, Feb. 15, 1994; 62 
FR 63466, Dec. 1, 1997]



Sec. 219.102  Prohibition on abuse of controlled substances.

    On and after October 2, 1989, no employee who performs covered 
service may use a controlled substance at any time, whether on duty or 
off duty, except as permitted by Sec. 219.103 of this subpart.



Sec. 219.103  Prescribed and over-the-counter drugs.

    (a) This subpart does not prohibit the use of a controlled substance 
(on Schedule II through V of the controlled substance list) prescribed 
or authorized by a medical practitioner, or possession incident to such 
use, if--
    (1) The treating medical practitioner or a physician designated by 
the railroad has made a good faith judgment, with notice of the 
employee's assigned duties and on the basis of the available medical 
history, that use of the substance by the employee at the prescribed or 
authorized dosage level is consistent with the safe performance of the 
employee's duties;
    (2) The substance is used at the dosage prescribed or authorized; 
and
    (3) In the event the employee is being treated by more than one 
medical practitioner, at least one treating medical practitioner has 
been informed of all medications authorized or prescribed and has 
determined that use of the medications is consistent with the safe 
performance of the employee's duties (and the employee has observed any 
restrictions imposed with respect to use of the medications in 
combination).
    (b) This subpart does not restrict any discretion available to the 
railroad to require that employees notify the railroad of therapeutic 
drug use or obtain prior approval for such use.

[[Page 189]]



Sec. 219.104  Responsive action.

    (a) Removal from covered service. (1) If the railroad determines 
that an employee has violated Sec. 219.101 or Sec. 219.102, or the 
alcohol or controlled substances misuse rule of another DOT agency, the 
railroad shall immediately remove the employee from covered service and 
the procedures described in paragraphs (b) through (e) of this section 
shall apply.
    (2) If an employee refuses to provide breath or a body fluid sample 
or samples when required to by the railroad under a mandatory provision 
of this part, the railroad shall immediately remove the employee from 
covered service, and the procedures described in paragraphs (b) through 
(e) of this section shall apply.
    (3)(i) This section does not apply to actions based on breath or 
body fluid tests for alcohol or drugs that are conducted exclusively 
under authority other than that provided in this part (e.g., testing 
under a company medical policy, for-cause testing policy wholly 
independent of subpart D of this part, or testing under a labor 
agreement).
    (ii) This section and the information requirements listed in 
Sec. 219.23 do not apply to applicants who refuse to submit to a pre-
employment drug test or who have a pre-employment drug test with a 
result indicating the misuse of controlled substances.
    (b) Notice. Prior to or upon withdrawing the employee from covered 
service under this section, the railroad shall provide notice of the 
reason for this action.
    (c) Hearing procedures. (1) If the employee denies that the test 
result is valid evidence of alcohol or drug use prohibited by this 
subpart, the employee may demand and shall be provided an opportunity 
for a prompt post-suspension hearing before a presiding officer other 
than the charging official. This hearing may be consolidated with any 
disciplinary hearing arising from the same accident or incident (or 
conduct directly related thereto), but the presiding officer shall make 
separate findings as to compliance with Secs. 219.101 and 219.102 of 
this part.
    (2) The hearing shall be convened within the period specified in the 
applicable collective bargaining agreement. In the absence of an 
agreement provision, the employee may demand that the hearing be 
convened within 10 calendar days of the suspension or, in the case of an 
employee who is unavailable due to injury, illness, or other sufficient 
cause, within 10 days of the date the employee becomes available for 
hearing.
    (3) A post-suspension proceeding conforming to the requirements of 
an applicable collective bargaining agreement, together with the 
provisions for adjustment of disputes under section 3 of the Railway 
Labor Act, shall be deemed to satisfy the procedural requirements of 
this paragraph.
    (4) Nothing in this part shall be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common law 
with respect to the removal or other adverse action taken as a 
consequence of a positive test result in a test authorized or required 
by this part.
    (5) Nothing in this part shall restrict the discretion of the 
railroad to treat an employee's denial of prohibited alcohol or drug use 
as a waiver of any privilege the employee would otherwise enjoy to have 
such prohibited alcohol or drug use treated as a non-disciplinary matter 
or to have discipline held in abeyance.
    (d) Return to covered service. An employee who has been determined 
to have violated Sec. 219.101 or Sec. 219.102 or who refused to 
cooperate in a breath or body fluid test under this part shall not be 
returned to covered service unless the employee has--
    (1) Been evaluated by a substance abuse professional to determine if 
the employee is affected by a psychological or physical dependence on 
alcohol or one or more controlled substances or by another identifiable 
and treatable mental or physical disorder involving misuse of alcohol or 
drugs as a primary manifestation;
    (2) Been evaluated by a substance abuse professional to determine 
that the employee has properly followed the prescribed rehabilitation 
program; and

[[Page 190]]

    (3)(i) Presented a urine sample for testing under subpart H of this 
part that tested negative for controlled substances assayed (in the case 
of an employee who has been determined to have violated a prohibition of 
Sec. 219.101 or Sec. 219.102 regarding possession or misuse of 
controlled substances or who refused to provide a body fluid sample or 
samples when required to by the railroad under a mandatory provision of 
this part); or
    (ii) Presented breath for testing under subpart H of this part that 
indicated an alcohol concentration of less than .02. (in the case of an 
employee who has been determined to have violated a prohibition of 
Sec. 219.101 regarding possession or misuse of alcohol or who refused to 
provide breath when required to by the railroad under a mandatory 
provision of this part).
    (4) An employee shall be required to present both a urine sample and 
breath for testing, as specified in this section and subpart H of this 
part, if the substance abuse professional determines that such testing 
is necessary as a condition for returning the particular employee to 
covered service.
    (e) Follow-up testing. An employee returned to service under the 
above-stated conditions shall continue in any program of counseling or 
treatment deemed necessary by the substance abuse professional and shall 
be subject to unannounced follow-up tests administered by the railroad 
following the employee's return to duty. The number and frequency of 
such follow-up testing shall be determined by a substance abuse 
professional, but shall consist of at least six tests in the first 12 
months following the employee's return to duty. Any such testing shall 
be performed in accordance with the requirements of 49 CFR part 40. 
Follow-up testing shall not exceed 60 months from the date of the 
employee's return to duty. The substance abuse professional may 
terminate the requirement for follow-up testing at any time after the 
first six tests have been administered, if the substance abuse 
professional determines that such testing is no longer necessary.
    (1) If the employee has been determined to have violated a 
prohibition of Sec. 219.101 or Sec. 219.102 regarding possession or 
misuse of controlled substances, or if the employee refused to provide a 
body fluid sample or samples when required to by the railroad under a 
mandatory provision of this part, the employee shall be subject to 
follow-up testing as specified in this section. Such testing shall be 
for controlled substances, but may include testing for alcohol as well, 
if the substance abuse professional determines that alcohol testing is 
necessary for the particular employee.
    (2) If the employee has been determined to have violated a 
prohibition of Sec. 219.101 regarding possession or misuse of alcohol, 
or if the employee refused to provide breath when required to by the 
railroad under a mandatory provision of this part, the employee shall be 
subject to follow-up testing as specified in this section. Such testing 
shall be for alcohol, but may include testing for controlled substances 
as well, if the substance abuse professional determines that drug 
testing is necessary for the particular employee.
    (f) The railroad shall ensure that a substance abuse professional 
who determines that a covered employee requires assistance in resolving 
problems with alcohol or controlled substances misuse does not refer the 
employee to the substance abuse professional's private practice or to a 
person or organization from which the substance abuse professional 
receives remuneration or in which the substance abuse professional has a 
financial interest. This paragraph does not prohibit a substance abuse 
professional from referring an employee for assistance provided 
through--
    (1) A public agency, such as a state, county, or municipality;
    (2) The railroad or a person under contract to provide treatment for 
alcohol problems on behalf of the railroad;
    (3) The sole source of therapeutically appropriate treatment under 
the employee's health insurance program; or
    (4) The sole source of therapeutically appropriate treatment 
reasonably accessible to the employee.
    (g) Railroad compliance with the provisions of paragraphs (a), (d), 
and (e) of

[[Page 191]]

this section is mandatory beginning on January 1, 1995.

[54 FR 53259, Dec. 27, 1989; 55 FR 22793, June 4, 1990, as amended at 59 
FR 7459, Feb. 15, 1994; 62 FR 63466, Dec. 1, 1997]



Sec. 219.105  Railroad's duty to prevent violations.

    (a) A railroad may not, with actual knowledge, permit an employee to 
go or remain on duty in covered service in violation of the prohibitions 
of Sec. 219.101 or Sec. 219.102. As used in this section, the knowledge 
imputed to the railroad shall be limited to that of a railroad 
management employee (such as a supervisor deemed an ``officer,'' whether 
or not such person is a corporate officer) or a supervisory employee in 
the offending employee's chain of command.
    (b) A railroad must exercise due diligence to assure compliance with 
Sec. 219.101 and Sec. 219.102 by each covered employee.



Sec. 219.107  Consequences of unlawful refusal.

    (a) An employee who refuses to provide breath or a body fluid sample 
or samples when required to by the railroad under a mandatory provision 
of this part shall be deemed disqualified for a period of nine (9) 
months.
    (b) Prior to or upon withdrawing the employee from covered service 
under this section, the railroad shall provide notice of the reason for 
this action, and the procedures described in Sec. 219.104(c) shall 
apply.
    (c) The disqualification required by this section shall apply with 
respect to employment in covered service by any railroad with notice of 
such disqualification.
    (d) The requirement of disqualification for nine (9) months does not 
limit any discretion on the part of the railroad to impose additional 
sanctions for the same or related conduct.
    (e) Upon the expiration of the 9-month period described in this 
section, a railroad may permit the employee to return to covered service 
only under the same conditions specified in Sec. 219.104(d), and the 
employee shall be subject to follow-up tests, as provided by that 
section.

[59 FR 7460, Feb. 15, 1994]



             Subpart C--Post-Accident Toxicological Testing



Sec. 219.201  Events for which testing is required.

    (a) List of events. Except as provided in paragraph (b) of this 
section, post-accident toxicological tests shall be conducted after any 
event that involves one or more of the circumstances described in 
paragraphs (a) (1) through (4) of this section:
    (1) Major train accident. Any train accident (i.e., a rail equipment 
accident involving damage in excess of the current reporting threshold, 
$6,300 for calendar years 1991 through 1996, $6,500 for calendar year 
1997, and $6,600 for calendar years 1998 through 1999) that involves one 
or more of the following:
    (i) A fatality;
    (ii) Release of hazardous material lading from railroad equipment 
accompanied by--
    (A) An evacuation; or
    (B) A reportable injury resulting from the hazardous material 
release (e.g., from fire, explosion, inhalation, or skin contact with 
the material); or
    (iii) Damage to railroad property of $1,000,000 or more.
    (2) Impact accident. An impact accident (i.e., a rail equipment 
accident defined as an ``impact accident'' in Sec. 219.5 of this part 
that involves damage in excess of the current reporting threshold, 
$6,300 for calendar years 1991 through 1996, $6,500 for calendar year 
1997, and $6,600 for calendar years 1998 through 1999) resulting in--
    (i) A reportable injury; or
    (ii) Damage to railroad property of $150,000 or more.
    (3) Fatal train incident. Any train incident that involves a 
fatality to any on-duty railroad employee.
    (4) Passenger train accident. Reportable injury to any person in a 
train accident (i.e., a rail equipment accident involving damage in 
excess of the current reporting threshold, $6,300 for calendar years 
1991 through 1996, $6,500 for calendar year 1997, and $6,600 for 
calendar years 1998 through 1999) involving a passenger train.
    (b) Exceptions. No test shall be required in the case of a collision 
between railroad rolling stock and a

[[Page 192]]

motor vehicle or other highway conveyance at a rail/highway grade 
crossing. No test shall be required in the case of an accident/incident 
the cause and severity of which are wholly attributable to a natural 
cause (e.g., flood, tornado or other natural disaster) or to vandalism 
or trespasser(s), as determined on the basis of objective and documented 
facts by the railroad representative responding to the scene.
    (c) Good faith determinations. (1)(i) The railroad representative 
responding to the scene of the accident/incident shall determine whether 
the accident/incident falls within the requirements of paragraph (a) of 
this section or is within the exception described in paragraph (b) of 
this section. It is the duty of the railroad representative to make 
reasonable inquiry into the facts as necessary to make such 
determinations. In making such inquiry, the railroad representative 
shall consider the need to obtain samples as soon as practical in order 
to determine the presence or absence of impairing substances reasonably 
contemporaneous with the accident/incident. The railroad representative 
satisfies the requirement of this section if, after making reasonable 
inquiry, the representative exercises good faith judgement in making the 
required determinations.
    (ii) The railroad representative making the determinations required 
by this section shall not be a person directly involved in the accident/
incident. This section does not prohibit consultation between the 
responding railroad representative and higher level railroad officials; 
however, the responding railroad representative shall make the factual 
determinations required by this section.
    (iii) Upon specific request made to the railroad by the Associate 
Administrator for Safety, FRA (or the Associate Administrator's 
delegate), the railroad shall provide a report describing any decision 
by a person other than the responding railroad representative with 
respect to whether an accident/incident qualifies for testing. This 
report shall be affirmed by the decision maker and shall be provided to 
FRA within 72 hours of the request. The report shall include the facts 
reported by the responding railroad representative, the basis upon which 
the testing decision was made, and the person making the decision.
    (iv) Any estimates of railroad property damage made by persons not 
the scene shall be based on descriptions of specific physicial damage 
provided by the on-scene railroad representative.
    (v) In the case of an accident involving passenger equipment, a host 
railroad may rely upon the the damage estimates provided by the 
passenger railroad (whether present on scene or not) in making the 
decision whether testing is required, subject to the same requirement 
that visible physical damage be specifically described.
    (2) A railroad shall not require an employee to provide blood or 
urine specimens under the authority or procedures of this subject unless 
the railroad has made the determinations required by this section, based 
upon reasonable inquiry and good faith judgment. A railroad does not act 
in excess of its authority under this subpart if its representative has 
made such reasonable inquiry and exercised such good faith judgment, but 
it is later determined, after investigation, that one or more of the 
conditions thought to have required testing were not, in fact, present. 
However, this section does not excuse the railroad for any error arising 
from a mistake of law (e.g., application of testing criteria other than 
those contained in these regulations).
    (3) A railroad is not in violation of this subpart if its 
representative has made such reasonable inquiry and exercised such good 
faith judgment but nevertheless errs in determining that post-accident 
testing is not required.
    (4) An accident/incident with respect to which the railroad has made 
reasonable inquiry and exercised good faith judgment in determining the 
facts necessary to apply the criteria contained in paragraph (a) of this 
section is deemed a qualifying event for purposes of sample analysis, 
reporting, and other purposes.
    (5) In the event samples are collected following an event determined 
by FRA not to be a qualifying event within the meaning of this 
paragraph, FRA directs its designated laboratory to destroy any sample 
material submitted and to refrain from disclosing to any

[[Page 193]]

person the results of any analysis conducted.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7460, Feb. 15, 1994; 61 
FR 60634, Nov. 29, 1996; 62 FR 63466, Dec. 1, 1997; 62 FR 63676, Dec. 2, 
1997; 63 FR 71791, Dec. 30, 1998]



Sec. 219.203  Responsibilities of railroads and employees.

    (a) Employees tested. (1)(i) Following each accident and incident 
described in Sec. 219.201, the railroad (or railroads) shall take all 
practicable steps to assure that all covered employees of the railroad 
directly involved in the accident or incident provide blood and urine 
samples for toxicological testing by FRA. Such employees shall cooperate 
in the provision of samples as described in this part and appendix C.
    (ii) If the conditions for mandatory toxicological testing exist, 
the railroad may also require employees to provide breath for testing in 
accordance with the procedures set forth in 49 CFR part 40 and this 
part, if such testing does not interfere with timely collection of 
required samples.
    (2) Such employees shall specifically include each and every 
operating employee assigned as a crew member of any train involved in 
the accident or incident. In any case where an operator, dispatcher, 
signal maintainer or other covered employee is directly and 
contemporaneously involved in the circumstances of the accident/
incident, those employees shall also be required to provide samples.
    (3) An employee shall be excluded from testing under the following 
circumstances: In any case of an accident/incident for which testing is 
mandated only under Sec. 219.201(a)(2) of this subpart (an ``impact 
accident''), Sec. 219.201(a)(3) (``fatal train incident''), or 
Sec. 219.201(a)(4) (a ``passenger train accident with injury'') if the 
railroad representative can immediately determine, on the basis of 
specific information, that the employee had no role in the cause(s) or 
severity of the accident/incident. The railroad representative shall 
consider any such information immediately available at the time the 
qualifying event determination is made under Sec. 219.201 of this 
subpart.
    (4) The following provisions govern accidents/incidents involving 
non-covered employees:
    (i) Surviving non-covered employees are not subject to testing under 
this subpart.
    (ii) Testing of the remains of non-covered employees who are fatally 
injured in train accidents and incidents is required.
    (b) Timely sample collection. (1) The railroad shall make every 
reasonable effort to assure that samples are provided as soon as 
possible after the accident or incident.
    (2) This paragraph shall not be construed to inhibit the employees 
required to be tested from performing, in the immediate aftermath of the 
accident or incident, any duties that may be necessary for the 
preservation of life or property. However, where practical, the railroad 
shall utilize other employees to perform such duties.
    (3) In the case of a passenger train which is in proper condition to 
continue to the next station or its destination after an accident or 
incident, the railroad shall consider the safety and convenience of 
passengers in determining whether the crew is immediately available for 
testing. A relief crew shall be called to relieve the train crew as soon 
as possible.
    (4) Covered employees who may be subject to testing under this 
subpart shall be retained in duty status for the period necessary to 
make the determinations required by Sec. 219.201 and this section and 
(as appropriate) to complete the sample collection procedure. An 
employee may not be recalled for testing under this subpart if that 
employee has been released from duty under the normal procedures of the 
railroad, except that an employee shall be immediately recalled for 
testing if--
    (i) The employee could not be retained in duty status because the 
employee went off duty under normal carrier procedures prior to being 
contacted by a railroad supervisor and instructed to remain on duty 
pending completion of the required determinations (e.g., in the case of 
a dispatcher or signal maintainer remote from the scene of an accident 
who was unaware of the occurrence at the time the employee went off 
duty);

[[Page 194]]

    (ii) The railroad's preliminary investigation (contemporaneous with 
the determination required by Sec. 219.201 of this subpart) indicates a 
clear probability that the employee played a major role in the cause or 
severity of the accident/incident; and
    (iii) The accident/incident actually occurred during the employee's 
duty tour.

An employee who has been transported to receive medical care is not 
released from duty for purposes of this section. Nothing in this section 
prohibits the subsequent testing of an employee who has failed to remain 
available for testing as required (i.e., who is absent without leave); 
but subsequent testing does not excuse such refusal by the employee 
timely to provide the required specimens.
    (c) Place of sample collection. (1) Employees shall be transported 
to an independent medical facility where the samples shall be obtained. 
The railroad shall pre-designate for such testing one or more such 
facilities in reasonable proximity to any location where the railroad 
conducts operations. Designation shall be made on the basis of the 
willingness of the facility to conduct sample collection and the ability 
of the facility to complete sample collection promptly, professionally, 
and in accordance with pertinent requirements of this part. In all cases 
blood shall be drawn only by a qualified medical professional or by a 
qualified technician subject to the supervision of a qualified medical 
professional
    (2) In the case of an injured employee, the railroad shall request 
the treating medical facility to obtain the samples.
    (d) Obtaining cooperation of facility. (1) In seeking the 
cooperation of a medical facility in obtaining a sample under this 
subpart, the railroad shall, as necessary, make specific reference to 
the requirements of this subpart.
    (2) If an injured employee is unconscious or otherwise unable to 
evidence consent to the procedure and the treating medical facility 
declines to obtain blood samples after having been acquainted with the 
requirements of this subpart, the railroad shall immediately notify the 
duty officer at the National Response Center (NRC) at (800) 424-8802, 
and FRA at (202) 632-3378, stating the employee's name, the medical 
facility, its location, the name of the appropriate decisional authority 
at the medical facility, and the telephone number at which that person 
can be reached. FRA will then take appropriate measures to assist in 
obtaining the required sample.
    (e) Discretion of physician. Nothing in this subpart shall be 
construed to limit the discretion of a physician to determine whether 
drawing a blood sample is consistent with the health of an injured 
employee or an employee afflicted by any other condition that may 
preclude drawing the specified quantity of blood.

[54 FR 53259, Dec. 27, 1989, as amended at 55 FR 22793, June 4, 1990; 59 
FR 7460, Feb. 15, 1994; 62 FR 63467, Dec. 1, 1997]



Sec. 219.205  Sample collection and handling.

    (a) General. Urine and blood samples shall be obtained, marked, 
preserved, handled, and made available to FRA consistent with the 
requirements of this subpart, and the technical specifications set forth 
in appendix C to this part.
    (b) Information requirements. In order to process samples, analyze 
the significance of laboratory findings, and notify the railroads and 
employees of test results, it is necessary to obtain basic information 
concerning the accident/incident and any treatment administered after 
the accident/incident. Accordingly, the railroad representative shall 
complete the information required by FRA Form 6180.73 (revised) for 
shipping with the samples. Each employee subject to testing shall 
cooperate in completion of the required information on FRA Form 6180.74 
(revised) for inclusion in the shipping kit and processing of the 
samples. The railroad representative shall request an appropriate 
representative of the medical facility to complete the remaining portion 
of the information on each Form 6180.74 (revised). One Form 6180.73 
(revised) shall be forwarded in the shipping kit with each group of 
samples. One Form 6180.74 (revised) shall be forwarded in the shipping 
kit for each employee who provides samples.

[[Page 195]]

    (c) Shipping kit. (1) FRA and the laboratory designated in appendix 
B to this part make available for purchase a limited number of standard 
shipping kits for the purpose of routine handling of toxicological 
samples under this subpart. Whenever possible, samples shall be placed 
in the shipping kit prepared for shipment according to the instructions 
provided in the kit and appendix C.
    (2) Kits may be ordered directly from the laboratory designated in 
appendix B to this part.
    (3) FRA maintains a limited number of kits at its field offices. A 
Class III railroad may utilize kits in FRA possession, rather than 
maintaining such kits on its property.
    (d) Shipment. Samples shall be shipped as soon as possible by pre-
paid air express or air freight (or other means adequate to ensure 
delivery within twenty-four (24) hours from time of shipment) to the 
laboratory designated in appendix B to this part. Where express courier 
pickup is available, the railroad shall request the medical facility to 
transfer the sealed toxicology kit directly to the express courier for 
transportation. If courier pickup is not available at the medical 
facility where the samples are collected or for any other reason prompt 
transfer by the medical facility cannot be assured, the railroad shall 
promptly transport the sealed shipping kit holding the samples to the 
most expeditious point of shipment via air express, air freight or 
equivalent means. The railroad shall maintain and document secure chain 
of custody of the kit from release by the medical facility to delivery 
for transportation, as described in appendix C.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7460, Feb. 15, 1994; 62 
FR 63467, Dec. 1, 1997]



Sec. 219.206  FRA access to breath test results.

    Documentation of breath test results shall be made available to FRA 
consistent with the requirements of this subpart, and the technical 
specifications set forth in appendix C to this part.

[59 FR 7461, Feb. 15, 1994]



Sec. 219.207  Fatality.

    (a) In the case of an employee fatality in an accident or incident 
described in Sec. 219.201, body fluid and/or tissue samples shall be 
obtained from the remains of the employee for toxicological testing. To 
ensure that samples are timely collected, the railroad shall immediately 
notify the appropriate local authority (such as a coroner or medical 
examiner) of the fatality and the requirements of this subpart, making 
available the shipping kit and requesting the local authority to assist 
in obtaining the necessary body fluid or tissue samples. The railroad 
shall also seek the assistance of the custodian of the remains, if a 
person other than the local authority.
    (b) If the local authority or custodian of the remains declines to 
cooperate in obtaining the necessary samples, the railroad shall 
immediately notify the duty officer at the National Response Center 
(NRC) at (800) 424-8802 and FRA at (202) 632-3378 by providing the 
following information:
    (1) Date and location of the accident or incident;
    (2) Railroad;
    (3) Name of the deceased;
    (4) Name and telephone number of custodian of the remains; and
    (5) Name and telephone number of local authority contacted.
    (c) A coroner, medical examiner, pathologist, Aviation Medical 
Examiner, or other qualified professional is authorized to remove the 
required body fluid and/or tissue samples from the remains on request of 
the railroad or FRA pursuant to this part; and, in so acting, such 
person is the delegate of the Administrator under section 208 of the 
Federal Railroad Safety Act of 1970 (45 U.S.C. 437) (but not the agent 
of the Secretary for purposes of the Federal Tort Claims Act). Such 
qualified professional may rely upon the representations of the railroad 
or FRA representative with respect to the occurrence of the event 
requiring that toxicological tests be conducted and the coverage of the 
deceased employee under these rules.
    (d) Appendix C to this part specifies body fluid and tissue samples 
required

[[Page 196]]

for toxicological analysis in the case of a fatality.

[54 FR 53259, Dec. 27, 1989, as amended at 62 FR 63467, Dec. 1, 1997]



Sec. 219.209  Reports of tests and refusals.

    (a)(1) A railroad that has experienced one or more events for which 
samples were obtained shall provide prompt telephonic notification 
summarizing such events. Notification shall immediately be provided to 
the duty officer at the National Response Center (NRC) at (800) 424-8802 
and to the Office of Safety, FRA, at (202) 632-3378.
    (2) Each telephonic report shall contain:
    (i) Name of railroad;
    (ii) Name, title and telephone number of person making the report;
    (iii) Time, date and location of the accident/incident;
    (iv) Brief summary of the circumstances of the accident/incident, 
including basis for testing; and
    (v) Number, names and occupations of employees tested.
    (b) If the railroad is unable, as a result of non-cooperation of an 
employee or for any other reason, to obtain a sample and cause it to be 
provided to FRA as required by this subpart, the railroad shall make a 
concise narrative report of the reason for such failure and, if 
appropriate, any action taken in response to the cause of such failure. 
This report shall be appended to the report of the accident/incident 
required to be submitted under part 225 of this subchapter.
    (c) If a test required by this section is not administered within 
four hours following the accident or incident, the railroad shall 
prepare and maintain on file a record stating the reasons the test was 
not promptly administered. Records shall be submitted to the Federal 
Railroad Administration upon request of the Associate Administrator for 
Safety.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7461, Feb. 15, 1994; 62 
FR 63467, Dec. 1, 1997]



Sec. 219.211  Analysis and follow-up.

    (a) The laboratory designated in appendix B to this part undertakes 
prompt analysis of samples provided under this subpart, consistent with 
the need to develop all relevant information and produce a complete 
report. Samples are analyzed for alcohol and controlled substances 
specified by FRA under protocols specified by FRA, summarized in 
appendix C, which have been submitted to the Department of Health and 
Human Services for acceptance. Samples may be analyzed for other 
impairing substances specified by FRA as necessary to the particular 
accident investigation.
    (b) Results of post-accident toxicological testing under this 
subpart are reported to the railroad's Medical Review Officer and the 
employee. The MRO and the railroad shall treat the test results and any 
information concerning medical use or administration of drugs provided 
under this subpart in the same confidential manner as if subject to 
subpart H of this part, except where publicly disclosed by FRA or the 
National Transportation Safety Board.
    (c) With respect to a surviving employee, a test reported as 
positive for alcohol or a controlled substance by the designated 
laboratory shall be reviewed by the railroad's Medical Review Officer 
with respect to any claim of use or administration of medications 
(consistent with Sec. 219.103 of this part) that could account for the 
laboratory findings. The Medical Review Officer shall promptly report 
the results of each review to the Associate Administrator for Safety, 
FRA, Washington, DC 20590. Such report shall be in writing and shall 
reference the employing railroad, accident/incident date, and location; 
and the envelope shall be marked ``ADMINISTRATIVELY CONFIDENTIAL: 
ATTENTION ALCOHOL/DRUG PROGRAM MANAGER.'' The report shall state whether 
the MRO reported the test result to the employing railroad as positive 
or negative and the basis of any determination that analytes detected by 
the laboratory derived from authorized use (including a statement of the 
compound prescribed, dosage/frequency, and any restrictions imposed by 
the authorized medical practitioner). Unless specifically requested by 
FRA in writing, the Medical Review Officer shall not disclose to FRA the 
underlying physical condition

[[Page 197]]

for which any medication was authorized or administered. The Federal 
Railroad Administration shall not be bound by the railroad Medical 
Review Officer's determination, but that determination will be 
considered by FRA in relation to the accident/incident investigation and 
with respect to any enforcement action under consideration.
    (d) To the extent permitted by law, FRA treats test results 
indicating medical use of controlled substances consistent with 
Sec. 219.103 (and other information concerning medically authorized drug 
use or administration provided incident to such testing) as 
administratively confidential and withholds public disclosure, except 
where it is necessary to consider this information in an accident 
investigation in relation to determination of probable cause. (However, 
as further provided in this section, FRA may provide results of testing 
under this subpart and supporting documentation to the National 
Transportation Safety Board.)
    (e) An employee may respond in writing to the results of the test 
prior to the preparation of any final investigation report concerning 
the accident or incident. An employee wishing to respond shall do so by 
letter addressed to the Alcohol/Drug Program Manager, Office of Safety, 
FRA, 400 Seventh Street, SW., Washington, DC 20590 within 45 days of 
receipt of the test results. Any such submission shall refer to the 
accident date, railroad and location, shall state the position occupied 
by the employee on the date of the accident/incident, and shall identify 
any information contained therein that the employee requests be withheld 
from public disclosure on grounds of personal privacy (but the decision 
whether to honor such request shall be made by the FRA on the basis of 
controlling law).
    (f)(1) The toxicology report may contain a statement of 
pharmacological significance to assist FRA and other parties in 
understanding the data reported. No such statement may be construed as a 
finding of probable cause in the accident or incident.
    (2) The toxicology report is a part of the report of the accident/
incident and therefore subject to the limitation of section 4 of the 
Accident Reports Act (45 U.S.C. 41) (prohibiting use of the report for 
any purpose in any action for damages).
    (g)(1) It is in the public interest to ensure that any railroad 
disciplinary actions that may result from accidents and incidents for 
which testing is required under this subpart are disposed of on the 
basis of the most complete and reliable information available so that 
responsive action will be appropriate. Therefore, during the interval 
between an accident or incident and the date that the railroad receives 
notification of the results of the toxicological analysis, any provision 
of collective bargaining agreements establishing maximum periods for 
charging employees with rule violations, or for holding an 
investigation, shall not be deemed to run as to any offense involving 
the accident or incident (i.e., such periods shall be tolled).
    (2) This provision shall not be construed to excuse the railroad 
from any obligation to timely charge an employee (or provide other 
actual notice) where the railroad obtains sufficient information 
relating to alcohol or drug use, impairment or possession or other rule 
violations prior to the receipt to toxicological analysis.
    (3) This provision does not authorize holding any employee out of 
service pending receipt of toxicological analysis; nor does it restrict 
a railroad from taking such action in an appropriate case.
    (h) Except as provided in Sec. 219.201 (with respect to non-
qualifying events), each sample (including each split sample) provided 
under this subpart is retained for not less than three months following 
the date of the accident or incident (two years from the date of the 
accident or incident in the case of a sample testing positive for 
alcohol or a controlled substance). Post-mortem specimens may be made 
available to the National Transportation Safety Board (on request).
    (i) An employee (donor) may, within 60 days of the date of the 
toxicology report, request that the employee's blood and/or urine sample 
be retested by the designated laboratory or by another laboratory 
certified by the Department of Health and Human Services under

[[Page 198]]

that Department's Guidelines for Federal Workplace Drug Testing Programs 
that has available an appropriate, validated assay for the fluid and 
compound declared positive. Since some analytes may deteriorate during 
storage, detected levels of the compound shall, as technically 
appropriate, be reported and considered corroborative of the original 
test result. Any request for a retest shall be in writing, specify the 
railroad, accident date and location, be signed by the employee/donor, 
be addressed to the Associate Administrator for Safety, FRA, Washington, 
DC 20590, and be designated ``ADMINISTRATIVELY CONFIDENTIAL: ATTENTION 
ALCOHOL/DRUG PROGRAM MANAGER.'' The expense of any employee-requested 
retest at a laboratory other than the laboratory designated under this 
subpart shall be borne by the employee.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7461, Feb. 15, 1994]



Sec. 219.213  Unlawful refusals; consequences.

    (a) Disqualification. An employee who refuses to cooperate in 
providing breath, blood or urine samples following an accident or 
incident specified in this subpart shall be withdrawn from covered 
service and shall be deemed disqualified for covered service for a 
period of nine (9) months in accordance with the conditions specified in 
Sec. 219.107.
    (b) Procedures. Prior to or upon withdrawing the employee from 
covered service under this section, the railroad shall provide notice of 
the reason for this action and an opportunity for hearing before a 
presiding officer other than the charging official. The employee shall 
be entitled to the procedural protection set out in Sec. 219.104(d).
    (c) Subject of hearing. The hearing required by this section shall 
determine whether the employee refused to submit to testing, having been 
requested to submit, under authority of this subpart, by a 
representative of the railroad. In determining whether a 
disqualification is required, the hearing official shall, as 
appropriate, also consider the following:
    (1) Whether the railroad made a good faith determination, based on 
reasonable inquiry, that the accident or incident was within the 
mandatory testing requirements of this subpart; and
    (2) In a case where a blood test was refused on the ground it would 
be inconsistent with the employee's health, whether such refusal was 
made in good faith and based on medical advice.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7461, Feb. 15, 1994]



                      Subpart D--Testing for Cause



Sec. 219.300  Mandatory reasonable suspicion testing.

    (a) Requirements. (1) Beginning on January 1, 1995, a railroad shall 
require a covered employee to submit to an alcohol test when the 
railroad has reasonable suspicion to believe that the employee has 
violated any prohibition of subpart B of this part concerning use of 
alcohol. The railroad's determination that reasonable suspicion exists 
to require the covered employee to undergo an alcohol test must be based 
on specific, contemporaneous, articulable observations concerning the 
appearance, behavior, speech or body odors of the employee.
    (2) A railroad shall require a covered employee to submit to a urine 
drug test when the railroad has reasonable suspicion to believe that the 
employee has violated the prohibitions of subpart B of this part 
concerning use of controlled substances. The railroad's determination 
that reasonable suspicion exists to require the covered employee to 
undergo a drug test must be based on specific, contemporaneous, 
articulable observations concerning the appearance, behavior, speech or 
body odors of the employee. Such observations may include indications of 
the chronic and withdrawal effects of drugs.
    (b)(1) With respect to an alcohol test, the required observations 
shall be made by a supervisor trained in accordance with Sec. 219.11(g). 
The supervisor who makes the determination that reasonable suspicion 
exists may not conduct testing on that employee.
    (2) With respect to a urine drug test, the required observations 
shall be made by two supervisors, at least one of whom is trained in 
accordance with Sec. 219.11(g).

[[Page 199]]

    (c) Nothing in this section shall be construed to require the 
conduct of breath alcohol testing or urine drug testing when the 
employee is apparently in need of immediate medical attention.
    (d)(1) If a test required by this section is not administered within 
two hours following the determination under this section, the railroad 
shall prepare and maintain on file a record stating the reasons the test 
was not properly administered. If a test required by this section is not 
administered within eight hours of the determination under this section, 
the railroad shall cease attempts to administer an alcohol test and 
shall state in the record the reasons for not administering the test. 
Records shall be submitted to FRA upon request of the Administrator.
    (2) For the years stated in this paragraph, employers who submit MIS 
reports shall submit to the FRA each record of a test required by this 
section that is not completed within 8 hours. The employer's records of 
tests that are not completed within 8 hours shall be submitted to the 
FRA by March 15, 1996; March 15, 1997; and March 15, 1998; for calendar 
years 1995, 1996, and 1997, respectively. Employers shall append these 
records to their MIS submissions. Each record shall include the 
following information:
    (i) Triggering event (including date, time, and location);
    (ii) Employee category (do not include employee name or other 
identifying information);
    (iii) Reason(s) test could not be completed within 8 hours; and
    (iv) If blood alcohol testing could have been completed within eight 
hours, the name, address, and telephone number of the testing site where 
blood testing could have occurred.

[59 FR 7461, Feb. 15, 1994, as amended at 59 FR 62239, Dec. 2, 1994]



Sec. 219.301  Testing for reasonable cause.

    (a) Authorization. A railroad may, under the conditions specified in 
this subpart, require any covered employee, as a condition of employment 
in covered service, to cooperate in breath or urine testing, or both, to 
determine compliance with Secs. 219.101 and 219.102 of this part or a 
railroad rule implementing the requirements of Secs. 219.101 and 
219.102. This authority is limited to testing after observations or 
events that occur during duty hours (including any period of overtime or 
emergency service). The provisions of this subpart apply only when, and 
to the extent that, the test in question is conducted in reliance upon 
the authority conferred by this section. Section 219.23 prescribes the 
notice to an employee that is required when an employee is required to 
provide a breath or body fluid sample under this part. A railroad may 
not require an employee to be tested under the authority of this subpart 
unless reasonable cause, as defined in this section, exists with respect 
to that employee.
    (b) For cause breath testing. In addition to reasonable suspicion as 
described in Sec. 219.300, the following circumstances constitute cause 
for the administration of breath alcohol tests under this section:
    (1) [Reserved]
    (2) Accident/incident. The employee has been involved in an accident 
or incident reportable under part 225 of this title, and a supervisory 
employee of the railroad has a reasonable belief, based on specific, 
articulable facts, that the employee's acts or omissions contributed to 
the occurrence or severity of the accident or incident; or
    (3) Rule violation. The employee has been directly involved in one 
of the following operating rule violations or errors:
    (i) Noncompliance with a train order, track warrant, timetable, 
signal indication, special instruction or other direction with respect 
to movement of a train that involves--
    (A) Occupancy of a block or other segment of track to which entry 
was not authorized;
    (B) Failure to clear a track to permit opposing or following 
movement to pass;
    (C) Moving across a railroad crossing at grade without 
authorization; or
    (D) Passing an absolute restrictive signal or passing a restrictive 
signal without stopping (if required);
    (ii) Failure to protect a train as required by a rule consistent 
with Sec. 218.37

[[Page 200]]

of this title (including failure to protect a train that is fouling an 
adjacent track, where required by the railroad's rules);
    (iii) Operation of a train at a speed that exceeds the maximum 
authorized speed by at least ten (10) miles per hour or by fifty percent 
(50%) of such maximum authorized speed, whichever is less;
    (iv) Alignment of a switch in violation of a railroad rule, failure 
to align a switch as required for movement, operation of a switch under 
a train, or unauthorized running through a switch;
    (v) Failure to apply or stop short of derail as required;
    (vi) Failure to secure a hand brake or failure to secure sufficient 
hand brakes, as required;
    (vii) Entering a crossover before both switches are lined for 
movement; or
    (viii) In the case of a person performing a dispatching function or 
block operator function, issuance of a train order or establishment of a 
route that fails to provide proper protection for a train.
    (c) For cause urine testing. In addition to reasonable suspicion as 
described in Sec. 219.300, each of the conditions set forth in 
paragraphs (b)(2) (``accident/incident'') and (b)(3) (``rule 
violation'') of this section as constituting cause for breath alcohol 
testing also constitutes cause with respect to urine drug testing.
    (d) [Reserved]
    (e) Limitation for subpart C events. The compulsory urine testing 
authority conferred by this section does not apply with respect to any 
event subject to post-accident toxicological testing as required by 
Sec. 219.201 of this part. However, use of compulsory breath test 
authority is authorized in any case where breath test results can be 
obtained in a timely manner at the scene of the accident and conduct of 
such tests does not materially impede the collection of samples under 
subpart C.

[54 FR 53259, Dec. 27, 1989; 55 FR 22793, June 4, 1990, as amended at 59 
FR 7461, Feb. 15, 1994]



Sec. 219.302  Prompt sample collection; time limitation.

    (a) Testing under this subpart may only be conducted promptly 
following the observations or events upon which the testing decision is 
based, consistent with the need to protect life and property.
    (b) No employee shall be required to participate in breath alcohol 
or urine drug testing under this section after the expiration of an 
eight hour period from--
    (1) The time of the observations or other events described in this 
section; or
    (2) In the case of an accident/incident, the time a responsible 
railroad supervisor receives notice of the event providing reasonable 
cause for conduct of the test.
    (c) An employee may not be tested under this subpart if that 
employee has been released from duty under the normal procedures of the 
railroad. An employee who has been transported to receive medical care 
is not released from duty for purposes of this section. Nothing in this 
section prohibits the subsequent testing of an employee who has failed 
to remain available for testing as required (i.e., who is absent without 
leave).
    (d) As used in this subpart a ``responsible railroad supervisor'' 
means any responsible line supervisor (e.g., a trainmaster or road 
foreman of engines) or superior official in authority over the employee 
to be tested.
    (e) In the case of a urine drug test, the eight-hour requirement is 
satisfied if the employee has been delivered to the collection site 
(where the collector is present) and the request has been made to 
commence collection of the urine specimens within that period.
    (f) [Reserved]
    (g) Section 219.23 prescribes the notice to an employee that is 
required to provide breath or a body fluid sample under this part.

[59 FR 7462, Feb. 15, 1994, as amended at 59 FR 62239, Dec. 2, 1994]



Sec. 219.303  Alcohol test procedures and safeguards.

    (a)(1) Each Class I railroad (including the National Railroad 
Passenger Corporation) and each railroad providing

[[Page 201]]

commuter passenger service shall implement mandatory reasonable 
suspicion testing according to the procedures listed in paragraph (b) of 
this section beginning on January 1, 1995.
    (2) Each Class II railroad shall implement mandatory reasonable 
suspicion testing according to the procedures listed in paragraph (b) of 
this section beginning on July 1, 1995. Prior to that date, a Class II 
railroad may use the procedures described in paragraphs (c) through (e) 
of this section.
    (3) Each Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall implement mandatory 
reasonable suspicion testing according to the procedures listed in 
paragraph (b) of this section beginning on January 1, 1996. Prior to 
that date, a Class III railroad may use the procedures described in 
paragraphs (c) through (e) of this section.
    (4) In the case of a railroad commencing operations after January 1, 
1996, the railroad shall implement mandatory reasonable suspicion 
testing not later than the expiration of 60 days from approval by the 
Administrator of the railroad's random testing programs.
    (b) As provided for in subparagraph (a)(1) of this section, the 
conduct of alcohol testing under this subpart is governed by subpart H 
of this part and part 40 of subtitle A of this title.
    (c)-(e)  [Reserved]
    (f)(1) Under the circumstances set forth in Sec. 219.301, a railroad 
may require an employee to participate in a breath alcohol screening 
test solely for the purpose of determining whether the conduct of a test 
meeting the criteria of paragraph (a) is indicated. If the screening 
test is negative within the meaning of paragraph (b), the employee shall 
not be required to submit to further breath testing under this subpart. 
If the screening test is positive, no consequence shall attach except 
that the employee may be removed from covered service for the period 
necessary to conduct a breath test meeting the criteria of paragraph 
(a).
    (2) Except as provided in paragraph (d)(2)(iii) of this section, the 
conduct of a screening test under paragraph (d)(1) of this section does 
not excuse full compliance with paragraph (a) of this section with 
respect to any breath test procedure which is then undertaken. If a 
screening test is positive, the following procedures govern:
    (i) An initial breath test shall be conducted meeting the criteria 
of paragraph (a) of this section.
    (ii) If that test is positive, a second breath test shall be 
conducted meeting the criteria of paragraph (a) of this section.
    (iii) The second test meeting the criteria of section (a) of this 
section must be conducted at least 15 minutes after the positive 
screening test conducted under paragraph (d)(1) of this section. 
However, since a waiting period of 15 minutes is sufficient to permit 
the dissipation of any alcohol in the mouth, the requirement of 
paragraph (a)(5) of this section that there be a period of at least 15 
minutes between the two tests meeting the criteria of paragraph (a) of 
this section does not apply.

[59 FR 60563, Nov. 25, 1994, as amended at 62 FR 63467, Dec. 1, 1997]



Sec. 219.305  Urine test procedures and safeguards.

    The conduct of urine drug testing under this subpart is governed by 
subpart H of this part and (to the extent not inconsistent with this 
part) part 40 of subtitle A of this title.



             Subpart E--Identification of Troubled Employees



Sec. 219.401  Requirement for policies.

    (a) The purpose of this subpart is to prevent the use of alcohol and 
drugs in connection with covered service.
    (b) Each railroad shall adopt, publish and implement--
    (1) A policy designed to encourage and facilitate the identification 
of those covered employees who abuse alcohol or drugs as a part of a 
treatable condition and to ensure that such employees are provided the 
opportunity to obtain counseling or treatment before those problems 
manifest themselves in detected violations of this part (hereafter 
``voluntary referral policy''); and
    (2) A policy designed to foster employee participation in preventing 
violations of this subpart and encourage

[[Page 202]]

co-worker participation in the direct enforcement of this part 
(hereafter ``co-worker report policy'').
    (c) A railroad may comply with this subpart by adopting, publishing 
and implementing policies meeting the specific requirements of 
Secs. 219.403 and 219.405 of this subpart or by complying with 
Sec. 219.407.
    (d) If a railroad complies with this part by adopting, publishing 
and implementing policies consistent with Secs. 219.403 and 219.405, the 
railroad shall make such policies, and publications announcing such 
policies, available for inspection and copying by FRA.
    (e) Nothing in this subpart shall be construed to--
    (1) Require payment of compensation for any period an employee is 
out of service under a voluntary referral or co-worker report policy;
    (2) Require a railroad to adhere to a voluntary referral or co-
worker report policy in a case where the referral or report is made for 
the purpose, or with the effect, of anticipating the imminent and 
probable detection of a rule violation by a supervising employee; or
    (3) Limit the discretion of a railroad to dismiss or otherwise 
discipline an employee for specific rule violations or criminal 
offenses, except as specifically provided by this subpart.



Sec. 219.403  Voluntary referral policy.

    (a) Scope. This section prescribes minimum standards for voluntary 
referral policies. Nothing in this section restricts a railroad from 
adopting, publishing and implementing a voluntary referral policy that 
affords more favorable conditions to employees troubled by alcohol or 
drug abuse problems, consistent with the railroad's responsibility to 
prevent violations of Sec. 219.101 and Sec. 219.102.
    (b) Required provisions. A voluntary referral policy shall include 
the following provisions:
    (1) A covered employee who is affected by an alcohol or drug use 
problem may maintain an employment relationship with the railroad if, 
before the employee is charged with conduct deemed by the railroad 
sufficient to warrant dismissal, the employee seeks assistance through 
the railroad for the employee's alcohol or drug use problem or is 
referred for such assistance by another employee or by a representative 
of the employee's collective bargaining unit. The railroad shall specify 
whether, and under what circumstances, its policy provides for the 
acceptance of referrals from other sources, including (at the option of 
the railroad) supervisory employees.
    (2) Except as may be provided under paragraph (c) of this part, the 
railroad treats the referral and subsequent handling, including 
counseling and treatment, as confidential.
    (3) The railroad will, to the extent necessary for treatment and 
rehabilitation, grant the employee a leave of absence from the railroad 
for the period necessary to complete primary treatment and establish 
control over the employee's alcohol or drug problem. The policy must 
allow a leave of absence of not less than 45 days, if necessary for the 
purpose of meeting initial treatment needs.
    (4) Except as may be provided under paragraph (c)(2) of this 
section, the employee will be returned to service on the recommendation 
of the substance abuse professional. Approval to return to service may 
not be unreasonably withheld.
    (c) Optional provisions. A voluntary referral policy may include any 
of the following provisions, at the option of the railroad:
    (1) The policy may provide that the rule of confidentiality is 
waived if--
    (i) The employee at any time refuses to cooperate in a recommended 
course of counseling or treatment and/or;
    (ii) The employee is later determined, after investigation, to have 
been involved in an alcohol or drug-related disciplinary offense growing 
out of subsequent conduct.
    (2) The policy may require successful completion of a return-to-
service medical examination as a further condition on reinstatement in 
covered service.
    (3) The policy may provide that it does not apply to an employee who 
has previously been assisted by the railroad under a policy or program 
substantially consistent with this section or who has previously elected 
to waive investigation under Sec. 219.405 of this section (co-worker 
report policy).

[[Page 203]]

    (4) The policy may provide that, in order to invoke its benefits, 
the employee must report to the contact designated by the railroad 
either:
    (i) During non-duty hours (i.e., at a time when the employee is off 
duty) or
    (ii) While unimpaired and otherwise in compliance with the 
railroad's alcohol and drug rules consistent with this subpart.



Sec. 219.405  Co-worker report policy.

    (a) Scope. This section prescribes minimum standards for co-worker 
report policies. Nothing in this section restricts a railroad from 
adopting, publishing and implementing a policy that affords more 
favorable conditions to employees troubled by alcohol or drug abuse 
problems, consistent with the railroad's responsibility to prevent 
violations of Secs. 219.101 and 219.102.
    (b) Employment relationship. A co-worker report policy shall provide 
that a covered employee may maintain an employment relationship with the 
railroad following an alleged first offense under these rules or the 
railroad's alcohol and drug rules, subject to the conditions and 
procedures contained in this section.
    (c) General conditions and procedures. (1) The alleged violation 
must come to the attention of the railroad as a result of a report by a 
co-worker that the employee was apparently unsafe to work with or was, 
or appeared to be, in violation of this part or the railroad's alcohol 
and drug rules.
    (2) If the railroad representative determines that the employee is 
in violation, the railroad may immediately remove the employee from 
service in accordance with its existing policies and procedures.
    (3) The employee must elect to waive investigation on the rule 
charge and must contact the substance abuse professional within a 
reasonable period specified by the policy.
    (4) The substance abuse professional must schedule necessary 
interviews with the employee and complete an evaluation within 10 
calendar days of the date on which the employee contacts the 
professional with a request for evaluation under the policy, unless it 
becomes necessary to refer the employee for further evaluation. In each 
case, all necessary evaluations must be completed within 20 days of the 
date on which the employee contacts the professional.
    (d) When treatment is required. If the substance abuse professional 
determines that the employee is affected by psychological or chemical 
dependence on alcohol or a drug or by another identifiable and treatable 
mental or physical disorder involving the abuse of alcohol or drugs as a 
primary manifestation, the following conditions and procedures shall 
apply:
    (1) The railroad must, to the extent necessary for treatment and 
rehabilitation, grant the employee a leave of absence from the railroad 
for the period necessary to complete primary treatment and establish 
control over the employee's alcohol or drug problem. The policy must 
allow a leave of absence of not less than 45 days, if necessary for the 
purpose of meeting initial treatment needs.
    (2) The employee must agree to undertake and successfully complete a 
course of treatment deemed acceptable by the substance abuse 
professional.
    (3) The railroad must promptly return the employee to service, on 
recommendation of the substance abuse professional, when the employee 
has established control over the substance abuse problem. Return to 
service may also be conditioned on successful completion of a return-to-
service medical examination. Approval to return to service may not be 
unreasonably withheld.
    (4) Following return to service, the employee, as a further 
condition on withholding of discipline, may, as necessary, be required 
to participate in a reasonable program of follow-up treatment for a 
period not to exceed 60 months from the date the employee was originally 
withdrawn from service.
    (e) When treatment is not required. If the substance abuse 
professional determines that the employee is not affected by an 
identifiable and treatable mental or physical disorder--
    (1) The railroad shall return the employee to service within 5 days 
after completion of the evaluation.
    (2) During or following the out-of-service period, the railroad may 
require the employee to participate in a

[[Page 204]]

program of education and training concerning the effects of alcohol and 
drugs on occupational or transportation safety.
    (f) Follow-up tests. A railroad may conduct return-to-service and/or 
follow-up tests (as described in Sec. 219.104 of this part) of an 
employee who waives investigation and is determined to be ready to 
return to service under this section.



Sec. 219.407  Alternate policies.

    (a) In lieu of a policy under Sec. 219.403 (voluntary referral) or 
Sec. 219.405 (co-worker report), or both, a railroad may adopt, publish 
and implement, with respect to a particular class or craft of covered 
employees, an alternate policy or policies having as their purpose the 
prevention of alcohol or drug use in railroad operations, if such policy 
or policies has the written concurrence of the recognized 
representatives of such employees.
    (b) The concurrence of recognized employee representatives in an 
alternate policy may be evidenced by a collective bargaining agreement 
or any other document describing the class or craft of employees to 
which the alternate policy applies. The agreement or other document must 
make express reference to this part and to the intention of the railroad 
and employee representatives that the alternate policy shall apply in 
lieu of the policy required by Sec. 219.403, Sec. 219.405, or both.
    (c) The railroad shall file the agreement or other document 
described in paragraph (b) with the Associate Administrator for Safety, 
FRA. If the alternate policy is amended or revoked, the railroad shall 
file a notice of such amendment or revocation at least 30 days prior to 
the effective date of such action.
    (d) This section does not excuse a railroad from adopting, 
publishing and implementing the policies required by Secs. 219.403 and 
219.405 with respect to any group of covered employees not within the 
coverage of an appropriate alternate policy.



                     Subpart F--Pre-employment Tests



Sec. 219.501  Pre-employment tests.

    (a)(1) Each Class I railroad (including the National Railroad 
Passenger Corporation) and each railroad providing commuter passenger 
service shall implement pre-employment alcohol testing beginning on 
January 1, 1995.
    (2) Each Class II railroad shall implement pre-employment alcohol 
testing beginning on July 1, 1995.
    (3) Each Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall implement pre-employment 
alcohol testing beginning on January 1, 1996.
    (4) In the case of a railroad commencing operations after January 1, 
1996, the railroad shall implement pre-employment alcohol testing not 
later than the expiration of 60 days from approval by the Administrator 
of the railroad's random testing programs.
    (b) Prior to the first time a covered employee performs covered 
service for a railroad, the employee shall undergo testing for alcohol 
and drugs. No railroad shall allow a covered employee to perform covered 
service, unless the employee has been administered an alcohol test with 
a result indicating an alcohol concentration of less than .04 and has 
been administered a test for drugs with a result that did not indicate 
the misuse of controlled substances. This requirement shall apply to 
final applicants for employment and to employees seeking to transfer for 
the first time from non-covered service to duties involving covered 
service. If the test result of a final applicant for pre-employment 
indicates an alcohol content of .02 or greater, the provisions of 
paragraph (b) of this section shall apply.
    (c) No final applicant for employment tested under the provisions of 
this part who is found to have an alcohol concentration of .02 or 
greater but less than .04 shall perform safety-sensitive functions for a 
railroad, nor shall a railroad permit the applicant to perform safety-
sensitive functions, until the applicant's alcohol concentration 
measures less than .02.

[[Page 205]]

    (d) Tests shall be accomplished through breath analysis and analysis 
of urine samples. The conduct of breath alcohol testing and urine drug 
testing under this subpart is governed by subpart H of this part and 
part 40 of subtitle A of this title.
    (e) As used in subpart H with respect to a test required under this 
subpart, the term covered employee includes an applicant for pre-
employment testing only. In the case of an applicant who declines to be 
tested and withdraws the application for employment, no record shall be 
maintained of the declination.
    (f) Notwithstanding any other provisions of this subpart, all 
provisions and requirements in this section pertaining to preemployment 
testing for alcohol are suspended as of May 10, 1995.

[59 FR 60564, Nov. 25, 1994, as amended at 60 FR 24766, May 10, 1995]



Sec. 219.503  Notification; records.

    The railroad shall provide for medical review of the urine drug test 
results as provided in subpart H of this part. The railroad shall notify 
the applicant of the results of the urine and breath tests in the same 
manner as provided for employees in subpart H. Records shall be 
maintained confidentially and shall be retained in the same manner as 
required under subpart J for employee test records, except that such 
records need not reflect the identity of an applicant whose application 
for employment in covered service was denied.

[59 FR 7462, Feb. 15, 1994]



Sec. 219.505  Refusals.

    An applicant who has refused to submit to pre-employment testing 
under this section shall not be employed in covered service based upon 
the application and examination with respect to which such refusal was 
made. This section does not create any right on the part of the 
applicant to have a subsequent application considered; nor does it 
restrict the discretion of the railroad to entertain a subsequent 
application for employment from the same person.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7462, Feb. 15, 1994]



           Subpart G--Random Alcohol and Drug Testing Programs



Sec. 219.601  Railroad random drug testing programs.

    (a) Submission. Each railroad shall submit for FRA approval a random 
testing program meeting the requirements of this subpart. A Class I 
railroad (including the National Railroad Passenger Corporation) or a 
railroad providing commuter passenger service shall submit such a 
program not later than October 2, 1989. A Class II railroad shall submit 
such a program not later than April 2, 1990. A Class III railroad 
(including a switching and terminal or other railroad not otherwise 
classified) shall submit such a program not later than July 2, 1990. A 
railroad commencing operations after the pertinent date specified in 
this paragraph shall submit such a program not later than 30 days prior 
to such commencement. The program shall be submitted to the Associate 
Administrator for Safety, FRA, for review and approval by the 
Administrator. If, after approval, a railroad desires to amend the 
random testing program implemented under this subpart, the railroad 
shall file with FRA a notice of such amendment at least 30 days prior to 
the intended effective date of such action. A program responsive to the 
requirements of this section or any amendment to the program shall not 
be implemented prior to approval.
    (b) Form of programs. Random testing programs submitted by or on 
behalf of each railroad under this subpart shall meet the following 
criteria, and the railroad and its managers, supervisors, officials and 
other employees and agents shall conform to such criteria in 
implementing the program:
    (1) Selection of covered employees for testing shall be made by a 
method employing objective, neutral criteria which ensure that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may be 
selected as the result of the exercise of discretion by the railroad. 
The selection method shall be capable of

[[Page 206]]

verification with respect to the randomness of the selection process, 
and any records necessary to document random selection shall be retained 
for not less than 24 months from the date upon which the particular 
samples were collected.
    (2) The program shall select for testing a sufficient number of 
employees so that, during the first 12 months--
    (i) The random testing program is spread reasonably through the 12-
month period.
    (ii) [Reserved]

During the subsequent 12-month period, the program shall select for 
testing a sufficient number of employees so that the number of tests 
conducted will equal at least 50 percent of the number of covered 
employees. Annualized percentage rates shall be determined by reference 
to the total number of covered employees employed by the railroad at the 
beginning of the particular twelve-month period or by an alternate 
method specified in the plan approved by the Associate Administrator for 
Safety. If the railroad conducts random testing through a consortium, 
the annual rate may be calculated for each individual employer or for 
the total number of covered employees subject to random testing by the 
consortium.
    (3) Railroad random testing programs shall ensure to the maximum 
extent practicable that each employee shall perceive the possibility 
that a random test may be required on any day the employee reports for 
work.
    (4) Notice of an employee's selection shall not be provided until 
the duty tour in which testing is to be conducted, and then only so far 
in advance as is reasonably necessary to ensure the employee's presence 
at the time and place set for testing.
    (5) The program shall include testing procedures and safeguards, and 
procedures for action based on positive test results, consistent with 
this part.
    (6) An employee shall be subject to testing only while on duty. Only 
employees who perform covered service for the railroad shall be subject 
to testing under this part. In the case of employees who during some 
duty tours perform covered service and during others do not, the 
railroad program shall specify the extent to which, and the 
circumstances under which they shall be subject to testing. To the 
extent practical within the limitations of this part and in the context 
of the railroad's operations, the railroad program shall provide that 
employees shall be subject to the possibility of random testing on any 
day they actually perform covered service.
    (7) Each time an employee is notified for random drug testing the 
employee will be informed that selection was made on a random basis.
    (c) Approval. The Associate Administrator for Safety will notify the 
railroad in writing whether the program is approved as consistent with 
the criteria set forth in this part. If the Associate Administrator for 
Safety determines that the program does not conform to those criteria, 
the Associate Administrator for Safety will inform the railroad of any 
matters preventing approval of the program, with specific explanation as 
to necessary revisions. The railroad shall resubmit its program with the 
required revisions within 30 days of such notice. Failure to resubmit 
the program with the necessary revisions will be considered a failure to 
implement a program under this subpart.
    (d) Implementation. (1) No later than 45 days prior to commencement 
of random testing, the railroad shall publish to each of its covered 
employees, individually, a written notice that they will be subject to 
random drug testing under this part. Such notice shall state the date 
for commencement of the program, shall state that the selection of 
employees for testing will be on a strictly random basis, shall describe 
the consequences of a determination that the employee has violated 
Sec. 219.102 or any applicable railroad rule, and shall inform the 
employee of the employee's rights under subpart E of this part. A copy 
of the notice shall be provided to each new covered employee on or 
before the employee's initial date of service. Since knowledge of 
Federal law is presumed, nothing in this paragraph creates a defense to 
a violation of Sec. 219.102 of this part.
    (2) Each Class I railroad (including the National Railroad Passenger 
Corporation) and each railroad providing

[[Page 207]]

commuter passenger service shall implement its approved random testing 
program not later than January 16, 1990. Each Class II railroad shall 
implement its approved random testing program not later than July 2, 
1990. Each Class III railroad (including a switching and terminal or 
other railroad not otherwise classified) shall implement its approved 
random testing program not later than November 1, 1990. In the case of a 
railroad commencing operations after the pertinent date set forth in 
paragraph (a) of this section for filing of a program, the railroad 
shall implement its approved random testing program not later than the 
expiration of 60 days from approval by the Administrator or by the 
pertinent date set forth in this paragraph, whichever is later.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7462, Feb. 15, 1994; 62 
FR 63467, Dec. 1, 1997]



Sec. 219.602  Administrator's determination of random drug testing rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random drug testing 
shall be 50 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the minimum 
annual percentage rate for random drug testing is based on the reported 
positive rate for the entire industry. All information used for this 
determination is drawn from the drug MIS reports required by this part. 
In order to ensure reliability of the data, the Administrator considers 
the quality and completeness of the reported data, may obtain additional 
information or reports from railroads, and may make appropriate 
modifications in calculating the industry positive rate. Each year, the 
Administrator will publish in the Federal Register the minimum annual 
percentage rate for random drug testing of covered employees. The new 
minimum annual percentage rate for random drug testing will be 
applicable starting January 1 of the calendar year following 
publication.
    (c) When the minimum annual percentage rate for random drug testing 
is 50 percent, the Administrator may lower this rate to 25 percent of 
all covered employees if the Administrator determines that the data 
received under the reporting requirements of Sec. 219.803 for two 
consecutive calendar years indicate that the reported positive rate is 
less than 1.0 percent.
    (d) When the minimum annual percentage rate for random drug testing 
is 25 percent, and the data received under the reporting requirements of 
Sec. 219.803 for any calendar year indicate that the reported positive 
rate is equal to or greater than 1.0 percent, the Administrator will 
increase the minimum annual percentage rate for random drug testing to 
50 percent of all covered employees.
    (e) Selection of covered employees for testing shall be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may be 
selected as a result of the exercise of discretion by the railroad. The 
selection method shall be capable of verification with respect to the 
randomness of the selection process.
    (f) The railroad shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
drug testing determined by the Administrator. If the railroad conducts 
random drug testing through a consortium, the number of employees to be 
tested may be calculated for each individual railroad or may be based on 
the total number of covered employees covered by the consortium who are 
subject to random drug testing at the same minimum annual percentage 
rate under this part or any DOT drug testing rule.
    (g) Each railroad shall ensure that random drug tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (h) If a given covered employee is subject to random drug testing 
under the drug testing rules of more than one DOT agency for the same 
railroad, the employee shall be subject to random

[[Page 208]]

drug testing at the percentage rate established for the calendar year by 
the DOT agency regulating more than 50 percent of the employee's 
function.
    (i) If a railroad is required to conduct random drug testing under 
the drug testing rules of more than one DOT agency, the railroad may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.

[59 FR 62228, Dec. 2, 1994]



Sec. 219.603  Participation in drug testing.

    Participation. A railroad shall, under the conditions specified in 
this subpart and subpart H, require a covered employee selected through 
the random testing program to cooperate in urine testing to determine 
compliance with Sec. 219.102, and the employee shall provide the 
required sample and complete the required paperwork and certifications. 
Compliance by the employee shall be excused only in the case of a 
documented medical or family emergency.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7463, Feb. 15, 1994; 62 
FR 63467, Dec. 1, 1997]



Sec. 219.605  Positive drug test results; procedures.

    (a) Medical review. The result of a test required under this subpart 
shall be deemed positive only after it has been properly confirmed as 
required in subpart H of this part and reviewed by a Medical Review 
Officer (MRO) as provided in subpart H to determine if it is evidence of 
prohibited drug use under Sec. 219.102.
    (b) Procedures for administrative handling by the railroad in the 
event a sample provided under this subpart is reported as positive by 
the MRO are set forth in Sec. 219.104 of this part. The responsive 
action required in Sec. 219.104 is not stayed pending the result of a 
retest or split sample test.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7463, Feb. 15, 1994]



Sec. 219.607  Railroad random alcohol testing programs.

    (a) Each railroad shall submit for FRA approval a random alcohol 
testing program meeting the requirements of this subpart. A Class I 
railroad (including the National Railroad Passenger Corporation) or a 
railroad providing commuter passenger service shall submit such a 
program not later than August 15, 1994. A Class II railroad shall submit 
such a program not later than February 15, 1995. A Class III railroad 
(including a switching and terminal or other railroad not otherwise 
classified) shall submit such a program not later than August 15, 1995. 
A railroad commencing operations after the pertinent date specified in 
this paragraph shall submit a random alcohol testing program not later 
than 30 days prior to such commencement. The program shall be submitted 
to the Associate Administrator for Safety, FRA, for review and approval. 
If, after approval, a railroad desires to amend the random alcohol 
testing program implemented under this subpart, the railroad shall file 
with FRA a notice of such amendment at least 30 days prior to the 
intended effective date of such action. A program responsive to the 
requirements of this section or any amendment to the program shall not 
be implemented prior to approval.
    (b) Form of programs. Random alcohol testing programs submitted by 
or on behalf of each railroad under this subpart shall meet the 
following criteria, and the railroad and its managers, supervisors, 
officials and other employees and agents shall conform to such criteria 
in implementing the program:
    (1) Selection of covered employees for testing shall be made by a 
method employing objective, neutral criteria which ensures that every 
covered employee has a substantially equal statistical chance of being 
selected within a specified time frame. The method may not permit 
subjective factors to play a role in selection, i.e., no employee may be 
selected as the result of the exercise

[[Page 209]]

of discretion by the railroad. The selection method shall be capable of 
verification with respect to the randomness of the selection process, 
and any records necessary to document random selection shall be retained 
for not less than 24 months from the date upon which the particular 
samples were collected.
    (2) The program shall include testing procedures and safeguards, 
and, consistent with this part, procedures for action based on tests 
where the employee is found to have violated Sec. 219.101.
    (3) The program shall ensure that random alcohol tests conducted 
under this part are unannounced and that the dates for administering 
random tests are spread reasonably throughout the calendar year.
    (4) The program shall ensure to the maximum extent practicable that 
each covered employee shall perceive the possibility that a random 
alcohol test may be required at any time the employee reports for work 
and at any time during the duty tour (except any period when the 
employee is expressly relieved of any responsibility for performance of 
covered service).
    (5) An employee shall be subject to testing only while on duty. Only 
employees who perform covered service for the railroad shall be subject 
to testing under this part. In the case of employees who during some 
duty tours perform covered service and during others do not, the 
railroad program shall specify the extent to which, and the 
circumstances under which they shall be subject to testing. To the 
extent practical within the limitations of this part and in the context 
of the railroad's operations, the railroad program shall provide that 
employees shall be subject to the possibility of random testing on any 
day they actually perform covered service.
    (6) Testing shall be conducted promptly, as provided in 
Sec. 219.715(a).
    (7) Each time an employee is notified for random alcohol testing the 
employee will be informed that selection was made on a random basis.
    (8) Each railroad shall ensure that each covered employee who is 
notified of selection for random alcohol testing proceeds to the test 
site immediately; provided, however, that if the employee is performing 
a safety-sensitive function at the time of the notification, the 
railroad shall instead ensure that the employee ceases to perform the 
safety-sensitive function and proceeds to the testing site as soon as 
possible.
    (c) Implementation. (1) No later than 45 days prior to commencement 
of random alcohol testing, the railroad shall publish to each of its 
covered employees, individually, a written notice that they will be 
subject to random alcohol testing under this part. Such notice shall 
state the date for commencement of the program, shall state that the 
selection of employees for testing will be on a strictly random basis, 
shall describe the consequences of a determination that the employee has 
violated Sec. 219.101 or any applicable railroad rule, and shall inform 
the employee of the employee's rights under subpart E of this part. A 
copy of the notice shall be provided to each new covered employee on or 
before the employee's initial date of service. Since knowledge of 
Federal law is presumed, nothing in this paragraph creates a defense to 
a violation of Sec. 219.101. This notice may be combined with the notice 
or policy statement required by Sec. 219.23.
    (2) Each Class I railroad (including the National Railroad Passenger 
Corporation) and each railroad providing commuter passenger service 
shall implement its approved random alcohol testing program beginning on 
January 1, 1995. Each Class II railroad shall implement its approved 
random testing program beginning on July 1, 1995. Each Class III 
railroad (including a switching and terminal or other railroad not 
otherwise classified) shall implement its approved random testing 
program beginning on January 1, 1996. In the case of a railroad 
commencing operations after the pertinent date set forth in paragraph 
(a) of this section for filing of a program, the railroad shall 
implement its approved random testing program not later than the 
expiration of 60 days from approval by the Administrator or by the 
pertinent date set forth in this paragraph, whichever is later.

[59 FR 7463, Feb. 15, 1994]

[[Page 210]]



Sec. 219.608  Administrator's determination of random alcohol testing rate.

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the minimum annual percentage rate for random alcohol testing 
shall be 25 percent of covered employees.
    (b) The Administrator's decision to increase or decrease the minimum 
annual percentage rate for random alcohol testing is based on the 
violation rate for the entire industry. All information used for the 
determination is drawn from the alcohol MIS reports required by this 
part. In order to ensure reliability of the data, the Administrator 
considers the quality and completeness of the reported data, may obtain 
additional information or reports from employers, and may make 
appropriate modifications in calculating the industry violation rate. 
Each year, the Administrator will publish in the Federal Register the 
minimum annual percentage rate for random alcohol testing of covered 
employees. The new minimum annual percentage rate for random alcohol 
testing will be applicable starting January 1 of the calendar year 
following publication.
    (c)(1) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or more, the Administrator may lower this rate to 
10 percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 219.801 for 
two consecutive calendar years indicate that the violation rate is less 
than 0.5 percent.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 50 percent, the Administrator may lower this rate to 25 
percent of all covered employees if the Administrator determines that 
the data received under the reporting requirements of Sec. 219.801 for 
two consecutive calendar years indicate that the violation rate is less 
than 1.0 percent but equal to or greater than 0.5 percent.
    (d)(1) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 219.801 for that calendar year indicate that the 
violation rate is equal to or greater than 0.5 percent, but less than 
1.0 percent, the Administrator will increase the minimum annual 
percentage rate for random alcohol testing to 25 percent of all covered 
employees.
    (2) When the minimum annual percentage rate for random alcohol 
testing is 25 percent or less, and the data received under the reporting 
requirements of Sec. 219.801 for any calendar year indicate that the 
violation rate is equal to or greater than 1.0 percent, the 
Administrator will increase the minimum annual percentage rate for 
random alcohol testing to 50 percent of all covered employees.
    (e) The railroad shall randomly select and test a sufficient number 
of covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for random 
alcohol testing determined by the Administrator. If the railroad 
conducts random alcohol testing through a consortium, the number of 
employees to be tested may be calculated for each individual employer or 
may be based on the total number of covered employees covered by the 
consortium who are subject to random testing at the same minimum annual 
percentage rate under this part or any DOT alcohol testing rule.
    (f) If a railroad is required to conduct random alcohol testing 
under the alcohol testing rules of more than one DOT agency, the 
railroad may--
    (1) Establish separate pools for random selection, with each pool 
containing the covered employees who are subject to testing at the same 
required rate; or
    (2) Randomly select such employees for testing at the highest 
percentage rate established for the calendar year by any DOT agency to 
which the railroad is subject.

[59 FR 7464, Feb. 15, 1994]



Sec. 219.609  Participation in alcohol testing.

    A railroad shall, under the conditions specified in this subpart and 
subpart H of this part, require a covered employee selected through the 
random testing program to cooperate in breath testing to determine 
compliance with Sec. 219.101, and the employee shall provide the 
required breath and complete the required paperwork and certifications. 
Compliance by the employee

[[Page 211]]

shall be excused only in the case of a documented medical or family 
emergency.

[59 FR 7464, Feb. 15, 1994]



Sec. 219.611  Test result indicating prohibited alcohol concentration; procedures.

    Procedures for administrative handling by the railroad in the event 
an employee's confirmation test indicates an alcohol concentration of 
.04 or greater are set forth in Sec. 219.104.

[59 FR 7464, Feb. 15, 1994]



  Subpart H--Procedures and Safeguards for Urine Drug Testing and for 
                             Alcohol Testing



Sec. 219.701  Standards for urine drug testing.

    (a) Urine drug testing required or authorized by subparts B, D, F, 
and G of this part shall be conducted in the manner provided by this 
subpart and (to the extent not inconsistent with this part) part 40 of 
subtitle A of this title. Laboratories employed for these purposes must 
be certified by the Department of Health and Human Services under that 
Department's Mandatory Guidelines for Federal Workplace Drug Testing 
Programs.
    (b) Each railroad's contract with a laboratory conducting testing 
subject to this subpart shall provide that the FRA and the railroad 
shall have the right to unannounced inspection during normal business 
hours through qualified personnel or designated contractors. Such 
inspecton rights shall, at minimum, include reasonable accompanied 
access to all records pertinent to testing under this part, quality 
control data incident thereto, samples submitted under this part, and 
equipment and personnel related to analysis of those samples.
    (c) Each such contract shall also require that the laboratory comply 
with all applicable provisions of this part and 49 CFR part 40, 
including requirements for employee access to specified laboratory 
records and any applicable conditions imposed upon approvals issued 
under this subpart or 49 CFR part 40.



Sec. 219.703  Drug testing procedures.

    (a) Urine samples shall be collected and handled as required in 49 
CFR part 40 and this section.
    (b) The collection site person (collector) shall meet the 
requirements of 49 CFR part 40.
    (c) A person with management or supervisory responsibility over the 
employee to be tested, or a co-worker of the employee to be tested, may 
not serve as a collector. For purposes of this paragraph, co-worker 
means a person with whom the person to be tested is assigned or could be 
assigned in a crew or other working unit to perform normal 
transportation duties on the railroad.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7464, Feb. 15, 1994; 62 
FR 63467, Dec. 1, 1997]



Sec. 219.705  Drugs tested.

    (a) Urine samples shall be analyzed for the presence of controlled 
substances designated in paragraph (b) of this section and may be 
analyzed by procedures reasonably incident to analysis of the specimen 
for controlled substances (e.g., determination of pH or tests for 
specific gravity, creatinine concentration, or presence of adulterants).
    (b) Each sample submitted shall be analyzed for marijuana, cocaine, 
phencylidine (PCP), opiates (morphine and codeine), and amphetamines 
(amphetamine and methamphetamine).
    (c) As part of the reasonable cause testing program established by 
subpart D of this part, a railroad may test for additional controlled 
substances in addition to those specified in this section only with 
approval granted by FRA and for substances for which the Department of 
Health and Human Services has established an approved testing protocol 
and positive threshold.



Sec. 219.707  Review by MRO of urine drug testing results.

    (a) Urine drug test results reported positive by the laboratory as 
provided in part 40 of this title shall not be deemed positive or 
disseminated to any person (other than to the employee tested in a 
medical interview, if conducted) until they are reviewed by a

[[Page 212]]

Medical Review Officer (MRO) of the railroad as required by part 40 of 
this title and this section. For purposes of this part, medical use of 
controlled substances by a covered employee is a legitimate medical 
explanation for presence of a controlled substance (i.e., a basis for 
declaring the result ``negative'') only to the extent such use was 
consistent with Sec. 219.103 of this part.
    (b) The MRO shall complete review of test results within not more 
than 10 regular working days of receipt of the laboratory report or they 
shall be declared negative, unless any portion of the delay shall result 
from the unwillingness or inability of the employee to appear for an 
interview or provide documentation of prescription or other authorized 
use of medications. If the employee is responsible for such delay, the 
10-day period may be extended by a period equal to the period attributed 
to the employee's delay. This paragraph shall not be read to bar 
reporting of a positive result if the employee, without a reasonable 
basis, fails to respond to an opportunity to provide supplementary 
information.
    (c) After the MRO has reviewed the pertinent information and the 
laboratory assessment is verified as indicating presence of controlled 
substances without medical authorization consistent with Sec. 219.103 of 
this part (and the review required by paragraph (b) of this section is 
completed), the MRO shall report the results to a designated railroad 
officer for action in keeping with the requirements of this part (or 
take appropriate action under the railroad's medical standards). The 
employee shall be provided a copy of the approved test results, or such 
results shall be dispatched by U.S. mail or other suitable means 
providing prompt delivery, not later than 24 hours following any adverse 
action.
    (d) Test results reported as negative by the laboratory shall also 
be communicated through the MRO. The MRO shall promptly transmit the 
negative finding to the employee. If the MRO provides the railroad with 
negative test results in a nonaggregated manner, all such negative test 
results, including results involving medical use or administration of 
controlled substances or insufficiency of laboratory data, shall be 
transmitted to the designated railroad officer over the MRO's signature 
in a manner that does not disclose medical use of drugs which is 
permitted under Sec. 219.103 of this part.

[54 FR 53259, Dec. 27, 1989, as amended at 59 FR 7464, Feb. 15, 1994]



Sec. 219.708  Employee requests for testing.

    If the test result of the primary sample is positive, an employee 
may request that his or her split sample(s) be tested in accordance with 
the procedures specified in 49 CFR part 40.

[59 FR 7464, Feb. 15, 1994]



Sec. 219.709  [Reserved]



Sec. 219.711  Confidentiality of test results.

    (a) A laboratory reporting results of tests conducted under this 
subpart shall report those results only to the designated Medical Review 
Officer of the railroad. The results shall not be disclosed by the 
laboratory to any other person, except that the laboratory may affirm 
the test result to the employee to whom the sample was identified. This 
paragraph shall not be read to bar normal access to analytical data for 
laboratory accreditation or certification processes.
    (b) The MRO may not disclose medically approved drug use or 
administration information obtained under this part (whether ascertained 
through testing or reported by the employee or the employee's medical 
practitioner at the employee's request) to non-medical railroad 
personnel or any third party; however, nothing in this part bars use of 
such information by the railroad's medical officer in the context of an 
established medical qualifications program. This paragraph shall not be 
construed to permit medical disqualification of an employee based upon a 
laboratory report indicating presence of a controlled substance prior to 
completion of the MRO review, nor to limit the discretion of the 
railroad under Sec. 40.33(c) of this chapter.
    (c) No record of tests conducted subject to this subpart or 
information drawn therefrom shall be used or disseminated by the 
railroad or within the railroad for any purpose other than

[[Page 213]]

providing for compliance with this part (and railroad rules consistent 
herewith), unless with the voluntary written consent of the employee. 
Such written consent shall specify the person to whom the information 
may be provided. Each railroad shall adopt and implement procedures to 
guard this information against unauthorized disclosure both within and 
external to the railroad company.



Sec. 219.713  [Reserved]



Sec. 219.715  Alcohol testing procedures.

    (a) Each covered employee who is notified of selection for alcohol 
testing and who is not performing covered service at the time of 
notification shall proceed to the testing site immediately. The railroad 
shall ensure that an employee who is performing covered service at the 
time of notification shall, as soon as possible without affecting 
safety, cease to perform covered service and proceed to the testing 
site.
    (b) Each railroad shall ensure that all alcohol testing conducted 
under this part complies with the procedures set forth in part 40 of 
this title. The provisions of part 40 of this title that address alcohol 
testing are made applicable to employers by this part.

[59 FR 7464, Feb. 15, 1994]



                        Subpart I--Annual Report



Sec. 219.801  Reporting alcohol misuse prevention program results in a management information system.

    (a) Each railroad that has 400,000 or more total manhours shall 
submit to FRA by March 15 of each year a report covering the previous 
calendar year (January 1-December 31), summarizing the results of its 
alcohol misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency alcohol 
regulation shall identify each employee covered by the regulations of 
more than one DOT agency. The identification will be by the total number 
and category of covered functions. Prior to conducting any alcohol test 
on a covered employee subject to the regulations of more than one DOT 
agency, the railroad shall determine which DOT agency regulation or rule 
authorizes or requires the test. The test result information shall be 
directed to the appropriate DOT agency or agencies.
    (c) Each railroad shall ensure the accuracy and timeliness of each 
report submitted. The report shall be submitted on one of the two forms 
specified by the FRA.
    (d) Each report that contains information on an alcohol screening 
test result of .02 or greater or a violation of the alcohol misuse 
provisions of subpart B of this part shall include the following 
elements (the ``Alcohol Testing Management Information System Data 
Collection Form,'' appendix D3 to this part):
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3)(i) Number of screening tests by type of test (i.e., pre-
employment and covered service transfer, random, post-positive return to 
service, and follow-up) and employee category.
    (ii) Number of confirmation tests, by type of test and employee 
category.
    (4) Number of confirmation alcohol tests indicating an alcohol 
concentration equal of .02 or greater but less than .04, by type of test 
and employee category.
    (5) Number of confirmation alcohol tests indicating an alcohol 
concentration of .04 or greater, by type of test and employee category.
    (6) Number of persons denied a position as a covered employee 
following a pre-employment alcohol test indicating an alcohol 
concentration of .04 or greater.
    (7) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).

[[Page 214]]

    (8) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted, the number of confirmation tests conducted, 
the number of confirmation tests of .02 or greater but less than .04, 
and the number of confirmation test results of .04 or greater.
    (9) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), the 
number of screening tests conducted, the number of confirmation tests 
conducted, the number of confirmation tests of .02 or greater but less 
than .04, and the number of confirmation test results of .04 or greater.
    (10) Number of covered employees who were found to have violated 
other provisions of subpart B of this part, and the action taken in 
response to the violation.
    (11) Number of covered employees who were administered alcohol and 
drug tests at the same time, with both a positive drug test result and 
an alcohol test result indicating an alcohol concentration of .04 or 
greater.
    (12) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (13) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (14) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.
    (e) Each report that contains no screening test results of 0.02 or 
greater or violations of the alcohol misuse provisions of subpart B of 
this part shall include the following informational elements (the 
``Alcohol Testing Management Information System Data Collection Form (No 
Alcohol Misuse),'' appendix D4 to this part): (This report may only be 
submitted if the program results meet this criteria.)
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal, other).
    (2) Number of covered employees in each category subject to alcohol 
testing under the alcohol misuse regulation of another DOT agency, 
identified by each agency.
    (3) Number of screening tests by type of test (i.e., pre-employment 
and covered service transfer, random, post-positive return to service, 
and follow-up) and employee category.
    (4) Number of covered employees with a confirmation alcohol test 
indicating an alcohol concentration of .04 or greater, or who have 
violations of other alcohol misuse provisions, who were returned to 
service in covered positions (having complied with the recommendations 
of a substance abuse professional as described in Sec. 219.104(d)).
    (5) For cause breath alcohol testing under railroad authority, by 
reason for test (accident/injury or rules violation), the number of 
screening tests conducted.
    (6) For cause breath alcohol testing under FRA authority, by reason 
for test (reasonable suspicion, accident/injury or rules violation), the 
number of screening tests conducted.
    (7) Number of covered employees who refused to submit to a random 
alcohol test required under this part.
    (8) Number of covered employees who refused to submit to a non-
random alcohol test required under this part.
    (9) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable alcohol use during the reporting 
period.
    (f) Annual reporting for calendar year 1993 and prior years shall be 
governed by the provisions of Sec. 217.13 of this chapter in effect 
during the subject calendar period.

[59 FR 7465, Feb. 15, 1994]



Sec. 219.803  Reporting drug misuse prevention program results in a management information system.

    (a) Each railroad that has 400,000 or more total manhours shall 
submit to FRA an annual report covering the calendar year, summarizing 
the results of its drug misuse prevention program.
    (b) A railroad that is subject to more than one DOT agency drug 
regulation shall identify each employee covered by the regulations of 
more than one DOT agency. The identification will be

[[Page 215]]

by the total number and category of covered functions. Prior to 
conducting any drug test on a covered employee subject to the 
regulations of more than one DOT agency, the railroad shall determine 
which DOT agency regulation or rules authorizes or requires the test. 
The test result information shall be directed to the appropriate DOT 
agency or agencies.
    (c) Each railroad shall ensure the accuracy and timeliness of each 
report submitted by the railroad or a consortium.
    (d) Each railroad shall submit the required annual reports no later 
than March 15 of each year. The report shall be submitted on one of the 
forms specified by the FRA. A railroad with no positive test results 
shall submit the ``Drug Testing Management Information System Zero 
Positives Data Collection Form'' form attached as appendix D2 to this 
part. All other railroads shall submit the ``Drug Testing Management 
Information System Data Collection Form'' attached as appendix D to this 
part.
    (e) A railroad submitting the ``Drug Testing Management Information 
System Data Collection Form'' shall address each of the following data 
elements:
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing 
under the anti-drug regulations of more than one DOT agency, identified 
by each agency.
    (3) Number of specimens collected by type of test (ie., pre-
employment and covered service transfer, random, post-positive return to 
service, and follow-up), and employee category.
    (4) Number of specimens verified negative by a Medical Review 
Officer (MRO) by type of test, and employee category.
    (5) Number of specimens verified positive for one or more of the 
five drugs by a MRO by type of test, employee category, and type of 
drug. If a test has been verified positive by a MRO for multiple drugs, 
the employer should report the result as a positive for each type of 
drug.
    (6) Number of applicants or transfers denied employment or transfer 
to a covered service position following a verified positive pre-
employment drug test.
    (7) Number of employees, currently in or having completed 
rehabilitation or otherwise qualified to return to duty, who have 
returned to work in a covered position during the reporting period.
    (8) For cause drug testing, the number of specimens collected by 
reason for test (i.e., accident/injury, rules violation, or reasonable 
suspicion), type of authority (railroad or FRA), employee category and 
type of drug, including drugs tested for under railroad authority only.
    (9) For cause drug testing, the number of specimens verified 
negative by a MRO by reason for test, type of authority, employee 
category and type of drug, including drugs tested for under railroad 
authority only.
    (10) For cause drug testing, the number of specimens verified 
positive by a MRO by reason for test, type of authority, employee 
category and type of drug, including drugs tested for under railroad 
authority only.
    (11) For cause breath alcohol testing under railroad authority, by 
reason for test, the number of tests conducted, the number of tests with 
a positive result (i.e., breath alcohol concentration (BAC) = or > .02), 
and the number of refusals.
    (12) For cause urine alcohol testing under railroad authority, by 
reason for test, the number of tests conducted, the number of tests with 
a positive result, and the number of refusals.
    (13) For cause breath alcohol testing under FRA authority, by reason 
for test, the number of tests conducted, the number of tests with a 
positive result, and the number of refusals.
    (14) Total number of covered employees observed in documented 
operational tests and inspections related to enforcement of the 
railroad's rules on alcohol and drug use.
    (15) Based on the tests and inspections described in element 14, the 
number of covered employees charged with a violation of the railroad's 
Rule G or similar rule or policy on drugs.

[[Page 216]]

    (16) Based on the tests and inspections described in element 14, the 
number of covered employees charged with a violation of the railroad's 
Rule G or similar rule or policy on alcohol.
    (17) Number of specimens verified positive for more than one drug, 
by employee category and type of drug.
    (18) Number of covered employees who refused to submit to a random 
drug test required under FRA authority.
    (19) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (20) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable drug use during the reporting 
period.
    (f) A railroad authorized to submit the ``Drug Testing Management 
Information System Zero Positives Data Collection Form'' attached as 
appendix D2 to this part shall address each of the following data 
elements:
    (1) Number of covered employees by employee category (i.e., train 
service, engine service, dispatcher/operator, signal service, other).
    (2) Number of covered employees in each category subject to testing 
under the anti-drug regulations of more than one DOT agency, identified 
by each agency.
    (3) Number of specimens collected and verified negative by type of 
test (i.e., pre-employment and covered service transfer, random, for 
cause due to accident/incident, for cause due to rules violation, 
reasonable suspicion, post-positive return to service, and follow-up), 
and employee category.
    (4) For cause breath alcohol testing under railroad authority, the 
number of tests conducted by reason for test (i.e., accident/injury, 
rules violation, or reasonable suspicion).
    (5) For cause urine alcohol testing under railroad authority, the 
number of tests conducted by reason for test.
    (6) For cause breath alcohol testing under FRA authority, the number 
of tests conducted by reason for test.
    (7) Total number of covered employees observed in documented 
operational tests and inspections related to enforcement of the 
railroad's rules on alcohol and drug use.
    (8) Based on the tests and inspections described in element 7, the 
number of covered employees charged with a violation of the railroad's 
Rule G or similar rule or policy on drugs.
    (9) Based on the tests and inspections described in element 7, the 
number of covered employees charged with a violation of the railroad's 
Rule G or similar rule or policy on alcohol.
    (10) Number of covered employees who refused to submit to a random 
drug test required under FRA authority.
    (11) Number of covered employees who refused to submit to a non-
random drug test required under FRA authority.
    (12) Number of supervisory personnel who have received the required 
initial training on the specific contemporaneous physical, behavioral, 
and performance indicators of probable drug use during the reporting 
period.

[58 FR 68235, Dec. 23, 1993, as amended at 62 FR 63467, Dec. 1, 1997]



                  Subpart J--Recordkeeping Requirements

    Source: 59 FR 7466, Feb. 15, 1994, unless otherwise noted.



Sec. 219.901  Retention of breath alcohol testing records.

    (a) General requirement. Each railroad shall maintain records of its 
alcohol misuse prevention program as provided in this section. The 
records shall be maintained in a secure location with controlled access.
    (b) Period of retention. Each railroad shall maintain the records in 
accordance with the following schedule:
    (1) Five years. The following shall be maintained for a minimum of 
five years:
    (i) Records of alcohol test results with results indicating an 
alcohol concentration of .02 or greater, documentation of refusals to 
take required alcohol tests, calibration documentation, and employee 
evaluation and referrals;
    (ii) A summary record of each covered employee's test results; and

[[Page 217]]

    (iii) A copy of the annual report summarizing the results of its 
alcohol misuse prevention programs (if required to submit under 
Sec. 219.801(a).
    (2) Two years. Records related to the collection process (except 
calibration of evidential breath testing devices) and training shall 
also be maintained for a minimum of two years.
    (3) One year. Records of all test results below .02 shall be 
maintained for a minimum of one year.
    (c) Types of records. The following specific records must be 
maintained.
    (1) Records related to the collection process:
    (i) Collection logbooks, if used.
    (ii) Documents relating to the random selection process.
    (iii) Calibration documentation for evidential breath testing 
devices.
    (iv) Documentation of breath alcohol technician training.
    (v) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol tests.
    (vi) Documents generated in connection with decisions on post-
accident testing.
    (vii) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide an adequate breath 
sample.
    (2) Records related to test results:
    (i) The railroad's copy of the alcohol test form, including the 
results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to an alcohol test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Records related to evaluation and training:
    (i) Materials on drug misuse awareness, including a copy of the 
railroad's policy on drug misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination concerning 
the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.



Sec. 219.903  Retention of urine drug testing records.

    (a) General requirement. Each railroad shall maintain records of its 
drug misuse prevention program as provided in this section. The records 
shall be maintained in a secure location with controlled access.
    (b) Period of retention. Each railroad shall maintain the records in 
accordance with the following schedule:
    (1) Five years. The following shall be maintained for a minimum of 
five years:
    (i) Records of employee positive drug test results, documentation of 
refusals to take required drug tests, and employee evaluation and 
referral;
    (ii) A summary record of each covered employee's test results; and
    (iii) A copy of the annual report summarizing the results of its 
drug misuse prevention program (if required to submit under 
Sec. 219.803(a).
    (2) Two years. Records related to the collection process and 
training shall be maintained for a minimum of two years.
    (3) One year. Records of negative test results (as defined in Part 
40 of this title) shall be maintained for a minimum of one year.
    (c) Types of records. The following specific records must be 
maintained.
    (1) Records related to the collection process:
    (i) Documents relating to the random selection process.
    (ii) Documents generated in connection with decisions to administer 
reasonable suspicion drug tests.

[[Page 218]]

    (iii) Documents generated in connection with decisions on post-
accident testing.
    (iv) Documents verifying the existence of a medical explanation of 
the inability of a covered employee to provide a urine sample.
    (2) Records related to test results:
    (i) The railroad's copy of the drug test custody and control form, 
including the results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to a drug test required by this part.
    (iii) Documents presented by a covered employee to dispute the 
result of a drug test administered under this part.
    (3) Records related to other violations of this part.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Records related to evaluation and training:
    (i) Materials on alcohol misuse awareness, including a copy of the 
railroad's policy on alcohol misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 219.23.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination concerning 
the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this part 
complies with the requirements for such training.



Sec. 219.905  Access to facilities and records.

    (a) Release of covered employee information contained in records 
required to be maintained under Secs. 219.901 and 219.903 shall be in 
accordance with 49 CFR part 40 and this section. (For purposes of this 
section only, urine drug testing records shall be considered equivalent 
to breath alcohol testing records.)
    (b) Each railroad shall permit access to all facilities utilized in 
complying with the requirements of this part to the Secretary of 
Transportation or any DOT agency with regulatory authority over the 
railroad or any of its covered employees.
    (c) Each railroad shall make available copies of all results for 
railroad alcohol and drug testing programs conducted under this part and 
any other information pertaining to the railroad's alcohol and drug 
misuse prevention program, when requested by the Secretary of 
Transportation or any DOT agency with regulatory authority over the 
railroad or covered employee.

         Appendix A to Part 219--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                                Willful
                      Section                       Violation  Violation
------------------------------------------------------------------------
                Subpart A--General
 
219.11 General Conditions for Chemical Tests             (--)     $5,000
 (b)(1), (3), or (4) Employee unlawfully refuses
 to participate in testing........................
    (b)(2) Failure to give necessary medical           $3,000      8,000
     treatment priority, or improperly requiring
     urine sample.................................
219.23 Notice to employees:
    (a) Failure to give notice of FRA test........      1,000      4,000
    (b) Failure to give notice of basis for FRA           500      2,000
     test.........................................
    (c) Use of Subpart C forms for other types of         500      1,000
     tests........................................
 
              Subpart B--Prohibitions
 
219.101 Alcohol and drug use Employee violates           (--)     10,000
 prohibition
219.104 Responsive action:
    (a) Failure to remove from service immediately      3,000      8,000
    (b) Failure to provide notice.................      1,000      4,000
    (c) Failure to provide prompt post-suspension       2,000      7,000
     hearing......................................
    (d) Unlawful return to service................      2,000      7,000
    (e) Improper alcohol test.....................      1,000      4,000
219.105  Railroad's duty to prevent violations:
    (a) Permitting employee to go or remain on          7,000     10,000
     duty in violation of prohibitions............
    (b) Failure to exercise due diligence to            2,500      5,000
     assure compliance with prohibition...........
 

[[Page 219]]

 
         Subpart--C: Post-Accident Testing
 
219.201 Events for which testing is required:
    (i) Failure to facilitate conduct of required       5,000      7,500
     post-accident toxicological test by making
     reasonable inquiry and good faith judgments
     with respect to circumstances of accident/
     incident; by failing to take all practicable
     steps to require employee participation; or
     by otherwise failing to comply with Subpart C
     such that test cannot be conducted (each
     employee not tested is a violation...........
    (ii) Required employee to provide samples           5,000     10,000
     under authority of Subpart C where one or
     more testing criteria not present, due either
     to mistake of law or failure to make
     reasonable inquiry or exercise good faith
     judgment.....................................
    (iii) Failure to promptly provide FRA with          1,000      3,000
     report describing decision on whether event
     qualified for testing........................
219.203 Responsibilities of Railroads and
 Employees:
    (a) Failure to exclude employee from impact of      2,500      5,000
     fatal train incident testing where
     appropriate..................................
    (b)(1) Delay in obtaining samples account           2,500      5,000
     failure to make every reasonable effort......
    (b)(4) Improper release of or failure to            4,000      7,500
     recall employee subject to testing, or
     improper recall to duty......................
    (c) Place of sample collection; by whom.......      2,500      5,000
    (d) Failure to notify FRA of an employee            2,500      5,000
     injury requiring FRA intervention............
219.205 Sample collection and handling:
    (a) Failure to observe requirements with            2,500      5,000
     respect to sample collection, marking and
     handling.....................................
    (b) Failure to provide properly prepared            1,000      2,000
     information sheets with samples..............
    (d) Failure to promptly forward samples.......      2,500      5,000
219.207 Fatality:
    (a) Failure to contact custodian and request        2,500      5,000
     assistance...................................
    (b) Failure to notify FRA where intervention        2,500      5,000
     needed.......................................
219.209 Reports of tests and refusals:
    (a) Failure to provide telephonic report......      1,000      2,000
    (b) Failure to provide written report (samples      1,000      2,000
     not provided)................................
219.213 Unlawful refusals, consequences:
    (a) Failure to take action against employee         2,500      5,000
     who refuses to provide samples, or permitting
     employee to return without meeting conditions
    (b), (c) Failure to provide timely notice and       2,500      5,000
     proper hearing...............................
 
    Subpart D--Authorization to test for casue
 
219.301 Testing for reasonable cause:
    (a) Employee required, under authority of this      5,000      7,500
     subpart, to submit to testing without
     reasonable cause.............................
    (f)(2) Employee required to participate in          2,000      4,000
     testing after expiration of 8 hours..........
    (f)(4) Employee tested after release from duty      1,500      3,000
219.303 Breath testing procedures and safeguards        2,000      4,000
 (incl. optional blood test)......................
219.305 Urine test: failure to comply with Subpart      2,000      4,000
 H procedures and safeguards......................
219.309 Employee notice...........................      1,000      4,000
 
  Subpart E--Identification of troubled employees
 
219.401 Requirements for policies:
    (i) Failure to adopt or publish or wholesale        5,000      7,500
     failure to implement policy required by
     Subpart E....................................
    (ii) Failure to implement as to individual          2,500      5,000
     employee.....................................
219.407 Alternate policies: Failure to file             1,000      2,000
 agreement or other document or provide timely
 notice of revocation.............................
 
       Subpart F--Pre-Employment Drug Screen
 
219.501 Pre-employment drug screens:
    (a) Failure to perform preemployment drug           2,500      5,000
     screen prior to employing applicant in
     covered service..............................
    (b)(i) Failure to provide prior notice of drug      2,000      4,000
     screen.......................................
    (ii) Maintaining record of declination of test        500      1,000
    (c) Failure to comply with Subpart H--              2,000      4,000
     Procedures and safeguards....................
219.503 Notification; records Failure to notify         2,000      4,000
 applicant of test results or to proplerly
 maintain or retain records
219.505 Refusals; consequences of positive:
    (a) Employing one who has refused test in           2,500      5,000
     covered service..............................
    (b) Employing applicant who has tested              3,000      8,000
     positive in covered service..................
 

[[Page 220]]

 
          Subpart G--Random Drug Testing
 
219.601 Programs:
    (a) Failure to submit to FRA on a timely basis      5,000      7,500
     a random testing program that satisfies
     requirements of this subpart and subpart H...
    (b)(1) Required employee to provide sample in       5,000     10,000
     reliance on this subpart based on other than
     random selection.............................
    (b)(2) through (b)(7) Fail to conform to            2,000      4,000
     approved criteria in implementing program....
    (d)(1) Failure to provide timely notice to          1,000      4,000
     each employee................................
    (d)(2) Failure to implement program on timely       5,000      7,500
     basis........................................
219.603 Participation in testing; refusals:
    (a) Failure to require a selected employee to       2,500      5,000
     cooperate in random testing..................
    (b)(1) Failure to take action against employee      2,500      5,000
     who refuses to provide sample................
    (b)(2) Failure to provide timely notice and         2,500      5,000
     proper hearing...............................
    (c) Permitting employee to return without           2,500      5,000
     meeting conditions...........................
219.605 Positive test results: (a) Test deemed          2,000      4,000
 positive without following Subpart H procedures..
 
  Subpart H--Procedures and Safeguards For Urine
                   Drug Testing
 
219.701 Standards for urine drug testing (e.g.,         5,000      7,500
 use of uncertified lab or other violation of 49
 CFR part 40 not referenced below, absence of
 required provisions in contract, etc.).
219.703 Collection................................      2,000      4,000
219.705 Drugs tested..............................      2,000      4,000
219.707 Review by MRO.............................      2,000      4,000
219.709 Retest....................................      2,000      4,000
219.711 Confidentiality...........................      3,000      6,000
219.713 Reports; FRA access.......................        500      2,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $22,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.


[54 FR 53259, Dec. 27, 1989, as amended at 55 FR 22794, June 4, 1990; 63 
FR 11621, Mar. 10, 1998]

  Appendix B to Part 219--Designation of Laboratory for Post-Accident 
                          Toxicological Testing

    The following laboratory is currently designated to conduct post-
accident toxicological analysis under Subpart C of this part: NWT Inc., 
1141 E. 3900 South, Suite A-110, Salt Lake City, UT 84124, Telephone: 
(801) 268-2431 (Day), (801) 483-3383 (Night/Weekend).

[60 FR 61665, Dec. 1, 1995, as amended at 62 FR 63467, Dec. 1, 1997]

     Appendix C to Part 219--Post-Accident Testing Sample Collection

                              1.0  General.

    This appendix prescribes procedures for collection of samples for 
mandatory post-accident testing pursuant to subpart C of this part. 
Collection of blood and urine samples is required to be conducted at an 
independent medical facility.

                          (Surviving Employees)

                        2.0  Surviving Employees.

    This unit provides detailed procedures for collecting post-accident 
toxicological samples from surviving employees involved in train 
accidents and train incidents, as required by 49 CFR part 219, subpart 
C. Subpart C specifies qualifying events and employees required to be 
tested.

                  2.1  Collection Procedures; General.

    All forms and supplies necessary for collection and transfer of 
blood and urine samples for three surviving employees can be found in 
the FRA post-accident shipping box, which is made available to the 
collection site by the railroad representative.
    Each shipping box contains supplies for blood/urine collections from 
three individuals, including instructions and necessary forms. The 
railroad is responsible for ensuring that materials are fresh, complete 
and meet FRA requirements.

          2.11  Responsibility of the Railroad Representative.

    In the event of an accident/incident for which testing is required 
under subpart C of this part, the railroad representative shall follow 
the designated set of instructions, and, upon arrival at the independent 
medical facility, promptly present to the collection facility 
representative a post-accident shipping box or boxes with all remaining 
sets of instructions. (Each box contains supplies to collect samples 
from three employees.) The railroad representative shall request the 
collection facility representative to review the instructions provided 
and, through qualified personnel, provide for collection of the samples 
according to the procedures set out.
    The railroad representative shall undertake the following additional 
responsibilities--
     Complete FRA Form 6180.73 (revised), Accident Information 
Required for Post-Accident Toxicological Testing, describing the testing 
event and identifying the employees

[[Page 221]]

whose samples are to be deposited in the shipping box.
     As necessary to verify the identity of individual 
employees, affirm the identity of each employee to the medical facility 
personnel.
     Consistent with the policy of the collection facility, 
monitor the progress of the collection procedure.
    Warning: Monitor but do not directly observe urination or otherwise 
disturb the privacy of urine or blood collection. Do not handle sample 
containers, bottles or tubes (empty or full). Do not become part of the 
collection process.

                     2.12  Employee Responsibility.

    An employee who is identified for post-accident toxicological 
testing shall cooperate in testing as required by the railroad and 
personnel of the independent medical facility. Such cooperation will 
normally consist of the following, to be performed as requested:
     Provide a blood sample, which a qualified medical 
professional or technician will draw using a single-use sterile syringe. 
The employee should be seated for this procedure.
     Provide, in the privacy of an enclosure, a urine sample 
into a plastic collection cup. Deliver the cup to the collector.
     Do not let the blood and urine samples that you provided 
leave your sight until they have been properly sealed and initialed by 
you.
     Certify the statement in Step 4 of the Blood/Urine Custody 
and Control Form (FRA Form 6180.74 (revised)).
     If required by the medical facility, complete a separate 
consent form for taking of the samples and their release to FRA for 
analysis under the FRA rule.

    Note: The employee may not be required to complete any form that 
contains any waiver of rights the employee may have in the employment 
relationship or that releases or holds harmless the medical facility 
with respect to negligence in the collection.

                          2.2  The Collection.

    Exhibit C-1 contains instructions for collection of samples for 
post-accident toxicology from surviving employees. These instructions 
shall be observed for each collection. Instructions are also contained 
in each post-accident shipping box and shall be provided to collection 
facility personnel involved in the collection and/or packaging of 
samples for shipment.

                        (Post Mortem Collection)

                             3.0  Fatality.

    This unit provides procedures for collecting post-accident body 
fluid/tissue samples from the remains of employees killed in train 
accidents and train incidents, as required by 49 CFR part 219, subpart 
C. Subpart C specifies qualifying events and employees required to be 
tested.

                            3.1  Collection.

    In the event of a fatality for which testing is required under 
subpart C, the railroad shall promptly make available to the custodian 
of the remains a post-accident shipping box. The railroad representative 
shall request the custodian to review the instructions contained in the 
shipping box and, through qualified medical personnel, to provide the 
samples as indicated.

                  (Surviving Employees and Fatalities)

                             4.0  Shipment.

    The railroad is responsible for arranging overnight transportation 
of the sealed shipping box containing the samples. When possible without 
incurring delay, the box should be delivered directly from the 
collection personnel providing the samples to an overnight express 
service courier. If it becomes necessary for the railroad to transport 
the box from point of collection to point of shipment, then--
    1. Individual kits and the shipping box shall be sealed by 
collection personnel before the box is turned over to the railroad 
representative;
    2. The railroad shall limit the number of persons handling the 
shipping box to the minimum necessary to provide for transportation;
    3. If the shipping box cannot immediately be delivered to the 
express carrier for transportation, it shall be maintained in secure 
temporary storage; and
    4. The railroad representatives handling the box shall document 
chain of custody of the shipping box and shall make available such 
documentation to FRA on request.

  Exhibit C-1--Instructions for Collection of Blood and Urine Samples: 
              Mandatory Post-Accident Toxicological Testing

                               A. Purpose

    These instructions are for the use of personnel of collection 
facilities conducting collection of blood and urine samples from 
surviving railroad employees following railroad accidents and casualties 
that qualify for mandatory alcohol/drug testing. The Federal Railroad 
Administration appreciates the participation of medical facilities in 
this important public safety program.

                        B. Prepare for Collection

    Railroad employees have consented to provision of samples for 
analysis by the Federal Railroad Administration as a condition of

[[Page 222]]

employment (49 CFR 219.11). A private, controlled area should be 
designated for collection of samples and completion of paperwork.
    Only one sample should be collected at a time, with each employee's 
blood draw or urine collection having the complete attention of the 
collector until the specific sample has been labeled, sealed and 
documented.
    Please remember two critical rules for the collections:
    All labeling and sealing must be done in the sight of the donor, 
with the sample never having left the donor's presence until the sample 
has been labeled, sealed and initialled by the donor.
    Continuous custody and control of blood and urine samples must be 
maintained and documented on the forms provided. In order to do this it 
is important for the paperwork and the samples to stay together.
    To the extent practical, blood collection should take priority over 
urine collection. To limit steps in the chain of custody, it is best if 
a single collector handles both collections from a given employee.
    You will use a single Post-Accident Testing Blood/Urine Custody and 
Control Form (FRA Form 6108.74 (revised)), consisting of six Steps to 
complete the collection for each employee. We will refer to it as the 
Control Form.

                          C. Identify the Donor

    The employee donor must provide photo identification to each 
collector, or lacking this, be identified by the railroad 
representative.
    The donor should remove all unnecessary outer garments such as coats 
or jackets, but may retain valuables, including wallet. Donors should 
not be asked to disrobe, unless necessary for a separate physical 
examination required by the attending physician.

                              D. Draw Blood

    Assemble the materials for collecting blood from each employee: two 
10 ml grey-stoppered blood tubes and the Control Form.
    Ask the donor to complete STEP 1 on the Control Form.
    With the donor seated, draw two (2) 10 ml tubes of blood using 
standard medical procedures (sterile, single-use syringe into evacuated 
gray-top tubes provided). CAUTION: Do not use alcohol or an alcohol-
based swab to cleanse the venipuncture site.
    Once both tubes are filled and the site of venipuncture is 
protected, immediately--
     Seal and label each tube by placing a numbered blood sample 
label from the label set on the Control Form over the top of the tube 
and securing it down the sides.
     Ask the donor to initial each label. Please check to see 
that the initials match the employee's name and note any discrepancies 
in the ``Remarks'' block of the Control Form.
     As collector, sign and date each blood tube label at the 
place provided.
     Skip to STEP 5 and initiate chain of custody for the blood 
tubes by filling out the first line of the block to show receipt of the 
blood samples from the donor.
     Complete STEP 2 on the form.
     Return the blood tubes into the individual kit. Keep the 
paperwork and samples together. If another collector will be collecting 
the urine sample from this employee, transfer both the form and the 
individual kit with blood tubes to that person, showing the transfer of 
the blood tubes on the second line of STEP 5 (the chain of custody 
block).

                            E. Collect Urine

    The urine collector should assemble at his/her station the materials 
for collecting urine from each employee: one plastic collection cup with 
temperature device affixed enclosed in a heat-seal bag (with protective 
seal intact), two 90 ml urine sample bottles with caps and one biohazard 
bag (with absorbent) also enclosed in a heat-seal bag (with protective 
seal intact), and the Control Form. Blood samples already collected must 
remain in the collector's custody and control during this procedure.
    After requiring the employee to wash his/her hands, the collector 
should escort the employee directly to the urine collection area. To the 
extent practical, all sources of water in the collection area should be 
secured and a bluing agent (provided in the box) placed in any toilet 
bowl, tank, or other standing water.
    The employee will be provided a private place in which to void. 
Urination will not be directly observed. If the enclosure contains a 
source of running water that cannot be secured or any material (soap, 
etc.) that could be used to adulterate the sample, the collector should 
monitor the provision of the sample from outside the enclosure. Any 
unusual behavior or appearance should be noted in the remarks section of 
the Control Form or on the back of that form.
    The collector should then proceed as follows:
    Unwrap the collection cup in the employee's presence and hand it to 
the employee (or allow the employee to unwrap it).
    Ask the employee to void at least 60 ml into the collection cup (at 
least to the line marked). Leave the private enclosure.

    IF THERE IS A PROBLEM WITH URINATION OR SAMPLE QUANTITY, SEE THE 
            ``TROUBLE BOX'' AT THE BACK OF THESE INSTRUCTIONS

    Once the void is complete, the employee should exit the private 
enclosure and deliver

[[Page 223]]

the sample to the collector. Both the collector and the employee must 
proceed immediately to the labeling/sealing area, with the sample never 
leaving the sight of the employee before being sealed and labeled.
    Upon receipt of the sample, proceed as follows:
     In the full view of the employee, remove the wrapper from 
the two urine sample bottles. Transfer the urine from the collection cup 
into the sample bottles (at least 30 ml in bottle A and at least 15 ml 
in bottle B).
     As you pour the sample into the sample bottles, please 
inspect for any unusual signs indicating possible adulteration or 
dilution. Carefully secure the tops. Note any unusual signs under 
``remarks'' at STEP 3 of the Control Form.
     Within 4 minutes after the void, measure the temperature of 
the urine by reading the strip on the bottle. Mark the result at STEP 3 
of the Control Form.

IF THERE IS A PROBLEM WITH THE URINE SAMPLE, SEE THE TROUBLE BOX AT THE 
                       BACK OF THESE INSTRUCTIONS

     Remove the urine bottle labels from the Control Form. The 
labels are marked A and B. Place each label as marked over the top of 
its corresponding bottle, and secure the label to the sides of the 
bottle.
     Ask the donor to initial each label. Please check to see 
that the initials match the employee name and note any discrepancy in 
the ``Remarks'' block of STEP 3.
     As collector, sign and date each urine label.
     Skip to STEP 5 and initiate chain-of-custody by showing 
receipt of the urine samples from the donor. (If you collected the 
blood, a check under ``urine'' will suffice. If someone else collected 
the blood, first make sure transfer of the blood to you is documented. 
Then, using the next available line, show ``Provide samples'' under 
purpose, ``Donor'' under ``released by,'' check under ``urine'' and 
place your name, signature and date in the space provided.)
     Complete the remainder of STEP 3 on the Control Form.
     Have the employee complete STEP 4 on the Control Form.
     Place the filled urine bottles in the individual employee 
kit. Keep the paperwork and samples together. If another collector will 
be collecting the blood sample from this employee, transfer both the 
form and the kit to that person, showing the transfer of the urine 
samples on the next available line of STEP 5 (the chain of custody 
block).

                   F. Seal the Individual Employee Kit

    The blood and urine samples have now been collected for this 
employee. The blood/urine samples will now be sealed into the individual 
employee kit, while all paperwork will be retained for further 
completion. After rechecking to see that each sample is properly labeled 
and initialled, close the plastic bag to contain any leakage in 
transportation, and apply the kit security seal to the small individual 
kit. As collector, sign and date the kit seal.
    Before collecting samples from the next employee, complete the next 
line on the chain-of-custody block showing release of the blood and 
urine by yourself for the purpose of ``Shipment'' and receipt by the 
courier service or railroad representative that will provide 
transportation of the box, together with the date.

                    G. Complete Treatment Information

    Complete STEP 6 of the Control Form. Mark the box if a breath 
alcohol test was conducted under FRA authority.

                     H. Prepare the Box for Shipment

    Sealed individual employee kits should be retained in secure storage 
if there will be a delay in preparation of the shipping box. The 
shipping box shall be prepared and sealed by a collection facility 
representative as follows:
     Inspect STEP 5 of each Control Form to ensure chain-of-
custody is continuous and complete for each fluid (showing samples 
released for shipment). Retain the medical facility copy of each Control 
Form and the Accident Information form for your records.
     Place sealed individual employee kits in the shipping box. 
Place all forms in zip-lock bag and seal securely. Place bag with forms 
and unused supplies in shipping box.
     Affix the mailing label provided to the outside of the 
shipping box.

                             I. Ship the Box

    The railroad must arrange to have the box shipped overnight air 
express or (if express service is unavailable) by air freight, prepaid, 
to FRA's designated laboratory. Whenever possible without incurring 
delay, the collector should deliver the box directly into the hands of 
the express courier or air freight representative.
    Where courier pickup is not immediately available at the collection 
facility where the samples are taken, the railroad is required to 
transport the shipping box for expeditious shipment by air express, air 
freight or equivalent means.
    If the railroad is given custody of the box to arrange shipment, 
please record the name of the railroad official taking custody on the 
copy of Form 6180.73 retained by the collection site.

                             ``TROUBLE BOX''

    1. Problem: The employee claims an inability to urinate, either 
because he/she has recently

[[Page 224]]

voided or because of anxiety concerning the collection.
    Action: The employee may be offered moderate quantities of liquid to 
assist urination. If the employee continues to claim inability after 4 
hours, the urine collection should be discontinued, but the blood 
samples should be forwarded and all other procedures followed. Please 
note in area provided for remarks what explanation was provided by the 
employee.
    2. Problem: The employee cannot provide approximately 60 ml. of 
sample.
    Action: The employee should remain at the collection facility until 
as much as possible of the required amount can be given (up to 4 hours). 
The employee should be offered moderate quantities of liquids to aid 
urination. The first bottle, if it contains any quantity of urine, 
should be sealed and securely stored with the blood tubes and Control 
Form pending shipment. A second bottle should then be used for the 
subsequent void (using a second Control Form with the words ``SECOND 
VOID--FIRST SAMPLE INSUFFICIENT'' in the remarks block and labels from 
that form). However, if after 4 hours the donor's second void is also 
insufficient or contains no more than the first insufficient void, 
discard the second void and send the first void to the laboratory.
    3. Problem: The urine temperature is outside the normal range of 
32 deg.-38 deg.C/90 deg.-100 deg.F, and a suitable medical explanation 
cannot be provided by an oral temperature or other means; or
    4. Problem: The collector observes conduct clearly and unequivocally 
indicating an attempt to substitute or adulterate the sample (e.g., 
substitute urine in plain view, blue dye in sample presented, etc.) and 
a collection site supervisor or the railroad representative agrees that 
the circumstances indicate an attempt to tamper with the sample.
    Action (for either Problem No. 3 or Problem No. 4): Document the 
problem on the Control Form. If the collection site supervisor or 
railroad representative concur that the temperature of the sample, or 
other clear and unequivocal evidence, indicates a possible attempt to 
substitute or alter the sample, another void must be taken under direct 
observation by a collector of the same gender.
    If a collector of the same sex is not available, do NOT proceed with 
this step.
    If a collector of the same gender is available, proceed as follows: 
A new Control Form must be initiated for the second void. The original 
suspect sample should be marked ``Void 1'' and the follow-up void should 
be marked ``Void 2,'' with both voids being sent to the laboratory and 
the incident clearly detailed on the Control Form.

    Exhibit C-2--Instructions for Collection of Post Mortem Samples: 
             Employee Killed in a Railroad Accident/Incident

    To the Medical Examiner, Coroner, or Pathologist:
    In compliance with Federal safety regulations (49 CFR part 219), a 
railroad representative has requested that you obtain samples for 
toxicology from the remains of a railroad employee who was killed in a 
railroad accident or incident. The deceased consented to the taking of 
such samples, as a matter of Federal law, by performing service on the 
railroad (49 CFR 219.11(f)).
    Your assistance is requested in carrying out this program of 
testing, which is important to the protection of the public safety and 
the safety of those who work on the railroads.

                               Materials:

    The railroad will provide you a post-accident shipping box that 
contains necessary supplies. If the box is not immediately available, 
please proceed using supplies available to you that are suitable for 
forensic toxicology.

               Samples requested, in order of preference:

    (1) Blood--20 milliliters or more. Preferred sites: intact femoral 
vein or artery or peripheral vessels (up to 10 ml, as available) and 
intact heart (20 ml). Deposit blood in gray-stopper tubes individually 
by site and shake to mix sample and preservative.

    Note: If uncontaminated blood is not available, bloody fluid or 
clots from body cavity may be useful for qualitative purposes; but do 
not label as blood. Please indicate source and identity of sample on 
label of tube.

    (2) Urine--as much as 100 milliliters, if available. Deposit into 
plastic bottles provided.
    (3) Vitreous fluid--all available, deposited into smallest available 
tube (e.g., 3 ml) with 1% sodium fluoride, or gray-stopper tube 
(provided). Shake to mix sample and preservative.
    (4) If available at autopsy, organs--50 to 100 grams each of two or 
more of the following in order preference, as available: liver, bile, 
brain, kidney, spleen, and/or lung. Samples should be individually 
deposited into zip-lock bags or other clean, single use containers 
suitable for forensic samples.
    (5) If vitreous or urine is not available, please provide--
    a. Spinal fluid--all available, in 8 ml container (if available) 
with sodium fluoride or in gray-stopper tube; or, if spinal fluid cannot 
be obtained,
    b. Gastric content--up to 100 milliliters, as available, into 
plastic bottle.

[[Page 225]]

                           Sample collection:

    Sampling at time of autopsy is preferred so that percutaneous needle 
puncturing is not necessary. However, if autopsy will not be conducted 
or is delayed, please proceed with sampling.
    Blood samples should be taken by sterile syringe and deposited 
directly into evacuated tube, if possible, to avoid contamination of 
sample or dissipation of volatiles (ethyl alcohol).

    Note: If only cavity fluid is available, please open cavity to 
collect sample. Note condition of cavity.

    Please use smallest tubes available to accommodate available 
quantity of fluid sample (with 1% sodium fluoride).

                     Sample identification, sealing:

    As each sample is collected, seal each blood tube and each urine 
bottle using the respective blood tube or urine bottle using the 
identifier labels from the set provided with the Post Accident Testing 
Blood/Urine Custody and Control Form (FRA Form 6180.74 (revised)). Make 
sure the unique identification number on the labels match the pre-
printed number on the Control Form. Please label other samples with name 
and sample set identification numbers. You can use labels and seals from 
any of the extra forms, but annotate them accordingly.
    Annotate each label with sample description and source (as 
appropriate) (e.g., blood, femoral vein).
    Please provide copy of any written documentation regarding condition 
of body and/or sampling procedure that is available at the time samples 
are shipped.

                                Handling:

    If samples cannot be shipped immediately as provided below, samples 
other than blood may be immediately frozen. Blood samples should be 
refrigerated, but not frozen.
    All samples and documentation should be secured from unauthorized 
access pending delivery for transportation.

                              Information:

    If the railroad has not already done so, please place the name of 
the subject at the top of the Control Form (STEP 1). You are requested 
to complete STEP 2 of the form, annotating it by writing the word 
``FATALITY,'' listing the samples provided, providing any further 
information under ``Remarks'' or at the bottom of the form. If it is 
necessary to transfer custody of the samples from the person taking the 
samples prior to preparing the box for shipment, please use the blocks 
provided in STEP 5 to document transfer of custody.
    The railroad representative will also provide Accident Information 
Required for Post-Accident Toxicological Testing, FRA Form 6180.73 
(revised). Both forms should be placed in the shipping box when 
completed; but you may retain the designated medical facility copy of 
each form for your records.

                        Packing the shipping box:

    Place urine bottles and blood tubes in the sponge liner in the 
individual kit, close the biohazard bag zipper, close the kit and apply 
the kit custody seal to the kit. You may use additional kits for each 
tissue sample, being careful to identify sample by tissue, name of 
deceased, and specimen set identification number. Apply kit security 
seals to individual kits and initial across all seals.
    Place all forms in the zip-lock bag and seal securely. Place the bag 
in the shipping box. Do not put forms in with the specimens.
    Seal the shipping box with the seal provided and initial and date 
across the seal.
    Affix the mailing label to the outside of the box.

                            Shipping the box:

    The railroad must arrange to have the box shipped overnight air 
express or (if express service is unavailable) by air freight, prepaid, 
to FRA's designated laboratory. When possible, but without incurring 
delay, deliver the sealed shipping box directly to the express courier 
or the air freight representative.
    If courier pickup is not immediately available at your facility, the 
railroad is required to transport the sealed shipping box to the nearest 
point of shipment via air express, air freight or equivalent means.
    If the railroad receives the sealed shipping box to arrange 
shipment, please record under ``Supplemental Information'' on the 
Control Form, the name of the railroad official taking custody.

                                 Other:

    FRA requests that the person taking the samples annotate the Control 
Form under ``Supplemental Information'' if additional toxicological 
analysis will be undertaken with respect to the fatality. FRA reports 
are available to the coroner or medical examiner on request.

[60 FR 19539, Apr. 19, 1995]

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[58 FR 68237, Dec. 23, 1993]

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                   Appendix D1 to Part 219  [Reserved]
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[59 FR 7477, Feb. 15, 1994]

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PART 220--RAILROAD COMMUNICATIONS--Table of Contents




                           Subpart A--General

Sec.
220.1  Scope.
220.2  Preemptive effect.
220.3  Application.
220.5  Definitions.
220.7  Penalty.
220.8  Waivers.
220.9  Requirements for trains.
220.11  Requirements for roadway workers.
220.13  Reporting emergencies.

         Subpart B--Radio and Wireless Communication Procedures

220.21  Railroad operating rules; radio communications; recordkeeping.
220.23  Publication of radio information.
220.25  Instruction and operational testing of employees.
220.27  Identification.
220.29  Statement of letters and numbers in radio communications.
220.31  Initiating a radio transmission.
220.33  Receiving a radio transmission.
220.35  Ending a radio transmission.
220.37  Testing radio and wireless communication equipment.
220.38  Communication equipment failure.
220.39  Continuous radio monitoring.
220.41  [Reserved].
220.43  Radio communications consistent with federal regulations and 
          railroad operating rules.
220.45  Radio communication shall be complete.
220.47  Emergency radio transmissions.
220.49  Radio communication used in shoving, backing or pushing 
          movements.
220.51  Radio communications and signal indications.
220.61  Radio transmission of mandatory directives.

Appendix A to Part 220--Recommended Phonetic Alphabet
Appendix B to Part 220--Recommended Pronunciation of Numerals
Appendix C to Part 220--Schedule of Civil Penalties

    Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311 (1994); and 
49 CFR 1.49.

    Source: 63 FR 47195, Sept. 4, 1998, unless otherwise noted.



                           Subpart A--General



Sec. 220.1  Scope.

    This part prescribes minimum requirements governing the use of 
wireless communications in connection with railroad operations. So long 
as these minimum requirements are met, railroads may adopt additional or 
more stringent requirements.



Sec. 220.2  Preemptive effect.

    Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad 
Safety Act of 1970, 45 U.S.C. 434), issuance of the regulations in this 
part preempts any State law, rule, regulation, order, or standard 
covering the same subject matter, except a provision necessary to 
eliminate or reduce an essentially local safety hazard that is not 
incompatible with this part and that does not unreasonably burden 
interstate commerce.



Sec. 220.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to railroads that operate trains or other rolling equipment on 
standard gage track which is part of the general railroad system of 
transportation.
    (b) This part does not apply to:
    (1) A railroad that operates only on track inside an installation 
which is not part of the general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not connected 
with the general railroad system of transportation.



Sec. 220.5  Definitions.

    As used in this part, the term:
    Adjacent tracks means two or more tracks with track centers spaced 
less than 25 feet apart.
    Control center means the locations on a railroad from which the 
railroad issues instructions governing railroad operations.
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad, who is authorized by a 
railroad to use its wireless communications in connection with railroad 
operations.
    Immediate access to a radio means a radio on the employee's person, 
or sufficiently close to the employee to allow

[[Page 257]]

the employee to make and receive radio transmissions.
    Joint operations means rail operations conducted by more than one 
railroad on the track of a railroad subject to the requirements of 
Sec. 220.9(a), except as necessary for the purpose of interchange.
    Locomotive means a piece of on-track equipment other than hi-rail, 
specialized maintenance, or other similar equipment--
    (1) With one or more propelling motors designed for moving other 
equipment;
    (2) With one or more propelling motors designed to carry freight or 
passenger traffic, or both; or
    (3) Without propelling motors but with one or more control stands.
    Lone worker means an individual roadway worker who is not being 
afforded on-track safety by another roadway worker, who is not a member 
of a roadway work group, and who is not engaged in a common task with 
another roadway worker.
    Mandatory directive means any movement authority or speed 
restriction that affects a railroad operation.
    Railroad operation means any activity which affects the movement of 
a train, locomotive, on-track equipment, or track motor car, singly or 
in combination with other equipment, on the track of a railroad.
    Roadway worker means any employee of a railroad, or of a contractor 
to a railroad, whose duties include inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts.
    System headquarters means the location designated by the railroad as 
the general office for the railroad system.
    Train means one or more locomotives coupled with or without cars, 
requiring an air brake test in accordance with 49 CFR part 232, except 
during switching operations or where the operation is that of 
classifying and assembling rail cars within a railroad yard for the 
purpose of making or breaking up trains.
    Working radio means a radio that can communicate with the control 
center of the railroad (through repeater stations, if necessary to reach 
the center) from any location within the rail system, except:
    (1) Tunnels or other localized places of extreme topography, and
    (2) Temporary lapses of coverage due to atmospheric or topographic 
conditions. In the case of joint operations on another railroad, the 
radio must be able to reach the control center of the host railroad.
    Working wireless communications means the capability to communicate 
with either a control center or the emergency responder of a railroad 
through such means as radio, portable radio, cellular telephone, or 
other means of two-way communication, from any location within the rail 
system, except:
    (1) Tunnels or other localized places of extreme topography, and
    (2) Temporary lapses of coverage due to atmospheric or topographic 
conditions. In the case of joint operations on another railroad, the 
radio must be able to reach the control center of the host railroad.



Sec. 220.7  Penalty.

    Any person (including but not limited to 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) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that: Penalties may be assessed against individuals only for willful 
violations; where a grossly negligent violation or a pattern of repeated 
violations has created an imminent hazard of death or injury, or has 
caused death or injury, a penalty not to exceed $22,000 per violation 
may be assessed; and the standard of liability for a railroad will vary 
depending upon the requirement involved. Each day a violation continues

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shall constitute a separate offense. (See appendix C to this part for a 
statement of agency civil penalty policy.)



Sec. 220.8  Waivers.

    (a) Any person subject to a requirement of this part may petition 
the Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver must be filed in the manner and contain 
the information required by part 211 of this chapter.
    (c) If the Administrator finds that a waiver of compliance is in the 
public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.



Sec. 220.9  Requirements for trains.

    (a) Except as provided for in paragraphs (b)(1) through (4) of this 
section, on and after July 1, 1999, each occupied controlling locomotive 
in a train shall have a working radio, and each train shall also have 
communications redundancy. For purposes of this section, 
``communications redundancy'' means a working radio on another 
locomotive in the consist or other means of working wireless 
communications.
    (b) On and after July 1, 2000, the following requirements apply to a 
railroad that has fewer than 400,000 annual employee work hours:
    (1) Any train that transports passengers shall be equipped with a 
working radio in the occupied controlling locomotive and with redundant 
working wireless communications capability in the same manner as 
provided in paragraph (a) of this section.
    (2) Any train that operates at greater than 25 miles per hour; or 
engages in joint operations on track where the maximum authorized speed 
for freight trains exceeds 25 miles per hour; or engages in joint 
operations on a track that is adjacent to and within 30 feet measured 
between track center lines of another track on which the maximum 
authorized speed for passenger trains exceeds 40 miles per hour, shall 
be equipped with a working radio in the occupied controlling locomotive.
    (3) Any train that engages in joint operations, where the maximum 
authorized speed of the track is 25 miles per hour or less, shall be 
equipped with working wireless communications in the occupied 
controlling locomotive.
    (4) Any train not described in paragraph (b) of this section that 
transports hazardous material required to be placarded under the 
provisions of part 172 of this title shall be equipped with working 
wireless communications in the occupied controlling locomotive.



Sec. 220.11  Requirements for roadway workers.

    (a) On and after July 1, 1999, the following requirements apply to a 
railroad that has 400,000 or more annual employee work hours:
    (1) Maintenance-of-way equipment operating without locomotive 
assistance between work locations shall have a working radio on at least 
one such unit in each multiple piece of maintenance-of-way equipment 
traveling together under the same movement authority. The operators of 
each additional piece of maintenance-of-way equipment shall have 
communications capability with each other.

(2) Each maintenance-of-way work group shall have intra-group 
communications capability upon arriving at a work site.
    (b) On and after July 1, 1999, each employee designated by the 
employer to provide on-track safety for a roadway work group or groups, 
and each lone worker, shall be provided, and where practicable, shall 
maintain immediate access to a working radio. When immediate access to a 
working radio is not available, the employee responsible for on-track 
safety or lone worker shall be equipped with a radio capable of 
monitoring transmissions from train movements in the vicinity. A 
railroad with fewer than 400,000 annual employee work hours may provide 
immediate access to working wireless communications as an alternative to 
a working radio.
    (c) This section does not apply to:
    (1) Railroads which have fewer than 400,000 annual employee work 
hours,

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and which do not operate trains in excess of 25 miles per hour; or
    (2) Railroad operations where the work location of the roadway work 
group or lone worker:
    (i) Is physically inaccessible to trains; or
    (ii) Has no through traffic or traffic on adjacent tracks during the 
period when roadway workers will be present.



Sec. 220.13  Reporting emergencies.

    (a) Employees shall immediately report by the quickest means 
available derailments, collisions, storms, wash-outs, fires, 
obstructions to tracks, and other hazardous conditions which could 
result in death or injury, damage to property or serious disruption of 
railroad operations.
    (b) In reporting emergencies, employees shall follow:
    (1) The procedures of Sec. 220.47 when using a radio; or
    (2) The procedures specified for reporting emergencies in the 
railroad's timetables or timetable special instructions, when using 
another means of wireless communications.
    (c) Employees shall describe as completely as possible the nature, 
degree and location of the hazard.
    (d) An alternative means of communications capability shall be 
provided whenever the control center is unattended or unable to receive 
radio transmissions during a period in which railroad operations are 
conducted.



         Subpart B--Radio and Wireless Communication Procedures



Sec. 220.21  Railroad operating rules; radio communications; recordkeeping.

    (a) The operating rules of each railroad with respect to radio 
communications shall conform to the requirements of this part.
    (b) Thirty days before commencing to use radio communications in 
connection with railroad operations each railroad shall retain one copy 
of its current operating rules with respect to radio communications at 
the locations prescribed in paragraphs (b) (1) and (b)(2) of this 
section. Each amendment to these operating rules shall be filed at such 
locations within 30 days after it is issued. These records shall be made 
available to representatives of the Federal Railroad Administration for 
inspection and photocopying during normal business hours.
    (1) Each Class I railroad, each Class II railroad, each railroad 
providing intercity rail passenger service, and each railroad providing 
commuter service in a metropolitan or suburban area shall retain such 
rules at each of its division headquarters and at its system 
headquarters; and (2) Each Class III railroad and any other railroad 
subject to this part but not subject to paragraph (b)(1) of this section 
shall retain such rules at the system headquarters of the railroad.
    (c) For purposes of this section, the terms Class I railroad, Class 
II railroad, and Class III railroad have the meaning given these terms 
in 49 CFR Part 1201.



Sec. 220.23  Publication of radio information.

    Each railroad shall designate where radio base stations are 
installed, where wayside stations may be contacted, and the appropriate 
radio channels used by these stations in connection with railroad 
operations by publishing them in a timetable or special instruction. The 
publication shall indicate the periods during which base and wayside 
radio stations are operational.



Sec. 220.25  Instruction and operational testing of employees.

    Each employee who a railroad authorizes to use a radio in connection 
with a railroad operation, shall be:
    (a) Provided with a copy of the railroad's operating rules governing 
the use of radio communication in a railroad operation;
    (b) Instructed in the proper use of radio communication as part of 
the program of instruction prescribed in Sec. 217.11 of this chapter; 
and
    (c) Periodically tested under the operational testing requirements 
in Sec. 217.9 of this chapter.



Sec. 220.27  Identification.

    (a) Except as provided in paragraph (c) of this section, the 
identification of each wayside, base or yard station shall include at 
least the following

[[Page 260]]

minimum elements, stated in the order listed:
    (1) Name of railroad. An abbreviated name or initial letters of the 
railroad may be used where the name or initials are in general usage and 
are understood in the railroad industry; and
    (2) Name and location of office or other unique designation.
    (b) Except as provided in paragraph (c) of this section, the 
identification of each mobile station shall consist of the following 
elements, stated in the order listed:
    (1) Name of railroad. An abbreviated name or initial letters of the 
railroad may be used where the name or initial letters are in general 
usage and are understood in the railroad industry;
    (2) Train name (number), if one has been assigned, or other 
appropriate unit designation; and
    (3) When necessary, the word ``locomotive'', ``motorcar'', or other 
unique identifier which indicates to the listener the precise mobile 
transmitting station.
    (c) If positive identification is achieved in connection with 
switching, classification, and similar operations wholly within a yard, 
fixed and mobile units may use short identification after the initial 
transmission and acknowledgment consistent with applicable Federal 
Communications Commission regulations governing ``Station 
Identification''.



Sec. 220.29  Statement of letters and numbers in radio communications.

    (a) If necessary for clarity, a phonetic alphabet shall be used to 
pronounce any letter used as an initial, except initial letters of 
railroads. See appendix A of this part for the recommended phonetic 
alphabet.
    (b) A word which needs to be spelled for clarity, such as a station 
name, shall first be pronounced, and then spelled. If necessary, the 
word shall be spelled again, using a phonetic alphabet.
    (c) Numbers shall be spoken by digit, except that exact multiples of 
hundreds and thousands may be stated as such. A decimal point shall be 
indicated by the words ``decimal,'' ``dot,'' or ``point.'' (See appendix 
B to this part, for a recommended guide to the pronunciation of 
numbers.)



Sec. 220.31  Initiating a radio transmission.

            Before transmitting by radio, an employee shall:

    (a) Listen to ensure that the channel on which the employee intends 
to transmit is not already in use;
    (b) Identify the employee's station in accordance with the 
requirements of Sec. 220.27; and
    (c) Verify that the employee has made radio contact with the person 
or station with whom the employee intends to communicate by listening 
for an acknowledgment. If the station acknowledging the employee's 
transmission fails to identify itself properly, the employee shall 
require a proper identification before proceeding with the transmission.



Sec. 220.33  Receiving a radio transmission.

    (a) Upon receiving a radio call, an employee shall promptly 
acknowledge the call, identifying the employee's station in accordance 
with the requirements of Sec. 220.27 and stand by to receive. An 
employee need not attend the radio during the time that this would 
interfere with other immediate duties relating to the safety of railroad 
operations.
    (b) An employee who receives a transmission shall repeat it to the 
transmitting party unless the communication:
    (1) Relates to yard switching operations;
    (2) Is a recorded message from an automatic alarm device; or
    (3) Is general in nature and does not contain any information, 
instruction or advice which could affect the safety of a railroad 
operation.



Sec. 220.35  Ending a radio transmission.

    (a) Except for transmissions relating to yard switching operations, 
at the close of each transmission to which a response is expected, the 
transmitting employee shall say ``over'' to indicate to the receiving 
employee that the transmission is ended.

[[Page 261]]

    (b) Except for transmissions relating to yard switching operations, 
at the close of each transmission to which no response is expected, the 
transmitting employee shall state the employee's identification followed 
by the word ``out'' to indicate to the receiving employee that the 
exchange of transmissions is complete.



Sec. 220.37  Testing radio and wireless communication equipment.

    (a) Each radio, and all primary and redundant wireless communication 
equipment used under Secs. 220.9 and 220.11, shall be tested as soon as 
practicable to ensure that the equipment functions as intended prior to 
the commencement of the work assignment.
    (b) The test of a radio shall consist of an exchange of voice 
transmissions with another radio. The employee receiving the 
transmission shall advise the employee conducting the test of the 
clarity of the transmission.



Sec. 220.38  Communication equipment failure.

    (a) Any radio or wireless communication device found not to be 
functioning as intended when tested pursuant to Sec. 220.37 shall be 
removed from service and the dispatcher or other employee designated by 
the railroad shall be so notified as soon as practicable.
    (b) If a radio or wireless communication device fails on the 
controlling locomotive en route, the train may continue until the 
earlier of--
    (1) The next calendar day inspection, or
    (2) The nearest forward point where the radio or wireless 
communication device can be repaired or replaced.



Sec. 220.39  Continuous radio monitoring.

    Each radio used in a railroad operation shall be turned on to the 
appropriate channel as designated in Sec. 220.23 and adjusted to receive 
communications.



Sec. 220.41  [Reserved]



Sec. 220.43  Radio communications consistent with federal regulations and railroad operating rules.

    Radio communication shall not be used in connection with a railroad 
operation in a manner which conflicts with the requirements of this 
part, Federal Communication Commission regulations, or the railroad's 
operating rules. The use of citizen band radios for railroad operating 
purposes is prohibited.



Sec. 220.45  Radio communication shall be complete.

    Any radio communication which is not fully understood or completed 
in accordance with the requirements of this part and the operating rules 
of the railroad, shall not be acted upon and shall be treated as though 
not sent.



Sec. 220.47  Emergency radio transmissions.

    An initial emergency radio transmission shall be preceded by the 
word ``emergency,'' repeated three times. An emergency transmission 
shall have priority over all other transmissions and the frequency or 
channel shall be kept clear of non-emergency traffic for the duration of 
the emergency communication.



Sec. 220.49  Radio communication used in shoving, backing or pushing movements.

    When radio communication is used in connection with the shoving, 
backing or pushing of a train, locomotive, car, or on-track equipment, 
the employee directing the movement shall specify the distance of the 
movement, and the movement shall stop in one-half the remaining distance 
unless additional instructions are received. If the instructions are not 
understood, the movement shall be stopped immediately and may not be 
resumed until the misunderstanding has been resolved, radio contact has 
been restored, or communication has been achieved by hand signals or 
other procedures in accordance with the operating rules of the railroad.



Sec. 220.51  Radio communications and signal indications.

    (a) No information may be given by radio to a train or engine crew 
about the position or aspect displayed by a fixed signal. However, a 
radio may be

[[Page 262]]

used by a train crew member to communicate information about the 
position or aspect displayed by a fixed signal to other members of the 
same crew.
    (b) Except