Sept. 27, 2010 CODE OF FEDERAL REGULATIONS 49 Parts 200 to 299 Revised as of October 1, 2010 Transportation Containing a codification of documents of general applicability and future effect As of October 1, 2010 With Ancillaries

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 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 Finding Aids: Table of CFR Titles and Chapters 1001 Alphabetical List of Agencies Appearing in the CFR 1021 List of CFR Sections Affected 1031

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October 1, 2010.

THIS TITLE

Title 49—Transportation is composed of nine volumes. The parts in these volumes are arranged in the following order: Parts 1-99, parts 100-185, parts 186-199, parts 200-299, parts 300-399, parts 400-571, parts 572-999, parts 1000-1199, and 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—Pipeline and Hazardous Materials Safety Administration (DOT); the fourth volume (parts 200-299) contains the current regulations issued under chapter II—Federal Railroad Administration (DOT); the fifth volume (parts 300-399) contains the current regulations issued under chapter III—Federal Motor Carrier Safety Administration (DOT); the sixth volume (parts 400-571) contains the current regulations issued under chapter IV—Coast Guard (DHS), and some of chapter V—National Highway Traffic Safety Administration (DOT); the seventh volume (parts 572-999) contains the rest of the regulations issued under chapter IV, and the current regulations issued under chapter VI—Federal Transit Administration (DOT), chapter VII—National Railroad Passenger Corporation (AMTRAK), and chapter VIII—National Transportation Safety Board; the eighth volume (parts 1000-1199) contains the current regulations issued under chapter X—Surface Transportation Board and the ninth volume (part 1200 to end) contains the current regulations issued under chapter X—Surface Transportation Board, chapter XI—Research and Innovative Technology Administration, and chapter XII—Transportation Security Administration, Department of Transportation. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2010.

In the volume containing parts 100-185, see § 172.101 for the Hazardous Materials Table. The Federal Motor Vehicle Safety Standards appear in part 571.

Redesignation tables for chapter III—Federal Motor Carrier Safety Administration, Department of Transportation and chapter XII—Transportation Security Administration, Department of Transportation appear in the Finding Aids section of the fifth and ninth volumes.

For this volume, Robert J. Sheehan, III was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.

 <LRH>49 CFR Ch. II (10-1-10 Edition)</LRH> <RRH>Federal Railroad Administration, DOT</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 49—Transportation</HD> <P>(This book contains parts 200 to 299)</P> </TITLEHD> <CFRTOC> <SUBTI> <HD SOURCE="HED">SUBTITLE B—<E T="04">Other Regulations Relating to Transportation (Continued)</E> </HD> </SUBTI> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—Federal Railroad Administration, Department of Transportation</SUBJECT> <PG>200</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle B—Other Regulations Relating to Transportation (Continued)</HD> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">CHAPTER II—FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION</HD> </TOCHD> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to chapter II appear at 69 FR 18803, Apr. 9, 2004.</P> </EDNOTE> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>200</PT> <SUBJECT>Informal rules of practice for passenger service</SUBJECT> <PG>7</PG> <PT>201</PT> <RESERVED>[Reserved]</RESERVED> <PT>207</PT> <SUBJECT>Railroad police officers</SUBJECT> <PG>9</PG> <PT>209</PT> <SUBJECT>Railroad safety enforcement procedures</SUBJECT> <PG>10</PG> <PT>210</PT> <SUBJECT>Railroad noise emission compliance regulations</SUBJECT> <PG>63</PG> <PT>211</PT> <SUBJECT>Rules of practice</SUBJECT> <PG>69</PG> <PT>212</PT> <SUBJECT>State safety participation regulations</SUBJECT> <PG>89</PG> <PT>213</PT> <SUBJECT>Track safety standards</SUBJECT> <PG>100</PG> <PT>214</PT> <SUBJECT>Railroad workplace safety</SUBJECT> <PG>152</PG> <PT>215</PT> <SUBJECT>Railroad freight car safety standards</SUBJECT> <PG>181</PG> <PT>216</PT> <SUBJECT>Special notice and emergency order procedures: Railroad track, locomotive and equipment</SUBJECT> <PG>196</PG> <PT>217</PT> <SUBJECT>Railroad operating rules</SUBJECT> <PG>200</PG> <PT>218</PT> <SUBJECT>Railroad operating practices</SUBJECT> <PG>206</PG> <PT>219</PT> <SUBJECT>Control of alcohol and drug use</SUBJECT> <PG>232</PG> <PT>220</PT> <SUBJECT>Railroad communications</SUBJECT> <PG>273</PG> <PT>221</PT> <SUBJECT>Rear end marking device—passenger, commuter and freight trains</SUBJECT> <PG>286</PG> <PT>222</PT> <SUBJECT>Use of locomotive horns at public highway-rail grade crossings</SUBJECT> <PG>291</PG> <PT>223</PT> <SUBJECT>Safety glazing standards—locomotives, passenger cars and cabooses</SUBJECT> <PG>345</PG> <PT>224</PT> <SUBJECT>Reflectorization of rail freight rolling stock</SUBJECT> <PG>350</PG> <PT>225</PT> <SUBJECT>Railroad accidents/incidents: Reports classification, and investigations</SUBJECT> <PG>376</PG> <PT>227</PT> <SUBJECT>Occupational noise exposure</SUBJECT> <PG>397</PG> <PT>228</PT> <SUBJECT>Hours of service of railroad employees</SUBJECT> <PG>417</PG> <PT>229</PT> <SUBJECT>Railroad locomotive safety standards</SUBJECT> <PG>440</PG> <PT>230</PT> <SUBJECT>Steam locomotive inspection and maintenance standards</SUBJECT> <PG>487</PG> <PT>231</PT> <SUBJECT>Railroad safety appliance standards</SUBJECT> <PG>552<PRTPAGE P="6"/> </PG> <PT>232</PT> <SUBJECT>Brake system safety standards for freight and other non-passenger trains and equipment; end-of-train devices</SUBJECT> <PG>594</PG> <PT>233</PT> <SUBJECT>Signal systems reporting requirements</SUBJECT> <PG>646</PG> <PT>234</PT> <SUBJECT>Grade crossing signal system safety and State action plans</SUBJECT> <PG>647</PG> <PT>235</PT> <SUBJECT>Instructions governing applications for approval of a discontinuance or material modification of a signal system or relief from the requirements of part 236</SUBJECT> <PG>660</PG> <PT>236</PT> <SUBJECT>Rules, standards, and instructions governing the installation, inspection, maintenance, and repair of signal and train control systems, devices, and appliances</SUBJECT> <PG>664</PG> <PT>237</PT> <SUBJECT>Bridge safety standards</SUBJECT> <PG>757</PG> <PT>238</PT> <SUBJECT>Passenger equipment safety standards</SUBJECT> <PG>769</PG> <PT>239</PT> <SUBJECT>Passenger train emergency preparedness</SUBJECT> <PG>874</PG> <PT>240</PT> <SUBJECT>Qualification and certification of locomotive engineers</SUBJECT> <PG>885</PG> <PT>241</PT> <SUBJECT>United States locational requirement for dispatching of United States rail operations</SUBJECT> <PG>932</PG> <PT>244</PT> <SUBJECT>Regulations on safety integration plans governing railroad consolidations, mergers, and acquisitions of control</SUBJECT> <PG>939</PG> <PT>245</PT> <RESERVED>[Reserved]</RESERVED> <PT>250</PT> <SUBJECT>Guarantee of certificates of trustees of railroads in reorganization</SUBJECT> <PG>944</PG> <PT>256</PT> <SUBJECT>Financial assistance for railroad passenger terminals</SUBJECT> <PG>950</PG> <PT>260</PT> <SUBJECT>Regulations governing loans and loan guarantees under the Railroad Rehabilitation and Improvement Financing program</SUBJECT> <PG>960</PG> <PT>261</PT> <SUBJECT>Credit assistance for surface transportation projects</SUBJECT> <PG>972</PG> <PT>262</PT> <SUBJECT>Implementation of program for capital grants for rail line relocation and improvement projects</SUBJECT> <PG>973</PG> <PT>266</PT> <SUBJECT>Assistance to States for local rail service under section 5 of the Department of Transportation Act</SUBJECT> <PG>976</PG> <PT>268</PT> <SUBJECT>Magnetic levitation transportation technology deployment program</SUBJECT> <PG>991</PG> <PT>269-299</PT> <RESERVED> [Reserved]</RESERVED> </CHAPTI> </TOC> <PART> <PRTPAGE P="7"/> <EAR>Pt. 200</EAR> <HD SOURCE="HED">PART 200—INFORMAL RULES OF PRACTICE FOR PASSENGER SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>200.1</SECTNO> <SUBJECT>Genera1.</SUBJECT> <SECTNO>200.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>200.5</SECTNO> <SUBJECT>Applications.</SUBJECT> <SECTNO>200.7</SECTNO> <SUBJECT>Objections.</SUBJECT> <SECTNO>200.9</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>200.11</SECTNO> <SUBJECT>Orders, approvals, and determinations.</SUBJECT> <SECTNO>200.13</SECTNO> <SUBJECT>Publication.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 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 (49 U.S.C. 24309); 49 CFR 1.49.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 64192, Sept. 29, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 200.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 200.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Act</E> means the Rail Passenger Service Act (45 U.S.C. 500 et seq.).</P> <P>(b) <E T="03">Administrator</E> means the Federal Railroad Administrator, the Deputy Administrator of FRA, or the delegate of either.</P> <P>(c) <E T="03">Amtrak</E> means the National Railroad Passenger Corporation.</P> <P>(d) <E T="03">Amtrak trains</E> means trains operated by or on behalf of Amtrak.</P> <P>(e) <E T="03">Chief Counsel</E> means the Chief Counsel or Acting Chief Counsel of the FRA.</P> <P>(f) <E T="03">Downgrading of a facility</E> 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.</P> <P>(g) <E T="03">Facility</E> 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.</P> <P>(h) <E T="03">FRA</E> means the Federal Railroad Administration.</P> <P>(i) <E T="03">Railroad</E> means a person providing railroad transportation for compensation.</P> <P>(j) <E T="03">Shipper</E> means a person contracting with one or more railroads for freight transportation.</P> </SECTION> <SECTION> <SECTNO>§ 200.5</SECTNO> <SUBJECT>Applications.</SUBJECT> <P>(a) Each application and objection under this part shall be submitted in writing to: Docket Clerk, Office of the Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.</P> <P>(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 § 200.9.</P> <P>(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:</P> <P>(1) List by endpoints the routes that are so affected; and</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) List the facilities for proposed downgrading or disposal;</P> <P>(2) Describe and give the location of each such facility and identify the most recent passenger service that made use of such facilities; and</P> <P>(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 <PRTPAGE P="8"/>information, data and documents sufficient to support the analysis.</P> <P>(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.</P> <P>(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.</P> <CITA>[45 FR 64192, Sept. 29, 1980, as amended at 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.7</SECTNO> <SUBJECT>Objections.</SUBJECT> <P>(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.</P> <P>(b) Amtrak shall have 30 days from the date an application is received by FRApursuant 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.</P> </SECTION> <SECTION> <SECTNO>§ 200.9</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) Pursuant to any application under this part, a prehearing conference will be held if found necessary or desirable by the Administrator.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) The panel may provide for oral presentations and cross-examination, and shall apply rules of evidence as it finds necessary.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 200.11</SECTNO> <SUBJECT>Orders, approvals, and determinations.</SUBJECT> <P>(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.</P> <P>(b) Orders, approvals, and determinations issued by the Administrator's panel under this part constitute the Administrator's action and shall be final.</P> <P>(c) Determinations under this part are not required to be based exclusively on the record of a hearing.</P> </SECTION> <SECTION> <SECTNO>§ 200.13</SECTNO> <SUBJECT>Publication.</SUBJECT> <P>(a) General notice of any hearing under this subpart shall be published in the <E T="04">Federal Register</E> 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.<PRTPAGE P="9"/> </P> <P>(b) Any order, approval, or determination resulting from any hearing held under this part shall be published in the <E T="04">Federal Register.</E> </P> </SECTION> </PART> <PART> <RESERVED>PART 201 [RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 207</EAR> <HD SOURCE="HED">PART 207—RAILROAD POLICE OFFICERS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>207.1</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>207.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>207.3</SECTNO> <SUBJECT>Designation and commissioning.</SUBJECT> <SECTNO>207.4</SECTNO> <SUBJECT>Notice to State officials.</SUBJECT> <SECTNO>207.5</SECTNO> <SUBJECT>Authority in States where officer not commissioned.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 446; 49 CFR 1.49(ff).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 6587, Feb. 11, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 207.1</SECTNO> <SUBJECT>Application.</SUBJECT> <P>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)).</P> </SECTION> <SECTION> <SECTNO>§ 207.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P>(a) <E T="03">Railroad police officer</E> 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.</P> <P>(b) <E T="03">Commissioned</E> 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.</P> <P>(c) <E T="03">Property</E> means rights-of-way, easements, appurtenant property, equipment, cargo, facilities, and buildings and other structures owned, leased, operated, maintained, or transported by a railroad.</P> </SECTION> <SECTION> <SECTNO>§ 207.3</SECTNO> <SUBJECT>Designation and commissioning.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 207.4</SECTNO> <SUBJECT>Notice to State officials.</SUBJECT> <P>(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:</P> <P>(1) The name of the railroad police officer;</P> <P>(2) The badge number, identification number, rank, code, or other identifying information assigned to the railroad police officer;</P> <P>(3) The date of commission;</P> <P>(4) The state or states where the railroad police officer is commissioned;</P> <P>(5) The date the railroad police officer received training or retraining regarding the laws of such state or states;</P> <P>(6) The name of the railroad official who designated the employee as a railroad police officer; and</P> <P>(7) Color photographs of the types of badges, identification cards, and other identifying materials the railroad uses to identify its railroad police officers.</P> <P>(b) The railroad shall keep copies of all such notices at a central location.</P> <P>(c) The authority set forth in § 207.5 shall be effective upon receipt by such state(s) of written notice conforming to the requirements of this section.</P> </SECTION> <SECTION> <SECTNO>§ 207.5</SECTNO> <SUBJECT>Authority in States where officer not commissioned.</SUBJECT> <P>(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 § 207.4.</P> <P>(b) Under the authority of paragraph (a) of this section, a railroad police officer may enforce only relevant laws for the protection of—<PRTPAGE P="10"/> </P> <P>(1) The railroad's employees, passengers, or patrons;</P> <P>(2) The railroad's property or property entrusted to the railroad for transportation purposes;</P> <P>(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</P> <P>(4) The railroad movement of personnel, equipment, and materials vital to the national defense.</P> <P>(c) The authority exercised under this part by an officer for whom the railroad has provided notice in accordance with § 207.4 shall be the same as that of a railroad police officer commissioned under the laws of that state.</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 209</EAR> <HD SOURCE="HED">PART 209—RAILROAD SAFETY ENFORCEMENT PROCEDURES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>209.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>209.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>209.5</SECTNO> <SUBJECT>Service.</SUBJECT> <SECTNO>209.6</SECTNO> <SUBJECT>Requests for admission.</SUBJECT> <SECTNO>209.7</SECTNO> <SUBJECT>Subpoenas; witness fees.</SUBJECT> <SECTNO>209.8</SECTNO> <SUBJECT>Depositions in formal proceedings.</SUBJECT> <SECTNO>209.9</SECTNO> <SUBJECT>Filing.</SUBJECT> <SECTNO>209.11</SECTNO> <SUBJECT>Request for confidential treatment.</SUBJECT> <SECTNO>209.13</SECTNO> <SUBJECT>Consolidation.</SUBJECT> <SECTNO>209.15</SECTNO> <SUBJECT>Rules of evidence.</SUBJECT> <SECTNO>209.17</SECTNO> <SUBJECT>Motions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Hazardous Materials Penalties</HD> <SUBJGRP> <HD SOURCE="HED">Civil Penalties</HD> <SECTNO>209.101</SECTNO> <SUBJECT>Civil penalties generally.</SUBJECT> <SECTNO>209.103</SECTNO> <SUBJECT>Minimum and maximum penalties.</SUBJECT> <SECTNO>209.105</SECTNO> <SUBJECT>Notice of probable violation.</SUBJECT> <SECTNO>209.107</SECTNO> <SUBJECT>Reply.</SUBJECT> <SECTNO>209.109</SECTNO> <SUBJECT>Payment of penalty; compromise.</SUBJECT> <SECTNO>209.111</SECTNO> <SUBJECT>Informal response and assessment.</SUBJECT> <SECTNO>209.113</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <SECTNO>209.115</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>209.117</SECTNO> <SUBJECT>Presiding officer's decision.</SUBJECT> <SECTNO>209.119</SECTNO> <SUBJECT>Assessment considerations.</SUBJECT> <SECTNO>209.121</SECTNO> <SUBJECT>Appeal.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Criminal Penalties</HD> <SECTNO>209.131</SECTNO> <SUBJECT>Criminal penalties generally.</SUBJECT> <SECTNO>209.133</SECTNO> <SUBJECT>Referral for prosecution.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Compliance Orders</HD> <SECTNO>209.201</SECTNO> <SUBJECT>Compliance orders generally.</SUBJECT> <SECTNO>209.203</SECTNO> <SUBJECT>Notice of investigation.</SUBJECT> <SECTNO>209.205</SECTNO> <SUBJECT>Reply.</SUBJECT> <SECTNO>209.207</SECTNO> <SUBJECT>Consent order.</SUBJECT> <SECTNO>209.209</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>209.211</SECTNO> <SUBJECT>Presiding officer's decision.</SUBJECT> <SECTNO>209.213</SECTNO> <SUBJECT>Appeal.</SUBJECT> <SECTNO>209.215</SECTNO> <SUBJECT>Time limitation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Disqualification Procedures</HD> <SECTNO>209.301</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>209.303</SECTNO> <SUBJECT>Coverage.</SUBJECT> <SECTNO>209.305</SECTNO> <SUBJECT>Notice of proposed disqualification.</SUBJECT> <SECTNO>209.307</SECTNO> <SUBJECT>Reply.</SUBJECT> <SECTNO>209.309</SECTNO> <SUBJECT>Informal response.</SUBJECT> <SECTNO>209.311</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <SECTNO>209.313</SECTNO> <SUBJECT>Discovery.</SUBJECT> <SECTNO>209.315</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <SECTNO>209.317</SECTNO> <SUBJECT>Official record.</SUBJECT> <SECTNO>209.319</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> <SECTNO>209.321</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>209.323</SECTNO> <SUBJECT>Initial decision.</SUBJECT> <SECTNO>209.325</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> <SECTNO>209.327</SECTNO> <SUBJECT>Appeal.</SUBJECT> <SECTNO>209.329</SECTNO> <SUBJECT>Assessment considerations.</SUBJECT> <SECTNO>209.331</SECTNO> <SUBJECT>Enforcement of disqualification order.</SUBJECT> <SECTNO>209.333</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>209.335</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>209.337</SECTNO> <SUBJECT>Information collection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Reporting of Remedial Actions</HD> <SECTNO>209.401</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>209.403</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>209.405</SECTNO> <SUBJECT>Reporting of remedial actions.</SUBJECT> <SECTNO>209.407</SECTNO> <SUBJECT>Delayed reports.</SUBJECT> <SECTNO>209.409</SECTNO> <SUBJECT>Penalties.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions Pursuant to 49 CFR § 172.820</HD> <SECTNO>209.501</SECTNO> <SUBJECT>Review of rail transportation safety and security route analysis.</SUBJECT> <APP>Appendix A to Part 209—Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws</APP> <APP>Appendix B to Part 209—Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments</APP> <APP>Appendix C to Part 209—FRA's Policy Statement Concerning Small Entities</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>42 FR 56742, Oct. 28, 1977, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="11"/> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 209.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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:</P> <P>(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));</P> <P>(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</P> <P>(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)).</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 53 FR 52920, Dec. 29, 1988; 54 FR 42905, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part—</P> <P> <E T="03">Administrator</E> means the Administrator of FRA, the Deputy Administrator of FRA, or the delegate of either.</P> <P> <E T="03">Associate Administrator</E> means the Associate Administrator for Safety, Federal Railroad Administration, or that person's delegate as designated in writing.</P> <P> <E T="03">Chief Counsel</E> means the Chief Counsel of FRA or his or her delegate.</P> <P> <E T="03">Day</E> means calendar day.</P> <P> <E T="03">Federal hazardous material transportation law</E> means 49 U.S.C. 5101 et seq.</P> <P> <E T="03">Federal railroad safety laws</E> 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. 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).</P> <P> <E T="03">FRA</E> means the Federal Railroad Administration, U.S. Department of Transportation.</P> <P> <E T="03">FRA Safety Inspector</E> 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.</P> <P> <E T="03">Motion</E> means a request to a presiding officer to take a particular action.</P> <P> <E T="03">Person</E> generally includes all categories of entities covered under 1 U.S.C. 1, including but not limited to the following: a railroad; any manager, <PRTPAGE P="12"/>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, <E T="03">person,</E> 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.</P> <P> <E T="03">Pleading</E> means any written submission setting forth claims, allegations, arguments, or evidence.</P> <P> <E T="03">Presiding Officer</E> means any person authorized to preside over any hearing or to make a decision on the record, including an administrative law judge.</P> <P> <E T="03">Railroad</E> 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.</P> <P> <E T="03">Railroad carrier</E> means a person providing railroad transportation.</P> <P> <E T="03">Respondent</E> means a person upon whom FRA has served a notice of probable violation, notice of investigation, or notice of proposed disqualification.</P> <CITA>[59 FR 43676, Aug. 24, 1994, as amended at 71 FR 77294, Dec. 26, 2006; 73 FR 72199, Nov. 26, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.5</SECTNO> <SUBJECT>Service.</SUBJECT> <P>(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.</P> <P>(b) Service upon a person's duly authorized representative constitutes service upon that person.</P> <P>(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.</P> <P>(d) Service of requests for admission and motions may be made by first-class mail, postage prepaid.</P> <P>(e) Each pleading must be accompanied by a certificate of service specifying how and when service was made.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.6</SECTNO> <SUBJECT>Requests for admission.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="13"/>or deny the matter. If an objection is made, the reasons therefor shall be stated.</P> <P>(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.</P> <P>(e) Upon motion, the presiding officer may order any party to respond to a request for admission.</P> <CITA>[54 FR 42906, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.7</SECTNO> <SUBJECT>Subpoenas; witness fees.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <FP>Delivery of a copy of the subpoena may be made:</FP> <P>(1) To a natural person by:</P> <P>(i) Handing it to the person;</P> <P>(ii) Leaving it at his or her office with the person in charge thereof;</P> <P>(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;</P> <P>(iv) Mailing it by registered or certified mail to him or her at his or her last known address; or</P> <P>(v) Any method whereby actual notice of the issuance and content is given (and the fees are made available) prior to the return date.</P> <P>(2) To an entity other than a natural person by:</P> <P>(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;</P> <P>(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</P> <P>(iii) Any method whereby actual notice is given to such representative (and the fees are made available) prior to the return date.</P> <P>(e) The original subpoena bearing a certificate of service shall be filed in accordance with § 209.9.</P> <P>(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.</P> <P>(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:</P> <P>(1) The presence of the subpoenaed witness or evidence will materially advance the proceedings; and<PRTPAGE P="14"/> </P> <P>(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.</P> <P>(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:</P> <P>(1) Deny the application;</P> <P>(2) Quash or modify the subpoena; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.8</SECTNO> <SUBJECT>Depositions in formal proceedings.</SUBJECT> <P>(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 § 209.7 and, for proceedings under subpart D of this part, § 209.315.</P> <P>(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 cause exists to take a person's deposition when the information sought is relevant to the subject matter involved in the proceeding and:</P> <P>(1) The information is not obtainable from some other source that is more convenient, less burdensome, and less expensive; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="15"/> </P> <P>(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.</P> <CITA>[54 FR 42906, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.9</SECTNO> <SUBJECT>Filing.</SUBJECT> <P>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, 1200 New Jersey Avenue, SE., Washington, DC 20590, except that documents produced in accordance with a subpoena shall be presented at the place and time specified by the subpoena.</P> <CITA>[54 FR 42906, Oct. 18, 1989, as amended at 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.11</SECTNO> <SUBJECT>Request for confidential treatment.</SUBJECT> <P>(a) This section governs the procedures for requesting confidential treatment of any document filed with or otherwise provided to FRA in connection with its enforcement of statutes or FRA regulations related to railroad safety. For purposes of this section, “enforcement” shall include receipt of documents required to be submitted by FRA regulations, and all investigative and compliance activities, in addition to the development of violation reports and recommendations for prosecution.</P> <P>(b) A request for confidential treatment with respect to a document or portion thereof may be made on the basis that the information is—</P> <P>(1) Exempt from the mandatory disclosure requirements of the Freedom of Information Act (5 U.S.C. 552);</P> <P>(2) Required to be held in confidence by 18 U.S.C. 1905; or</P> <P>(3) Otherwise exempt by law from public disclosure.</P> <P>(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.</P> <P>(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 to public disclosure of the document in its entirety.</P> <P>(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.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 70 FR 11094, Mar. 7, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.13</SECTNO> <SUBJECT>Consolidation.</SUBJECT> <P>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.</P> <CITA>[54 FR 42906, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.15</SECTNO> <SUBJECT>Rules of evidence.</SUBJECT> <P>The Federal Rules of Evidence for United States Courts and Magistrates <PRTPAGE P="16"/>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.</P> <CITA>[54 FR 42907, Oct. 18, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.17</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>Motions shall be in writing, filed with the presiding officer, and copies served upon the parties in accordance with § 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.</P> <CITA>[54 FR 42907, Oct. 18, 1989]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Hazardous Materials Penalties</HD> <SUBJGRP> <HD SOURCE="HED">Civil Penalties</HD> <SECTION> <SECTNO>§ 209.101</SECTNO> <SUBJECT>Civil penalties generally.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.103</SECTNO> <SUBJECT>Minimum and maximum penalties.</SUBJECT> <P>(a) A person who knowingly violates a requirement of the Federal hazardous material transportation law, an order issued thereunder, subchapter A or C of chapter I, subtitle B, of this title, or a special permit or approval issued under 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 $55,000 for each violation, except that—</P> <P>(1) The maximum civil penalty for a violation is $110,000 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property and</P> <P>(2) A minimum $450 civil penalty applies to a violation related to training.</P> <P>(b) When the violation is a continuing one, each day of the violation constitutes a separate offense. 49 U.S.C. 5123.</P> <P>(c) The maximum and minimum civil penalties described in paragraph (a) above apply to violations occurring on or after September 27, 2010.</P> <CITA>[71 FR 77294, Dec. 26, 2006, as amended at 75 FR 43842, July 27, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.105</SECTNO> <SUBJECT>Notice of probable violation.</SUBJECT> <P>(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.</P> <P>(b) A notice of probable violation issued under this section includes:</P> <P>(1) A statement of the provision(s) which the respondent is believed to have violated;</P> <P>(2) A statement of the factual allegations upon which the proposed civil penalty is being sought;</P> <P>(3) Notice of the maximum amount of civil penalty for which the respondent may be liable;</P> <P>(4) Notice of the amount of the civil penalty proposed to be assessed;</P> <P>(5) A description of the manner in which the respondent should make payment of any money to the United States;</P> <P>(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</P> <P>(7) A statement of the respondent's right to request a hearing and the procedures for requesting a hearing.</P> <P>(c) The FRA may amend the notice of probable violation at any time prior to the entry of an order assessing a civil <PRTPAGE P="17"/>penalty. If the amendment contains any new material allegation of fact, the respondant is given an opportunity to respond. In an amended notice, FRA may change the civil penalty amount proposed to be assessed up to and including the maximum penalty amount of $55,000 for each violation, except that if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property, FRA may change the penalty amount proposed to be assessed up to and including the maximum penalty amount of $110,000.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996; 69 FR 30591, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 75 FR 43842, July 27, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.107</SECTNO> <SUBJECT>Reply.</SUBJECT> <P>(a) Within thirty (30) days of the service of a notice of probable violation issued under § 209.105, the respondent may—</P> <P>(1) Pay as provided in § 209.109(a) and thereby close the case;</P> <P>(2) Make an informal response as provided in § 209.111; or</P> <P>(3) Request a hearing as provided in § 209.113.</P> <P>(b) The Chief Counsel may extend the thirty (30) days period for good cause shown.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.109</SECTNO> <SUBJECT>Payment of penalty; compromise.</SUBJECT> <P>(a) Payment of a civil penalty may be made by certified check, money order, or credit card. Payments made by certified check or money order should be made payable to the Federal Railroad Administration and sent to DOT/FRA, Mike Monroney Aero Center, General Accounting Division, AMZ-300, P.O. Box 25082, Oklahoma City, OK 73125. Overnight express payments may be sent to DOT/FRA, Mike Monroney Aero Center, General Accounting Division, AMZ-300, 6500 South MacArthur Blvd. Headquarters Building, Room 176, Oklahoma City, OK 73169. Payment by credit card must be made via the Internet at <E T="03">https://www.pay.gov/paygov/.</E> Instructions for online payment are found on the Web site.</P> <P>(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.</P> <CITA>[42 FR 56742, Oct. 28, 1977, as amended at 71 FR 77295, Dec. 26, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.111</SECTNO> <SUBJECT>Informal response and assessment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.113</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <P>(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—<PRTPAGE P="18"/> </P> <P>(1) State the name and address of the respondent and of the person signing the request if different from the respondent;</P> <P>(2) State with respect to each allegation whether it is admitted or denied; and</P> <P>(3) State with particularity the issues to be raised by the respondent at the hearing.</P> <P>(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.</P> <P>(c) The Chief Counsel or the hearing officer appointed under § 209.115 may grant extensions of the time of the commencement of the hearing for good cause shown.</P> </SECTION> <SECTION> <SECTNO>§ 209.115</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) When a hearing is requested and scheduled under § 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.</P> <P>(b) The presiding official may:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas as provided by § 209.7;</P> <P>(3) Adopt procedures for the submission of evidence in written form;</P> <P>(4) Take or cause depositions to be taken;</P> <P>(5) Rule on offers of proof and receive relevant evidence;</P> <P>(6) Examine witnesses at the hearing;</P> <P>(7) Convene, recess, reconvene, and adjourn and otherwise regulate the course of the hearing;</P> <P>(8) Hold conferences for settlement, simplification of the issues or any other proper purpose; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[42 FR 56742, Oct. 28, 1977; 42 FR 59755, Nov. 21, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.117</SECTNO> <SUBJECT>Presiding officer's decision.</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 209.119</SECTNO> <SUBJECT>Assessment considerations.</SUBJECT> <P>The assessment of a civil penalty under § 209.117 is made only after considering:</P> <P>(a) The nature and circumstances of the violation;</P> <P>(b) The extent and gravity of the violation;<PRTPAGE P="19"/> </P> <P>(c) The degree of the respondent's culpabilty;</P> <P>(d) The respondent's history of prior offenses;</P> <P>(e) The respondent's ability to pay;</P> <P>(f) The effect on the respondent's ability to continue in business; and</P> <P>(g) Such other matters as justice may require.</P> </SECTION> <SECTION> <SECTNO>§ 209.121</SECTNO> <SUBJECT>Appeal.</SUBJECT> <P>(a) Any party aggrieved by a presiding officer's decision or order issued under § 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.</P> <P>(b) Prior to rendering a final determination on an appeal, the Administrator may remand the case for further proceedings before the hearing officer.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Criminal Penalties</HD> <SECTION> <SECTNO>§ 209.131</SECTNO> <SUBJECT>Criminal penalties generally.</SUBJECT> <P>A person who knowingly violates 49 U.S.C. 5104(b) or § 171.2(l) of this title or willfully or recklessly violates a requirement of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued thereunder shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both, except the maximum amount of imprisonment shall be 10 years in any case in which the violation involves the release of a hazardous material which results in death or bodily injury to any person.</P> <CITA>[71 FR 77295, Dec. 26, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.133</SECTNO> <SUBJECT>Referral for prosecution.</SUBJECT> <P>If an inspector, including a certified state inspector under part 212 of this chapter, or another employee of FRA becomes aware of a possible knowing violation of 49 U.S.C. 5104(b) or a willful or reckless violation of the Federal hazardous materials transportation law or a regulation issued under those laws for which FRA exercises enforcement responsibility, he or she shall report 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.</P> <CITA>[61 FR 38647, July 25, 1996, as amended at 71 FR 77295, Dec. 26, 2006]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Compliance Orders</HD> <SECTION> <SECTNO>§ 209.201</SECTNO> <SUBJECT>Compliance orders generally.</SUBJECT> <P>(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).</P> <P>(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.</P> <CITA>[61 FR 38647, July 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.203</SECTNO> <SUBJECT>Notice of investigation.</SUBJECT> <P>(a) FRA begins a compliance order proceeding by serving a notice of investigation on the respondent.</P> <P>(b) The notice of investigation contains:</P> <P>(1) A statement of the legal authority for the proceeding;</P> <P>(2) A statement of the factual allegations upon which the remedial action is being sought; and</P> <P>(3) A statement of the remedial action being sought in the form of a proposed compliance order.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="20"/> <SECTNO>§ 209.205</SECTNO> <SUBJECT>Reply.</SUBJECT> <P>(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 the time for filing for good cause shown.</P> <P>(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:</P> <P>(1) Opposed by the affidavit of an individual having personal knowledge of the subject matter;</P> <P>(2) Challenged as defective on its face together with a supporting explanation as to why it is believed to be defective; or</P> <P>(3) Otherwise actively put at issue through the submission of relevant evidence.</P> <P>(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.</P> <P>(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 § 209.211.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.207</SECTNO> <SUBJECT>Consent order.</SUBJECT> <P>(a) At any time before the issuance of an order under § 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.</P> <P>(b) An agreement submitted to the Administrator under this section must include:</P> <P>(1) A proposed compliance order suitable for the Administrator's signature;</P> <P>(2) An admission of all jurisdictional facts;</P> <P>(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</P> <P>(4) An acknowledgment that the notice of investigation may be used to construe the terms of the order.</P> </SECTION> <SECTION> <SECTNO>§ 209.209</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) When a respondent files a reply contesting allegations in a notice of investigation issued under § 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.</P> <P>(b) The presiding official may:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas as provided by § 209.7;</P> <P>(3) Adopt procedures for the submission of evidence;</P> <P>(4) Take or cause depositions to be taken;</P> <P>(5) Rule on offers of proof and receive relevant evidence;</P> <P>(6) Examine witnesses at the hearing;</P> <P>(7) Convene, recess, reconvene, ad- journ and otherwise regulate the course of the hearing;<PRTPAGE P="21"/> </P> <P>(8) Hold conferences for settlement, simplification of the issues or any other proper purpose; and</P> <P>(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 expedite the hearing or aid in the disposition of an issue raised therein.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.211</SECTNO> <SUBJECT>Presiding officer's decision.</SUBJECT> <P>(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.</P> <P>(b) A compliance order issued under this section is effective twenty (20) days from service on the respondent unless otherwise provided therein.</P> </SECTION> <SECTION> <SECTNO>§ 209.213</SECTNO> <SUBJECT>Appeal.</SUBJECT> <P>(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.</P> <P>(b) Prior to rendering a final determination on an appeal, the Administrator may remand the case for further proceedings before the hearing officer.</P> <P>(c) The filing of an appeal does not stay the effectiveness of a compliance order unless the Administrator expressly so provides.</P> </SECTION> <SECTION> <SECTNO>§ 209.215</SECTNO> <SUBJECT>Time limitation.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Disqualification Procedures</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 42907, Oct. 18, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 209.301</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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 the Federal railroad safety laws at 49 U.S.C. 20111(c).</P> <P>(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 § 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.</P> <P>(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.</P> <CITA>[54 FR 42907, Oct. 18, 1989, as amended at 74 FR 23334, May 19, 2009]</CITA> </SECTION> <SECTION> <PRTPAGE P="22"/> <SECTNO>§ 209.303</SECTNO> <SUBJECT>Coverage.</SUBJECT> <P>This subpart applies to the following individuals:</P> <P>(a) Railroad employees who are assigned to perform service subject to the Hours of Service Act (49 U.S.C. Chapt. 211) during a duty tour, whether or not the person has performed or is currently performing such service, and any person who performs such service.</P> <P>(b) Railroad employees or agents who:</P> <P>(1) Inspect, install, repair, or maintain track and roadbed;</P> <P>(2) Inspect, repair or maintain, locomotives, passenger cars, and freight cars;</P> <P>(3) Conduct training and testing of employees when the training or testing is required by the FRA's safety regulations; or</P> <P>(4) Perform service subject to the Transportation of Hazardous Materials laws (49 U.S.C. Ch. 51), or any regulation or order prescribed thereunder;</P> <P>(c) Railroad managers, supervisors, or agents when they:</P> <P>(1) Perform the safety-sensitive functions listed in paragraphs (a) and (b) of this section;</P> <P>(2) Supervise and otherwise direct the performance of the safety-sensitive functions listed in paragraphs (a) and (b) of this section; or</P> <P>(3) Are in a position to direct the commission of violations of any of the requirements of parts 213 through 241 of this title, or any of the requirements of 49 U.S.C. Ch. 51, or any regulation or order prescribed thereunder.</P> <CITA>[74 FR 23334, May 19, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.305</SECTNO> <SUBJECT>Notice of proposed disqualification.</SUBJECT> <P>(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 § 209.303.</P> <P>(b) The notice of proposed disqualification issued under this section shall contain:</P> <P>(1) A statement of the rule(s), regulation(s), order(s), or standard(s) that the respondent is alleged to have violated;</P> <P>(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;</P> <P>(3) A statement of the effective date, duration, and other conditions, if any, of the disqualification order;</P> <P>(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;</P> <P>(5) A statement of the respondent's right to make an informal response to the Chief Counsel;</P> <P>(6) A statement of the respondent's right to request a hearing and the procedures for requesting a hearing;</P> <P>(7) A statement of the respondent's right to counsel or other designated representative; and</P> <P>(8) Notice of the consequences of the respondent's failure to take any of the actions described in § 209.307(a).</P> <P>(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 § 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 § 209.319. Failure to furnish such evidence to respondent at or before the prehearing conference bars its introduction at the hearing.</P> <P>(d) The Chief Counsel shall provide a copy of the notice of proposed disqualification to the railroad that employs the respondent.</P> </SECTION> <SECTION> <SECTNO>§ 209.307</SECTNO> <SUBJECT>Reply.</SUBJECT> <P>(a) Within 30 days after receipt of the notice of proposed disqualification issued under § 209.305, the respondent shall reply in writing to the charges. The respondent may furnish affidavits and any other documentary evidence in <PRTPAGE P="23"/>support of the reply. Further, the respondent may elect to—</P> <P>(1) Stipulate to the charges and consent to the imposition of the disqualification order under the conditions set forth in the notice;</P> <P>(2) Make an informal response as provided in § 209.309; or</P> <P>(3) Request a hearing as provided in § 209.311.</P> <P>(b) The Chief Counsel may extend the reply period for good cause shown, provided the request for extension is served before the expiration of the period provided in paragraph (a) of this section.</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 209.309</SECTNO> <SUBJECT>Informal response.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) Dismiss all the charges and terminate the notice of proposed disqualification;</P> <P>(2) Dismiss some of the charges and mitigate the proposed disqualification;</P> <P>(3) Mitigate the proposed disqualification; or</P> <P>(4) Sustain the charges and proposed disqualification.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 209.311(a) <PRTPAGE P="24"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.311</SECTNO> <SUBJECT>Request for hearing.</SUBJECT> <P>(a) If the respondent elects to request a hearing, he or she must submit a written request within the time periods specified in § 209.307(a) or § 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:</P> <P>(1) The name, address, and telephone number of the respondent and of the respondent's designated representative, if any;</P> <P>(2) A specific response admitting, denying, or explaining each allegation of the notice of disqualification order.</P> <P>(3) A description of the claims and defenses to be raised by the respondent at the hearing; and</P> <P>(4) The signature of the respondent or the representative, if any.</P> <P>(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 § 209.321(a) of this subpart.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.313</SECTNO> <SUBJECT>Discovery.</SUBJECT> <P>(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.</P> <P>(b) Discovery may be obtained by requests for admission under § 209.6, requests for production of documentary or other tangible evidence under § 209.7, and depositions under § 209.8.</P> <P>(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 § 209.311.</P> <P>(d) Discovery shall be completed within 90 days after receipt of respondent's request for a hearing under § 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.</P> <P>(e) If a party fails to comply with a discovery order or an order to compel, the presiding officer may:</P> <P>(1) Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order;</P> <P>(2) Prohibit the party failing to comply with such order from introducing evidence relating to the information sought;</P> <P>(3) Draw an inference in favor of the requesting party with regard to the information sought; and</P> <P>(4) Permit the requesting party to introduce secondary evidence concerning the information sought.</P> </SECTION> <SECTION> <SECTNO>§ 209.315</SECTNO> <SUBJECT>Subpoenas.</SUBJECT> <P>Once a notice of proposed disqualification has been issued in a particular matter, only the presiding officer may <PRTPAGE P="25"/>issue, deny, quash, or modify subpoenas under this subpart in accordance with § 209.7.</P> </SECTION> <SECTION> <SECTNO>§ 209.317</SECTNO> <SUBJECT>Official record.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 209.319</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> <P>(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:</P> <P>(1) Formulation and simplification of the issues;</P> <P>(2) Stipulations, admissions of fact, and admissions of the contents and authenticity of documents;</P> <P>(3) Advance rulings from the presiding officer on the admissibility of evidence;</P> <P>(4) Identification of witnesses, including the scope of their testimony, and of hearing exhibits;</P> <P>(5) Possibility of settlement; and</P> <P>(6) Such other matters as the presiding officer deems necessary to expedite the disposition of the proceeding.</P> <P>(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.</P> <P>(c) The prehearing conference shall be held within 150 days after receipt of respondent's request for a hearing under § 209.311.</P> </SECTION> <SECTION> <SECTNO>§ 209.321</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) Upon receipt of a hearing request complying with § 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.</P> <P>(b) The presiding officer may:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas as provided by § 209.7;</P> <P>(3) Adopt procedures for the submission of evidence in written form;</P> <P>(4) Take or cause depositions to be taken as provided in § 209.8;</P> <P>(5) Rule on offers of proof and receive relevant evidence;</P> <P>(6) Examine witnesses at the hearing;</P> <P>(7) Convene, recess, reconvene, adjourn, and otherwise regulate the course of the hearing;</P> <P>(8) Hold conferences for settlement, simplification of the issues, or any other proper purpose; and</P> <P>(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.</P> <P>(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 § 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.</P> <P>(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 <PRTPAGE P="26"/>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.</P> <P>(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 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.</P> <CITA>[54 FR 42907, Oct. 18, 1989, as amended at 60 FR 53136, Oct. 12, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.323</SECTNO> <SUBJECT>Initial decision.</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> <P>(c) Each initial decision shall contain:</P> <P>(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;</P> <P>(2) An order, as described in paragraph (b) of this section;</P> <P>(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;</P> <P>(4) The date upon which the decision will become final, as prescribed in § 209.325; and</P> <P>(5) Notice of the parties' appeal rights, as prescribed in § 209.327.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.325</SECTNO> <SUBJECT>Finality of decision.</SUBJECT> <P>(a) The initial decision of the presiding officer shall become final 35 days after issuance. Such decisions are not precedent.</P> <P>(b) <E T="03">Exception.</E> The initial decision shall not become final if, within 35 days after issuance of the decision, any party files an appeal under § 209.327. The timely filing of such an appeal shall stay the order in the initial decision.</P> </SECTION> <SECTION> <SECTNO>§ 209.327</SECTNO> <SUBJECT>Appeal.</SUBJECT> <P>(a) Any party aggrieved by an initial decision issued under § 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, 1200 New Jersey Avenue, SE., 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.</P> <P>(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.</P> <P>(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 (a) or (b) of this section.</P> <P>(d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator's own initiative or upon written motion by <PRTPAGE P="27"/>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.</P> <P>(e) The Administrator may affirm, reverse, alter, or modify the decision of the presiding officer, or may remand the case for further proceedings before the presiding officer. The Administrator shall inform the parties and the presiding officer of his or her decision.</P> <P>(f) The decision of the Administrator is final, constitutes final agency action, and is not subject to further administrative review.</P> <CITA>[54 FR 42907, Oct. 18, 1989, as amended at 74 FR 25171, May 27, 2009; 74 FR 23334, May 19, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.329</SECTNO> <SUBJECT>Assessment considerations.</SUBJECT> <P>(a) Proof of a respondent's willful violation of one of the requirements of parts 213 through 241 (excluding parts 225, 228, and 233) of this title, or of one of the requirements of 49 U.S.C. Chapt. 51, or any regulation or order prescribed thereunder, establishes a rebuttable presumption that the respondent is unfit to perform the safety-sensitive functions described in § 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.</P> <P>(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 §§ 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:</P> <P>(1) The nature and circumstances of the violation, including whether the violation was intentional, technical, or inadvertent, was committed willfully, or was frequently repeated;</P> <P>(2) The adverse impact or the potentially adverse impact of the violation on the health and safety of persons and the safety of property;</P> <P>(3) The employing railroad's operating rules, safety rules, and repair and maintenance standards;</P> <P>(4) Repair and maintenance standards adopted by the railroad industry;</P> <P>(5) The consistency of the conditions of the proposed disqualification with disqualification orders issued against other employees of the employing railroad for the same or similar violations;</P> <P>(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;</P> <P>(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;</P> <P>(8) The civil penalty scheduled for the violation of the safety regulation in question;</P> <P>(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</P> <P>(10) Such other factors as may be warranted in the public interest.</P> <CITA>[74 FR 23334, May 19, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.331</SECTNO> <SUBJECT>Enforcement of disqualification order.</SUBJECT> <P>(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 § 209.303.</P> <P>(b) A railroad that is considering hiring an individual to perform the safety-sensitive functions described in § 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.</P> <P>(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 <PRTPAGE P="28"/>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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 209.333</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>(a) An individual subject to a disqualification order shall not work for any railroad in any manner inconsistent with the order.</P> <P>(b) A railroad shall not employ any individual subject to a disqualification order in any manner inconsistent with the order.</P> </SECTION> <SECTION> <SECTNO>§ 209.335</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(a) Any individual who violates § 209.331(c) or § 209.333(a) may be permanently disqualified from performing the safety-sensitive functions described in § 209.303. Any individual who willfully violates § 209.331(c) or § 209.333(a) may also be assessed a civil penalty of at least $1,000 and not more than $5,000 per violation.</P> <P>(b) Any railroad that violates § 209.331 (a) or (b) or § 209.333(b) may be assessed a civil penalty of at least $5,000 and not more than $11,000 per violation.</P> <P>(c) Each day a violation continues shall constitute a separate offense.</P> <CITA>[54 FR 42907, Oct. 18, 1989, as amended at 63 FR 11619, Mar. 10, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.337</SECTNO> <SUBJECT>Information collection.</SUBJECT> <P>The information collection requirements in § 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.</P> <CITA>[56 FR 66791, Dec. 26, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Reporting of Remedial Actions</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 43676, Aug. 24, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 209.401</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.403</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 209.405</SECTNO> <SUBJECT>Reporting of remedial actions.</SUBJECT> <P>(a) Except as provided in § 209.407, each railroad that has received written notification on Form FRA F 6180.96 <PRTPAGE P="29"/>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.</P> <P>(1) <E T="03">Date of receipt of notification.</E> 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.</P> <P>(2) <E T="03">Completion of Form FRA F 6180.96, including selection of railroad remedial action code.</E> 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.</P> <P>(3) <E T="03">Submission of Form FRA F 6180.96.</E> The railroad shall return the form by first class mail to the FRA Safety Inspector whose name and address appear on the form.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 209.407</SECTNO> <SUBJECT>Delayed reports.</SUBJECT> <P>(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—</P> <P>(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:</P> <P>(i) A photocopy of both sides of the Form FRA F 6180.96 on which the railroad received notification; or</P> <P>(ii) The following information:</P> <P>(A) The inspection report number;</P> <P>(B) The inspection date; and</P> <P>(C) The item number; and</P> <P>(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.</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 209.409</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>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 $650 and not more than $25,000 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 $100,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. A person may also be subject to <PRTPAGE P="30"/>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.</P> <CITA>[59 FR 43676, Aug. 24, 1994, as amended at 63 FR 11619, Mar. 10, 1998; 69 FR 30592, May 28, 2004; 72 FR 51196, Sept. 6, 2007; 74 FR 79700, Dec. 30, 2008]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions Pursuant to 49 CFR § 172.820</HD> <SECTION> <SECTNO>§ 209.501</SECTNO> <SUBJECT>Review of rail transportation safety and security route analysis.</SUBJECT> <P>(a) <E T="03">Review of route analysis.</E> If the Associate Administrator for Safety determines that a railroad carrier's route selection, analysis and documentation pursuant to § 172.820 of chapter I of this title is deficient and fails to establish that the route chosen by the carrier poses the least overall safety and security risk, the Associate Administrator shall issue a written notice of review (“Notice”) to the railroad carrier. The Notice shall specifically address each deficiency found in the railroad carrier's route analysis. The Notice may also include suggested mitigation measures that the railroad carrier may take to remedy the deficiencies found, including selection of an alternative commercially feasible routing.</P> <P>(b) <E T="03">Conference to resolve deficiencies.</E> After issuing the Notice, the Associate Administrator conferences with the railroad carrier for a thirty (30)-day period, or such longer period as provided by the Associate Administrator, to resolve the deficiencies identified in the Notice. The Associate Administrator keeps a record of all written correspondence with the railroad carrier and a summary of each meeting and telephone conversation with the railroad carrier that pertains to the Notice.</P> <P>(c) <E T="03">Consultation with and comment from other agencies.</E> If, after the close of the conference period, the Associate Administrator concludes that the issues identified have not been satisfactorily resolved, the Associate Administrator:</P> <P>(1) Consults with the Transportation Security Administration (“TSA”) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) regarding the safety and security of the route proposed by the railroad carrier and any alternative route(s) over which the carrier is authorized to operate that are being considered by the Associate Administrator and prepares a written summary of the recommendations from TSA and PHMSA;</P> <P>(2) Obtains the comments of the Surface Transportation Board (“STB”) regarding whether the alternative route(s) being considered by the Associate Administrator would be commercially practicable; and</P> <P>(3) Fully considers the input of TSA, PHMSA and the STB and renders a decision pursuant to paragraph (d) of this section which shall be administratively final.</P> <P>(d) <E T="03">Decision.</E> (1) If the Associate Administrator finds that the route analysis and documentation provided by the railroad carrier are sufficient to support the route selected by the carrier or that valid issues of commercial practicability preclude an alternative route, the Associate Administrator concludes the review without further action and so notifies the railroad carrier in writing.</P> <P>(2) If the Associate Administrator concludes that the railroad carrier's route analysis does not support the railroad carrier's original selected route, that safety and security considerations establish a significant preference for an alternative route, and that the alternative route is commercially practicable, the Associate Administrator issues a second written notice (2nd Notice) to the railroad carrier that:</P> <P>(i) Specifically identifies deficiencies found in the railroad carrier's route analysis, including a clear description of the risks on the selected route that have not been satisfactorily mitigated;</P> <P>(ii) Explains why the available data and reasonable inferences indicate that a commercially practicable alternative route poses fewer overall safety and security risks than the route selected by the railroad carrier; and</P> <P>(iii) Directs the railroad carrier, beginning within twenty (20) days of the issuance date of the 2nd Notice on the railroad carrier, to temporarily use the <PRTPAGE P="31"/>alternative route that the Associate Administrator determines poses the least overall safety and security risk until such time as the railroad carrier has adequately mitigated the risks identified by the Associate Administrator on the original route selected by the carrier.</P> <P>(e) <E T="03">Actions following 2nd Notice and re-routing directive.</E> When issuing a 2nd Notice that directs the use of an alternative route, the Associate Administrator shall make available to the railroad carrier the administrative record relied upon by the Associate Administrator in issuing the 2nd Notice, including the recommendations of TSA, PHMSA and STB to FRA made pursuant to paragraphs (c)(1) and (2) of this section. Within twenty (20) days of the issuance date of the Associate Administrator's 2nd Notice, the railroad carrier may:</P> <P>(1) Comply with the Associate Administrator's directive to use an alternative route while the carrier works to address the deficiencies in its route analysis identified by the Associate Administrator; or</P> <P>(2) File a petition for judicial review of the Associate Administrator's 2nd Notice, pursuant to paragraph (g) of this section.</P> <P>(f) <E T="03">Review and decision by Associate Administrator on revised route analysis submitted in response to 2nd Notice.</E> Upon submission of a revised route analysis containing an adequate showing by the railroad carrier that its original selected route poses the least overall safety and security risk, the Associate Administrator notifies the carrier in writing that the carrier may use its original selected route.</P> <P>(g) <E T="03">Appellate review.</E> If a railroad carrier is aggrieved by final agency action, it may petition for review of the final decision in the appropriate United States court of appeals as provided in 49 U.S.C. 5127. The filing of the petition for review does not stay or modify the force and effect of the final agency action unless the Associate Administrator or the Court orders otherwise.</P> <P>(h) <E T="03">Time.</E> In computing any period of time prescribed by this part, the day of any act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days.</P> <CITA>[73 FR 72199, Nov. 26, 2008]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 209, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 209—Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws</HD> <P>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.</P> <HD SOURCE="HD1">The Civil Penalty Process</HD> <P>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.<PRTPAGE P="32"/> </P> <P>In determining which instances of noncompliance merit penalty recommendations, the inspector considers:</P> <P>(1) The inherent seriousness of the condition or action;</P> <P>(2) The kind and degree of potential safety hazard the condition or action poses in light of the immediate factual situation;</P> <P>(3) Any actual harm to persons or property already caused by the condition or action;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(7) Such other factors as the immediate circumstances make relevant.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <HD SOURCE="HD1">Civil Penalties Against Individuals</HD> <P>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.”</P> <P>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 <PRTPAGE P="33"/>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.</P> <P>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.</P> <P>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. <E T="03">See Trans World Airlines, Inc.</E> v. <E T="03">Thurston,</E> 469 U.S. 111 (1985); <E T="03">Brock</E> v. <E T="03">Morello Bros. Constr., Inc.</E> 809 F.2d 161 (1st Cir. 1987); and <E T="03">Donovan</E> v. <E T="03">Williams Enterprises, Inc.,</E> 744 F.2d 170 (D.C. Cir. 1984).</P> <P>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. <E T="03">See Brock, supra,</E> 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.</P> <P>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.</P> <P>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:</P> <P>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.</P> <P>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:</P> <P>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 <PRTPAGE P="34"/>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. </P> <FP>133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator Exon).</FP> <P>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.</P> <P>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.</P> <P>However, the absence of such a protest will not be viewed as warranting a presumption of willfulness on the part of the employee who might have communicated it. The statute says that a person who communicates such a protest shall be deemed not to have acted willfully; it does not say that a person who does not communicate such a protest will be deemed to have acted willfully. FRA would have to prove from all the pertinent facts that the employee willfully violated the law. Moreover, the absence of a protest would not be dispositive with regard to the willfulness of a supervisor who issued a direct order to violate the law. That is, the supervisor who allegedly issued an order to violate will not be able to rely on the employee's failure to protest the order as a complete defense. Rather, the issue will be whether, in view of all pertinent facts, the supervisor intentionally and voluntarily ordered the employee to commit an act that the supervisor knew would violate the law or acted with reckless disregard for whether it violated the law.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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 <PRTPAGE P="35"/>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.</P> <HD SOURCE="HD1">Penalty Schedules; Assessment of Maximum Penalties</HD> <P>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.</P> <P>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.</P> <P>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 $650 to $25,000 range in separate columns, the first for ordinary violations, the second for willful violations (whether committed by railroads or individuals). In one instance—part 231—the schedule refers to sections of the relevant FRA defect code rather than to sections of the CFR text. Of course, the defect code, which is simply a reorganized version of the CFR text used by FRA to facilitate computerization of inspection data, is substantively identical to the CFR text.</P> <P>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:</P> <P>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).</P> <P>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 $100,000 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 $25,000 and up to $100,000 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.</P> <HD SOURCE="HD1">The Extent And Exercise Of FRA's Safety Jurisdiction</HD> <P>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:</P> <P>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.<PRTPAGE P="36"/> </P> <P>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:</P> <P>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. </P> <FP>H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970).</FP> <P>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.</P> <P>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.</P> <P>For example, all of FRA's regulations exclude from their reach railroads whose entire operations are confined to an industrial installation (i.e., “plant railroads”), such as those in steel mills that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1) (accident reporting regulations). Some rules exclude passenger operations that are not part of the general railroad system (such as some tourist railroads) only if they meet the definition of “insular.” E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade crossing signal safety). Other regulations exclude not only plant railroads but all other railroads that are not operated as a part of, or over the lines of, the general railroad system of transportation. E.g., 49 CFR 214.3 (railroad workplace safety).</P> <P>By “general railroad system of transportation,” FRA refers to the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Much of this network is interconnected, so that a rail vehicle can travel across the nation without leaving the system. However, mere physical connection to the system does not bring trackage within it. For example, trackage within an industrial installation that is connected to the network only by a switch for the receipt of shipments over the system is not a part of the system.</P> <P>Moreover, portions of the network may lack a physical connection but still be part of the system by virtue of the nature of operations that take place there. For example, the Alaska Railroad is not physically connected to the rest of the general system but is part of it. The Alaska Railroad exchanges freight cars with other railroads by car float and exchanges passengers with interstate carriers as part of the general flow of interstate commerce. Similarly, an intercity high speed rail system with its own right of way would be part of the general system although not physically connected to it. The presence on a rail line of any of these types of railroad operations is a sure indication that such trackage is part of the general system: the movement of freight cars in trains outside the confines of an industrial installation, the movement of intercity passenger trains, or the movement of commuter trains within a metropolitan or suburban area. Urban rapid transit operations are ordinarily not part of the general system, but may have sufficient connections to that system to warrant exercise of FRA's jurisdiction (see discussion of passenger operations, below). Tourist railroad operations are not inherently part of the general system and, unless operated over the lines of that system, are subject to few of FRA's regulations.</P> <P>The boundaries of the general system are not static. For example, a portion of the system may be purchased for the exclusive use of a single private entity and all connections, save perhaps a switch for receiving shipments, severed. Depending on the nature of the operations, this could remove that portion from the general system. The system may also grow, as with the establishment of intercity service on a brand new line. However, the same trackage cannot be both inside and outside of the general system depending upon the time of day. If trackage is part of the general system, restricting a certain type of traffic over that trackage to a <PRTPAGE P="37"/>particular portion of the day does not change the nature of the line—it remains the general system.</P> <P>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.</P> <P>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).</P> <P>FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. There are two exceptions: (1) operations of less than 24-inch gage (which, historically, have never been considered railroads under the Federal railroad safety laws); and (2) operations that are off the general system and “insular” (defined below).</P> <P>Insularity is an issue only with regard to tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist operation to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public'except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser'would be affected by the operation. A tourist operation will not be considered insular if one or more of the following exists on its line:</P> <P>•A public highway-rail crossing that is in use;</P> <P>•An at-grade rail crossing that is in use;</P> <P>•A bridge over a public road or waters used for commercial navigation; or</P> <P>•A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.</P> <P>When tourist operations are conducted on the general system, FRA exercises jurisdiction over them, and all of FRA's pertinent regulations apply to those operations unless a waiver is granted or a rule specifically excepts such operations (e.g., the passenger equipment safety standards contain an exception for these operations, 49 CFR 238.3(c)(3), even if conducted on the general system). When a tourist operation is conducted only on track used exclusively for that purpose it is not part of the general system. The fact that a tourist operation has a switch that connects it to the general system does not make the tourist operation part of the general system if the tourist trains do not enter the general system and the general system railroad does not use the tourist operation's trackage for any purpose other than delivering or picking up shipments to or from the tourist operation itself.</P> <P>If a tourist operation off the general system is insular, FRA does not exercise jurisdiction over it, and none of FRA's rules apply. If, however, such an operation is not insular, FRA exercises jurisdiction over the operation, and some of FRA's rules (i.e., those that specifically apply beyond the general system to such operations) will apply. For example, FRA's rules on accident reporting, steam locomotives, and grade crossing signals apply to these non-insular tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal railroad safety statutes themselves.</P> <P>In drafting safety rules, FRA has a specific obligation to consider financial, operational, or other factors that may be unique to tourist operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider those factors in determining whether any particular rule will apply to tourist operations. Therefore, although FRA asserts jurisdiction quite broadly over these operations, we work to ensure that the rules we issue are appropriate to their somewhat special circumstances.<PRTPAGE P="38"/> </P> <P>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.</P> <HD SOURCE="HD1">FRA's Policy on Jurisdiction Over Passenger Operations</HD> <P>Under the Federal railroad safety laws, FRA has jurisdiction over all railroads except “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.” 49 U.S.C. 20102. Within the limits imposed by this authority, FRA exercises jurisdiction over all railroad passenger operations, regardless of the equipment they use, unless FRA has specifically stated below an exception to its exercise of jurisdiction for a particular type of operation. This policy is stated in general terms and does not change the reach of any particular regulation under its applicability section. That is, while FRA may generally assert jurisdiction over a type of operation here, a particular regulation may exclude that kind of operation from its reach. Therefore, this statement should be read in conjunction with the applicability sections of all of FRA's regulations.</P> <HD SOURCE="HD1">Intercity Passenger Operations</HD> <P>FRA exercises jurisdiction over all intercity passenger operations. Because of the nature of the service they provide, standard gage intercity operations are all considered part of the general railroad system, even if not physically connected to other portions of the system. Other intercity passenger operations that are not standard gage (such as a magnetic levitation system) are within FRA's jurisdiction even though not part of the general system.</P> <HD SOURCE="HD1">Commuter Operations</HD> <P>FRA exercises jurisdiction over all commuter operations. Congress apparently intended that FRA do so when it enacted the Federal Railroad Safety Act of 1970, and made that intention very clear in the 1982 and 1988 amendments to that act. FRA has attempted to follow that mandate consistently. A commuter system's connection to other railroads is not relevant under the rail safety statutes. In fact, FRA considers commuter railroads to be part of the general railroad system regardless of such connections.</P> <P>FRA will presume that an operation is a commuter railroad if there is a statutory determination that Congress considers a particular service to be commuter rail. For example, in the Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter authorities. If that presumption does not apply, and the operation does not meet the description of a system that is presumptively urban rapid transit (see below), FRA will determine whether a system is commuter or urban rapid transit by analyzing all of the system's pertinent facts. FRA is likely to consider an operation to be a commuter railroad if:</P> <P>•The system serves an urban area, its suburbs, and more distant outlying communities in the greater metropolitan area,</P> <P>•The system's primary function is moving passengers back and forth between their places of employment in the city and their homes within the greater metropolitan area, and moving passengers from station to station within the immediate urban area is, at most, an incidental function, and</P> <P>•The vast bulk of the system's trains are operated in the morning and evening peak periods with few trains at other hours.</P> <P>Examples of commuter railroads include Metra and the Northern Indiana Commuter Transportation District in the Chicago area; Virginia Railway Express and MARC in the Washington area; and Metro-North, the Long Island Railroad, New Jersey Transit, and the Port Authority Trans Hudson (PATH) in the New York area.</P> <HD SOURCE="HD1">Other Short Haul Passenger Service</HD> <P>The federal railroad safety statutes give FRA authority over “commuter or other short-haul railroad passenger service in a metropolitan or suburban area.” 49 U.S.C. 20102. This means that, in addition to commuter service, there are other short-haul types of service that Congress intended that FRA reach. For example, a passenger system designed primarily to move intercity travelers from a downtown area to an airport, or from an airport to a resort area, would be one that does not have the transportation of commuters within a metropolitan area as its primary purpose. FRA would ordinarily exercise jurisdiction over such a system as “other short-haul service” unless it meets the definition of urban rapid transit and is not connected in a significant way to the general system.</P> <HD SOURCE="HD1">Urban Rapid Transit Operations</HD> <P>One type of short-haul passenger service requires special treatment under the safety <PRTPAGE P="39"/>statutes: “rapid transit operations in an urban area.” Only these operations are excluded from FRA's jurisdiction, and only if they are “not connected to the general railroad system.” FRA will presume that an operation is an urban rapid transit operation if the system is not presumptively a commuter railroad (see discussion above) the operation is a subway or elevated operation with its own track system on which no other railroad may operate, has no highway-rail crossings at grade, operates within an urban area, and moves passengers from station to station within the urban area as one of its major functions.</P> <P>Where neither the commuter railroad nor urban rapid transit presumptions applies, FRA will look at all of the facts pertinent to a particular operation to determine its proper characterization. FRA is likely to consider an operation to be urban rapid transit if:</P> <P>•The operation serves an urban area (and may also serve its suburbs),</P> <P>•Moving passengers from station to station within the urban boundaries is a major function of the system and there are multiple station stops within the city for that purpose (such an operation could still have the transportation of commuters as one of its major functions without being considered a commuter railroad), and</P> <P>•The system provides frequent train service even outside the morning and evening peak periods.</P> <P>Examples of urban rapid transit systems include the Metro in the Washington, D.C. area, CTA in Chicago, and the subway systems in New York, Boston, and Philadelphia. The type of equipment used by such a system is not determinative of its status. However, the kinds of vehicles ordinarily associated with street railways, trolleys, subways, and elevated railways are the types of vehicles most often used for urban rapid transit operations.</P> <P>FRA can exercise jurisdiction over a rapid transit operation only if it is connected to the general railroad system, but need not exercise jurisdiction over every such operation that is so connected. FRA is aware of several different ways that rapid transit operations can be connected to the general system. Our policy on the exercise of jurisdiction will depend upon the nature of the connection(s). In general, a connection that involves operation of transit equipment as a part of, or over the lines of, the general system will trigger FRA's exercise of jurisdiction. Below, we review some of the more common types of connections and their effect on the agency's exercise of jurisdiction. This is not meant to be an exhaustive list of connections.</P> <HD SOURCE="HD1">Rapid Transit Connections Sufficient To Trigger FRA's Exercise of Jurisdiction</HD> <P>Certain types of connections to the general railroad system will cause FRA to exercise jurisdiction over the rapid transit line <E T="03">to the extent it is connected.</E> FRA will exercise jurisdiction over the portion of a rapid transit operation that is conducted as a part of or over the lines of the general system. For example, rapid transit operations are conducted on the lines of the general system where the rapid transit operation and other railroad use the same track. FRA will exercise its jurisdiction over the operations conducted on the general system. In situations involving joint use of the same track, it does not matter that the rapid transit operation occupies the track only at times when the freight, commuter, or intercity passenger railroad that shares the track is not operating. While such time separation could provide the basis for waiver of certain of FRA's rules (see 49 CFR part 211), it does not mean that FRA will not exercise jurisdiction. However, FRA will exercise jurisdiction over only the portions of the rapid transit operation that are conducted on the general system. For example, a rapid transit line that operates over the general system for a portion of its length but has significant portions of street railway that are not used by conventional railroads would be subject to FRA's rules only with respect to the general system portion. The remaining portions would not be subject to FRA's rules. If the non-general system portions of the rapid transit line are considered a “rail fixed guideway system” under 49 CFR Part 659, those rules, issued by the Federal Transit Administration (FTA), would apply to them.</P> <P>Another connection to the general system sufficient to warrant FRA's exercise of jurisdiction is a railroad crossing at grade where the rapid transit operation and other railroad cross each other's tracks. In this situation, FRA will exercise its jurisdiction sufficiently to assure safe operations over the at-grade railroad crossing. FRA will also exercise jurisdiction to a limited extent over a rapid transit operation that, while not operated on the same tracks as the conventional railroad, is connected to the general system by virtue of operating in a shared right-of-way involving joint control of trains. For example, if a rapid transit line and freight railroad were to operate over a movable bridge and were subject to the same authority concerning its use (e.g., the same tower operator controls trains of both operations), FRA will exercise jurisdiction in a manner sufficient to ensure safety at this point of connection. Also, where transit operations share highway-rail grade crossings with conventional railroads, FRA expects both systems to observe its signal rules. For example, FRA expects both railroads to observe the provision <PRTPAGE P="40"/>of its rule on grade crossing signals that requires prompt reports of warning system malfunctions. See 49 CFR part 234. FRA believes these connections present sufficient intermingling of the rapid transit and general system operations to pose significant hazards to one or both operations and, in the case of highway-rail grade crossings, to the motoring public. The safety of highway users of highway-rail grade crossings can best be protected if they get the same signals concerning the presence of any rail vehicles at the crossing and if they can react the same way to all rail vehicles.</P> <HD SOURCE="HD1">Rapid Transit Connections Not Sufficient To Trigger FRA's Exercise of Jurisdiction</HD> <P>Although FRA could exercise jurisdiction over a rapid transit operation based on any connection it has to the general railroad system, FRA believes there are certain connections that are too minimal to warrant the exercise of its jurisdiction. For example, a rapid transit system that has a switch for receiving shipments from the general system railroad is not one over which FRA would assert jurisdiction. This assumes that the switch is used only for that purpose. In that case, any entry onto the rapid transit line by the freight railroad would be for a very short distance and solely for the purpose of dropping off or picking up cars. In this situation, the rapid transit line is in the same situation as any shipper or consignee; without this sort of connection, it cannot receive or offer goods by rail.</P> <P>Mere use of a common right-of-way or corridor in which the conventional railroad and rapid transit operation do not share any means of train control, have a rail crossing at grade, or operate over the same highway-rail grade crossings would not trigger FRA's exercise of jurisdiction. In this context, the presence of intrusion detection devices to alert one or both carriers to incursions by the other one would not be considered a means of common train control. These common rights of way are often designed so that the two systems function completely independently of each other. FRA and FTA will coordinate with rapid transit agencies and railroads wherever there are concerns about sufficient intrusion detection and related safety measures designed to avoid a collision between rapid transit trains and conventional equipment.</P> <P>Where these very minimal connections exist, FRA will not exercise jurisdiction unless and until an emergency situation arises involving such a connection, which is a very unlikely event. However, if such a system is properly considered a rail fixed guideway system, FTA's rules (49 CFR part 659) will apply to it.</P> <HD SOURCE="HD1">Coordination of the FRA and FTA Programs</HD> <P>FTA's rules on rail fixed guideway systems (49 CFR part 659) apply to any rapid transit systems or portions thereof not subject to FRA's rules. On rapid transit systems that are not sufficiently connected to the general railroad system to warrant FRA's exercise of jurisdiction (as explained above), FTA's rules will apply exclusively. On those rapid transit systems that are connected to the general system in such a way as warrant exercise of FRA's jurisdiction, only those portions of the rapid transit system that are connected to the general system will generally be subject to FRA's rules.</P> <P>A rapid transit railroad may apply to FRA for a waiver of any FRA regulations. See 49 CFR part 211. FRA will seek FTA's views whenever a rapid transit operation petitions FRA for a waiver of its safety rules. In granting or denying any such waiver, FRA will make clear whether its rules do not apply to any segments of the operation so that it is clear where FTA's rules do apply.</P> <HD SOURCE="HD1">Extraordinary Remedies</HD> <P>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.</P> <P>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.</P> <P>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.</P> <P>Criminal penalties are available for knowing violations of 49 U.S.C. 5104(b), or for willful or reckless violations of the Federal hazardous materials transportation law or a <PRTPAGE P="41"/>regulation issued under that law. See 49 U.S.C. Chapter 51, and 49 CFR 209.131, 133. The Accident Reports Act, 45 U.S.C. 39, also contains criminal penalties.</P> <P>Perhaps FRA's most sweeping enforcement tool is its authority to issue emergency safety orders “where an unsafe condition or practice, or a combination of unsafe conditions or practices, or both, create an emergency situation involving a hazard of death or injury to persons * * *” 45 U.S.C. 432(a). After its issuance, such an order may be reviewed in a trial-type hearing. See 49 CFR 211.47 and 216.21 through 216.27. The emergency order authority is unique because it can be used to address unsafe conditions and practices whether or not they contravene an existing regulatory or statutory requirement. Given its extraordinary nature, FRA has used the emergency order authority sparingly.</P> <CITA>[53 FR 52920, Dec. 29, 1988, as amended at 63 FR 11619, Mar. 10, 1998; 64 FR 62864, Nov. 17, 1999; 65 FR 42544, July 10, 2000; 69 FR 30592, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 72 FR 51196, Sept. 6, 2007; 73 FR 79701, Dec. 30, 2008]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 209, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 209—Federal Railroad Administration Guidelines for Initial Hazardous Materials Assessments</HD> <P>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 of the various violations routinely encountered by FRA inspectors on a scale of $250 to $55,000, except the maximum civil penalty is $110,000 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property, and a minimum $450 penalty applies to a violation related to training. (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 §§ 172.200-.203. <E T="03">All</E> penalties in these guidelines are subject to change depending upon the circumstances of the particular case. The general duty sections, for example §§ 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.</P> <P>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, <E T="03">any</E> 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 Federal hazardous materials transportation law, an order issued thereunder, the Hazardous Materials Regulations or a special permit, approval, or order issued under those regulations results in death, serious illness or severe injury to any person, or substantial destruction of property, a maximum penalty of at least $50,000 and up to and including $100,000 shall always be assessed initially.</P> <P>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 $50,000 for each violation, and up to $100,000 for any violation resulting in death, serious illness or severe injury to any person, or substantial destruction of property, at any time prior to issuance of an order. FRA periodically makes minor updates and revisions to these guidelines, and the most current version may be found on FRA's Web site at <E T="03">http://www.fra.dot.gov.</E> <PRTPAGE P="42"/> </P> <GPOTABLE CDEF="s25,r100,xs36" COLS="3" OPTS="L2"> <TTITLE>Civil Penalty Assessment Guidelines</TTITLE> <TDESC>[As of December 26, 2006]</TDESC> <BOXHD> <CHED H="1">Emergency<LI>orders</LI> </CHED> <CHED H="1"/> <CHED H="1">Guideline amount <SU>1</SU> </CHED> </BOXHD> <ROW> <ENT I="01">EO16</ENT> <ENT>Penalties for violations of EO16 vary depending on the circumstances</ENT> <ENT>Varies.</ENT> </ROW> <ROW> <ENT I="01">EO17</ENT> <ENT>Penalties for violations of EO17 vary depending on the circumstances</ENT> <ENT>Varies.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to file annual report</ENT> <ENT>$5,000.</ENT> </ROW> <ROW> <ENT I="01">EO23</ENT> <ENT>Penalties for violations of EO23 vary depending on the circumstances</ENT> <ENT>Varies.</ENT> </ROW> <TNOTE> <SU>1</SU> Any person who violates an emergency order issued under the authority of 49 U.S.C. Ch. 201 is subject to a civil penalty of at least $650 and not more than $25,000 per violation, except that 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 a death or injury, a penalty not to exceed $100,000 per violation may be assessed. Each day that the violation continues is a separate offense. 49 U.S.C. 21301; 28 U.S.C. 2461, note.</TNOTE> </GPOTABLE> <GPOTABLE CDEF="xs100,r100,xs100" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">49 CFR section</CHED> <CHED H="1">Description</CHED> <CHED H="1">Guideline amount <SU>2</SU> </CHED> </BOXHD> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">107.608</ENT> <ENT>Failure to register or to renew registration. (Note: registration—or renewal—is mitigation.)</ENT> <ENT>1,500.</ENT> </ROW> <ROW> <ENT I="01">107.620(d)</ENT> <ENT>Failure to show records on proper request</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>Deliberate attempt to hide records-considerable aggravation possible</ENT> <ENT>Varies.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 171—GENERAL REGULATIONS</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">171.2(a), (b), (c), (e), (f)</ENT> <ENT>General duty sections—may be cited in support of another, more specific citation to the actual regulatory section violated</ENT> </ROW> <ROW> <ENT I="01">171.2(d)</ENT> <ENT>Offering or accepting a hazardous material (hazmat or HM) without being registered</ENT> <ENT>1,500.</ENT> </ROW> <ROW> <ENT I="01">171.2(g)</ENT> <ENT>Representing (marking, certifying, selling, or offering) a packaging as meeting regulatory specification when it does not</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="01">171.2(i)</ENT> <ENT>Certifying that a hazardous material is offered for transportation in commerce in accordance with the regulations (packaged, marked, labeled, etc.) when it is not. A more specific citation to the actual underlying regulation violated should be used instead of this section, or accompanying this section, if possible</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="01">171.2(j)</ENT> <ENT>Representing (by marking or otherwise) that a container or package for transportation of a hazardous material is safe, certified, or in compliance with the regulations when it is not</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="01">171.2(k)</ENT> <ENT O="xl">Representing, marking, etc. for the presence of HM when no HM is present. (Mitigation required for shipments smaller than a carload, e.g., single drum penalty is $1,000.)</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="01">171.2(l)</ENT> <ENT>Tampering with (altering, removing, defacing, or destroying) any marking, label, placard, or description on a document required by hazmat law or regulations; unlawfully tampering with a package, container, motor vehicle, rail car, aircraft, or vessel used for the transportation of hazardous materials</ENT> <ENT>Varies—considerable aggravation possible.</ENT> </ROW> <ROW> <ENT I="01">171.2(m)</ENT> <ENT>Falsifying or altering an exemption, approval, registration, or other grant of authority issued under hazmat regulations. Offering or transporting a hazmat under an altered exemption, approval, registration, or other grant of authority without the consent of the issuing authority. Representing, marking, certifying, or selling a packaging or container under an altered exemption, approval, registration, or other grant of authority</ENT> <ENT>Varies—considerable aggravation possible.</ENT> </ROW> <ROW> <ENT I="01">171.12</ENT> <ENT>Import shipments—Importer not providing shipper and forwarding agent with U.S. requirements. Cannot be based on inference</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Import shipments—Failure to certify by shipper or forwarding agent</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="01">171.15</ENT> <ENT>Failure to provide immediate notice of certain hazardous materials incidents</ENT> <ENT>6,000.</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="43"/> <ENT I="01">171.16</ENT> <ENT>Failure to file incident report (form DOT 5800.1). (Multiple failures will aggravate the penalty.)</ENT> <ENT>4,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 172—SHIPPING PAPERS</E> </ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="01">172.200-.203</ENT> <ENT A="01">Offering hazardous materials for transportation when the material is not properly described on the shipping paper as required by §§ 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 § 172.204.) Considerable aggravation of penalties under these sections is possible, particularly in case involving undeclared hazmat.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Undeclared shipment: offering a hazardous material without shipping papers, package markings, labels, or placards (see also §§ 172.300, 172.400, 172.500 for specific requirements)</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Information on the 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</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Total lack of hazardous materials information on shipping paper. (Some shipping names alone contain sufficient information to reduce the guideline to the next lower level, but there may be such dangerous products that aggravation needs to be considered.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Some information is present, but the missing or improper description could cause mishandling by the carrier or a delay or error in emergency response</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—When the improper description is not likely to cause serious problem (technical defect)</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Shipping paper includes a hazardous material description and no hazardous material is present. (Technically, this is also a violation of § 171.2(k); it is presented here as a convenience.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT A="L01">Failure to include emergency response information is covered at §§ 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.</ENT> </ROW> <ROW> <ENT I="01">172.201(d)</ENT> <ENT>Failure to put emergency response telephone number on shipping paper</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="01">172.201(e)</ENT> <ENT>Failure to retain shipping paper for required period (1 year if carrier, 2 years if offeror)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="01">172.204</ENT> <ENT>Offeror's failure to certify</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">172.205</ENT> <ENT>Hazardous waste 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 § 172.200-.203.)</ENT> <ENT>Parallel the penalties for §§ 172.200-.203, depending on circumstances.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Marking:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">172.301</ENT> <ENT>Failure to mark a non-bulk package as required (e.g., no commodity name on a 55-gallon drum). (Shipment is the unit of violation.)</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="03">172.302</ENT> <ENT>Failure to follow standards for marking bulk packaging</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.302(a)</ENT> <ENT O="xl">ID number missing or in improper location. (The guideline is for a portable tank; for smaller bulk packages, the guideline should be mitigated downward.)</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.302(b)</ENT> <ENT O="xl">Failure to use the correct <E T="03">size</E> of markings. (Note: If § 172.326(a) is also cited, it takes precedence and § 172.302(b) is not cited. Note also: the guideline is for a gross violation of marking size—<FR>1/2</FR>″ where 2″ is required—and mitigation should be considered for markings approaching the required size.)</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="44"/> <ENT I="03">172.302(c)</ENT> <ENT>Failure to place exemption number markings on bulk package</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.303</ENT> <ENT A="L01">Prohibited marking. (Package is marked for a hazardous material and contains either another hazardous material or no hazardous material.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—The marking is wrong and caused or contributed to a wrong emergency response</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Use of a tank car stenciled for one commodity to transport another</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Inconsistent marking; e.g., shipping name and ID number do not agree</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Marked as a hazardous material when package does not contain a hazardous material</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.304</ENT> <ENT>Obscured marking</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.313</ENT> <ENT>“Inhalation Hazard” not marked</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.322</ENT> <ENT>Failure to mark for MARINE POLLUTANT where required</ENT> <ENT>1,500.</ENT> </ROW> <ROW> <ENT I="03">172.325(a)</ENT> <ENT>Improper, or missing, HOT mark for elevated temperature material</ENT> <ENT>1,500.</ENT> </ROW> <ROW> <ENT I="03">172.325(b)</ENT> <ENT>Improper or missing commodity stencil</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.326(a)</ENT> <ENT>Failure to mark a portable tank with the commodity name</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to have commodity name visible (“legible”) when portable tank is loaded on intermodal equipment</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.326(b)</ENT> <ENT>Owner's/lessee's name not displayed</ENT> <ENT>500.</ENT> </ROW> <ROW> <ENT I="03">172.326(c)</ENT> <ENT>Failure to mark portable tank with ID number</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to have ID number visible when portable tank is loaded on intermodal equipment</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.330(a)(1)(i)</ENT> <ENT>Offering/transporting hazardous material in a tank car that does not have the required ID number displayed on the car</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.330(a)(1)(ii)</ENT> <ENT>Offering/transporting hazardous material in a tank car that does not have the required shipping name or common name stenciled on the car. This section “lists” the materials that require such markings on the tank. For tank car marking requirements for molten aluminum and molten sulfur, see § 172.325(b)</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.330(c)</ENT> <ENT>Failing to mark tank car as NON-ODORIZED or NOT ODORIZED when offering/transporting tank car or multi-unit tank car containing unodorized LPG</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.331(b)</ENT> <ENT>Offering bulk packaging other than a portable tank, cargo tank, or tank car (e.g., a hopper car) not marked with ID number. (E.g., a hopper car carrying a hazardous substance, where a placard is not required)</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.332</ENT> <ENT>Improper display of identification number markings. Citation of this section and §§ 172.326(c) (portable tanks), 172.328 (cargo tanks), or 172.330 (tank cars) does not create two separate violations</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.334(a)</ENT> <ENT>Displaying ID numbers on a RADIOACTIVE, EXPLOSIVES 1.1, 1.2, 1.3, 1.4, 1.5, or 1.6, or DANGEROUS, or subsidiary hazard placard</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="03">172.334(b)</ENT> <ENT>—Improper display of ID number that caused or contributed to a wrong emergency response</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper display of ID number that could cause carrier mishandling or minor error in emergency response</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Technical error</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">172.334(f)</ENT> <ENT>Displaying ID number on orange panel not in proximity to the placard</ENT> <ENT>1,500.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Labeling:</ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="03">172.400-.406</ENT> <ENT>Failure to label properly. (See also § 172.301 regarding the marking of packages.)</ENT> <ENT>2,500.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Placarding:</ENT> </ROW> <ROW EXPSTB="00"> <PRTPAGE P="45"/> <ENT I="03">172.502</ENT> <ENT>—Placarded as hazardous material when car does not contain a hazardous material</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material is present, but the placard does not represent hazard of the contents</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Display of sign or device that could be confused with regulatory placard. Photograph or good, clear description necessary</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">172.503</ENT> <ENT>Improper display of ID number on placards</ENT> <ENT>See § 172.334.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">172.504(a)</ENT> <ENT A="L01">Failure to placard; affixing or displaying wrong placard. (See also §§ 172.502(a), 172.504(a), 172.505, 172.512, 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.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Complete failure to placard</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—One placard missing (add $1,000 per missing placard up to a total of three; then use the guideline above)</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Complete failure to placard, but only two (2) placards are required (e.g., intermediate bulk containers [IBCs])</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.504(b)</ENT> <ENT>Improper use of DANGEROUS placard for mixed loads</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">172.504(c)</ENT> <ENT>Placarded for wrong hazard class when no placard was required due to “1,001 pound” exemption</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">172.504(e)</ENT> <ENT A="L01">Use of placard other than as specified in the table:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper placard 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</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper placard that could cause improper emergency response or handling by carrier</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Technical violation</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.505</ENT> <ENT O="xl">Improper application of placards for subsidiary hazards. (This is in addition to any violation on the primary hazard placards.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">172.508(a)</ENT> <ENT O="xl">Offering hazardous material for rail transportation without affixing placards. (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 material for rail movement must <E T="03">affix</E> placards; if offering for highway movement, the placards must be <E T="03">tendered</E> to the carrier. § 172.506.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">One placard missing (per car). (Add $1,000 per missing placard up to a total of three; if all placards are missing, the guideline above applies.)</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">Placards OK, except they were International Maritime Dangerous Goods (IMDG) labels instead of 10″ placards. (Unit of violation is the packaging, usually a portable tank.)</ENT> <ENT>500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Placards on Container on Flatcar/Trailer on Flatcar (TOFC/COFC) units not readily visible. (§ 172.516 should be cited)</ENT> <ENT>See § 172.516.</ENT> </ROW> <ROW> <ENT I="03">172.508(b)</ENT> <ENT>Accepting hazardous material for rail transportation without placards affixed</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">172.510(a)</ENT> <ENT>EXPLOSIVES 1.1, EXPLOSIVES 1.2, POISON GAS, (Division 2.3, Hazard Zone A), POISON, (Division 6.1, Packing Group I, Hazard Zone A), or a Division 2.1 material transported in a Class DOT 113 tank car, placards displayed without square background</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">172.512(a)</ENT> <ENT>Improper placarding of freight containers</ENT> <ENT>Follow § 172.504 guidelines.</ENT> </ROW> <ROW> <PRTPAGE P="46"/> <ENT I="03">172.514</ENT> <ENT>Improper placarding of bulk packaging other than a tank car: For the “exception” packages in 174.514(c). Use the regular placarding sections for the guideline amounts for larger bulk packages</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">172.516</ENT> <ENT>Placard not readily visible, improperly located or displayed, or deteriorated. Placard is the unit of violation</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—When placards on an 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</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">—Note that, while placards on freight containers, portable tanks, or TOFC vehicles may be used in lieu of placards on the rail cars, if both are placarded, each must be done properly. Thus, for instance, EXPLOSIVES 1.1 placards on intermodal containers do not require white square backgrounds, but if the rail car carrying such a container is placarded, the white square background is required on the rail car.</ENT> </ROW> <ROW> <ENT I="03">172.519(b)(4)</ENT> <ENT>Improper display of hazard class on placard—primary hazard</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>Improper display of hazard class on placard—secondary hazard</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">Emergency Response Information</ENT> <ENT A="L01">Violations of §§ 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 (E/R) 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, the number was on the original shipping document. Considerable aggravation of the penalties under these sections is possible.</ENT> </ROW> <ROW> <ENT I="03">172.600-.602</ENT> <ENT>Where improper emergency response information has caused an improper reaction from emergency forces and the improper response has aggravated the situation</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Bad, missing, or improper emergency response information that could cause a significant difference in response</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Bad, missing, or improper emergency response information not likely to cause a significant difference in response</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">172.602(c)</ENT> <ENT>Failure to have emergency response information “immediately accessible,” resulting in delay or confusion in emergency response</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to have emergency response information “immediately accessible” with no negative effect on emergency response</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">172.604</ENT> <ENT>Emergency response telephone number</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to include emergency response telephone number on a shipping paper</ENT> <ENT>4,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Listing an unauthorized, incorrect, non-working, or unmonitored (24 hrs. a day) emergency response telephone number on a shipping paper</ENT> <ENT>4,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">Training</ENT> <ENT A="L01">NOTE: The statutory minimum penalty for training violations is $450.</ENT> </ROW> <ROW> <ENT I="03">172.702(a)</ENT> <ENT>General failure to train hazardous material employees</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">172.702(b)</ENT> <ENT O="xl">Hazardous material employee performing covered function without training. (Unit of violation is the employee.)</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="03">172.704(a)</ENT> <ENT O="xl">—Failure to train in a required area:</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—General awareness/familiarization;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—Function-specific;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—Safety;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—Security awareness;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—In-depth security training.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">(Unit of violation is the “area,” per employee. For a total failure to train, § 172.702(a) applies.)</ENT> </ROW> <ROW> <PRTPAGE P="47"/> <ENT I="03">172.704(c)</ENT> <ENT O="xl">Initial and recurrent training. (This section should be cited with the relevant substantive section, e.g., § 172.702(a), and use penalty provided there.)</ENT> <ENT>Varies.</ENT> </ROW> <ROW> <ENT I="03">172.704(d)</ENT> <ENT O="xl">Failure to maintain record of training. (Unit of violation is the employee.)</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>There is some evidence of training, but no (or inadequate) records and the employee demonstrates no or very little knowledge or skills in doing the job</ENT> <ENT>4,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Security:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">172.800</ENT> <ENT>Total failure to develop security plan. Factors to consider are the size of the entity (is it a small business?); the type of hazmat handled; and the quantities of hazmat handled. Aggravation should be considered, for example, if it is a large entity that handles significant quantities of chlorine or other toxic inhalation hazard (TIH) material</ENT> <ENT>5,000 to 10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to adhere to the developed security plan—considerable aggravation possible. Factors to consider include size of entity, quantities and types of hazmat handled, number of security plan components not complied with</ENT> <ENT>1,000 to 10,000.</ENT> </ROW> <ROW> <ENT I="03">172.802(a)</ENT> <ENT O="xl">Failure to include each required component in plan:</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—Personnel security;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—Unauthorized access;</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—En route security.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">(Unit of violation is the “area.” For a total failure to have a security plan, cite § 172.800 and use that penalty instead of § 172.802.)</ENT> </ROW> <ROW> <ENT I="03">172.802(b)</ENT> <ENT O="xl">Failure to have security plan (or appropriate portions of it) available to implementing employees. (A failure to have the plan “in writing” is treated as a violation of the requirement to have a plan and cited under § 172.800, using that penalty.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">Failure to revise/update the plan. (The requirement to revise/update is based on “changing circumstances.” Specific, clear, and detailed explanations of the circumstances that changed will be necessary.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">Failure to update all copies of the plan to the current level (i.e. all copies should be identical). (As in the tank car quality control area, the requirement to conform copies applies only to the “official” copies of the plan. Uncontrolled (and non-updated) copies of the security plan are not a violation if the uncontrolled copies are clearly marked as such.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="01">172.820(a)-(e)</ENT> <ENT>General failure to perform safety and security route analysis</ENT> <ENT>5,000 to 10,000</ENT> </ROW> <ROW> <ENT I="22"/> <ENT> <E T="03">Factors to consider are the size of the railroad carrier, and the quantities of hazmat transported</E> </ENT> </ROW> <ROW> <ENT I="01">172.820(a)-(e)</ENT> <ENT>Partial failure to complete route analysis; failure to complete a component of the route analysis</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Compilation of security-sensitive commodity data</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Identification of practicable alternative routes</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Consultation with State, local, and tribal officials, as appropriate regarding security risks to high-consequence targets along or in proximity to a route used by the carrier to transport security-sensitive materials</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Safety and security route analysis of route used</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Safety and security alternative route analysis</ENT> </ROW> <ROW> <PRTPAGE P="48"/> <ENT I="01">172.820(f)</ENT> <ENT>Failure to complete route analyses within the prescribed time frame</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="01">172.820(g)</ENT> <ENT>Failure to include one of the following components in safety and security plan</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Procedure for consultation with offerors and consignees to minimize storage of security-sensitive materials incidental to movement</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Measures to limit unauthorized access to the materials during storage or delays in transit</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Measures to mitigate risk to population centers associated with in-transit storage of the materials</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi3">—Measures to be taken in the event of escalating threat levels for the materials stored in transit</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>(<E T="03">Unit of violation is the component. For a total failure to have a security plan, cite § 172.800 and use the penalties provided for that section</E>.)</ENT> </ROW> <ROW> <ENT I="01">172.820(h)</ENT> <ENT>Failure to maintain records and make available to DOT and DHS authorized officials</ENT> <ENT>2,000</ENT> </ROW> <ROW RUL=""> <ENT I="01">172.820(i)</ENT> <ENT>Failure to use route designated by FRA Associate Administrator for Safety</ENT> <ENT>10,000</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGES</E> </ENT> </ROW> <ROW RUL="s"> <ENT I="22">General:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">173.1</ENT> <ENT>General duty section 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.)</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">173.9(a)</ENT> <ENT>Early delivery of transport vehicle that has been fumigated. (48 hours must have elapsed since fumigation.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">173.9(b)</ENT> <ENT>Failure to display fumigation placard. (Ordinarily cited against shipper only, not against railroad.)</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.10</ENT> <ENT>Delivery requirements for gases and for flammable liquids. See also §§ 174.204 and 174.304</ENT> <ENT>3,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Preparation of Hazardous Materials for Transportation:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">173.22</ENT> <ENT>Shipper responsibility: This general duty section should ordinarily be cited only to support a more specific charge</ENT> <ENT>See specific section.</ENT> </ROW> <ROW> <ENT I="03">173.22a</ENT> <ENT>Improper use of packagings authorized under exemption</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>Failure to maintain copy of exemption as required</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.24(b)(1) and 173.24(b)(2) and 173.24(f)(1) and 173.24(f)(1)(ii)</ENT> <ENT A="L01">Securing closures: These subsections are the general “no leak” standard for all packagings. § 173.24(b) deals primarily with <E T="03">packaging</E> as a whole, while § 173.24(f) focuses on <E T="03">closures</E>. Use § 173.31(d) for tank cars, when possible. 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 $50,000, and up to $100,000 if the violation results in death, serious illness or injury or substantial destruction of property. For intermodal (IM) portable tanks and other tanks of that size range, use the tank car penalty amounts, as stated in § 173.31.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Small bottle or box</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—55-gallon drum</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Larger container, e.g., IBC; not portable tank or tank car</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—IM portable tank, cite § 173.24(f) and use the penalty amounts for tank cars: Residue, generally, § 173.29(a) and, loaded, § 173.31(d).</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="49"/> <ENT I="22"/> <ENT>—Residue adhering to outside of package (i.e., portable tanks, tank cars, etc.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.24(c)</ENT> <ENT A="L01">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 $50,000, and up to $100,000 if the violation results in death, serious illness or injury or substantial destruction of property.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Small bottle or box</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—55-gallon drum</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Larger container, e.g., IBC; not portable tank or tank car, but this section is applicable to a hopper car</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT A="L01">For more specific sections: Tank cars—§ 173.31(a), portable tanks—§ 173.32, and IM portable tanks—§§ 173.32a,173.32b, and 173.32c.</ENT> </ROW> <ROW> <ENT I="03">173.24a(a)(3)</ENT> <ENT>Non-bulk packagings: Failure to secure and cushion inner packagings</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Causes leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Leak with any contact between product and any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">173.24a(b) and (d)</ENT> <ENT>Non-bulk packagings: Exceeding filling limits</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Causes leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Leak with any contact between product and any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">173.24b(a)</ENT> <ENT O="xl">Insufficient outage:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—<1%</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Causes leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Outage <5% on PIH material</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Causes leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Leak with any contact between product and any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">173.24b(d)(2)</ENT> <ENT>Overloaded to exceed the maximum weight of lading marked on the specification plate</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">173.26</ENT> <ENT>Loaded beyond gross weight or capacity as stated in specification. (Applies only if quantity limitations do not appear in packaging requirements of part 173.) (For tank cars, see § 179.13.) For gross weight and capacity requirements, see § 179.13. § 173.26 should be the citation for the violation and civil penalty; § 179.13 can be cited as a reference section</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.28</ENT> <ENT>Improper reuse, reconditioning, or remanufacture of packagings</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.29(a)</ENT> <ENT A="L01">Offering residue tank car for transportation when openings are not tightly closed (§ 173.31(d) is also applicable for tank cars). The regulation requires offering “in the same manner as when” loaded and may be cited when a car not meeting specifications (see § 173.31(a)(1)) is released back into transportation after unloading; same guideline amount. Guidelines vary with the type of commodity involved. In addition to the vapor pressure factor cited below, the RQ (reportable quantity) is a fair measure of the danger of a commodity to the environment. For RQ values ≤ 10, consider aggravating the penalties below by no less than 50 percent.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with insignificant vapor pressure and without classification as “poison” or “inhalation hazard.”</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With leak allowing the product to contact any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with vapor pressure (essentially any gas or compressed gas) and/or with classification as “poison” or “inhalation hazard.”</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With leak allowing the product (or fumes or vapors) to contact any human being. (In the case of fumes, the “contact” must be substantial.)</ENT> <ENT>15,000.</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="50"/> <ENT I="22"/> <ENT>—Where only violation is failure to secure a protective housing, e.g., the covering for the gaging device</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.30</ENT> <ENT A="L01">A general duty section that should be cited with the explicit statement of the duty.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.31(a)(1)</ENT> <ENT A="L01">Use of a tank car not meeting specifications and the “Bulk packaging” authorization in Column 8 of the § 172.101 Hazardous Materials Table reference is:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.240</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.241</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.242</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.243</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.244</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.245</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.247</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.249</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.314</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.315</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.319</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.320</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>§ 173.323</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Minor defect not affecting the ability of the package to contain a hazardous material, e.g., no chain on a bottom outlet closure plug</ENT> <ENT>500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Defect of greater importance, e.g., safety valve tested, but test date not stenciled on valve</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Tank meets specification, but specification is not stenciled on car. § 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 § 173.22(a)(3).)</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Tank car not stenciled according to Appendix C of the Tank Car Manual. The sub-reference is to § 179.22 which requires each tank car to be marked in accordance with Appendix C of the Tank Car Manual. For example, Appendix 3.03(a)(5), requires marking of the tank “NOT FOR FLAMMABLE LIQUIDS” or “NOT FOR FLAMMABLE OR POISONOUS LIQUIDS.”</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="03">173.31(a)(2)</ENT> <ENT>Tank cars and appurtenances used for a material not authorized on the certificate of construction (or by addendum on Association of American Railroads (AAR) form R-1)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">173.31(a)(3)</ENT> <ENT>Filling a tank car overdue for a periodic inspection with a hazardous material and then offering it for transportation. (Note: Offering a residue car, overdue for inspection, is not a violation; neither is filling the car—so long as it is not offered for transportation.) (Adjust penalty if less than one month or more than one year overdue.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">173.31(a)(4)</ENT> <ENT>Use of tank car without air brake support attachments welded to pads.</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(a)(5)</ENT> <ENT>Use of a tank car with a self-energized manway located below the liquid level of the lading</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(b)(1)</ENT> <ENT>Use of DOT-specification tank car, or any tank car used for transportation of a hazardous material, without shelf couplers</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Against a carrier, cite § 174.3 and this section.</ENT> <ENT>6,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.31(b)(2)</ENT> <ENT>Tank car with nonreclosing pressure relief device used to transport Class 2 gases, Class 3 or 4 liquids, or Division 6.1 liquids, PG I or II</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Tank car has a nonreclosing pressure relief device and the wrong pressure is stenciled on the tank. Cite this section where the standard in § 179.22(a) is not met and the respondent is other than the builder or manufacturer</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <PRTPAGE P="51"/> <ENT I="22"/> <ENT>Where either the rupture disc is unmarked for pressure or manufacturer name or is marked but is of the wrong pressure. Cite this section for a violation of § 179.156(h) against other than the builder or manufacturer</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.31(b)(3)</ENT> <ENT A="L01">Use of a tank car for the transportation of a hazardous material without the required tank-head protection. See paragraphs (b)(3)(iii) and (iv) for compliance periods.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Class 2</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Tank car constructed from aluminum or nickel plate</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Against a carrier, cite § 174.3 and this section</ENT> <ENT>6,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(b)(4)</ENT> <ENT>Use of a tank car for the transportation of a Class 2 material without the required thermal protection. See paragraphs (b)(4)(i) for compliance periods</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(b)(5)</ENT> <ENT>Use of a tank car for the transportation of a hazardous material without the required bottom-discontinuity protection. See the paragraph for compliance periods</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(b)(6)</ENT> <ENT>Failure to submit a progress report to the FRA</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.31(c)</ENT> <ENT>Use of a tank car with an incorrect tank test pressure</ENT> <ENT>10,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">173.31(d)</ENT> <ENT>Offering a tank car for transportation with a hazardous material, or a residue of a hazardous material, that is not in proper condition or that is unsafe for transportation. Sections 173.24(b) and (f) establish a “no-leak” design standard, and 173.31 imposes that standard on operations. In addition to the vapor pressure factor cited below, the RQ (reportable quantity) is a fair measure of the danger of a commodity to the environment. For RQ values ≤ 10, consider aggravating the penalties below by no less than 50 percent. The unit of violation is the car, aggravated if necessary for truly egregious condition</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Loaded car:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to inspect the tank car, service equipment, or markings prior to offering the car for transportation.: If the failure to inspect resulted in a release of product, the appropriate penalty amount below applies</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak of product</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak allowing the product (or fumes or vapors) to contact any human being. (With safety vent, be careful because carrier might be at fault)</ENT> <ENT>15,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Minor violation, e.g., bottom outlet cap loose on tank car of molten sulfur (because product is a solid when shipped)</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Residue car: (The penalties are the same as in 173.29(a).)</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Offering residue tank car for transportation when openings are not tightly closed (§ 173.29(a) is also applicable for tank cars) Guidelines vary with the type of commodity involved:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with insignificant vapor pressure and without classification as “poison” or “inhalation hazard.”</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With leak allowing the product to contact any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with vapor pressure (esentially any gas or compressed gas) and/or with classification as “poison” or “inhalation hazard.”</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="n,s"> <PRTPAGE P="52"/> <ENT I="22"/> <ENT>—With leak allowing the product (or fumes or vapors) to contact any human being. (In the case of “fumes,” the “contact” must be substantial.)</ENT> <ENT>15,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT A="L01">Whether loaded or residue:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Where the only violation is the failure to secure a protective housing, e.g., the covering for the gaging device</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Where “other conditions” than a loose closure make a tank car not “in proper condition for transportation” (e.g., loose ladders, seals thrown into safety valves, etc.)</ENT> <ENT>2,500 (Varies to account for seriousness).</ENT> </ROW> <ROW> <ENT I="03">173.31(e)(1)</ENT> <ENT>Tank car with interior heating coils used to transport Division 2.3 or Division 6.1, PG I, based on inhalation toxicity</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">173.31(e)(2)</ENT> <ENT>Use of a tank car for a material poisonous by inhalation that does not meet the minimum specification i.e., 300 pound tank test pressure, head protection, and a metal jacket.) See the paragraph for the compliance dates</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(f)</ENT> <ENT>Use of a tank car for a “listed” hazardous substance that does not meet the minimum specification (i.e., 200 pound tank test pressure, head protection, and a metal jacket.): See the paragraph for the compliance dates and § 173.31(f)(2) for the list of hazardous substances</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(g)(1)</ENT> <ENT>Unloading a tank car without securing access to the track to prevent entry by other rail equipment. Derails, lined and blocked switches, or other equipment that provides equivalent level of security is acceptable</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(g)(2)</ENT> <ENT>Unloading a tank car without caution signs properly displayed. (See Part 218, Subpart B)</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">173.31(g)(3)</ENT> <ENT>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.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—No brakes set, no wheels blocked, or fewer brakes set/wheels blocked than facility's operating plan</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—No brakes set, but wheels blocked</ENT> <ENT>3,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Brakes set, but wheels not blocked</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="03">173.32(a)(1)</ENT> <ENT>Using a portable tank for transportation of hazardous materials, when tank does not meet regulatory requirements. (For loose closures or leaks on portable tanks use 173.24.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.32(a)(2)</ENT> <ENT>Filling and offering portable tank when periodic test or inspection overdue</ENT> <ENT>5,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Gases; Preparation and Packaging:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">173.314(c)</ENT> <ENT>Compressed gas loaded in excess of filling density (same basic concept as insufficient outage)</ENT> <ENT>6,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">173.314(e) through (o)</ENT> <ENT>Failure to comply with a special requirement for a compressed gas</ENT> <ENT>5,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 174—CARRIAGE BY RAIL</E> </ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">General Requirements:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">174.3</ENT> <ENT A="L01">Acceptance of improperly prepared shipment. This general duty section shall be accompanied by a citation to the specific section violated.</ENT> </ROW> <ROW> <PRTPAGE P="53"/> <ENT I="03">174.9</ENT> <ENT>Failure to properly inspect a rail car containing a hazardous material when accepted for transportation or placed in a train: The carrier shall inspect the rail car, at ground level, for required markings, labels, placards, securement of closures and leakage. The inspection may be performed in conjunction with the inspections required under parts 215 and 232. This requirement will not “trigger” an inspection and thereby require a train to be stopped. For example, in run-through train operations, the train crew of the receiving railroad simply assumes responsibility for the train from the delivering crew. Acceptance of responsibility includes the right to receive a penalty action for transporting a rail car with a non-complying condition. Note also that the presence of a non-complying condition by itself does not prove that there was a failure to inspect. See also § 174.50 for violations against the carrier for loose (visible from ground level) closures on cars</ENT> <ENT>For loaded car 5,000.<LI>For residue car 2,000.</LI> </ENT> </ROW> <ROW RUL="s"> <ENT I="03">174.14</ENT> <ENT>Failure to expedite: Violation of “48-hour rule.”</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">General Operating Requirements</ENT> <ENT A="L01">This subpart (subpart B) of part 174 has two sections referring to shipment documentation: § 174.24 relating to <E T="03">accepting</E> documents, and § 174.26 relating to movement documents in the <E T="03">possession</E> 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.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.24(a)</ENT> <ENT O="xl">Accepting hazardous material shipment without properly prepared shipping paper. (The carrier's duty extends only to the document received, that is, a shipment of hazardous material in a non-placarded 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.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper hazardous material information that could cause delay or error in emergency response</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Total absence of hazardous material information</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Technical errors, not likely to cause problems, especially with emergency response</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Minor errors not relating to hazardous material emergency response, e.g., not listing an exemption number and the exemption is not one affecting emergency response</ENT> <ENT>500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT A="L01">Failure to include emergency response information is covered at §§ 172.600-172.604; while the normal unit of violation for movement documents is the whole document, failure to provide emergency response information is a separate violation.</ENT> </ROW> <ROW> <ENT I="03">174.24(b)</ENT> <ENT>Failure to retain shipping papers for one year. (Variation over a wide range is not unusual, depending upon circumstances.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <PRTPAGE P="54"/> <ENT I="03">174.26(a)</ENT> <ENT>Train crew does not have a document indicating position in train of each rail car containing a hazardous material. Routinely aggravate by 50% for Poison Gas, 2.3, and Explosives, 1.1 and 1.2. (Train is the unit of violation—this is generally going to be the consist list for a train.)</ENT> <ENT>6,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>Train crew has documents described above but they have not updated the document to account for delivery or pickup of car or cars. Penalty amount may vary depending on the number of cars not listed or out of place, the number of places the cars are off, the type of commodity in the car, and the potential effects on safe handling of the cars or emergency response. (Each failure to update is a separate unit of violation—if the crew picked up one cut of cars and failed to update the document, that would be one unit of violation. The “update” requirement only matures when the crew has placed the cars into the train—or removed them from the train—re-laced the air hoses, and are ready to depart.)</ENT> <ENT>2,000 to 4,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.26(b)</ENT> <ENT A="L01">Improper paperwork in possession of train crew. (Shipment is unit of violation, although there is justification for making it the train if a unified consist [e.g. one that shows both train car order and hazmat information] is used to carry this information and the violation is a pattern one throughout all, or almost all, of the hazardous material shipments. For intermodal traffic, “shipment” can mean the container or trailer—e.g., a UPS trailer with several non-disclosed hazardous material packages would be one unit.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Information on the 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</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Information is present and wrong, but without adverse emergency response effect (e.g. insignificant error in shipping name for the hazmat; name is incorrect but the emergency response would be the same)</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Total lack of hazardous material information on movement document. (Some shipping names alone contain sufficient information to reduce the guideline to the next lower level, but there may be such dangerous products that aggravation needs to be considered.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Some information is 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 § 172.203(e)(2)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper information, but the hazardous material are small shipments (e.g., UPS moves) and PG III (e.g., the “low hazard” material allowed in TOFC/COFC service without an exemption since HM-197)</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Lack of emergency response phone number</ENT> <ENT>4,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Technical defect or minor error not likely to cause delay or error in emergency response or carrier handling</ENT> <ENT>500-1,000.</ENT> </ROW> <ROW> <ENT I="03">174.50</ENT> <ENT>Forwarding a bulk packaging (e.g. a tank car) that no longer conforms to the hazmat regulations without first repairing the defect. This includes such non-conforming conditions as loose closures visible from ground level (e.g. loose bottom outlet caps), improper stenciling or marking</ENT> <ENT>For loaded car 5,000.<LI>For residue car 2,000.</LI> </ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Forwarding a leaking, or non-conforming non-bulk package containing a hazardous material without repair or over-packing</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <PRTPAGE P="55"/> <ENT I="22"/> <ENT>—Forwarding a leaking bulk package beyond the movement “as necessary to reduce or to eliminate an immediate threat * * *.” Consider mitigation for low hazard HM (e.g., HOT) and for bulk packages smaller than tank cars</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Loss of product resulted in human contact because of improper carrier handling</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to obtain movement approval from the FRA for the transportation of a bulk packaging that no longer conforms to the regulations</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to follow directives in a movement approval</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Failure to report corrective actions (or any other reporting requirement in the movement approval)</ENT> <ENT>5,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">General Handling and Loading Requirements:</ENT> </ROW> <ROW EXPSTB="00" RUL="n,s"> <ENT I="03">174.55</ENT> <ENT A="L01">Failure to block and brace as prescribed. (See also §§ 174.61, 174.63, 174.101, 174.112, 174.115; where these more specific sections apply, cite them.) Note: The regulatory requirement is that hazardous material packages be loaded and securely blocked and braced to prevent the packages from changing position, falling or sliding into each other. If the load is tight and secure, pieces of lumber or other material may not be necessary to achieve the “tight load” requirement.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—General failure to block and brace</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Inadequate blocking and bracing (an attempt was made but blocking/bracing was insufficient)</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Inadequate blocking and bracing leading to a leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Inadequate blocking and bracing leading to a leak and human being contact</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">174.59</ENT> <ENT A="L01">Other specific placarding and marking sections may also be applicable.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Marking and placarding. A railroad's placarding duties are to <E T="03">not</E> accept a car without placards [§ 172.508(b)], and to <E T="03">not</E> transport a car without placards [§ 174.59]. At each inspection point, a railroad must determine that all placards are in place. [§ 174.9]. The “next inspection point” replacement requirement in this section refers to placards that disappear <E T="03">between</E> 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 material cars merely standing in a yard, <E T="03">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.</E> (Note also that the real problem with unplacarded cars in a railyard may be a lack of emergency response information, §§ 172.600-172.604, and investigation may reveal that those sections should be cited instead of this one.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Complete failure to placard or to replace missing placards</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—One placard missing (per car). (Add $1,000 per missing placard up to a total of three; then use the guideline above)</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT A="L01">For other placarding violations, see §§ 172.500-.560 and determine if one of them more correctly states the violation. For marking violations, see §§ 172.300-.338 and determine if one of them more correctly states the violation. Note that marking violations, except for the UN number, are generally applicable to the shipper/offeror.</ENT> </ROW> <ROW> <ENT I="03">174.61</ENT> <ENT>Improper transportation of transport vehicle or freight container on flat car. (If improper lading restraint is the violation, see § 174.55; if improper restraint of a bulk packaging inside a closed transport vehicle is the violation, see § 174.63(b).)</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="03">174.63(a) and (c)</ENT> <ENT>—Improper transportation of portable tank or other bulk packaging in TOFC/COFC service</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Portable tank double stacked with container above or below. (§ 174.63(c)(5)(i).)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Portable tank transported in a well car with its outlet valve facing inward. (§ 174.63(c)(5)(ii).)</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <PRTPAGE P="56"/> <ENT I="22"/> <ENT>—Portable tank transported without securement fittings engaged and locked or void filling devices not properly deployed</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Improper transportation leading to a release of product</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Improper transportation leading to a release and human being contact</ENT> <ENT>15,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.63(b)</ENT> <ENT A="L01">Improper securement of bulk packaging inside enclosed transport vehicle or freight container.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—General failure to secure</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Inadequate securement (an attempt to secure was made but the means of securement were inadequate)</ENT> <ENT>2,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Inadequate securement leading to a leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Inadequate securement leading to a leak and human being contact</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">174.63(e)</ENT> <ENT>Transportation of cargo tank or multi-unit tank car tank in TOFC or COFC service without authorization and in the absence of an emergency</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">174.67(a)(1)</ENT> <ENT>Tank car transloading operations performed by persons not properly instructed (case cannot be based on inference). (Note: for all transloading requirements, there must be clear evidence that the hazmat shipment is continuing in transportation by another mode. For example, shipping papers show another destination than the one where the tank car is being unloaded/transloaded, and the contents of the tank car are being transloaded into a highway tank truck. Otherwise, the tank car unloading requirements contained in section 173.31(g) apply)</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.67(a)(2)</ENT> <ENT A="L01">Unloading/transloading hazmat 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.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—No brakes set, no wheels blocked, or fewer brakes set/wheels blocked than facility's operating plan</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—No brakes set, but wheels blocked</ENT> <ENT>3,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Brakes set, but wheels not blocked</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="03">174.67(a)(3)</ENT> <ENT>Unloading/transloading without securing access to the track to prevent entry by other rail equipment. Derails, lined and blocked switches, or other equipment that provides equivalent level of security is acceptable</ENT> <ENT>4,000.</ENT> </ROW> <ROW> <ENT I="03">174.67(a)(4)</ENT> <ENT>Unloading/transloading without caution signs properly displayed. (See Part 218, Subpart B)</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.67(a)(5)</ENT> <ENT>Failure of transloading facility to maintain written safety procedures (such as those it may already be required to maintain pursuant to the Department of Labor's Occupational Safety and Health Administration requirements in 29 CFR 1910.119 and 1910.120) in a location where they are immediately available to hazmat employees responsible for the transloading operation</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.67(c)(2)</ENT> <ENT A="L01">Failure to use non-metallic block to prop manway cover open while unloading through bottom outlet.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Flammable or combustible liquid, or other product with a vapor flash point hazard</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Material with no vapor flammability hazard</ENT> <ENT>500.</ENT> </ROW> <ROW> <ENT I="03">174.67(h)</ENT> <ENT>Insecure unloading connections, resulting in actual leak of product</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <PRTPAGE P="57"/> <ENT I="22"/> <ENT>Insecure unloading connections, no leak of product</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">174.67(i)</ENT> <ENT>Unattended/unmonitored unloading. Tank car must be attended by a designated employee or monitored by a signaling system</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.67(j)</ENT> <ENT>Noncompliance with piping requirements</ENT> <ENT>2,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.67(k)</ENT> <ENT A="L01">Failure to comply with requirements for leaving tank car unloading connections attached.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with insignificant vapor pressure and without classification as “poison” or “inhalation hazard.” (One count can be assessed for each element not followed. May also assess per tank car if more than one is involved in violation).</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With leak allowing the product to contact any human being</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Hazardous material with vapor pressure (essentially any gas or compressed gas) and/or with classification as “poison” or “inhalation hazard.”</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With actual leak</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—With leak allowing the product (or fumes or vapors) to contact any human being). Contact with “fumes” must be substantial</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="03">174.67(l)</ENT> <ENT>Failure to remove connections, tighten all valves with a “suitable tool” and tighten all other closures once unloading is complete</ENT> <ENT>2,000.</ENT> </ROW> <ROW> <ENT I="03">174.81</ENT> <ENT>—Failure to obey segregation requirements for materials forbidden to be stored or transported together. (“X” in the table)</ENT> <ENT>6,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Failure to obey segregation requirements for materials that must be separated to prevent commingling in the event of a leak. (“O” in the table)</ENT> <ENT>4,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Handling of Placarded Rail Cars, Transport Vehicles and Freight Containers:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">174.83(a)</ENT> <ENT>Improper switching of placarded rail cars</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">174.83(b)</ENT> <ENT>Improper switching of 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</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="03">174.83(c)-(e)</ENT> <ENT>Improper switching of placarded flatcar</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">174.83(f)</ENT> <ENT>Switching Division 1.1/1.2 without a buffer car or placement of Division 1.1/1.2 car under a bridge or alongside a passenger train or platform</ENT> <ENT>8,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.84</ENT> <ENT>Improper handling of Division 1.1/1.2, 2.3 PG I Zone A, 6.1 PG I Zone A in relation to guard or escort cars</ENT> <ENT>4,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">174.85</ENT> <ENT A="L01">Improper Train Placement (The unit of violation under this section is the car. Where more than one placarded car is involved, e.g., if two (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)</ENT> </ROW> <ROW RUL="N,s"> <ENT I="22"/> <ENT>RESIDUE car without at least 1 buffer from engine or occupied caboose</ENT> <ENT>3,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Placard Group 1—Division 1.1/1.2 materials (Class A explosive) See chart at § 174.85.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Fewer than six (6) cars (where train length permits) from engine or occupied caboose</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—As above but with at least one (1) buffer</ENT> <ENT>7,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—No buffer at all (where train length doesn't permit five (5) cars)</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to open top car or car with permanent bulkheads, where lading extends beyond car ends/bulkheads or, if shifted, would be beyond car ends/bulkheads</ENT> <ENT>7,000.</ENT> </ROW> <ROW> <PRTPAGE P="58"/> <ENT I="22"/> <ENT>—Next to loaded flat car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices</ENT> <ENT>6,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to operating temperature-control equipment or internal combustion engine in operation</ENT> <ENT>7,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>7,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Placard Group 2—Division 1.3/1.4/1.5 (Class B and C explosives); Division 2.1/2.2 (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). See chart at § 174.85.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">For tank cars:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Fewer than six (6) cars (where train length permits) from engine or occupied caboose</ENT> <ENT>6,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—As above but with at least one (1) buffer</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>No buffer at all (where train length doesn't permit five (5))</ENT> <ENT>6,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to open top car or car with permanent bulkheads, where lading extends beyond car ends/bulkheads or, if shifted, would be beyond car ends/bulkheads</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to loaded flat car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to operating temperature-control equipment or internal combustion engine in operation</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">For other rail cars:</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Placard Group 3—Divisions 2.3 (PG 1 Zone A; poisonous gases) and 6.1 (PG 1 Zone A; poisonous materials).</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">For tank cars:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Fewer than six (6) cars (where train length permits) from engine or occupied caboose</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="xl">—As above but with at least one (1) buffer</ENT> <ENT>7,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>No buffer at all (where train length doesn't permit five (5))</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to open top car or car with permanent bulkheads, where lading extends beyond car ends/bulkheads or, if shifted, would be beyond car ends/bulkheads</ENT> <ENT>7,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to loaded flat car, except closed TOFC/COFC equipment, auto carriers, specially equipped car with tie-down devices</ENT> <ENT>6,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to operating temperature-control equipment or internal combustion engine in operation</ENT> <ENT>7,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>7,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">For other rail cars:</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">Placard Group 4—Class 7 (radioactive) materials</ENT> </ROW> <ROW RUL="n,s"> <ENT I="22"/> <ENT A="L01">For rail cars:</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to locomotive or occupied caboose</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Next to placarded car, except one from same placard group or COMBUSTIBLE</ENT> <ENT>5,000.</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="59"/> <ENT I="22"/> <ENT>—Next to carload of undeveloped film</ENT> <ENT>3,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">174.86</ENT> <ENT>Exceeding maximum allowable operating speed (15 mph) while transporting molten metals or molten glass</ENT> <ENT>3,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Class 1 (Explosive) Materials:</ENT> </ROW> <ROW EXPSTB="00" RUL="n,s"> <ENT I="03">174.101(o)(4)</ENT> <ENT A="L01">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.)</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Complete failure to placard</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—One placard missing (add $1,000 per missing placard up to a total of three, then use the guideline above)</ENT> <ENT>1,000.</ENT> </ROW> <ROW> <ENT I="03">174.104(b)</ENT> <ENT>Car used to transport Division 1.1 or 1.2 materials does not meet requirements. (Aggravation to be considered, and may be considerable, for multiple failures to meet requirements.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">174.104(c)</ENT> <ENT>Failure to inspect and certify car before placing for loading with Division 1.1 or 1.2 materials</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">174.104(e)</ENT> <ENT>Failure to supervise the loading and securement of a container (of Division 1.1 or 1.2 materials) on a flat car and failure to certify the car. (Unit of violation is the container.)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">174.104(f)</ENT> <ENT>Failure to retain car certificates at “forwarding station.”</ENT> <ENT>1,000.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT O="xl">Failure to attach car certificates to car. (Unit of violation is the certificate, two (2) are required.)</ENT> <ENT>1,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Detailed Requirements for Class 2 (Gases) Materials:</ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="03">174.204</ENT> <ENT>Improper tank car delivery of gases (Class 2 materials)</ENT> <ENT>3,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Detailed Requirements for Class 3 (Flammable Liquid) Materials:</ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="03">174.304</ENT> <ENT>Improper tank car delivery of flammable liquids (Class 3 materials)</ENT> <ENT>3,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Detailed Requirements for Division 6.1 (Poisonous) Materials:</ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="03">174.600</ENT> <ENT>Improper tank car delivery of materials extremely poisonous by inhalation (Division 2.3 Zone A or 6.1 Zone A materials)</ENT> <ENT>5,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 178—SPECIFICATIONS FOR PACKAGINGS</E> </ENT> </ROW> <ROW EXPSTB="00" RUL="n,s"> <ENT I="01">178.2(b)</ENT> <ENT A="L01">Package not constructed according to specifications—also cite specific section not complied with.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Bulk packages, including portable tanks</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—55-gallon drum</ENT> <ENT>2,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>—Smaller package</ENT> <ENT>1,000.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 179—SPECIFICATIONS FOR TANK CARS</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">179.1(e)</ENT> <ENT>Tank car not constructed according to specifications—also cite section not complied with. (Part 179 violations are against the builder or repairer. Sections in this Part are often cited in conjunction with violations of §§ 172.330 and 173.31(a) and (b) by shippers. In such cases, the part 179 sections are cited as references, not as separate alleged violations.)</ENT> <ENT>8,000.</ENT> </ROW> <ROW> <ENT I="01">179.3</ENT> <ENT>Constructing tank car without securing approval from Tank Car Committee</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="01">179.5(a)</ENT> <ENT>Failure to furnish a Certificate of Construction before tank car is placed in service</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">179.6</ENT> <ENT>Repair procedures not in compliance with Appendix R of the Tank Car Manual</ENT> <ENT>10,000.</ENT> </ROW> <ROW RUL="n,s"> <PRTPAGE P="60"/> <ENT I="01">179.7</ENT> <ENT A="L01">Section 179.7 requires that each tank car facility have a quality assurance (QA) program that encompasses at least the elements in § 179.7(b). A tank car facility is an entity that manufactures, repairs, inspects, tests, qualifies, or maintains a tank car to ensure that the tank car conforms to parts 179 and 180, or alters the certificate of construction of the car. As a rule, a facility “qualifies” a tank by “inspecting” it and then “representing” it as meeting the standard. In addition to the following penalty amounts, the agency may “recall” all tanks qualified by the tank car facility during the period the facility failed to comply with the quality assurance requirements. See, for example, § 180.509(b)(4).</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Total failure to have a quality assurance program</ENT> <ENT>15,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to perform activities as a tank car facility other than in accordance with the quality assurance program. See 180.509(l) for applicability to tank car maintenance activities. Note that failures to perform ministerial activities such as updating the pages in a quality assurance manual or calibrating an instrument carry a lesser penalty (e.g. $2,500), unless they are the cause of a release or an injury or death</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>The quality assurance program does not contain one or more of the elements in § 179.7(b). (The “element” is the unit of violation.)</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to provide written procedures to its employees</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Use of an employee to perform nondestructive testing on a tank when that employee does not have the qualifications for that type of nondestructive testing</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="01">179.11</ENT> <ENT>Use of an employee to perform welding on a tank when that employee does not have the qualifications for that type of welding procedure. Note: also reference §§ 179.100-9, 179.200-10, 179.220-10, 179.300-9, and 179.400-11 as appropriate</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="01">179.13</ENT> <ENT>Tank cars may not be built or converted to exceed 34,500 gallons capacity or 263,000 pounds gross weight on rail. This is the building specification only; for tank cars loaded beyond capacity or gross weight see 173.26</ENT> <ENT>Varies. See 173.26 for overloaded cars.</ENT> </ROW> <ROW> <ENT I="01">179.15</ENT> <ENT>Pressure relief device (e.g. rupture disc) that does not conform to the requirements (loaded car). May also cite 173.31(d)</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="01">179.201-3(a)</ENT> <ENT>Failure to properly line a rubber-lined tank car</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="01">179.201-3(b)</ENT> <ENT O="xl">Three possible violations under this section:</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>(1) Failure to produce report certifying that tank car and its equipment have been brought into compliance with specification. Must occur prior to lining tank car with rubber or rubber compound</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>(2) Failure of tank car liner to provide copy of report and certification that tank has been lined in compliance with specs to tank car owner</ENT> </ROW> <ROW RUL="s"> <ENT I="22"/> <ENT>(3) Failure of tank car owner to retain reports of latest lining application until next re-lining has been accomplished and recorded</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS</E> </ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="01">180</ENT> <ENT A="L01">Part 180 prescribes the requirements applicable to any person that manufactures, fabricates, marks, maintains, repairs, inspects, or services tank cars to ensure that the tank cars are in proper condition for transportation. In addition to the following penalty amounts, the agency may “recall” all tanks qualified by the tank car facility during the period the facility failed to comply with the quality assurance requirements. See, for example, § 180.509(b)(4).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">180.505</ENT> <ENT A="L01">This section brings the quality assurance requirements of § 179.7 (car construction) into the tank car maintenance arena. See § 179.7 for penalty guidelines, cite this section and reference the applicable paragraph(s) or subparagraph(s). No dual penalty will apply. (Part 180 applies the construction standards of Part 179 to service life maintenance and requalification of tank cars.)</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Tank car specific provisions:</ENT> </ROW> <ROW EXPSTB="00" RUL="n,s"> <PRTPAGE P="61"/> <ENT I="03">180.509(a)</ENT> <ENT A="L01">Failure to comply with requirements for inspection and test.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to mark a car passing a periodic inspection and test</ENT> <ENT>See § 180.515.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>—Failure to prepare written report for inspection and test performed under this section</ENT> <ENT>See § 180.517.</ENT> </ROW> <ROW> <ENT I="03">180.509(b)</ENT> <ENT>Failure to perform inspection and test when at least one of the qualifying conditions has been met</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">180.509(c)</ENT> <ENT>Failure to perform inspection and test at specified interval</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">180.509(d)</ENT> <ENT>Failure to properly perform visual inspection</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.509(e)</ENT> <ENT>Failure to properly perform structural integrity inspection and test</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">180.509(f)</ENT> <ENT>Failure to properly perform thickness test</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">180.509(h)</ENT> <ENT>Failure to properly inspect safety systems</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.509(i)</ENT> <ENT>Failure to properly perform lining and coating inspection and test</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">180.509(j)</ENT> <ENT>Failure to properly perform leakage pressure test</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.509(l)</ENT> <ENT>Failure to perform inspection and test in accordance with the quality assurance program. (Applies to all non-DOT specification tank cars as of July 1, 2000, but see § 180.509(l)(3) for “20-year” cars. See also § 179.7(f).)</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">180.513</ENT> <ENT>Failure to repair the tank according to Appendix R of the AAR Tank Car Manual</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Use of an employee to perform welding on a tank when that employee does not have the qualifications for that type of welding procedure</ENT> <ENT>10,000.</ENT> </ROW> <ROW> <ENT I="03">180.515</ENT> <ENT>Failure to mark the tank as required</ENT> <ENT>7,500.</ENT> </ROW> <ROW RUL="s"> <ENT I="03">180.517</ENT> <ENT>Failure to report, record, and retain required documentation</ENT> <ENT>7,500.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="22">Provisions for tank cars other than single unit tank car tanks:</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="03">180.519(a)</ENT> <ENT>Failure to retest at required interval</ENT> <ENT>Cite 180.519(b)(5).</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(1)</ENT> <ENT>Failure to perform hydrostatic pressure/expansion test as required</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(2)</ENT> <ENT>Failure to perform interior air pressure test as required</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(3)</ENT> <ENT>Failure to test pressure relief valves as required</ENT> <ENT>7,500.</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(4)</ENT> <ENT>Failure to remove and inspect frangible discs and fusible plugs</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(5)</ENT> <ENT>Failure to retest at required interval</ENT> <ENT>3,000.</ENT> </ROW> <ROW> <ENT I="03">180.519(b)(6)</ENT> <ENT>Failure to stamp tank as required</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">180.519(c)</ENT> <ENT>Failure to visually inspect as required</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Failure to use competent persons to perform visual inspection</ENT> <ENT>5,000.</ENT> </ROW> <ROW> <ENT I="03">180.519(d)</ENT> <ENT>Failure to record and retain documentation. Mitigate/aggravate depending on the extent of the violation</ENT> <ENT>7,500.</ENT> </ROW> <TNOTE> <SU>2</SU> A person who knowingly violates the hazardous materials transportation law, or regulation, special permit, approval, or order issued thereunder, is subject to a civil penalty of at least $250 but not more than $55,000 for each violation, except that the maximum civil penalty for a violation is $110,000 if the violation results in death, serious illness or severe injury to any person, or substantial destruction of property; and a minimum $450 civil penalty applies to a violation related to training. Each day that the violation continues is a separate offense. 49 U.S.C. 5123; 28 U.S.C. 2461, note.</TNOTE> </GPOTABLE> <CITA>[61 FR 38647, July 25, 1996, as amended at 69 FR 30591, May 28, 2004; 71 FR 77295, Dec. 26, 2006; 73 FR 72200, Nov. 26, 2008; 73 FR 79701, Dec. 30, 2008; 75 FR 43842, July 27, 2010]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 209, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 209—FRA's Policy Statement Concerning Small Entities</HD> <P>This policy statement required by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) explains FRA's communication and enforcement policies concerning small entities subject to the federal railroad safety laws. These policies have been developed to take into account the unique concerns and operations of small businesses in the administration of the national railroad safety program, and will continue to evolve to meet the needs of the railroad industry. For purposes of this policy statement, the Regulatory Flexibility Act (5 U.S.C. 601, et seq.), <PRTPAGE P="62"/>and the “excessive demand” provisions of the Equal Justice Act (5 U.S.C. 504 (a)(4), and 28 U.S.C. 2412 (d)(1)(D)), Class III railroads, contractors and hazardous materials shippers meeting the economic criteria established for Class III railroads in 49 CFR 1201.1-1, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less constitute the class of organizations considered “small entities” or “small businesses.”</P> <P>FRA understands that small entities in the railroad industry have significantly different characteristics than larger carriers and shippers. FRA believes that these differences necessitate careful consideration in order to ensure that those entities receive appropriate treatment on compliance and enforcement matters, and enhance the safety of railroad operations. Therefore, FRA has developed programs to respond to compliance-related inquiries of small entities, and to ensure proper handling of civil penalty and other enforcement actions against small businesses.</P> <HD SOURCE="HD1">Small Entity Communication Policy</HD> <P>It is FRA's policy that all agency personnel respond in a timely and comprehensive fashion to the inquiries of small entities concerning rail safety statutes, safety regulations, and interpretations of these statutes and regulations. Also, FRA personnel provide guidance to small entities, as needed, in applying the law to specific facts and situations that arise in the course of railroad operations. These agency communications take many forms, and are tailored to meet the needs of the requesting party.</P> <P>FRA inspectors provide training on the requirements of all railroad safety statutes and regulations for new and existing small businesses upon request. Also, FRA inspectors often provide impromptu training sessions in the normal course of their inspection duties. FRA believes that this sort of preventive, rather than punitive, communication greatly enhances railroad safety. FRA's Office of Safety and Office of Chief Counsel regularly provide oral and written responses to questions raised by small entities concerning the plain meaning of the railroad safety standards, statutory requirements, and interpretations of the law. As required by the SBREFA, when FRA issues a final rule that has a significant impact on a substantial number of small entities, FRA will also issue a compliance guide for small entities concerning that rule.</P> <P>It is FRA's policy to maintain frequent and open communications with the national representatives of the primary small entity associations and to consult with these organizations before embarking on new policies that may impact the interests of small businesses. In some regions of the country where the concentration of small entities is particularly high, FRA Regional Administrators have established programs in which all small entities in the region meet with FRA regional specialists on a regular basis to discuss new regulations, persistent safety concerns, emerging technology, and compliance issues. Also, FRA regional offices hold periodic conferences, in which specific blocks of time are set aside to meet with small businesses and hear their concerns.</P> <P>In addition to these communication practices, FRA has instituted an innovative partnership program that expands the extent to which small entities participate in the development of policy and process. The Railroad Safety Advisory Committee (RSAC) has been established to advise the agency on the development and revision of railroad safety standards. The committee consists of a wide range of industry representatives, including organizations that represent the interests of small business. The small entity representative groups that sit on the RSAC may appoint members of their choice to participate in the development of new safety standards. This reflects FRA's policy that small business interests must be heard and considered in the development of new standards to ensure that FRA does not impose unnecessary economic burdens on small businesses, and to create more effective standards. Finally, FRA's Web site (<E T="03">http://www.fra.dot.gov</E>) makes pertinent agency information available instantly to the public.</P> <P>FRA's longstanding policy of open communication with small entities is apparent in these practices. FRA will make every effort to develop new and equally responsive communication procedures as is warranted by new developments in the railroad industry.</P> <HD SOURCE="HD1">Small Entity Enforcement Policy</HD> <P>FRA has adopted an enforcement policy that addresses the unique nature of small entities in the imposition of civil penalties and resolution of those assessments. Pursuant to FRA's statutory authority, and as described in Appendix A to 49 CFR part 209, it is FRA's policy to consider a variety of factors in determining whether to take enforcement action against persons, including small entities, who have violated the safety laws and regulations. In addition to the seriousness of the violation and the person's history of compliance, FRA inspectors consider “such other factors as the immediate circumstances make relevant.” In the context of violations by small entities, those factors include whether the violations were made in good faith e.g., based on an honest misunderstanding of the law), and whether the small entity has moved quickly and thoroughly to remedy the violation(s). In general, the presence of both good faith and prompt remedial action militates against taking a civil penalty action, especially if the violations are <PRTPAGE P="63"/>isolated events. On the other hand, violations involving willful actions and/or posing serious health, safety, or environmental threats should ordinarily result in enforcement actions, regardless of the entity's size.</P> <P>Once FRA has assessed a civil penalty, it is authorized to adjust or compromise the initial penalty claims based on a wide variety of mitigating factors, unless FRA must terminate the claim for some reason. FRA has the discretion to reduce the penalty as it deems fit, but not below the statutory minimums. The mitigating criteria FRA evaluates are found in the railroad safety statutes and SBREFA: The severity of the safety or health risk presented; the existence of alternative methods of eliminating the safety hazard; the entity's culpability; the entity's compliance history; the entity's ability to pay the assessment; the impacts an assessment might exact on the entity's continued business; and evidence that the entity acted in good faith. FRA staff attorneys regularly invite small entities to present any information related to these factors, and reduce civil penalty assessments based on the value and integrity of the information presented. Staff attorneys conduct conference calls or meet with small entities to discuss pending violations, and explain FRA's view on the merits of any defenses or mitigating factors presented that may have resulted or failed to result in penalty reductions. Among the “other factors” FRA considers at this stage is the promptness and thoroughness of the entity's remedial action to correct the violations and prevent a recurrence. Small entities should be sure to address these factors in communications with FRA concerning civil penalty cases. Long-term solutions to compliance problems will be given great weight in FRA's determinations of a final settlement offer.</P> <P>Finally, under FRA's Safety Assurance and Compliance Program (SACP), FRA identifies systemic safety hazards that continue to occur in a carrier or shipper operation, and in cooperation with the subject business, develops an improvement plan to eliminate those safety concerns. Often, the plan provides small entities with a reasonable time frame in which to make improvements without the threat of civil penalty. If FRA determines that the entity has failed to comply with the improvement plan, however, enforcement action is initiated.</P> <P>FRA's small entity enforcement policy is flexible and comprehensive. FRA's first priority in its compliance and enforcement activities is public and employee safety. However, FRA is committed to obtaining compliance and enhancing safety with reasoned, fair methods that do not inflict undue hardship on small entities.</P> <CITA>[68 FR 24894, May 9, 2003]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 210</EAR> <HD SOURCE="HED">PART 210—RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>210.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <SECTNO>210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>210.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>210.7</SECTNO> <SUBJECT>Responsibility for noise defective railroad equipment.</SUBJECT> <SECTNO>210.9</SECTNO> <SUBJECT>Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.</SUBJECT> <SECTNO>210.11</SECTNO> <SUBJECT>Waivers.</SUBJECT> <SECTNO>210.13</SECTNO> <SUBJECT>Penalty.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Inspection and Testing</HD> <SECTNO>210.21</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <SECTNO>210.23</SECTNO> <SUBJECT>Authorization.</SUBJECT> <SECTNO>210.25</SECTNO> <SUBJECT>Measurement criteria and procedures.</SUBJECT> <SECTNO>210.27</SECTNO> <SUBJECT>New locomotive certification.</SUBJECT> <SECTNO>210.29</SECTNO> <SUBJECT>Operation standards (moving locomotives and rail cars).</SUBJECT> <SECTNO>210.31</SECTNO> <SUBJECT>Operation standards (stationary locomotives at 30 meters).</SUBJECT> <SECTNO>210.33</SECTNO> <SUBJECT>Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).</SUBJECT> <APP>Appendix A to Part 210—Summary of Noise Standards, 40 CFR Part 201</APP> <APP>Appendix B to Part 210—Switcher Locomotive Enforcement Policy</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 56758, Dec. 23, 1983, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 210.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 210.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(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, <PRTPAGE P="64"/>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.</P> <P>(b) The provisions of this part do not apply to—</P> <P>(1) Steam locomotives;</P> <P>(2) Street, suburban, or interurban electric railways unless operated as a part of the general railroad system of transportation;</P> <P>(3) Sound emitted by warning devices, such as horns, whistles, or bells when operated for the purpose of safety;</P> <P>(4) Special purpose equipment that may be located on or operated from rail cars;</P> <P>(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</P> <P>(6) Inert retarders.</P> <CITA>[48 FR 56758, Dec. 23, 1983, as amended at 54 FR 33228, Aug. 14, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Statutory definitions.</E> 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.</P> <P>(b) <E T="03">Definitions in standards.</E> All terms used in this part and defined in § 201.1 of the Railroad Noise Emission Standards, 40 CFR 201.1, have the definition set forth in that section.</P> <P>(c) <E T="03">Additional definitions.</E> As used in this part—</P> <P> <E T="03">Administrator</E> 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.</P> <P> <E T="03">Consist of a locomotive and rail cars</E> means one or more locomotives coupled to a rail car or rail cars.</P> <P> <E T="03">FRA</E> means the Federal Railroad Administration.</P> <P> <E T="03">Inert retarder</E> means a device or system for holding a classified cut of cars and preventing it from rolling out the bottom of a railyard.</P> <P> <E T="03">Inspector</E> means FRA inspectors or FRA specialists.</P> <P> <E T="03">Noise defective</E> means the condition in which railroad equipment is found to exceed the Railroad Noise Emission Standards, 40 CFR part 201.</P> <P> <E T="03">Railroad equipment</E> means rail cars, locomotives, active retarders, and load cell test stands.</P> <P> <E T="03">Standards</E> means the Railroad Noise Emission Standards, 40 CFR part 201. (See appendix A in this part for a listing.)</P> </SECTION> <SECTION> <SECTNO>§ 210.7</SECTNO> <SUBJECT>Responsibility for noise defective railroad equipment.</SUBJECT> <P>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 § 210.9, such railroad shall—</P> <P>(a) Correct the noise defect;</P> <P>(b) Remove the noise defective railroad equipment from service; or</P> <P>(c) Modify the car coupling procedure to bring it within the prescribed noise limits.</P> </SECTION> <SECTION> <SECTNO>§ 210.9</SECTNO> <SUBJECT>Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 210.11</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>(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.</P> <P>(b) Each petition for a waiver under this section must be filed in the manner and contain information required by 49 CFR part 211.</P> <P>(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 <PRTPAGE P="65"/>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 <E T="04">Federal Register.</E> </P> </SECTION> <SECTION> <SECTNO>§ 210.13</SECTNO> <SUBJECT>Penalty.</SUBJECT> <P>Any person who operates railroad equipment subject to the Standards in 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Inspection and Testing</HD> <SECTION> <SECTNO>§ 210.21</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <P>This subpart prescribes the compliance criteria concerning the requirements for inspection and testing of railroad equipment or operations covered by the Standards.</P> </SECTION> <SECTION> <SECTNO>§ 210.23</SECTNO> <SUBJECT>Authorization.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(4) The inspection or examination referred to in this paragraph may be conducted only at recognized inspection points or scheduled stopping points.</P> </SECTION> <SECTION> <SECTNO>§ 210.25</SECTNO> <SUBJECT>Measurement criteria and procedures.</SUBJECT> <P>The parameters and procedures for the measurement of the noise emission levels are prescribed in the Standards.</P> <P>(a) Quantities measured are defined in § 201.21 of the Standards.</P> <P>(b) Requirements for measurement instrumentation are prescribed in § 201.22 of the Standards. In addition, <PRTPAGE P="66"/>the following calibration procedures shall be used:</P> <P>(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 use, and immediately following a measurement indicating a violation.</P> <P>(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.</P> <P>(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.</P> <P>(c) Acoustical environment, weather conditions, and background noise requirements are prescribed in § 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:</P> <P>(1) The common practice of reporting field sound level measurements to the nearest whole decibel;</P> <P>(2) Variations resulting from commercial instrument tolerances;</P> <P>(3) Variations resulting from the topography of the noise measurement site;</P> <P>(4) Variations resulting from atmospheric conditions such as wind, ambient temperature, and atmospheric pressure; and</P> <P>(5) Variations resulting from reflected sound from small objects allowed within the test site.</P> </SECTION> <SECTION> <SECTNO>§ 210.27</SECTNO> <SUBJECT>New locomotive certification.</SUBJECT> <P>(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.</P> <P>(b) The certification prescribed in this section shall be determined for each locomotive model, by either—</P> <P>(1) Load cell testing in accordance with the criteria prescribed in the Standards; or</P> <P>(2) Passby testing in accordance with the criteria prescribed in the Standards.</P> <P>(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.</P> <P>(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:</P> <P>(1) Whether a load cell or passby test was used;</P> <P>(2) The date and location of the test; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 210.29</SECTNO> <SUBJECT>Operation standards (moving locomotives and rail cars).</SUBJECT> <P>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.</P> <P>(a) Measurements for compliance shall be made in compliance with the provisions of subpart C of the Standards and the following:</P> <P>(1) Consists of locomotives containing at least one locomotive unit manufactured prior to December 31, 1979, shall be evaluated for compliance in accordance with § 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 <PRTPAGE P="67"/>be evaluated for compliance according to their respective built dates.</P> <P>(2) Consists of locomotives composed entirely of locomotive units manufactured after December 31, 1979, shall be evaluated for compliance in accordance with § 201.12(b) of the Standards.</P> <P>(3) If the inspector cannot establish the built dates of all locomotives in a consist of locomotives measured under moving conditions, evaluation for compliance shall be made in accordance with § 201.12(a) of the Standards.</P> <P>(b) Noise emission standards for rail cars operating under moving conditions are contained in § 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 § 201.13(2) of the Standards.</P> <P>(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 (§ 210.25), exceeds the noise emission levels prescribed in appendix A of this part.</P> </SECTION> <SECTION> <SECTNO>§ 210.31</SECTNO> <SUBJECT>Operation standards (stationary locomotives at 30 meters).</SUBJECT> <P>(a) For stationary locomotives at load cells:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) Location of test;</P> <P>(2) Type of test;</P> <P>(3) Date of test; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 (§ 210.25), exceeds the noise emission levels precribed in appendix A of this part.</P> </SECTION> <SECTION> <SECTNO>§ 210.33</SECTNO> <SUBJECT>Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).</SUBJECT> <P>(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 § 210.25 of this part.</P> <P>(b) These sources shall be considered in noncompliance whenever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels prescribed in appendix A of this part.</P> </SECTION> <APPENDIX> <PRTPAGE P="68"/> <EAR>Pt. 210, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 210—Summary of Noise Standards, 40 CFR Part 201</HD> <GPOTABLE CDEF="xs60,r50,9,xs48,xs48" COLS="5" OPTS="L2"> <BOXHD> <CHED H="1">Paragraph and section</CHED> <CHED H="1">Noise source</CHED> <CHED H="1">Noise standard—A weighted sound level in dB</CHED> <CHED H="1">Noise measure <SU>1</SU> </CHED> <CHED H="1">Measurement location</CHED> </BOXHD> <ROW> <ENT I="22"/> <ENT O="oi0"> <E T="03">All Locomotives Manufactured on or Before 31 December 1979</E> </ENT> </ROW> <ROW> <ENT I="01">201.11(a)</ENT> <ENT>Stationary, Idle Throttle Setting</ENT> <ENT>73</ENT> <ENT>L<E T="52">max</E> (slow)</ENT> <ENT>30 m (100 ft)</ENT> </ROW> <ROW> <ENT I="01">201.11(a)</ENT> <ENT>Stationary, All Other Throttle Settings</ENT> <ENT>93</ENT> <ENT>......do</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.12(a)</ENT> <ENT>Moving</ENT> <ENT>96</ENT> <ENT>L<E T="52">max</E> (fast)</ENT> <ENT>Do. </ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi0"> <E T="03">All Locomotives Manufactured After 31 December 1979</E> </ENT> </ROW> <ROW> <ENT I="01">201.11(b)</ENT> <ENT>Stationary, Idle Throttle Setting</ENT> <ENT>70</ENT> <ENT>L<E T="52">max</E> (slow)</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.11(b)</ENT> <ENT>Stationary, All Other Throttle Settings</ENT> <ENT>87</ENT> <ENT>......do</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.12(b)</ENT> <ENT>Moving</ENT> <ENT>90</ENT> <ENT>L<E T="52">max</E> (fast)</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.11(c) and 201.12(c)</ENT> <ENT> <E T="03">Additional Requirement 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</E> </ENT> <ENT>65</ENT> <ENT>L<E T="52">90</E> (fast) <SU>2</SU> </ENT> <ENT>Receiving property</ENT> </ROW> <ROW> <ENT I="01">201.11(c)</ENT> <ENT>Stationary, Idle Throttle Setting</ENT> <ENT>70</ENT> <ENT>L<E T="52">max</E> (slow)</ENT> <ENT>30 m (100 ft)</ENT> </ROW> <ROW> <ENT I="01">201.11(c)</ENT> <ENT>Stationary, All Other Throttle Settings</ENT> <ENT>87</ENT> <ENT>......do</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.12(c)</ENT> <ENT>Moving</ENT> <ENT>90</ENT> <ENT>L<E T="52">max</E> (fast)</ENT> <ENT>Do. </ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi0"> <E T="03">Rail Cars</E> </ENT> </ROW> <ROW> <ENT I="01">201.13(1)</ENT> <ENT>Moving at Speeds of 45 mph or Less</ENT> <ENT>88</ENT> <ENT>......do</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.13(2)</ENT> <ENT>Moving at Speeds Greater than 45 mph</ENT> <ENT>93</ENT> <ENT>......do</ENT> <ENT>Do. </ENT> </ROW> <ROW> <ENT I="22"/> <ENT O="oi0"> <E T="03">Other Yard Equipment and Facilities</E> </ENT> </ROW> <ROW> <ENT I="01">201.14</ENT> <ENT>Retarders</ENT> <ENT>83</ENT> <ENT>L<E T="52">adjavemax</E> (fast)</ENT> <ENT>Receiving property</ENT> </ROW> <ROW> <ENT I="01">201.15</ENT> <ENT>Car-Coupling Operations</ENT> <ENT>92</ENT> <ENT>......do</ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.16</ENT> <ENT> <E T="03">Locomotive Load Cell Test Stands, Where the Noise from Locomotive Load Cell Operations Exceeds the Receiving Property Limits of</E> </ENT> <ENT>65</ENT> <ENT>L<E T="52">90</E> (fast) <SU>2</SU> </ENT> <ENT>Do.</ENT> </ROW> <ROW> <ENT I="01">201.16(a)</ENT> <ENT>Primary Standard</ENT> <ENT>78</ENT> <ENT>L<E T="52">max</E> (slow)</ENT> <ENT>30 m (100 ft).</ENT> </ROW> <ROW> <ENT I="01">201.16(b)</ENT> <ENT>Secondary Standard if 30-m Measurement Not Feasible</ENT> <ENT>65</ENT> <ENT>L<E T="52">90</E> (fast)</ENT> <ENT>Receiving property located more than 120 m from Load Cell.</ENT> </ROW> <TNOTE> <SU>1</SU> L<E T="52">max</E>=Maximum sound level; L<E T="52">90</E>=Statistical sound level exceeded 90% of the time; L<E T="52">adjavemax</E>=Adjusted average maximum sound level.</TNOTE> <TNOTE> <SU>2</SU> L<E T="52">90</E> must be validated by determining that L<E T="52">10</E>-L<E T="52">99</E> is less than or equal to 4dB (A).</TNOTE> </GPOTABLE> <CITA>[48 FR 56758, Dec. 23, 1983; 49 FR 1521, Jan. 12, 1984]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 210, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 210—Switcher Locomotive Enforcement Policy</HD> <P>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.</P> <P>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).</P> <P>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 <PRTPAGE P="69"/>abatement action is adopted, FRA would not make a 30-meter test of the switcher locomotives at the facility.</P> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 211</EAR> <HD SOURCE="HED">PART 211—RULES OF PRACTICE</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>211.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>211.3</SECTNO> <SUBJECT>Participation by interested persons.</SUBJECT> <SECTNO>211.5</SECTNO> <SUBJECT>Regulatory docket.</SUBJECT> <SECTNO>211.7</SECTNO> <SUBJECT>Filing requirements.</SUBJECT> <SECTNO>211.9</SECTNO> <SUBJECT>Content of rulemaking and waiver petitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rulemaking Procedures</HD> <SECTNO>211.11</SECTNO> <SUBJECT>Processing of petitions for rulemaking.</SUBJECT> <SECTNO>211.13</SECTNO> <SUBJECT>Initiation and completion of rulemaking proceedings.</SUBJECT> <SECTNO>211.15</SECTNO> <SUBJECT>Notice and participation.</SUBJECT> <SECTNO>211.17</SECTNO> <SUBJECT>Publication and contents of notices.</SUBJECT> <SECTNO>211.19</SECTNO> <SUBJECT>Petitions for extensions of time to comment.</SUBJECT> <SECTNO>211.21</SECTNO> <SUBJECT>Consideration of comments received.</SUBJECT> <SECTNO>211.23</SECTNO> <SUBJECT>Additional public proceedings.</SUBJECT> <SECTNO>211.25</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>211.27</SECTNO> <SUBJECT>Publication of adopted rules and withdrawal of notices.</SUBJECT> <SECTNO>211.29</SECTNO> <SUBJECT>Petitions for reconsideration of a final rule.</SUBJECT> <SECTNO>211.31</SECTNO> <SUBJECT>Proceedings on petitions for reconsideration of a final rule.</SUBJECT> <SECTNO>211.33</SECTNO> <SUBJECT>Direct final rulemaking procedures.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Waivers</HD> <SECTNO>211.41</SECTNO> <SUBJECT>Processing of petitions for waiver of safety rules.</SUBJECT> <SECTNO>211.43</SECTNO> <SUBJECT>Processing of other waiver petitions.</SUBJECT> <SECTNO>211.45</SECTNO> <SUBJECT>Petitions for emergency waiver of safety rules.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Emergency Orders</HD> <SECTNO>211.47</SECTNO> <SUBJECT>Review procedures.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Miscellaneous Safety-Related Proceedings and Inquiries</HD> <SECTNO>211.51</SECTNO> <SUBJECT>Tests.</SUBJECT> <SECTNO>211.53</SECTNO> <SUBJECT>Signal applications.</SUBJECT> <SECTNO>211.55</SECTNO> <SUBJECT>Special approvals.</SUBJECT> <SECTNO>211.57</SECTNO> <SUBJECT>Petitions for reconsideration.</SUBJECT> <SECTNO>211.59</SECTNO> <SUBJECT>Proceedings on petitions for reconsideration.</SUBJECT> <SECTNO>211.61</SECTNO> <SUBJECT>Informal safety inquiries.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Interim Procedures for the Review of Emergency Orders</HD> <SECTNO>211.71</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>211.73</SECTNO> <SUBJECT>Presiding officer; powers.</SUBJECT> <SECTNO>211.75</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>211.77</SECTNO> <SUBJECT>Appeal to the Administrator.</SUBJECT> <APP>Appendix A to Part 211—Statement of Agency Policy Concerning Waivers Related to Shared Use of Trackage or Rights-of-Way by Light Rail and Conventional Operations</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.49.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>41 FR 54181, Dec. 13, 1976, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 211.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(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 § 211.7.</P> <P>(b) As used in this part—</P> <P>(1) <E T="03">Administrator</E> means the Federal Railroad Administrator or the Deputy Administrator or the delegate of either of them.</P> <P>(2) <E T="03">Waiver</E> includes exemption.</P> <P>(3) <E T="03">Safety Act</E> means the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421 et seq.).</P> <P>(4) <E T="03">Docket Clerk</E> means the Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 or the Docket Clerk, U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.</P> <P>(5) <E T="03">Railroad Safety Board</E> means the Railroad Safety Board, Office of Safety, Federal Railroad Administration, Washington, DC 20590.<PRTPAGE P="70"/> </P> <P>(c) Records relating to proceedings and inquiries subject to this part are available for inspection as provided in part 7 of this title.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999; 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.3</SECTNO> <SUBJECT>Participation by interested persons.</SUBJECT> <P>Any person may participate in proceedings and inquiries subject to this 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.</P> </SECTION> <SECTION> <SECTNO>§ 211.5</SECTNO> <SUBJECT>Regulatory docket.</SUBJECT> <P>(a)(1) Records of the Federal Railroad Administration created after November 1, 1998, concerning each proceeding subject to this part are maintained in current docket form by the Federal Docket Management System. 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 denial of waiver and other petitions. Also included are records pertaining to applications for special approval under §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, signal applications under parts 235 and 236 of this chapter, and informal safety inquiries under § 211.61.</P> <P>(2) Any person may examine docketed material created after November 1, 1998:</P> <P>(i) At the U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Copies of docketed materials may be obtained upon payment of the fees prescribed by the Federal Docket Management System, or</P> <P>(ii) Through the Internet at <E T="03">http://www.regulations.gov</E>. All docketed materials are available for viewing and may be downloaded for electronic storage or printing. There is no charge for this service.</P> <P>(b) Records of the Federal Railroad Administration created before November 1, 1998, concerning each proceeding subject to this part are available in FRA's Docket Office, 1200 New Jersey Avenue, SE., Washington, DC 20590. Any person may examine docketed material at that location during normal business hours. Copies of docketed material may be obtained upon payment of the fees prescribed in part 7 of this title.</P> <P>(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.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999; 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.7</SECTNO> <SUBJECT>Filing requirements.</SUBJECT> <P>(a) Any person may petition the Administrator for issuance, amendment, repeal or permanent or temporary waiver of any rule or regulation. A petition for waiver must be submitted at least 3 months before the proposed effective date, unless good cause is shown for not doing so.</P> <P>(b)(1) All petitions and applications subject to this part, including applications for special approval under §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted to the FRA Docket Clerk. Each petition received shall be acknowledged in writing. The acknowledgment shall contain the docket number assigned to the petition or application and state the date the petition or application was received. Within 60 days following receipt, FRA will advise the petitioner or applicant of any deficiencies in its petition or application.</P> <P>(2) All comments submitted in response to a notice and other material pertaining to proceedings subject to this part, including comments submitted in response to requests for special approval under § 211.55 and § 238.21 of this chapter, petitions for grandfathering approval under § 238.203 <PRTPAGE P="71"/>of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted to the Federal Docket Management System and shall contain the assigned docket number for that proceeding. The form of such submissions may be in written or electronic form consistent with the standards and requirements established by the Federal Docket Management System and posted on its web site at <E T="03">http://www.regulations.gov</E>.</P> <CITA>[64 FR 70195, Dec. 16, 1999, as amended at 74 FR 25171, 25172, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.9</SECTNO> <SUBJECT>Content of rulemaking and waiver petitions.</SUBJECT> <P>Each petition for rulemaking or waiver must:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rulemaking Procedures</HD> <SECTION> <SECTNO>§ 211.11</SECTNO> <SUBJECT>Processing of petitions for rulemaking.</SUBJECT> <P>(a) <E T="03">General.</E> Each petition for rulemaking filed as prescribed in §§ 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 may be published in the <E T="04">Federal Register</E> 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.</P> <P>(b) <E T="03">Grants.</E> If the Administrator determines that a rulemaking petition complies with the requirements of § 211.9 and that rulemaking is justified, he initiates a rulemaking proceeding by publishing an advance notice or notice of proposed rulemaking in the <E T="04">Federal Register.</E> </P> <P>(c) <E T="03">Denials.</E> If the Administrator determines that a rulemaking petition does not comply with the requirements of § 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 § 211.61.</P> <P>(d) <E T="03">Notification; closing of docket.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 211.13</SECTNO> <SUBJECT>Initiation and completion of rulemaking proceedings.</SUBJECT> <P>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 <E T="04">Federal Register.</E> 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 <E T="04">Federal Register.</E> 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 §§ 211.7 and 211.9.</P> </SECTION> <SECTION> <PRTPAGE P="72"/> <SECTNO>§ 211.15</SECTNO> <SUBJECT>Notice and participation.</SUBJECT> <P>(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 <E T="04">Federal Register</E> and interested persons are invited to participate in the rulemaking proceedings with respect to each substantive rule.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 211.17</SECTNO> <SUBJECT>Publication and contents of notices.</SUBJECT> <P>Each advance notice or notice of proposed rulemaking is published in the <E T="04">Federal Register</E> and includes—</P> <P>(a) A statement of the time, place and nature of the proposed rulemaking proceeding;</P> <P>(b) A reference to the authority under which it is issued;</P> <P>(c) A description of the subjects or issues involved or the substance or terms of the proposed rule;</P> <P>(d) A statement of the time within which written comments must be submitted and the required number of copies; and</P> <P>(e) A statement of how and to what extent interested persons may participate in the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 211.19</SECTNO> <SUBJECT>Petitions for extensions of time to comment.</SUBJECT> <P>(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 FRA Docket Clerk not later than 10 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.</P> <P>(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 <E T="04">Federal Register</E>.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.21</SECTNO> <SUBJECT>Consideration of comments received.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 211.23</SECTNO> <SUBJECT>Additional public proceedings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 211.25</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) A hearing will be held if required by statute or the Administrator finds it necessary or desirable.</P> <P>(b) Except for statutory hearings required to be on the record—</P> <P>(1) Hearings are fact-finding proceedings, and there are no formal pleadings or adverse parties;<PRTPAGE P="73"/> </P> <P>(2) Any rule issued in a proceeding in which a hearing is held is not based exclusively on the record of the hearing; and</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 211.27</SECTNO> <SUBJECT>Publication of adopted rules and withdrawal of notices.</SUBJECT> <P>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 <E T="04">Federal Register.</E> </P> </SECTION> <SECTION> <SECTNO>§ 211.29</SECTNO> <SUBJECT>Petitions for reconsideration of a final rule.</SUBJECT> <P>(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 <E T="04">Federal Register,</E> 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.</P> <P>(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.</P> <P>(c) The Administrator does not consider repetitious petitions.</P> <P>(d) Unless the Administrator specifically provides otherwise, and publishes notice thereof in the <E T="04">Federal Register,</E> the filing of a petition under this section does not stay the effectiveness of a rule.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 42 FR 27593, May 31, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.31</SECTNO> <SUBJECT>Proceedings on petitions for reconsideration of a final rule.</SUBJECT> <P>(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 <E T="04">Federal Register</E>.</P> <P>(b) Whenever the Administrator determines that a petition should be 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 <E T="04">Federal Register</E>.</P> <P>(c) The Administrator may consolidate petitions relating to the same rule.</P> </SECTION> <SECTION> <SECTNO>§ 211.33</SECTNO> <SUBJECT>Direct final rulemaking procedures.</SUBJECT> <P>(a) Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the <E T="04">Federal Register</E> as direct final rules. These include noncontroversial rules that:</P> <P>(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,</P> <P>(2) Are nonsubstantive clarifications or corrections to existing rules,</P> <P>(3) Update existing forms, and</P> <P>(4) Make minor changes in the substantive rules regarding statistics and reporting requirements.</P> <P>(b) The <E T="04">Federal Register</E> document will state that any adverse comment or notice of intent to submit adverse comment must be received in writing by the Federal Railroad Administration within the specified time after the date of publication and that, if no written adverse comment or request for oral hearing (if such opportunity is required by statute) is received, the rule will become effective a specified number of days after the date of publication.</P> <P>(c) If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the <PRTPAGE P="74"/> <E T="04">Federal Register,</E> the Federal Railroad Administration will publish a notice in the <E T="04">Federal Register</E> indicating that no adverse comment was received and confirming that the rule will become effective on the date that was indicated in the direct final rule.</P> <P>(d) If the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the <E T="04">Federal Register,</E> a notice withdrawing the direct final rule will be published in the final rule section of the <E T="04">Federal Register</E> and, if the Federal Railroad Administration decides a rulemaking is warranted, a notice of proposed rulemaking will be published in the proposed rule section of the <E T="04">Federal Register</E>.</P> <P>(e) An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule.</P> <CITA>[72 FR 10087, Mar. 7, 2007]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Waivers</HD> <SECTION> <SECTNO>§ 211.41</SECTNO> <SUBJECT>Processing of petitions for waiver of safety rules.</SUBJECT> <P>(a) <E T="03">General.</E> Each petition for a permanent or temporary waiver of a safety rule, regulation or standard filed as prescribed in §§ 211.7 and 211.9, is referred to the Railroad Safety Board for decision and decided not later than 9 months after receipt.</P> <P>(b) <E T="03">Notice and hearing.</E> If required by statute or the Administrator or the Railroad Safety Board deems it desirable, a notice is published in the <E T="04">Federal Register,</E> an opportunity for public comment is provided, and a hearing is held in accordance with § 211.25, before the petition is granted or denied.</P> <P>(c) <E T="03">Grants.</E> If the Railroad Safety Board determines that the petition complies with the requirements of § 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.</P> <P>(d) <E T="03">Denials.</E> If the Railroad Safety Board determines that the petition does not comply with the requirements of § 211.9 or that a waiver is not justified, it denies the petition.</P> <P>(e) <E T="03">Notification.</E> 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 <E T="04">Federal Register</E>.</P> <P>(f) <E T="03">Petition for reconsideration.</E> Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in § 211.57. Each petition shall be processed in accordance with § 211.59.</P> </SECTION> <SECTION> <SECTNO>§ 211.43</SECTNO> <SUBJECT>Processing of other waiver petitions.</SUBJECT> <P>(a) <E T="03">General.</E> Except as provided in § 211.41, each petition for a permanent or temporary waiver of a rule, regulation or standard shall be filed and processed as prescribed in §§ 211.7 and 211.9.</P> <P>(b) <E T="03">Notice and hearing.</E> If required by statute or the Administrator deems it desirable, a notice is published in the <E T="04">Federal Register,</E> an opportunity for public comment is provided, and a hearing is held in accordance with § 211.25, before the petition is granted or denied.</P> <P>(c) <E T="03">Grants.</E> If the Administrator determines that the petition complies with the requirements of § 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.</P> <P>(d) <E T="03">Denials.</E> If the Administrator determines that the petition does not comply with the requirements of § 211.9 or that a waiver is not justified, he denies the waiver.</P> <P>(e) <E T="03">Notification.</E> 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 <E T="04">Federal Register</E>.</P> <P>(f) <E T="03">Petitions for reconsideration.</E> Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in § 211.57. <PRTPAGE P="75"/>Each petition shall be processed in accordance with § 211.59.</P> </SECTION> <SECTION> <SECTNO>§ 211.45</SECTNO> <SUBJECT>Petitions for emergency waiver of safety rules.</SUBJECT> <P>(a) <E T="03">General.</E> This section applies only to petitions for waiver of a safety rule, regulation, or standard that FRA determines are directly related to the occurrence of, or imminent threat of, an emergency event or an emergency situation. For purposes of this section, the terms “emergency event” and “emergency situation” mean a natural or manmade disaster, such as a hurricane, flood, earthquake, mudslide, forest fire, snowstorm, terrorist act, biological outbreak, release of a dangerous radiological, chemical, explosive, or biological material, or a war-related activity, that poses a risk of death, serious illness, severe injury, or substantial property damage. The disaster may be local, regional, or national in scope.</P> <P>(b) <E T="03">Emergency Relief Docket.</E> Each calendar year FRA creates an Emergency Relief Docket (ERD) in the publicly accessible Federal eRulemaking Portal (FeP). The FeP can be accessed 24 hours a day, seven days a week, via the Internet at the docket's Web site at <E T="03">http://www.regulations.gov.</E> All documents in the FeP are available for inspection and copying on the Web site or are available for examination at the DOT Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 during regular business hours (9 a.m.-5 p.m.). By January 31st of each year, FRA publishes a notice in the <E T="04">Federal Register</E> identifying by docket number the ERD for that year. A notice will also be placed in the previous year's ERD identifying the new docket number.</P> <P>(c) <E T="03">Determining the existence of an emergency event or an emergency situation.</E> If the Administrator determines that an emergency event or an emergency situation identified in paragraph (a) of this section has occurred, or that an imminent threat of it occurring exists, and determines that public safety or recovery efforts require that the provisions of this section be implemented, the Administrator will activate the Emergency Relief Docket identified in paragraph (b) of this section. In determining whether an emergency exists, the Administrator may consider declarations of emergency made by local, State, or Federal officials, and determinations by the Federal government that a credible threat of a terrorist attack exists.</P> <P>(d) <E T="03">Notification.</E> When possible, FRA will post the FRA Administrator's determination described in paragraph (c) of this section on its Web site at <E T="03">http://www.fra.dot.gov.</E> FRA will also place the FRA Administrator's determination in the ERD as soon as practicable.</P> <P>(e) <E T="03">Content of petitions for emergency waivers.</E> Petitions submitted to FRA pursuant to this section should specifically address how the petition is related to the emergency, and to the extent practicable, contain the information required under § 211.9(a) and (b). The petition should at a minimum describe the following: how the petitioner or public is affected by the emergency (including the impact on railroad operations); what FRA regulations are implicated by the emergency (e.g., movement of defective equipment); how waiver of the implicated regulations would benefit petitioner during the emergency; and how long the petitioner expects to be affected by the emergency.</P> <P>(f) <E T="03">Filing requirements.</E> Petitions filed under this section, shall be submitted using any of the following methods:</P> <P>(1) E-mail to FRA at: <E T="03">RRS.Correspondence@fra.dot.gov</E>;</P> <P>(2) Facsimile to FRA at: 202-493-6309; or</P> <P>(3) Mail to FRA at: FRA Docket Clerk, Office of Chief Counsel, RCC-10, Mail Stop 10, 1200 New Jersey Ave. SE., Washington, DC 20590, facsimile no. 202-493-6068.</P> <P>(g) <E T="03">FRA Handling and Initial Review.</E> Upon receipt and initial review of a petition for waiver, to verify that it meets the criteria for use of these emergency procedures, FRA will add the petition to the ERD. The FeP numbers each document that is added to a docket. (For example, the first document submitted to the docket in 2009 will be identified as FRA-2009-XXX-1.) Thus, each petition submitted to the ERD will have a unique document number which should be identified on <PRTPAGE P="76"/>all communications related to petitions contained in this docket. If FRA determines that the petition does not meet the criteria for use of these emergency procedures, FRA will notify the petitioner and will process the petition under normal waiver procedures of this subpart.</P> <P>(h) <E T="03">Comments.</E> Although the Administrator may waive compliance with any part of a regulation prescribed or order issued without prior notice and comment, comments may be submitted. Comments should be submitted as soon as possible, after a petition is available on the FeP. Any comment received will be considered to the extent practicable. All comments should identify the appropriate ERD and should identify the specific document number of the petition designated by the FeP in the ERD. Interested parties commenting on a petition under this section should also include in their comments to the ERD telephone numbers at which their representatives may be reached. Interested parties may submit their comments using any of the following methods:</P> <P>(1) E-mail to FRA at: <E T="03">RRS.Correspondence@fra.dot.gov.</E> </P> <P>(2) Facsimile to FRA at: 202-493-6309.</P> <P>(3) Mail to the Docket Clerk, DOT Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 or electronically via the internet at <E T="03">http://www.regulations.gov.</E> Any comments or information sent directly to FRA will be immediately provided to the DOT FeP for inclusion in the ERD.</P> <P>(i) <E T="03">Request for hearing.</E> Although the Administrator may waive compliance with any part of a regulation prescribed or order issued without prior notice and comment, parties desiring a public hearing on any petition being processed under this section must notify FRA through the comment process identified in paragraph (h) of this section within 72 hours from the close of business on the day that the petition is entered into and available on the FeP. In response to a request for a public hearing, FRA may:</P> <P>(1) Arrange a telephone conference between all interested parties to provide an opportunity for oral comment;</P> <P>(2) Arrange a public hearing pursuant to the provisions contained in 49 CFR part 211; or</P> <P>(3) Determine that a public hearing is unnecessary, inconsistent with safety, or not in the public interest.</P> <P>(j) <E T="03">Decisions.</E> FRA may grant a petition for waiver without prior notice and comment if the Administrator determines that it is in the public interest to grant the waiver; the waiver is not inconsistent with railroad safety; and the waiver is necessary to address an actual or impending emergency situation or emergency event. The Administrator will state in the decision issued under this section the reasons for granting the waiver.</P> <P>(1) FRA reserves the right to reopen any docket and reconsider any decision made pursuant to these emergency procedures based upon its own initiative or based upon information or comments otherwise received.</P> <P>(2) FRA decision letters, either granting or denying a petition, will be posted in the appropriate ERD and will reference the document number of the petition to which it relates.</P> <P>(3) A waiver under this section may be issued for a period of not more that 60 days and may be renewed upon application to the Administrator only after notice and an opportunity for a hearing on the waiver. The Administrator will immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this part.</P> <P>(4) In granting a waiver under this section, the Administrator will consult and coordinate with other Federal agencies, as appropriate, for matters that may significantly impact such agencies.</P> <CITA>[74 FR 23335, May 19, 2009]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Emergency Orders</HD> <SECTION> <SECTNO>§ 211.47</SECTNO> <SUBJECT>Review procedures.</SUBJECT> <P>(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 <PRTPAGE P="77"/>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 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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Miscellaneous Safety-Related Proceedings and Inquiries</HD> <SECTION> <SECTNO>§ 211.51</SECTNO> <SUBJECT>Tests.</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(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</P> <P>(3) The suspension is conditioned on the observance of standards sufficient to assure safety.</P> <P>(b) When required by statute, a notice is published in the <E T="04">Federal Register,</E> an opportunity is provided for public comment, and a hearing is held in accordance with § 211.25, before the FRA approved test program is implemented.</P> <P>(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 <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 211.53</SECTNO> <SUBJECT>Signal applications.</SUBJECT> <P>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 accordance with § 211.7, 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 <E T="04">Federal Register</E>.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.55</SECTNO> <SUBJECT>Special approvals.</SUBJECT> <P>Requests for special approval pertaining to safety not otherwise provided for in this chapter, must be submitted in accordance with § 211.7; specifying the action requested. These requests shall be considered by the Railroad Safety 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 <E T="04">Federal Register</E>.</P> <CITA>[41 FR 54181, Dec. 13, 1976, as amended at 74 FR 25171, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.57</SECTNO> <SUBJECT>Petitions for reconsideration.</SUBJECT> <P>(a) Any person may petition the Administrator for reconsideration of final action taken in proceedings subject to subpart C or E of this part.</P> <P>(b) The petition must specify with particularity the grounds for modification or revocation of the action in question.</P> <P>(c) The Administrator does not consider repetitious petitions.<PRTPAGE P="78"/> </P> <P>(d) Unless the Administrator specifically provides otherwise, and gives notice to interested parties or publishes notice in the <E T="04">Federal Register,</E> the filing of a petition under this section does not stay the effectiveness of the action sought to be reconsidered.</P> </SECTION> <SECTION> <SECTNO>§ 211.59</SECTNO> <SUBJECT>Proceedings on petitions for reconsideration.</SUBJECT> <P>(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 § 211.57.</P> <P>(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 <E T="04">Federal Register.</E> 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 <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 211.61</SECTNO> <SUBJECT>Informal safety inquiries.</SUBJECT> <P>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 <E T="04">Federal Register</E> 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 § 211.13 or take whatever other action he deems appropriate.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Interim Procedures for the Review of Emergency Orders</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 203 and 208(a), 84 Stat. 972, 974-975 (45 U.S.C. 432, 437(a)) and 5 U.S.C. 554-559.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>44 FR 13029, Mar. 9, 1979, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 211.71</SECTNO> <SUBJECT>General.</SUBJECT> <P>(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 § 211.47 of this part.</P> <P>(b) Proceedings under this subpart are subject to the requirements of 5 U.S.C. 554-559.</P> <P>(c) Notwithstanding § 211.1 of this part, as used in this subpart <E T="03">Administrator</E> means the Federal Railroad Administrator or Deputy Administrator.</P> </SECTION> <SECTION> <SECTNO>§ 211.73</SECTNO> <SUBJECT>Presiding officer; powers.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Except as provided in § 211.77, the decision of the presiding officer is administratively final.</P> </SECTION> <SECTION> <SECTNO>§ 211.75</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(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.</P> <P>(b) The presiding officer may deny the admission of evidence which is determined to be—</P> <P>(1) Unduly repetitive; or</P> <P>(2) So extensive and lacking in relevance or probative effect that its admission would impair the prompt, orderly, and fair resolution of the proceeding.</P> </SECTION> <SECTION> <PRTPAGE P="79"/> <SECTNO>§ 211.77</SECTNO> <SUBJECT>Appeal to the Administrator.</SUBJECT> <P>(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 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.</P> <P>(b) [Reserved]</P> </SECTION> <APPENDIX> <EAR>Pt. 211, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 211—Statement of Agency Policy Concerning Waivers Related to Shared Use of Trackage or Rights-of-Way by Light Rail and Conventional Operations</HD> <P>1. By statute, the Federal Railroad Administration (FRA) may grant a waiver of any rule or order if the waiver “is in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). Waiver petitions are reviewed by FRA's Railroad Safety Board (the “Safety Board”) under the provisions of 49 CFR part 211. Waiver petitions must contain the information required by 49 CFR 211.9. The Safety Board can, in granting a waiver, impose any conditions it concludes are necessary to assure safety or are in the public interest. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety.</P> <P>2. Light rail equipment, commonly referred to as trolleys or street railways, is not designed to be used in situations where there is a reasonable likelihood of a collision with much heavier and stronger conventional rail equipment. However, existing conventional railroad tracks and rights-of-way provide attractive opportunities for expansion of light rail service.</P> <P>3. Light rail operators who intend to share use of the general railroad system trackage with conventional equipment and/or whose operations constitute commuter service (see appendix A of 49 CFR part 209 for relevant definitions) will either have to comply with FRA's safety rules or obtain a waiver of appropriate rules. Light rail operators whose operations meet the definition of urban rapid transit and who will share a right-of-way or corridor with a conventional railroad but will not share trackage with that railroad will be subject to only those rules that pertain to any significant point of connection to the general system, such as a rail crossing at grade, a shared method of train control, or shared highway-rail grade crossings.</P> <P>4. Shared use of track refers to situations where light rail transit operators conduct their operations over the lines of the general system, and includes light rail operations that are wholly separated in time (temporally separated) from conventional operations as well as light rail operations operating on the same trackage at the same time as conventional rail equipment (simultaneous joint use). Where shared use of general system trackage is contemplated, FRA believes a comprehensive waiver request covering all rules for which a waiver is sought makes the most sense. FRA suggests that a petitioner caption such a waiver petition as a Petition for Approval of Shared Use so as to distinguish it from other types of waiver petitions. The light rail operator should file the petition. All other affected railroads will be able to participate in the waiver proceedings by commenting on the petition and providing testimony at a hearing on the petition if anyone requests such a hearing. If any other railroad will be affected by the proposed operation in such a way as to necessitate a waiver of any FRA rule, that railroad may either join with the light rail operator in filing the comprehensive petition or file its own petition.</P> <P>5. In situations where the light rail operator is an urban rapid transit system that will share a right-of-way or corridor with the conventional railroad but not share trackage, any waiver petition should cover only the rules that may apply at any significant points of connection between the rapid transit line and the other railroad. A Petition for Approval of Shared Use would not be appropriate in such a case.</P> <HD SOURCE="HD1">I. Preliminary Jurisdictional Determinations</HD> <P>Where a light rail operator is uncertain whether the planned operation will be subject to FRA's safety jurisdiction and, if so, to what extent, the operator may wish to obtain FRA's views on the jurisdictional issues before filing a waiver petition. In that case, the light rail operator (here including a transit authority that may not plan to actually operate the system itself) should write to FRA requesting such a determination. The letter should be addressed to Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590, with a copy to the Associate Administrator for Safety at the same address at Mail Stop 25. The letter should address the criteria (found in 49 CFR part 209, appendix A) FRA uses to determine whether it has jurisdiction over a rail operation and to distinguish commuter from urban rapid <PRTPAGE P="80"/>transit service. A complete description of the nature of the contemplated operation is essential to an accurate determination. FRA will attempt to respond promptly to such a request. Of course, FRA's response will be based only on the facts as presented by the light rail operator. If FRA subsequently learns that the facts are different from those presented or have changed substantially, FRA may revise its initial determination.</P> <HD SOURCE="HD1">II. General Factors To Address in a Petition for Approval of Shared Use</HD> <P>1. Like all waiver petitions, a Petition for Approval of Shared Use will be reviewed by the Safety Board. A non-voting FTA liaison to the Safety Board will participate in an advisory capacity in the Safety Board's consideration of all such petitions. This close cooperation between the two agencies will ensure that FRA benefits from the insights, particularly with regard to operational and financial issues, that FTA can provide about light rail operations, as well as from FTA's knowledge of and contacts with state safety oversight programs. This working relationship will also ensure that FTA has a fuller appreciation of the safety issues involved in each specific shared use operation and a voice in shaping the safety requirements that will apply to such operations.</P> <P>2. FRA resolves each waiver request on its own merits based on the information presented and the agency's own investigation of the issues. In general, the greater the safety risks inherent in a proposed operation the greater will be the mitigation measures required. While FRA cannot state in advance what kinds of waivers will be granted or denied, we can provide guidance to those who may likely be requesting waivers to help ensure that their petitions address factors that FRA will no doubt consider important.</P> <P>3. FRA's procedural rules give a general description of what any waiver petition should contain, including an explanation of the nature and extent of the relief sought; a description of the persons, equipment, installations, and locations to be covered by the waiver; an evaluation of expected costs and benefits; and relevant safety data. 49 CFR 211.9. The procedural rules, of course, are not specifically tailored to situations involving light rail operations over the general system, where waiver petitions are likely to involve many of FRA's regulatory areas. In such situations, FRA suggests that a Petition for Approval of Shared Use address the following general factors.</P> <P>A. <E T="03">Description of operations.</E> You should explain the frequency and speeds of all operations on the line and the nature of the different operations. You should explain the nature of any connections between the light rail and conventional operations.</P> <P>•If the light rail line will operate on any segments (e.g., a street railway portion) that will not be shared by a conventional railroad, describe those segments and their connection with the shared use segments. If the petitioner has not previously sought and received a determination from FRA concerning jurisdictional issues, explain, using the criteria set out in 49 CFR part 209, Appendix A, whether the light rail operation is, in the petitioner's view, a commuter operation or urban rapid transit.</P> <P>•You should describe precisely what the respective hours of operation will be for each type of equipment on the shared use segments. If light rail and conventional operations will occur only at different times of day, describe what means of protection will ensure that the different types of equipment are not operated simultaneously on the same track, and how protection will be provided to ensure that, where one set of operations begins and the other ends, there can be no overlap that would possibly result in a collision.</P> <P>•If the light rail and conventional operations will share trackage during the same time periods, the petitioners will face a steep burden of demonstrating that extraordinary safety measures will be taken to adequately reduce the likelihood of a collision between conventional and light rail equipment to the point where the safety risks associated with joint use would be acceptable. You should explain the nature of such simultaneous joint use, the system of train control, the frequency and proximity of both types of operations, the training and qualifications of all operating personnel in both types of operations, and all methods that would be used to prevent collisions. You should also include a quantitative risk assessment concerning the risk of collision between the light rail and conventional equipment under the proposed operating scenario.</P> <P>B. <E T="03">Description of equipment.</E> (1) You should describe all equipment that will be used by the light rail and conventional operations. Where the light rail equipment does not meet the standards of 49 CFR part 238, you should provide specifics on the crash survivability of the light rail equipment, such as static end strength, sill height, strength of corner posts and collision posts, side strength, etc.</P> <P>(2) Given the structural incompatibility of light rail and conventional equipment, FRA has grave concerns about the prospect of operating these two types of equipment simultaneously on the same track. If the light rail and conventional operations will share trackage during the same time periods, you should provide an engineering analysis of the light rail equipment's resistance to damage in various types of collisions, including a worst case scenario involving a failure of the collision avoidance systems resulting in a collision between light rail and conventional equipment at track speeds.<PRTPAGE P="81"/> </P> <P>C. <E T="03">Alternative safety measures to be employed in place of each rule for which waiver is sought.</E> The petition should specify exactly which rules the petitioner desires to be waived. For each rule, the petition should explain exactly how a level of safety at least equal to that afforded by the FRA rule will be provided by the alternative measures the petitioner proposes.</P> <P>(1) Most light rail operations that entail some shared use of the general system will also have segments that are not on the general system. FTA's rules on rail fixed guideway systems will probably apply to those other segments. If so, the petition for waiver of FRA's rules should explain how the system safety program plan adopted under FTA's rules may affect safety on the portions of the system where FRA's rules apply. Under certain circumstances, effective implementation of such a plan may provide FRA sufficient assurance that adequate measures are in place to warrant waiver of certain FRA rules.</P> <P>(2) In its petition, the light rail operator may want to certify that the subject matter addressed by the rule to be waived is addressed by the system safety plan and that the light rail operation will be monitored by the state safety oversight program. That is likely to expedite FRA's processing of the petition. FRA will analyze information submitted by the petitioner to demonstrate that a safety matter is addressed by the light rail operator's system safety plan. Alternately, conditional approval may be requested at an early stage in the project, and FRA would thereafter review the system safety program plan's status to determine readiness to commence operations. Where FRA grants a waiver, the state agency will oversee the area addressed by the waiver, but FRA will actively participate in partnership with FTA and the state agency to address any safety problems.</P> <P>D. <E T="03">Documentation of agreement with affected railroads.</E> Conventional railroads that will share track with the light rail operation need not join as a co-petitioner in the light rail operator's petition. However, the petition should contain documentation of the precise terms of the agreement between the light rail operator and the conventional railroad concerning any actions that the conventional railroad must take to ensure effective implementation of alternative safety measures. For example, if temporal separation is planned, FRA expects to see the conventional railroad's written acceptance of its obligations to ensure that the separation is achieved. Moreover, if the arrangements for the light rail service will require the conventional railroad to employ any alternative safety measures rather than strictly comply with FRA's rules, that railroad will have to seek its own waiver (or join in the light rail operator's petition).</P> <HD SOURCE="HD1">III. Waiver Petitions Involving No Shared Use of Track and Limited Connections Between Light Rail and Conventional Operations</HD> <P>Even where there is no shared use of track, light rail operators may be subject to certain FRA rules based on limited, but significant connections to the general system.</P> <P>1. <E T="03">Rail crossings at grade.</E> Where a light rail operation and a conventional railroad have a crossing at grade, several FRA rules may apply to the light rail operation at the point of connection. If movements at the crossing are governed by a signal system, FRA's signal rules (49 CFR parts 233, 235, and 236) apply, as do the signal provisions of the hours of service statute, 49 U.S.C. 21104. To the extent radio communication is used to direct the movements, the radio rules (part 220) apply. The track rules (part 213) cover any portion of the crossing that may affect the movement of the conventional railroad. Of course, if the conventional railroad has responsibility for compliance with certain of the rules that apply at that point (for example, where the conventional railroad maintains the track and signals and dispatches all trains), the light rail operator will not have compliance responsibility for those rules and would not need a waiver.</P> <P>2. <E T="03">Shared train control systems.</E> Where a light rail operation is governed by the same train control system as a conventional railroad (e.g., at a moveable bridge that they both traverse), the light rail operator will be subject to applicable FRA rules (primarily the signal rules in parts 233, 235, and 236) if it has maintenance or operating responsibility for the system.</P> <P>3. <E T="03">Highway-Rail Grade Crossings.</E> Light rail operations over highway-rail grade crossings also used by conventional trains will be subject to FRA's rules on grade crossing signal system safety (part 234) and the requirement to have auxiliary lights on locomotives (49 CFR 229.125). Even if the conventional railroad maintains the crossing, the light rail operation will still be responsible for reporting and taking appropriate actions in response to warning system malfunctions.</P> <P>In any of these shared right-of-way situations involving significant connections, the light rail operator may petition for a waiver of any rules that apply to its activities.</P> <HD SOURCE="HD1">IV. Factors To Address Related to Specific Regulations and Statutes</HD> <P>Operators of light rail systems are likely to apply for waivers of many FRA rules. FRA offers the following suggestions on factors petitioners may want to address concerning specific areas of regulation. (All “part” references are to title 49 CFR.) Parts 209 (Railroad Safety Enforcement Procedures), 211 <PRTPAGE P="82"/>(Rules of Practice), 212 (State Safety Participation), and 216 (Special Notice and Emergency Order Procedures) are largely procedural rules that are unlikely to be the subject of waivers, so those parts are not discussed further. For segments of a light rail line not involving operations over the general system, assuming the light rail operation meets the definition of “rapid transit,” FRA's standards do not apply and the petition need not address those segments with regard to each specific rule from which waivers are sought with regard to shared use trackage.</P> <HD SOURCE="HD2">1. <E T="03">Track, structures, and signals.</E> </HD> <P>A. <E T="03">Track safety standards (part 213).</E> For general system track used by both the conventional and light rail lines, the track standards apply and a waiver is very unlikely. A light rail operation that owns track over which the conventional railroad operates may wish to consider assigning responsibility for that track to the other railroad. If so, the track owner must follow the procedure set forth in 49 CFR 213.5(c). Where such an assignment occurs, the owner and assignee are responsible for compliance.</P> <P>B. <E T="03">Signal systems reporting requirements (part 233).</E> This part contains reporting requirements with respect to methods of train operation, block signal systems, interlockings, traffic control systems, automatic train stop, train control, and cab signal systems, or other similar appliances, methods, and systems. If a signal system failure occurs on general system track which is used by both conventional and light rail lines, and triggers the reporting requirements of this part, the light rail operator must file, or cooperate fully in the filing of, a signal system report. The petition should explain whether the light rail operator or conventional railroad is responsible for maintaining the signal system. Assuming that the light rail operator (or a contractor hired by this operator) has responsibility for maintaining the signal system, that entity is the logical choice to file each signal failure report, and a waiver is very unlikely. Moreover, since a signal failure first observed by a light rail operator can later have catastrophic consequences for a conventional railroad using the same track, a waiver would jeopardize rail safety on that general system trackage. Even if the conventional railroad is responsible for maintaining the signal systems, the light rail operator must still assist the railroad in reporting all signal failures by notifying the conventional railroad of such failures.</P> <P>C. <E T="03">Grade crossing signal system safety (part 234).</E> This part contains minimum standards for the maintenance, inspection, and testing of highway-rail grade crossing warning systems, and also prescribes standards for the reporting of system failures and minimum actions that railroads must take when such warning systems malfunction. If a grade crossing accident or warning activation failure occurs during light rail operations on general system track that is used by both conventional and light rail lines, the light rail operator must submit, or cooperate with the other railroad to ensure the submission of, a report to FRA within the required time frame (24 hours for an accident report, or 15 days for a grade crossing signal system activation failure report). The petition should explain whether the light rail operator or conventional railroad is responsible for maintaining the grade crossing devices. Assuming that the light rail operator (or a contractor hired by this operator) has responsibility for maintaining the grade crossing devices, that entity is the logical choice to file each grade crossing signal failure report, and a waiver is very unlikely. Moreover, since a grade crossing warning device failure first observed by a light rail operator can later have catastrophic consequences for a conventional railroad using the same track, a waiver would jeopardize rail safety on that general system trackage. However, if the conventional railroad is responsible for maintaining the grade crossing devices, the light rail operator will still have to assist the railroad in reporting all grade crossing signal failures. Moreover, regardless of which railroad is responsible for maintenance of the grade crossing signals, any railroad (including a light rail operation) operating over a crossing that has experienced an activation failure, partial activation, or false activation must take the steps required by this rule to ensure safety at those locations. While the maintaining railroad will retain all of its responsibilities in such situations (such as contacting train crews and notifying law enforcement agencies), the operating railroad must observe requirements concerning flagging, train speed, and use of the locomotive's audible warning device.</P> <P>D. <E T="03">Approval of signal system modifications (part 235).</E> This part contains instructions governing applications for approval of a discontinuance or material modification of a signal system or relief from the regulatory requirements of part 236. In the case of a signal system located on general system track which is used by both conventional and light rail lines, a light rail operation is subject to this part only if it (or a contractor hired by the operator) owns or has responsibility for maintaining the signal system. If the conventional railroad does the maintenance, then that railroad would file any application submitted under this part; the light rail operation would have the right to protest the application under § 235.20. The petition should discuss whether the light rail operator or conventional railroad is responsible for maintaining the signal system.<PRTPAGE P="83"/> </P> <P>E. <E T="03">Standards for signal and train control systems (part 236).</E> This part contains rules, standards, and instructions governing the installation, inspection, maintenance, and repair of signal and train control systems, devices, and appliances. In the case of a signal system located on general system track which is used by both conventional and light rail lines, a light rail operation is subject to this part only if it (or a contractor hired by the operation) owns or has responsibility for installing, inspecting, maintaining, and repairing the signal system. If the light rail operation has these responsibilities, a waiver would be unlikely because a signal failure would jeopardize the safety of both the light rail operation and the conventional railroad. If the conventional railroad assumes all of the responsibilities under this part, the light rail operation would not need a waiver, but it would have to abide by all operational limitations imposed this part and by the conventional railroad. The petition should discuss whether the light rail operator or conventional railroad has responsibility for installing, inspecting, maintaining, and repairing the signal system.</P> <HD SOURCE="HD2">2. Motive power and equipment.</HD> <P>A. <E T="03">Railroad noise emission compliance regulations (part 210).</E> FRA issued this rule under the Noise Control Act of 1972, 42 U.S.C. 4916, rather than under its railroad safety authority. Because that statute included a definition of “railroad” borrowed from one of the older railroad safety laws, this part has an exception for “street, suburban, or interurban electric railways unless operated as a part of the general railroad system of transportation.” 49 CFR 210.3(b)(2). The petition should address whether this exception may apply to the light rail operation. Note that this exception is broader than the sole exception to the railroad safety statutes (i.e., urban rapid transit not connected to the general system). The greater the integration of the light rail and conventional operations, the less likely this exception would apply.</P> <P>If the light rail equipment would normally meet the standards in this rule, there would be no reason to seek a waiver of it. If it appears that the light rail system would neither meet the standards nor fit within the exception, the petition should address noise mitigation measures used on the system, especially as part of a system safety program. Note, however, that FRA lacks the authority to waive certain Environmental Protection Agency standards (40 CFR part 201) that underlie this rule. See 49 CFR 210.11(a).</P> <P>B. <E T="03">Railroad freight car safety standards (part 215).</E> A light rail operator is likely to move freight cars only in connection with maintenance-of-way work. As long as such cars are properly stenciled in accordance with section 215.305, this part does not otherwise apply, and a waiver would seem unnecessary.</P> <P>C. <E T="03">Rear end marking devices (part 221).</E> This part requires that each train occupying or operating on main line track be equipped with, display, and continuously illuminate or flash a marking device on the trailing end of the rear car during periods of darkness or other reduced visibility. The device, which must be approved by FRA, must have specific intensity, beam arc width, color, and flash rate characteristics. A light rail operation seeking a waiver of this part will need to explain how other marking devices with which it equips its vehicles, or other means such as train control, will provide the same assurances as this part of a reduced likelihood of collisions attributable to the failure of an approaching train to see the rear end of a leading train in time to stop short of it during periods of reduced visibility. The petition should describe the light rail vehicle's existing marking devices (e.g., headlights, brakelights, taillights, turn signal lights), and indicate whether the vehicle bears reflectors. If the light rail system will operate in both a conventional railroad environment and in streets mixed with motor vehicles, the petition should discuss whether adapting the design of the vehicle's lighting characteristics to conform to FRA's regulations would adversely affect the safety of its operations in the street environment. A light rail system that has a system safety program developed under FTA's rules may choose to discuss how that program addresses the need for equivalent levels of safety when its vehicles operate on conventional railroad corridors.</P> <P>D. <E T="03">Safety glazing standards (part 223).</E> This part provides that passenger car windows be equipped with FRA-certified glazing materials in order to reduce the likelihood of injury to railroad employees and passengers from the breakage and shattering of windows and avoid ejection of passengers from the vehicle in a collision. This part, in addition to requiring the existence of at least four emergency windows, also requires window markings and operating instructions for each emergency window, as well as for each window intended for emergency access, so as to provide the necessary information for evacuation of a passenger car. FRA will not permit operations to occur on the general system in the absence of effective alternatives to the requirements of this part that provide an equivalent level of safety. The petition should explain what equivalent safeguards are in place to provide the same assurance as part 223 that passengers and crewmembers are safe from the effects of objects striking a light rail vehicle's windows. The petition should also discuss the design characteristics of its equipment when it explains how the safety of its employees and passengers will <PRTPAGE P="84"/>be assured during an evacuation in the absence of windows meeting the specific requirements of this part. A light rail system that has a system safety program plan developed under FTA's rule may be able to demonstrate that the plan satisfies the safety goals of this part.</P> <P>E. <E T="03">Locomotive safety standards (part 229).</E> (1) This part contains minimum safety standards for all locomotives, except those propelled by steam power. FRA recognizes that due to the unique characteristics of light rail equipment, some of these provisions may be irrelevant to light rail equipment, and that others may not fit properly in the context of light rail operations. A waiver petition should explain precisely how the light rail system's practices will provide for the safe condition and operation of its locomotive equipment.</P> <P>(2) FRA is not likely to waive completely the provision (section 229.125) of this rule concerning auxiliary lights designed to warn highway motorists of an approaching train. In order to reduce the risk of grade crossing accidents, it is important that all locomotives used by both conventional railroads and light rail systems present the same distinctive profile to motor vehicle operators approaching grade crossings on the general railroad system. If uniformity is sacrificed by permitting light rail systems to operate locomotives through the same grade crossings traversed by conventional trains with light arrangements placed in different locations on the equipment, safety could be compromised. Accordingly, the vehicle design should maintain the triangular pattern required of other locomotives and cab cars to the extent practicable.</P> <P>(3) FRA is aware that light rail headlights are likely to produce less than 200,000 candela. While some light rail operators may choose to satisfy the requirements of section 229.125 by including lights on their equipment of different candlepower controlled by dimmer switches, the headlights on the majority of light rail vehicles will likely not meet FRA's minimum requirement. However, based on the nature of the operations of light rail transit, FRA recognizes that waivers of the minimum candela requirement for transit vehicle headlights seems appropriate.</P> <P>F. <E T="03">Safety appliance laws (49 U.S.C. 20301-20305).</E> (1) Since certain safety appliance requirements (e.g., automatic couplers) are statutory, they can only be “waived” by FRA under the exemption conditions set forth in 49 U.S.C. 20306. Because exemptions requested under this statutory provision do not involve a waiver of a safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not required to follow the rules of practice for waivers contained in part 211. However, whenever appropriate, FRA will combine its consideration of any request for an exemption under § 20306 with its review under part 211 of a light rail operation's petition for waivers of FRA's regulations.</P> <P>(2) FRA may grant exemptions from the statutory safety appliance requirements in 49 U.S.C. 20301-20305 only if application of such requirements would “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations.” 49 U.S.C. 20306. The exemption for technological improvements was originally enacted to further the implementation of a specific type of freight car, but the legislative history shows that Congress intended the exemption to be used elsewhere so that “other types of railroad equipment might similarly benefit.” S. Rep. 96-614 at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.</P> <P>(3) FRA recognizes the potential public benefits of allowing light rail systems to take advantage of underutilized urban freight rail corridors to provide service that, in the absence of the existing right-of-way, would be prohibitively expensive. Any petitioner requesting an exemption for technological improvements should carefully explain how being forced to comply with the existing statutory safety appliance requirements would conflict with the exemption exceptions set forth at 49 U.S.C. 20306. The petition should also show that granting the exemption is in the public interest and is consistent with assuring the safety of the light rail operator's employees and passengers.</P> <P>G. <E T="03">Safety appliance standards (part 231).</E> (1) The regulations in this part specify the requisite location, number, dimensions, and manner of application of a variety of railroad car safety appliances (e.g., handbrakes, ladders, handholds, steps), and directly implement a number of the statutory requirements found in 49 U.S.C. 20301-20305. These very detailed regulations are intended to ensure that sufficient safety appliances are available and able to function safely and securely as intended.</P> <P>(2) FRA recognizes that due to the unique characteristics of light rail equipment, some of these provisions may be irrelevant to light rail operation, and that others may not fit properly in the context of light rail operations (e.g., crewmembers typically do not perform yard duties from positions outside and adjacent to the light rail vehicle or near the vehicle's doors). However, to the extent that the light rail operation encompasses the safety risks addressed by the regulatory provisions of this part, a waiver petition should explain precisely how the light rail system's practices will provide for the safe operation of its passenger equipment. The petition should focus on the design specifications of the equipment, and explain how the light rail system's operating practices, and its intended use of the equipment, will satisfy the safety purpose of the regulations while providing at least an equivalent level of safety.<PRTPAGE P="85"/> </P> <P>H. <E T="03">Passenger equipment safety standards (part 238).</E> This part prescribes minimum Federal safety standards for railroad passenger equipment. Since a collision on the general railroad system between light rail equipment and conventional rail equipment could prove catastrophic, because of the significantly greater mass and structural strength of the conventional equipment, a waiver petition should describe the light rail operation's system safety program that is in place to minimize the risk of such a collision. The petition should discuss the light rail operation's operating rules and procedures, train control technology, and signal system. If the light rail operator and conventional railroad will operate simultaneously on the same track, the petition should include a quantitative risk assessment that incorporates design information and provide an engineering analysis of the light rail equipment and its likely performance in derailment and collision scenarios. The petitioner should also demonstrate that risk mitigation measures to avoid the possibility of collisions, or to limit the speed at which a collision might occur , will be employed in connection with the use of the equipment on a specified shared-use rail line. This part also contains requirements concerning power brakes on passenger trains, and a petitioner seeking a waiver in this area should refer to these requirements, not those found in 49 CFR part 232.</P> <HD SOURCE="HD2">3. Operating practices.</HD> <P>A. <E T="03">Railroad workplace safety (part 214).</E> (1) This part contains standards for protecting bridge workers and roadway workers. The petition should explain whether the light rail operator or conventional railroad is responsible for bridge work on shared general system trackage. If the light rail operator does the work and does similar work on segments outside of the general system, it may wish to seek a waiver permitting it to observe OSHA standards throughout its system.</P> <P>(2) There are no comparable OSHA standards protecting roadway workers. The petition should explain which operator is responsible for track and signal work on the shared segments. If the light rail operator does this work, the petition should explain how the light rail operator protects these workers. However, to the extent that protection varies significantly from FRA's rules, a waiver permitting use of the light rail system's standards could be very confusing to train crews of the conventional railroad who follow FRA's rules elsewhere. A waiver of this rule is unlikely. A petition should address how such confusion would be avoided and safety of roadway workers would be ensured.</P> <P>B. <E T="03">Railroad operating rules (part 217).</E> This part requires filing of a railroad's operating rules and that employees be instructed and tested on compliance with them. A light rail operation would not likely have difficulty complying with this part. However, if a waiver is desired, the light rail system should explain how other safeguards it has in place provide the same assurance that operating employees are trained and periodically tested on the rules that govern train operation. A light rail system that has a system safety program plan developed under FTA's rules may be in a good position to give such an assurance.</P> <P>C. <E T="03">Railroad operating practices (part 218).</E> This part requires railroads to follow certain practices in various aspects of their operations (protection of employees working on equipment, protection of trains and locomotives from collisions in certain situations, prohibition against tampering with safety devices, protection of occupied camp cars). Some of these provisions (e.g., camp cars) may be irrelevant to light rail operations. Others may not fit well in the context of light rail operations. To the extent the light rail operation presents the risks addressed by the various provisions of this part, a waiver provision should explain precisely how the light rail system's practices will address those risks. FRA is not likely to waive the prohibition against tampering with safety devices, which would seem to present no particular burden to light rail operations. Moreover, blue signal regulations, which protect employees working on or near equipment, are not likely to be waived to the extent that such work is performed on track shared by a light rail operation and a conventional railroad, where safety may best be served by uniformity.</P> <P>D. <E T="03">Control of alcohol and drug use (part 219).</E> FRA will not permit operations to occur on the general system in the absence of effective rules governing alcohol and drug use by operating employees. FTA's own rules may provide a suitable alternative for a light rail system that is otherwise governed by those rules. However, to the extent that light rail and conventional operations occur simultaneously on the same track, FRA is not likely to apply different rules to the two operations, particularly with respect to post-accident testing, for which FRA requirements are more extensive (e.g., section 219.11(f) addresses the removal, under certain circumstances, of body fluid and/or tissue samples taken from the remains of any railroad employee who performs service for a railroad). (FRA recognizes that in the event of a fatal train accident involving a transit vehicle, whether involving temporal separation or simultaneous use of the same track, the National Transportation Safety Board will likely investigate and obtain its own toxicology test results.)<PRTPAGE P="86"/> </P> <P>E. <E T="03">Railroad communications (part 220).</E> A light rail operation is likely to have an effective system of radio communication that may provide a suitable alternative to FRA's rules. However, the greater the need for radio communication between light rail personnel (e.g., train crews or dispatchers) and personnel of the conventional railroad (e.g., train crews, roadway workers), the greater will be the need for standardized communication rules and, accordingly, the less likely will be a waiver.</P> <P>F. <E T="03">Railroad accident/incident reporting (part 225).</E> (1) FRA's accident/incident information is very important in the agency's decisionmaking on regulatory issues and strategic planning. A waiver petition should indicate precisely what types of accidents and incidents it would report, and to whom, under any alternative it proposes. FRA is not likely to waive its reporting requirements concerning train accidents or highway-rail grade crossing collisions that occur on the general railroad system. Reporting of accidents under FTA's rules is quite different and would not provide an effective substitute. However, with regard to employee injuries, the light rail operation may, absent FRA's rules, otherwise be subject to reporting requirements of FTA and OSHA and may have an interest in uniform reporting of those injuries wherever they occur on the system. Therefore, it is more likely that FRA would grant a waiver with regard to reporting of employee injuries.</P> <P>(2) Any waiver FRA may grant in the accident/incident reporting area would have no effect on FRA's authority to investigate such incidents or on the duties of light rail operators and any other affected railroads to cooperate with those investigations. See sections 225.31 and 225.35 and 49 U.S.C. 20107 and 20902. Light rail operators should anticipate that FRA will investigate any serious accident or injury that occurs on the shared use portion of their lines, even if it occurs during hours when only the light rail trains are operating. Moreover, there may be instances when FRA will work jointly with FTA and the state agency to investigate the cause of a transit accident that occurs off the general system under circumstances that raise concerns about the safety of operations on the shared use portions. For example, if a transit operator using the same light rail equipment on the shared and non-shared-use portions of its operation has a serious accident on the non-shared-use portion, FRA may want to determine whether the cause of the accident pointed to a systemic problem with the equipment that might impact the transit system's operations on the general system. Similarly, where human error might be a factor, FRA may want to determine whether the employee potentially at fault also has safety responsibilities on the general system and, if so, take appropriate action to ensure that corrective action is taken. FRA believes its statutory investigatory authority extends as far as necessary to address any condition that might reasonably be expected to create a hazard to railroad operations within its jurisdiction.</P> <P>G. <E T="03">Hours of service laws (49 U.S.C. 21101-21108).</E> (1) The hours of service laws apply to all railroads subject to FRA's jurisdiction, and govern the maximum work hours and minimum off-duty periods of employees engaged in one or more of the three categories of covered service described in 49 U.S.C. 21101. If an individual performs more than one kind of covered service during a tour of duty, then the most restrictive of the applicable limitations control. Under current law, a light rail operation could request a waiver of the substantive provisions of the hours of service laws only under the “pilot project” provision described in 49 U.S.C. 21108, provided that the request is based upon a joint petition submitted by the railroad and its affected labor organizations. Because waivers requested under this statutory provision do not involve a waiver of a safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not required to follow the rules of practice for waivers contained in part 211. However, whenever appropriate, FRA will combine its consideration of any request for a waiver under § 21108 with its review under part 211 of a light rail operation's petition for waivers of FRA's regulations.</P> <P>(2) If such a statutory waiver is desired, the light rail system will need to assure FRA that the waiver of compliance is in the public interest and consistent with railroad safety. The waiver petition should include a discussion of what fatigue management strategies will be in place for each category of covered employees in order to minimize the effects of fatigue on their job performance. However, FRA is unlikely to grant a statutory waiver covering employees of a light rail operation who dispatch the trains of a conventional railroad or maintain a signal system affecting shared use trackage.</P> <P>H. <E T="03">Hours of service recordkeeping (part 228).</E> This part prescribes reporting and recordkeeping requirements with respect to the hours of service of employees who perform the job functions set forth in 49 U.S.C. 21101. As a general rule, FRA anticipates that any waivers granted under this part will only exempt the same groups of employees for whom a light rail system has obtained a waiver of the substantive provisions of the hours of service laws under 49 U.S.C. 21108. Since it is important that FRA be able to verify that a light rail operation is complying with the on- and off-duty restrictions of the hour of service laws for all employees not covered by a waiver of the laws' substantive provisions, it is unlikely that any waiver granted of the reporting and recordkeeping requirements would exclude those <PRTPAGE P="87"/>employees. However, in a system with fixed work schedules that do not approach 12 hours on duty in the aggregate, it may be possible to utilize existing payroll records to verify compliance.</P> <P>I. <E T="03">Passenger train emergency preparedness (part 239).</E> This part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of emergency preparedness plans by railroads connected with the operation of passenger trains. FRA's expectation is that by requiring affected railroads to provide sufficient emergency egress capability and information to passengers, along with mandating that these railroads coordinate with local emergency response officials, the risk of death or injury from accidents and incidents will be lessened. A waiver petition should state whether the light rail system has an emergency preparedness plan in place under a state system safety program developed under FTA's rules for the light rail operator's separate street railway segments. Under a system safety program, a light rail operation is likely to have an effective plan for dealing with emergency situations that may provide an equivalent alternative to FRA's rules. To the extent that the light rail operation's plan relates to the various provisions of this part, a waiver petition should explain precisely how each of the requirements of this part is being addressed. The petition should especially focus on the issues of communication, employee training, passenger information, liaison relationships with emergency responders, and marking of emergency exits.</P> <P>J. <E T="03">Qualification and certification of locomotive engineers (part 240).</E> This part contains minimum Federal safety requirements for the eligibility, training, testing, certification, and monitoring of locomotive engineers. Those who operate light rail trains may have significant effects on the safety of light rail passengers, motorists at grade crossings, and, to the extent trackage is shared with conventional railroads, the employees and passengers of those railroads. The petition should describe whether a light rail system has a system safety plan developed under FTA's rules that is likely to have an effective means of assuring that the operators, or “engineers,” of its equipment receive the necessary training and have proper skills to operate a light rail vehicle in shared use on the general railroad system. The petition should explain what safeguards are in place to ensure that light rail engineers receive at least an equivalent level of training, testing, and monitoring on the rules governing train operations to that received by locomotive engineers employed by conventional railroads and certified under part 240. Any light rail system unable to meet this burden would have to fully comply with the requirements of part 240. Moreover, where a transit system intends to operate simultaneously on the same track with conventional equipment, FRA will not be inclined to waive the part 240 requirements. In that situation, FRA's paramount concern would be uniformity of training and qualifications of all those operating trains on the general system, regardless of the type of equipment.</P> <HD SOURCE="HD1">V. Waivers That May be Appropriate for Time-Separated Light Rail Operations</HD> <P>1. The foregoing discussion of factors to address in a petition for approval of shared use concerns all such petitions and, accordingly, is quite general. FRA is willing to provide more specific guidance on where waivers may be likely with regard to light rail operations that are time-separated from conventional operations. FRA's greatest concern with regard to shared use of the general system is a collision between light rail and conventional trains on the same track. Because the results could well be catastrophic, FRA places great emphasis on avoiding such collisions. The surest way to guarantee that such collisions will not occur is to strictly segregate light rail and conventional operations by time of day so that the two types of equipment never share the same track at the same time. This is not to say that FRA will not entertain waiver petitions that rely on other methods of collision avoidance such as sophisticated train control systems. However, petitioners who do not intend to separate light rail from conventional operations by time of day will face a steep burden of demonstrating an acceptable level of safety. FRA does not insist that all risk of collision be eliminated. However, given the enormous severity of the likely consequences of a collision, the demonstrated risk of such an event must be extremely remote.</P> <P>2. There are various ways of providing such strict separation by time. For example, freight operations could be limited to the hours of midnight to 5 a.m. when light rail operations are prohibited. Or, there might be both a nighttime and a mid-day window for freight operation. The important thing is that the arrangement not permit simultaneous operation on the same track by clearly defining specific segments of the day when only one type of operation may occur. Mere spacing of train movements by a train control system does not constitute this temporal separation.</P> <P>3. FRA is very likely to grant waivers of many of its rules where complete temporal separation between light rail and conventional operations is demonstrated in the waiver request. The chart below lists each of FRA's railroad safety rules and provides FRA's view on whether it is likely to grant a waiver in a particular area where temporal separation is assured. Where the “Likely Treatment” column says “comply” a waiver <PRTPAGE P="88"/>is not likely, and where it says “waive” a waiver is likely. Of course, FRA will consider each petition on its own merits and one should not presume, based on the chart, that FRA will grant or deny any particular request in a petition. This chart is offered as general guidance as part of a statement of policy, and as such does not alter any safety rules or obligate FRA to follow it in every case. This chart assumes that the operations of the local rail transit agency on the general railroad system are completely separated in time from conventional railroad operations, and that the light rail operation poses no atypical safety hazards. FRA's procedural rules on matters such as enforcement (49 CFR parts 209 and 216), and its statutory authority to investigate accidents and injuries and take emergency action to address an imminent hazard of death or injury, would apply to these operations in all cases.</P> <P>4. Where waivers are granted, a light rail operator would be expected to operate under a system safety plan developed in accordance with the FTA state safety oversight program. The state safety oversight agency would be responsible for the safety oversight of the light rail operation, even on the general system, with regard to aspects of that operation for which a waiver is granted. (The “Comments” column of the chart shows “State Safety Oversight” where waivers conditioned on such state oversight are likely.) FRA will coordinate with FTA and the state agency to address any serious safety problems. If the conditions under which the waiver was granted change substantially, or unanticipated safety issues arise, FRA may modify or withdraw a waiver in order to ensure safety. On certain subjects where waivers are not likely, the “Comments” column of the chart makes special note of some important regulatory requirements that the light rail system will have to observe even if it is not primarily responsible for compliance with that particular rule.</P> <GPOTABLE CDEF="s50,r50,r75,r75" COLS="4" OPTS="L2"> <TTITLE>Possible Waivers for Light Rail Operations on the General Railroad System Based on Separation in Time From Conventional Operations</TTITLE> <BOXHD> <CHED H="1">Title 49 CFR part</CHED> <CHED H="1">Subject of rule</CHED> <CHED H="1">Likely treatment</CHED> <CHED H="1">Comments</CHED> </BOXHD> <ROW EXPSTB="03" RUL="s"> <ENT I="22"> <E T="02">Track, Structures, and Signals</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">213</ENT> <ENT>Track safety standards</ENT> <ENT>Comply (assuming light rail operator owns track or has been assigned responsibility for it)</ENT> <ENT>If the conventional RR owns the track, light rail will have to observe speed limits for class of track.</ENT> </ROW> <ROW> <ENT I="01">233, 235, 236</ENT> <ENT>Signal and train control</ENT> <ENT>Comply (assuming light rail operator or its contractor has responsibility for signal maintenance)</ENT> <ENT>If conventional RR maintains signals, light rail will have to abide by operational limitations and report signal failures.</ENT> </ROW> <ROW> <ENT I="01">234</ENT> <ENT>Grade crossing signals</ENT> <ENT>Comply (assuming light rail operator or its contractor has responsibility for crossing devices)</ENT> <ENT>If conventional RR maintains devices, light rail will have to comply with sections concerning crossing accidents, activation failures, and false activations.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">213, Appendix C</ENT> <ENT>Bridge safety policy</ENT> <ENT>Not a rule. Compliance voluntary.</ENT> </ROW> <ROW EXPSTB="03" RUL="s"> <ENT I="22"> <E T="02">Motive Power and Equipment</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">210</ENT> <ENT>Noise emission</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">215</ENT> <ENT>Freight car safety standards</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">221</ENT> <ENT>Rear end marking devices</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">223</ENT> <ENT>Safety glazing standards</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">229</ENT> <ENT>Locomotive safety standards</ENT> <ENT>Waive, except for arrangement of auxiliary lights, which is important for grade crossing safety</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">231*</ENT> <ENT>Safety appliance standards</ENT> <ENT>Waive</ENT> <ENT>State safety oversight; see note below on statutory requirements.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">238</ENT> <ENT>Passenger equipment standards</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW EXPSTB="03" RUL="s"> <ENT I="22"> <E T="02">Operating Practices</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">214</ENT> <ENT>Bridge worker</ENT> <ENT>Waive</ENT> <ENT>OSHA standards.</ENT> </ROW> <ROW> <ENT I="01">214</ENT> <ENT>Roadway worker safety</ENT> <ENT>Comply</ENT> </ROW> <ROW> <ENT I="01">217</ENT> <ENT>Operating rules</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">218</ENT> <ENT>Operating practices</ENT> <ENT>Waive, except for prohibition on tampering with safety devices related to signal system, and blue signal rules on shared track</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">219</ENT> <ENT>Alcohol and drug</ENT> <ENT>Waive if FTA rule otherwise applies</ENT> <ENT>FTA rule may apply.</ENT> </ROW> <ROW> <PRTPAGE P="89"/> <ENT I="01">220</ENT> <ENT>Radio communications</ENT> <ENT>Waive, except to extent communications with freight trains and roadway workers are necessary</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">225</ENT> <ENT>Accident reporting and investigation</ENT> <ENT>Comply with regard to train accidents and crossing accidents; waive as to injuries; FRA accident investigation authority not subject to waiver</ENT> <ENT>Employee injuries would be reported under FTA or OSHA rules.</ENT> </ROW> <ROW> <ENT I="01">228**</ENT> <ENT>Hours of service recordkeeping</ENT> <ENT>Waive (in concert with waiver of statute); waiver not likely for personnel who dispatch conventional RR or maintain signal system on shared use track</ENT> <ENT>See note below on possible waiver of statutory requirements.</ENT> </ROW> <ROW> <ENT I="01">239</ENT> <ENT>Passenger train emergency preparedness</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <ROW> <ENT I="01">240</ENT> <ENT>Engineer certification</ENT> <ENT>Waive</ENT> <ENT>State safety oversight.</ENT> </ROW> <TNOTE>* <E T="03">Safety appliance statute.</E> Certain safety appliance requirements (e.g., automatic couplers) are statutory and can only be waived under the conditions set forth in 49 U.S.C. 20306, which permits exemptions if application of the requirements would “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations.” If consistent with employee safety, FRA could probably rely on this provision to address most light rail equipment that could not meet the standards.</TNOTE> <TNOTE>** <E T="03">Hours of service statute.</E> Currently, 49 U.S.C. 21108 permits FRA to waive substantive provisions of the hours of service laws based upon a joint petition by the railroad and affected labor organizations, after notice and an opportunity for a hearing. This is a “pilot project” provision, so waivers are limited to two years but may be extended for additional two-year periods after notice and an opportunity for comment.</TNOTE> </GPOTABLE> <CITA>[65 FR 42546, July 10, 2000, as amended at 74 FR 25172, May 27, 2009]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 212</EAR> <HD SOURCE="HED">PART 212—STATE SAFETY PARTICIPATION REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>212.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>212.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>212.5</SECTNO> <SUBJECT>Filing.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—State/Federal Roles</HD> <SECTNO>212.101</SECTNO> <SUBJECT>Program principles.</SUBJECT> <SECTNO>212.103</SECTNO> <SUBJECT>Investigative and surveillance authority.</SUBJECT> <SECTNO>212.105</SECTNO> <SUBJECT>Agreements.</SUBJECT> <SECTNO>212.107</SECTNO> <SUBJECT>Certification.</SUBJECT> <SECTNO>212.109</SECTNO> <SUBJECT>Joint planning of inspections.</SUBJECT> <SECTNO>212.111</SECTNO> <SUBJECT>Monitoring and other inspections.</SUBJECT> <SECTNO>212.113</SECTNO> <SUBJECT>Program termination.</SUBJECT> <SECTNO>212.115</SECTNO> <SUBJECT>Enforcement actions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—State Inspection Personnel</HD> <SECTNO>212.201</SECTNO> <SUBJECT>General qualifications of State inspection personnel.</SUBJECT> <SECTNO>212.203</SECTNO> <SUBJECT>Track inspector.</SUBJECT> <SECTNO>212.205</SECTNO> <SUBJECT>Apprentice track inspector.</SUBJECT> <SECTNO>212.207</SECTNO> <SUBJECT>Signal and train control inspector.</SUBJECT> <SECTNO>212.209</SECTNO> <SUBJECT>Train control inspector.</SUBJECT> <SECTNO>212.211</SECTNO> <SUBJECT>Apprentice signal and train control inspector.</SUBJECT> <SECTNO>212.213</SECTNO> <SUBJECT>Motive power and equipment (MP&E) inspector.</SUBJECT> <SECTNO>212.215</SECTNO> <SUBJECT>Locomotive inspector.</SUBJECT> <SECTNO>212.217</SECTNO> <SUBJECT>Car inspector.</SUBJECT> <SECTNO>212.219</SECTNO> <SUBJECT>Apprentice MP&E inspector.</SUBJECT> <SECTNO>212.221</SECTNO> <SUBJECT>Operating practices inspector.</SUBJECT> <SECTNO>212.223</SECTNO> <SUBJECT>Operating practices compliance inspector.</SUBJECT> <SECTNO>212.225</SECTNO> <SUBJECT>Apprentice operating practices inspector.</SUBJECT> <SECTNO>212.227</SECTNO> <SUBJECT>Hazardous materials inspector.</SUBJECT> <SECTNO>212.229</SECTNO> <SUBJECT>Apprentice hazardous materials inspector.</SUBJECT> <SECTNO>212.231</SECTNO> <SUBJECT>Highway-rail grade crossing inspector.</SUBJECT> <SECTNO>212.233</SECTNO> <SUBJECT>Apprentice highway-rail grade crossing inspector.</SUBJECT> <SECTNO>212.235</SECTNO> <SUBJECT>Inapplicable qualification requirements.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 41051, Sept. 16, 1982, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 212.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This part establishes standards and procedures for State participation in investigative and surveillance activities under the Federal railroad safety laws and regulations.</P> </SECTION> <SECTION> <PRTPAGE P="90"/> <SECTNO>§ 212.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P>(a) <E T="03">Administrator</E> means the Federal Railroad Administrator or the Deputy Administrator or the delegate of either of them.</P> <P>(b) <E T="03">Associate Administrator</E> means the Associate Administrator for Safety, Federal Railroad Administration (FRA), or the Deputy Associate Administrator for Safety, FRA.</P> <P>(c) <E T="03">FRA</E> means the Federal Railroad Administration.</P> <P>(d) <E T="03">Federal railroad safety laws</E> means the following enactments, together with regulations and orders issued under their authority:</P> <P>(1) The Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421, 431-441);</P> <P>(2) The Safety Appliance Acts, as amended (45 U.S.C. 1-16);</P> <P>(3) The Locomotive Inspection Act, as amended (45 U.S.C. 22-34);</P> <P>(4) The Signal Inspection Act, as amended (49 U.S.C. 26);</P> <P>(5) The Accident Reports Act, as amended (45 U.S.C. 38-42);</P> <P>(6) The Hours of Service Act, as amended (45 U.S.C. 61-64(b); and</P> <P>(7) The Hazardous Materials Transportation Act (49 app. U.S.C. 1801 et seq.), as it pertains to shipment or transportation by railroad.</P> <P>(e) <E T="03">Manufacturer</E> 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.</P> <P>(f) <E T="03">Shipper</E> means a person that offers a hazardous material for transportation or otherwise causes it to be transported.</P> <P>(g) <E T="03">Planned compliance inspections</E> means investigative and surveillance activities described in the annual work plan required by § 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.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.5</SECTNO> <SUBJECT>Filing.</SUBJECT> <P>Each State agency desiring to conduct investigative and surveillance activities must submit to the Associate Administrator for Safety, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, the documentation which contains the information prescribed by §§ 212.105 and 212.107.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—State/Federal Roles</HD> <SECTION> <SECTNO>§ 212.101</SECTNO> <SUBJECT>Program principles.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The principal role of the State Safety Participation Program in the national railroad safety effort is to provide an enhanced investigative and <PRTPAGE P="91"/>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.</P> <P>(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.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.103</SECTNO> <SUBJECT>Investigative and surveillance authority.</SUBJECT> <P>(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 § 212.105 for the exercise of specified authority.</P> <P>(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 § 212.107.</P> </SECTION> <SECTION> <SECTNO>§ 212.105</SECTNO> <SUBJECT>Agreements.</SUBJECT> <P>(a) <E T="03">Scope.</E> 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.</P> <P>(b) <E T="03">Duration.</E> An agreement may be for a fixed term or for an indefinite duration.</P> <P>(c) <E T="03">Amendments.</E> An agreement may be amended to expand or contract its scope by consent of FRA and the State.</P> <P>(d) <E T="03">Common terms.</E> Each agreement entered into under this section provides that:</P> <P>(1) The State agency is delegated certain specified authority with respect to investigative and surveillance activities;</P> <P>(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</P> <P>(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.</P> <P>(e) <E T="03">Request for agreement.</E> A request for agreement shall contain the following information:</P> <P>(1) An opinion of the counsel for the State agency stating that:</P> <P>(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;</P> <P>(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</P> <P>(iii) State funds may be used for this purpose.</P> <P>(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;</P> <P>(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;</P> <P>(4) The name, title and telephone number of the person designated by the agency to coordinate the program; and</P> <P>(5) A description of the organization, programs, and functions of the agency with respect to railroad safety.<PRTPAGE P="92"/> </P> <P>(f) <E T="03">Developmental agreement.</E> 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.</P> <P>(g) <E T="03">Action on request.</E> 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 2130-0509)</APPRO> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.107</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>(a) <E T="03">Scope.</E> In the event the FRA and the State agency do not agree on terms for the participation of the State under § 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.</P> <P>(b) <E T="03">Content.</E> 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 § 212.105(e) of this part and, in addition, shall certify that:</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Action on certification.</E> 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.</P> <P>(d) <E T="03">Delegation of authority.</E> 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 2130-0509)</APPRO> </SECTION> <SECTION> <SECTNO>§ 212.109</SECTNO> <SUBJECT>Joint planning of inspections.</SUBJECT> <P>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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 2130-0509)</APPRO> <CITA>[57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.111</SECTNO> <SUBJECT>Monitoring and other inspections.</SUBJECT> <P>(a) It is the policy of the FRA to monitor State investigative and surveillance practices at the program level.</P> <P>(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.<PRTPAGE P="93"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.113</SECTNO> <SUBJECT>Program termination.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) The requirements of this part;</P> <P>(2) Relevant directives, enforcement manuals, and written interpretations of law and regulations provided by the FRA for guidance of the program; and</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 212.115</SECTNO> <SUBJECT>Enforcement actions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(2) Requests for the institution of injunctive actions shall be submitted simultaneously to—</P> <P>(i) The FRA Regional Director for Railroad Safety for the FRA region in which the State is located and</P> <P>(ii) The Enforcement Division, Office of Chief Counsel, FRA, Washington, DC 20590.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—State Inspection Personnel</HD> <SECTION> <SECTNO>§ 212.201</SECTNO> <SUBJECT>General qualifications of State inspection personnel.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Each inspector, compliance inspectors and apprentice inspector shall be a bona fide employee of the State agency.</P> <P>(d) Each inspector, compliance inspector, and apprentice inspector shall demonstrate:</P> <P>(1) The ability to read and comprehend written materials such as <PRTPAGE P="94"/>training and enforcement manuals, regulations, operating and safety rules of the railroad, and similar materials;</P> <P>(2) The ability to compose narrative reports of investigative findings that are clear, complete, and grammatically acceptable;</P> <P>(3) The ability to record data on standard report forms with a high degree of accuracy;</P> <P>(4) The ability to communicate orally; and</P> <P>(5) Basic knowledge of rail transportation functions, the organization of railroad, shipper, and manufacturer companies, and standard industry rules for personal safety.</P> <P>(e) Each inspector shall demonstrate a thorough knowledge of:</P> <P>(1) Railroad rules, practices, record systems, and terminology common to operating and maintenance functions; and</P> <P>(2) The scope and major requirements of all of the Federal railroad safety laws and regulations.</P> <P>(f) In addition to meeting the requirements of this section, each inspector and apprentice inspector shall meet the applicable requirements of §§ 212.203 through 212.229 of this subpart.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.203</SECTNO> <SUBJECT>Track inspector.</SUBJECT> <P>(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 when appropriate to promote compliance.</P> <P>(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.</P> <P>(c) The track inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of track nomenclature, track inspection techniques, track maintenance methods, and track equipment;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Track maintenance standards accepted in the industry; and</P> <P>(ii) The Track Safety Standards (49 CFR part 213).</P> <P>(3) Knowledge of operating practices and vehicle/track interaction sufficient to understand the safety significance of deviations and combinations of deviations; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.205</SECTNO> <SUBJECT>Apprentice track inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.207</SECTNO> <SUBJECT>Signal and train control inspector.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="95"/>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.</P> <P>(c) The signal and train control inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of signal and train control systems, maintenance practices, test and inspection techniques;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Signal and train control maintenance standards accepted in the industry; and</P> <P>(ii) The Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236).</P> <P>(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;</P> <P>(4) Knowledge of operating practices and signal systems sufficient to understand the safety significance of deviations and combination of deviations; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.209</SECTNO> <SUBJECT>Train control inspector.</SUBJECT> <P>(a) The train control inspector is required, at a minimum, to be able to conduct independent inspections of 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.</P> <P>(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.</P> <P>(c) The train control inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of the various train control systems used on board locomotives, locomotive air brake systems and test and inspection procedures;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Train control maintenance standards accepted in the industry; and</P> <P>(ii) Subpart E of the Rules, Standards and Instructions for Railroad Signal Systems (49 CFR part 236);</P> <P>(3) Knowledge of operating practices and train control systems sufficient to understand the safety significance of deviations and combinations of deviations; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.211</SECTNO> <SUBJECT>Apprentice signal and train control inspector.</SUBJECT> <P>(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.</P> <P>(b) Prior to being enrolled in the program the apprentice inspector shall demonstrate:</P> <P>(1) Working knowledge of basic electricity and the ability to use electrical test equipment in direct current and alternating current circuits; and<PRTPAGE P="96"/> </P> <P>(2) A basic knowledge of signal and train control inspection and maintenance methods and procedures.</P> </SECTION> <SECTION> <SECTNO>§ 212.213</SECTNO> <SUBJECT>Motive power and equipment (MP&E) inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The MP&E inspector shall demonstrate the following qualifications:</P> <P>(1) A comprehensive knowledge of construction, testing, inspecting and repair of railroad freight cars, passenger cars, locomotives and air brakes;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Railroad equipment maintenance standards accepted in the industry; and</P> <P>(ii) The Freight Car Safety Standards, Safety Glazing Standards, Locomotive Safety Standards, Safety Appliance Standards and Power Brake Standards.</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.215</SECTNO> <SUBJECT>Locomotive inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The locomotive inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of construction, testing, inspecting and repair of locomotive and air brakes;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Railroad equipment maintenance standards accepted in the industry; and</P> <P>(ii) Safety Glazing Standards, Locomotive Safety Standards, Safety Appliance Standards and Power Brake Standards;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="97"/> <SECTNO>§ 212.217</SECTNO> <SUBJECT>Car inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The car inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of the construction and testing of freight and passenger cars and air brakes;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Railroad freight and passenger car maintenance standards accepted in the industry; and</P> <P>(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);</P> <P>(3) The knowledge of railroad operating procedures associated with the operation of freight and passenger cars and air brakes sufficient to understand the safety significance of deviations and combinations of deviations; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.219</SECTNO> <SUBJECT>Apprentice MP&E inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.221</SECTNO> <SUBJECT>Operating practices inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The operating practices inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of railroad operating practices, railroad operating rules, duties of railroad employees, and general railroad nomenclature;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Railroad operating rules accepted in the industry; and</P> <P>(ii) Federal operating practice regulations;</P> <P>(3) Knowledge of operating practices and rules sufficient to understand the safety significance of deviations; and</P> <P>(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.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]</CITA> </SECTION> <SECTION> <PRTPAGE P="98"/> <SECTNO>§ 212.223</SECTNO> <SUBJECT>Operating practices compliance inspector.</SUBJECT> <P>(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:</P> <P>(1) Operating Rules—blue flag (49 CFR part 218);</P> <P>(2) Control of Alcohol and Drug Use (49 CFR part 219);</P> <P>(3) Rear End Marking Device Regulations (49 CFR part 221);</P> <P>(4) Railroad accidents/incidents: reports classification and investigations (49 CFR part 225); and</P> <P>(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.</P> <P>(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.</P> <P>(c) The compliance inspector shall demonstrate the following specific qualifications.</P> <P>(1) A basic knowledge of railroad operations, duties of railroad employees and general railroad safety as it relates to the protection of railroad employees;</P> <P>(2) A basic knowledge of railroad rules and practices;</P> <P>(3) The ability to understand and detect deviations from the requirements cited in paragraph (a) of this section; and</P> <P>(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.</P> <CITA>[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.225</SECTNO> <SUBJECT>Apprentice operating practices inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 212.227</SECTNO> <SUBJECT>Hazardous materials inspector.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The hazardous materials inspector shall demonstrate the following specific qualifications:</P> <P>(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;</P> <P>(2) Knowledge and ability to understand and detect deviations from the <PRTPAGE P="99"/>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;</P> <P>(3) Knowledge of the physical and chemical properties and chemical hazards associated with hazardous materials that are transported by railroad;</P> <P>(4) Knowledge of the proper remedial actions required to bring railroad, shipper, and/or manufacturing facilities into compliance with the Federal regulations; and</P> <P>(5) Knowledge of the proper remedial actions required when a hazardous materials transportation accident or incident occurs.</P> <CITA>[57 FR 28115, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.229</SECTNO> <SUBJECT>Apprentice hazardous materials inspector.</SUBJECT> <P>(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.</P> <P>(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 maintenance of packagings associated with these shipments.</P> <CITA>[57 FR 28116, June 24, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.231</SECTNO> <SUBJECT>Highway-rail grade crossing inspector.</SUBJECT> <P>(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.</P> <P>(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 § 212.233 may be substituted for the four years of this experience requirement.</P> <P>(c) The highway-rail grade crossing inspector shall demonstrate the following specific qualifications:</P> <P>(1) A comprehensive knowledge of highway-rail grade crossing nomenclature, inspection techniques, maintenance requirements, and methods;</P> <P>(2) The ability to understand and detect deviations from:</P> <P>(i) Grade crossing signal system maintenance, inspection and testing standards accepted in the industry; and</P> <P>(ii) The Grade Crossing Signal System Safety Rules (49 CFR part 234);</P> <P>(3) Knowledge of operating practices and highway-rail grade crossing systems sufficient to understand the safety significance of deviations and combinations of deviations from § 212.231(c)(2) (i) and (ii);</P> <P>(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;</P> <P>(5) Specialized knowledge of highway-rail grade crossing standards contained in the Manual on Uniform Traffic Control Devices; and</P> <P>(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.</P> <P>(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 <PRTPAGE P="100"/>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.</P> <CITA>[59 FR 50104, Sept. 30, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.233</SECTNO> <SUBJECT>Apprentice highway-rail grade crossing inspector.</SUBJECT> <P>(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.</P> <P>(b) Prior to being enrolled in the program the apprentice inspector shall demonstrate:</P> <P>(1) Working basic knowledge of electricity;</P> <P>(2) The ability to use electrical test equipment in direct current and alternating current circuits; and</P> <P>(3) A basic knowledge of highway-rail grade crossing inspection and maintenance methods and procedures.</P> <CITA>[59 FR 50104, Sept. 30, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.235</SECTNO> <SUBJECT>Inapplicable qualification requirements.</SUBJECT> <P>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.</P> <CITA>[47 FR 41051, Sept. 16, 1982. Redesignated at 57 FR 28115, June 24, 1992. Further redesignated at 59 FR 50104, Sept. 30, 1994]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 213</EAR> <HD SOURCE="HED">PART 213—TRACK SAFETY STANDARDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>213.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <SECTNO>213.2</SECTNO> <SUBJECT>Preemptive effect.</SUBJECT> <SECTNO>213.3</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>213.4</SECTNO> <SUBJECT>Excepted track.</SUBJECT> <SECTNO>213.5</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <SECTNO>213.7</SECTNO> <SUBJECT>Designation of qualified persons to supervise certain renewals and inspect track.</SUBJECT> <SECTNO>213.9</SECTNO> <SUBJECT>Classes of track: operating speed limits.</SUBJECT> <SECTNO>213.11</SECTNO> <SUBJECT>Restoration or renewal of track under traffic conditions.</SUBJECT> <SECTNO>213.13</SECTNO> <SUBJECT>Measuring track not under load.</SUBJECT> <SECTNO>213.15</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>213.17</SECTNO> <SUBJECT>Waivers.</SUBJECT> <SECTNO>213.19</SECTNO> <SUBJECT>Information collection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Roadbed</HD> <SECTNO>213.31</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>213.33</SECTNO> <SUBJECT>Drainage.</SUBJECT> <SECTNO>213.37</SECTNO> <SUBJECT>Vegetation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Track Geometry</HD> <SECTNO>213.51</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>213.53</SECTNO> <SUBJECT>Gage.</SUBJECT> <SECTNO>213.55</SECTNO> <SUBJECT>Alinement.</SUBJECT> <SECTNO>213.57</SECTNO> <SUBJECT>Curves; elevation and speed limitations.</SUBJECT> <SECTNO>213.59</SECTNO> <SUBJECT>Elevation of curved track; runoff.</SUBJECT> <SECTNO>213.63</SECTNO> <SUBJECT>Track surface.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Track Structure</HD> <SECTNO>213.101</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>213.103</SECTNO> <SUBJECT>Ballast; general.</SUBJECT> <SECTNO>213.109</SECTNO> <SUBJECT>Crossties.</SUBJECT> <SECTNO>213.110</SECTNO> <SUBJECT>Gage restraint measurement systems.</SUBJECT> <SECTNO>213.113</SECTNO> <SUBJECT>Defective rails.</SUBJECT> <SECTNO>213.115</SECTNO> <SUBJECT>Rail end mismatch.</SUBJECT> <SECTNO>213.118</SECTNO> <SUBJECT>Continuous welded rail (CWR); plan review and approval.</SUBJECT> <SECTNO>213.119</SECTNO> <SUBJECT>Continuous welded rail (CWR); plan contents.</SUBJECT> <SECTNO>213.121</SECTNO> <SUBJECT>Rail joints.</SUBJECT> <SECTNO>213.122</SECTNO> <SUBJECT>Torch cut rail.</SUBJECT> <SECTNO>213.123</SECTNO> <SUBJECT>Tie plates.</SUBJECT> <SECTNO>213.127</SECTNO> <SUBJECT>Rail fastening systems.</SUBJECT> <SECTNO>213.133</SECTNO> <SUBJECT>Turnouts and track crossings generally.</SUBJECT> <SECTNO>213.135</SECTNO> <SUBJECT>Switches.</SUBJECT> <SECTNO>213.137</SECTNO> <SUBJECT>Frogs.</SUBJECT> <SECTNO>213.139</SECTNO> <SUBJECT>Spring rail frogs.</SUBJECT> <SECTNO>213.141</SECTNO> <SUBJECT>Self-guarded frogs.</SUBJECT> <SECTNO>213.143</SECTNO> <SUBJECT>Frog guard rails and guard faces; gage.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="101"/> <HD SOURCE="HED">Subpart E—Track Appliances and Track-Related Devices</HD> <SECTNO>213.201</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>213.205</SECTNO> <SUBJECT>Derails</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Inspection</HD> <SECTNO>213.231</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>213.233</SECTNO> <SUBJECT>Track inspections.</SUBJECT> <SECTNO>213.235</SECTNO> <SUBJECT>Inspection of switches, track crossings, and lift rail assemblies or other transition devices on moveable bridges.</SUBJECT> <SECTNO>213.237</SECTNO> <SUBJECT>Inspection of rail.</SUBJECT> <SECTNO>213.239</SECTNO> <SUBJECT>Special inspections.</SUBJECT> <SECTNO>213.241</SECTNO> <SUBJECT>Inspection records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Train Operations at Track Classes 6 and Higher</HD> <SECTNO>213.301</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <SECTNO>213.303</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <SECTNO>213.305</SECTNO> <SUBJECT>Designation of qualified individuals; general qualifications.</SUBJECT> <SECTNO>213.307</SECTNO> <SUBJECT>Class of track: operating speed limits.</SUBJECT> <SECTNO>213.309</SECTNO> <SUBJECT>Restoration or renewal of track under traffic conditions.</SUBJECT> <SECTNO>213.311</SECTNO> <SUBJECT>Measuring track not under load.</SUBJECT> <SECTNO>213.317</SECTNO> <SUBJECT>Waivers.</SUBJECT> <SECTNO>213.319</SECTNO> <SUBJECT>Drainage.</SUBJECT> <SECTNO>213.321</SECTNO> <SUBJECT>Vegetation.</SUBJECT> <SECTNO>213.323</SECTNO> <SUBJECT>Track gage.</SUBJECT> <SECTNO>213.327</SECTNO> <SUBJECT>Alinement.</SUBJECT> <SECTNO>213.329</SECTNO> <SUBJECT>Curves, elevation and speed limitations.</SUBJECT> <SECTNO>213.331</SECTNO> <SUBJECT>Track surface.</SUBJECT> <SECTNO>213.333</SECTNO> <SUBJECT>Automated vehicle inspection systems.</SUBJECT> <SECTNO>213.334</SECTNO> <SUBJECT>Ballast; general.</SUBJECT> <SECTNO>213.335</SECTNO> <SUBJECT>Crossties.</SUBJECT> <SECTNO>213.337</SECTNO> <SUBJECT>Defective rails.</SUBJECT> <SECTNO>213.339</SECTNO> <SUBJECT>Inspection of rail in service.</SUBJECT> <SECTNO>213.341</SECTNO> <SUBJECT>Initial inspection of new rail and welds.</SUBJECT> <SECTNO>213.343</SECTNO> <SUBJECT>Continuous welded rail (CWR).</SUBJECT> <SECTNO>213.345</SECTNO> <SUBJECT>Vehicle qualification testing.</SUBJECT> <SECTNO>213.347</SECTNO> <SUBJECT>Automotive or railroad crossings at grade.</SUBJECT> <SECTNO>213.349</SECTNO> <SUBJECT>Rail end mismatch.</SUBJECT> <SECTNO>213.351</SECTNO> <SUBJECT>Rail joints.</SUBJECT> <SECTNO>213.352</SECTNO> <SUBJECT>Torch cut rail.</SUBJECT> <SECTNO>213.353</SECTNO> <SUBJECT>Turnouts, crossovers, and lift rail assemblies or other transition devices on moveable bridges.</SUBJECT> <SECTNO>213.355</SECTNO> <SUBJECT>Frog guard rails and guard faces; gage.</SUBJECT> <SECTNO>213.357</SECTNO> <SUBJECT>Derails.</SUBJECT> <SECTNO>213.359</SECTNO> <SUBJECT>Track stiffness.</SUBJECT> <SECTNO>213.361</SECTNO> <SUBJECT>Right of way.</SUBJECT> <SECTNO>213.365</SECTNO> <SUBJECT>Visual inspections.</SUBJECT> <SECTNO>213.367</SECTNO> <SUBJECT>Special inspections.</SUBJECT> <SECTNO>213.369</SECTNO> <SUBJECT>Inspection records.</SUBJECT> <APP>Appendix A to Part 213—Maximum Allowable Curving Speeds</APP> <APP>Appendix B to Part 213—Schedule of Civil Penalties</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461, note; and 49 CFR 1.49(m).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 34029, June 22, 1998, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 213.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.2</SECTNO> <SUBJECT>Preemptive effect.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.3</SECTNO> <SUBJECT>Application.</SUBJECT> <P>(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.</P> <P>(b) This part does not apply to track—</P> <P>(1) Located inside an installation which is not part of the general railroad system of transportation; or</P> <P>(2) Used exclusively for rapid transit operations in an urban area that are not connected with the general railroad system of transportation.</P> </SECTION> <SECTION> <PRTPAGE P="102"/> <SECTNO>§ 213.4</SECTNO> <SUBJECT>Excepted track.</SUBJECT> <P>A track owner may designate a segment of track as excepted track provided that—</P> <P>(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;</P> <P>(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;</P> <P>(c) The identified segment is inspected in accordance with 213.233(c) and 213.235 at the frequency specified for Class 1 track;</P> <P>(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</P> <P>(e) The railroad conducts operations on the identified segment under the following conditions:</P> <P>(1) No train shall be operated at speeds in excess of 10 miles per hour;</P> <P>(2) No occupied passenger train shall be operated;</P> <P>(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</P> <P>(4) The gage on excepted track shall not be more than 4 feet 10<FR>1/4</FR> inches. This paragraph (e)(4) is applicable September 21, 1999.</P> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.5</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <P>(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—</P> <P>(1) Bring the track into compliance;</P> <P>(2) Halt operations over that track; or</P> <P>(3) Operate under authority of a person designated under § 213.7(a), who has at least one year of supervisory experience in railroad track maintenance, subject to conditions set forth in this part.</P> <P>(b) If an owner of track to which this part applies designates a segment of track as “excepted track” under the provisions of § 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.</P> <P>(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—</P> <P>(1) The name and address of the track owner;</P> <P>(2) The name and address of the person to whom responsibility is assigned (assignee);</P> <P>(3) A statement of the exact relationship between the track owner and the assignee;</P> <P>(4) A precise identification of the track;</P> <P>(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</P> <P>(6) A statement signed by the assignee acknowledging the assignment to him of responsibility for purposes of compliance with this part.</P> <P>(d) The Administrator may hold the track owner or the assignee or both responsible for compliance with this part and subject to penalties under § 213.15.</P> <P>(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.<PRTPAGE P="103"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.7</SECTNO> <SUBJECT>Designation of qualified persons to supervise certain renewals and inspect track.</SUBJECT> <P>(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—</P> <P>(1) At least—</P> <P>(i) 1 year of supervisory experience in railroad track maintenance; or</P> <P>(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;</P> <P>(2) Demonstrated to the owner that he or she—</P> <P>(i) Knows and understands the requirements of this part;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and</P> <P>(3) Written authorization from the track owner to prescribe remedial actions to correct or safely compensate for deviations from the requirements in this part.</P> <P>(b) Each track owner to which this part applies shall designate qualified persons to inspect track for defects. Each person designated shall have—</P> <P>(1) At least—</P> <P>(i) 1 year of experience in railroad track inspection; or</P> <P>(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;</P> <P>(2) Demonstrated to the owner that he or she—</P> <P>(i) Knows and understands the requirements of this part;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and</P> <P>(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.</P> <P>(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 track in accordance with the written procedures of the track owner shall have:</P> <P>(1) Current qualifications under either paragraph (a) or (b) of this section;</P> <P>(2) Successfully completed a comprehensive training course specifically developed for the application of written CWR procedures issued by the track owner;</P> <P>(3) Demonstrated to the track owner that the individual:</P> <P>(i) Knows and understands the requirements of those written CWR procedures;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and</P> <P>(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 successfully completed a recorded examination on those procedures as part of the qualification process.</P> <P>(d) Persons not fully qualified to supervise certain renewals and inspect track as required in paragraphs (a) through (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—</P> <P>(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 <PRTPAGE P="104"/>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 required for initial training;</P> <P>(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;</P> <P>(3) The person shall watch all movements over the broken rail or pull apart and be prepared to stop the train if necessary; and</P> <P>(4) Person(s) fully qualified under § 213.7 are notified and dispatched to the location promptly for the purpose of authorizing movements and effecting temporary or permanent repairs.</P> <P>(e) With respect to designations under paragraphs (a) through (d) of this section, each track owner shall maintain written records of—</P> <P>(1) Each designation in effect;</P> <P>(2) The basis for each designation; and</P> <P>(3) Track inspections made by each designated qualified person as required by § 213.241. These records shall be kept available for inspection or copying by the Federal Railroad Administration during regular business hours.</P> <CITA>[63 FR 34029, June 22, 1998, as amended at 74 FR 43002, Aug. 25, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.9</SECTNO> <SUBJECT>Classes of track: operating speed limits.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section and §§ 213.57(b), 213.59(a), 213.113(a), and 213.137(b) and (c), the following maximum allowable operating speeds apply—</P> <GPOTABLE CDEF="s100,15,15" COLS="3" OPTS="L2"> <TDESC>[In miles per hour]</TDESC> <BOXHD> <CHED H="1">Over track that meets all of the requirements prescribed in this part for—</CHED> <CHED H="1">The maximum allowable operating speed for freight trains is—</CHED> <CHED H="1">The maximum allowable operating speed for passenger trains is—</CHED> </BOXHD> <ROW> <ENT I="01">Excepted track</ENT> <ENT>10</ENT> <ENT>N/A</ENT> </ROW> <ROW> <ENT I="01">Class 1 track</ENT> <ENT>10</ENT> <ENT>15</ENT> </ROW> <ROW> <ENT I="01">Class 2 track</ENT> <ENT>25</ENT> <ENT>30</ENT> </ROW> <ROW> <ENT I="01">Class 3 track</ENT> <ENT>40</ENT> <ENT>60</ENT> </ROW> <ROW> <ENT I="01">Class 4 track</ENT> <ENT>60</ENT> <ENT>80</ENT> </ROW> <ROW> <ENT I="01">Class 5 track</ENT> <ENT>80</ENT> <ENT>90</ENT> </ROW> </GPOTABLE> <P>(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 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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 213.11</SECTNO> <SUBJECT>Restoration or renewal of track under traffic conditions.</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <PRTPAGE P="105"/> <SECTNO>§ 213.13</SECTNO> <SUBJECT>Measuring track not under load.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.15</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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 $650 and not more than $25,000 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 $100,000 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 § 213.5(d) or § 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.</P> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998, as amended at 69 FR 30593, May 28, 2004; 72 FR 51196, Sept. 6, 2007; 73 FR 79701, Dec. 30, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.17</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.19</SECTNO> <SUBJECT>Information collection.</SUBJECT> <P>(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.</P> <P>(b) The information collection requirements are found in the following sections: §§ 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Roadbed</HD> <SECTION> <SECTNO>§ 213.31</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart prescribes minimum requirements for roadbed and areas immediately adjacent to roadbed.</P> </SECTION> <SECTION> <SECTNO>§ 213.33</SECTNO> <SUBJECT>Drainage.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.37</SECTNO> <SUBJECT>Vegetation.</SUBJECT> <P>Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not—</P> <P>(a) Become a fire hazard to track-carrying structures;</P> <P>(b) Obstruct visibility of railroad signs and signals:<PRTPAGE P="106"/> </P> <P>(1) Along the right-of-way, and</P> <P>(2) At highway-rail crossings; (This paragraph (b)(2) is applicable September 21, 1999.)</P> <P>(c) Interfere with railroad employees performing normal trackside duties;</P> <P>(d) Prevent proper functioning of signal and communication lines; or</P> <P>(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Track Geometry</HD> <SECTION> <SECTNO>§ 213.51</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart prescribes requirements for the gage, alinement, and surface of track, and the elevation of outer rails and speed limitations for curved track.</P> </SECTION> <SECTION> <SECTNO>§ 213.53</SECTNO> <SUBJECT>Gage.</SUBJECT> <P>(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.</P> <P>(b) Gage shall be within the limits prescribed in the following table—</P> <GPOTABLE CDEF="s100,r100,xs80" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">The gage must be at least—</CHED> <CHED H="1">But not more than—</CHED> </BOXHD> <ROW> <ENT I="01">Excepted track</ENT> <ENT>N/A</ENT> <ENT>4′10<FR>1/4</FR>″.</ENT> </ROW> <ROW> <ENT I="01">Class 1 track</ENT> <ENT>4′8″</ENT> <ENT>4′10″.</ENT> </ROW> <ROW> <ENT I="01">Class 2 and 3 track</ENT> <ENT>4′8″</ENT> <ENT>4′9<FR>3/4</FR>″.</ENT> </ROW> <ROW> <ENT I="01">Class 4 and 5 track</ENT> <ENT>4′8″</ENT> <ENT>4′9<FR>1/2</FR>″.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.55</SECTNO> <SUBJECT>Alinement.</SUBJECT> <P>Alinement may not deviate from uniformity more than the amount prescribed in the following table:</P> <GPOTABLE CDEF="s100,15,15,15" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Tangent track</CHED> <CHED H="2">The deviation of the mid-offset from a 62-foot line <SU>1</SU> may not be more than—<LI>(inches)</LI> </CHED> <CHED H="1">Curved track</CHED> <CHED H="2">The deviation of the mid-ordinate from a 31-foot chord <SU>2</SU> may not be more than—<LI>(inches)</LI> </CHED> <CHED H="2">The deviation of the mid-ordinate from a 62-foot chord <SU>2</SU> may not be more than—<LI>(inches)</LI> </CHED> </BOXHD> <ROW> <ENT I="01">Class 1 track</ENT> <ENT>5</ENT> <ENT> <SU>3</SU> N/A</ENT> <ENT>5</ENT> </ROW> <ROW> <ENT I="01">Class 2 track</ENT> <ENT>3</ENT> <ENT> <SU>3</SU> N/A</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Class 3 track</ENT> <ENT>1<FR>3/4</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> <ENT>1<FR>3/4</FR> </ENT> </ROW> <ROW> <ENT I="01">Class 4 track</ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1</ENT> <ENT>1<FR>1/2</FR> </ENT> </ROW> <ROW> <ENT I="01">Class 5 track</ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>5/8</FR> </ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> <TNOTE> <SU>3</SU> N/A—Not Applicable.</TNOTE> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.57</SECTNO> <SUBJECT>Curves; elevation and speed limitations.</SUBJECT> <P>(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 § 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.)</P> <P>(b)(1) The maximum allowable operating speed for each curve is determined by the following formula—</P> <GPH DEEP="27" SPAN="1"> <GID>ER22JN98.001</GID> </GPH> <EXTRACT> <FP>Where—</FP> <FP SOURCE="FP-1">V<E T="52">max</E> = Maximum allowable operating speed (miles per hour).<PRTPAGE P="107"/> </FP> <FP SOURCE="FP-1">E<E T="52">a</E> = Actual elevation of the outside rail (inches). <SU>1</SU> <FTREF/> </FP> <FTNT> <P> <SU>1</SU> 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.</P> </FTNT> <FP SOURCE="FP-1">D = Degree of curvature (degrees). <SU>2</SU> <FTREF/> </FP> </EXTRACT> <FTNT> <P> <SU>2</SU> Degree of curvature is determined by averaging the degree of curvature over the same track segment as the elevation.</P> </FTNT> <P>(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.</P> <P>(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—</P> <GPH DEEP="27" SPAN="1"> <GID>ER22JN98.002</GID> </GPH> <EXTRACT> <FP>Where—</FP> <FP SOURCE="FP-1">V<E T="52">max</E> = Maximum allowable operating speed (miles per hour).</FP> <FP SOURCE="FP-1">E<E T="52">a</E> = Actual elevation of the outside rail (inches). <SU>1</SU> </FP> <FP SOURCE="FP-1">D = Degree of curvature (degrees). <SU>2</SU> </FP> </EXTRACT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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—</P> <P>(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;</P> <P>(ii) A complete description of the test procedure <SU>3</SU> <FTREF/> and instrumentation used to qualify the equipment and the maximum values for wheel unloading and roll angles which were observed during testing;</P> <FTNT> <P> <SU>3</SU> 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.</P> </FTNT> <P>(iii) Procedures or standards in effect which relate to the maintenance of the suspension system for the particular class of equipment; and</P> <P>(iv) Identification of line segment on which the higher curving speeds are proposed to be implemented.</P> <P>(e) 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.</P> <P>(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.</P> <P>(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 § 213.329(c) and (d) on curves in <PRTPAGE P="108"/>Class 1 through 5 track which are contiguous to the high speed track provided that—</P> <P>(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;</P> <P>(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;</P> <P>(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 § 213.333 (b) through (g) at an inspection frequency of at least twice annually with not less than 120 days interval between inspections; and</P> <P>(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</P> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.59</SECTNO> <SUBJECT>Elevation of curved track; runoff.</SUBJECT> <P>(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 § 213.57(b).</P> <P>(b) Elevation runoff shall be at a uniform rate, within the limits of track surface deviation prescribed in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 213.63</SECTNO> <SUBJECT>Track surface.</SUBJECT> <P>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:</P> <GPOTABLE CDEF="s100,8,8,8,8,8" COLS="6" OPTS="L2"> <BOXHD> <CHED H="1">Track surface</CHED> <CHED H="1">Class of track</CHED> <CHED H="2">1<LI>(inches)</LI> </CHED> <CHED H="2">2<LI>(inches)</LI> </CHED> <CHED H="2">3<LI>(inches)</LI> </CHED> <CHED H="2">4<LI>(inches)</LI> </CHED> <CHED H="2">5<LI>(inches)</LI> </CHED> </BOXHD> <ROW> <ENT I="01">The runoff in any 31 feet of rail at the end of a raise may not be more than.</ENT> <ENT>3<FR>1/2</FR> </ENT> <ENT>3</ENT> <ENT>2</ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the mid-ordinate of a 62-foot chord may not be more than</ENT> <ENT>3</ENT> <ENT>2<FR>3/4</FR> </ENT> <ENT>2<FR>1/4</FR> </ENT> <ENT>2</ENT> <ENT>1<FR>1/4</FR> </ENT> </ROW> <ROW> <ENT I="01">The deviation from zero crosslevel at any point on tangent or reverse crosslevel elevation on curves may not be more than</ENT> <ENT>3</ENT> <ENT>2</ENT> <ENT>1<FR>3/4</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">The difference in crosslevel between any two points less than 62 feet apart may not be more than* <SU>1,2</SU> </ENT> <ENT>3</ENT> <ENT>2<FR>1/4</FR> </ENT> <ENT>2</ENT> <ENT>1<FR>3/4</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> </ROW> <ROW> <PRTPAGE P="109"/> <ENT I="01">* Where determined by engineering decision prior to the 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</ENT> <ENT>2</ENT> <ENT>1<FR>3/4</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> <ENT>1</ENT> <ENT> <FR>3/4</FR> </ENT> </ROW> <TNOTE> <SU>1</SU> Except as limited by § 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<FR>1/2</FR> inches. (Footnote 1 is applicable September 21, 1999.)</TNOTE> <TNOTE> <SU>2</SU> However, to control harmonics on Class 2 through 5 jointed track with staggered joints, the crosslevel differences shall not exceed 1<FR>1/4</FR> 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.)</TNOTE> </GPOTABLE> <CITA>[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Track Structure</HD> <SECTION> <SECTNO>§ 213.101</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of rails.</P> </SECTION> <SECTION> <SECTNO>§ 213.103</SECTNO> <SUBJECT>Ballast; general.</SUBJECT> <P>Unless it is otherwise structurally supported, all track shall be supported by material which will—</P> <P>(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;</P> <P>(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;</P> <P>(c) Provide adequate drainage for the track; and</P> <P>(d) Maintain proper track crosslevel, surface, and alinement.</P> </SECTION> <SECTION> <SECTNO>§ 213.109</SECTNO> <SUBJECT>Crossties.</SUBJECT> <P>(a) Crossties shall be made of a material to which rail can be securely fastened.</P> <P>(b) Each 39 foot segment of track shall have—</P> <P>(1) A sufficient number of crossties which in combination provide effective support that will—</P> <P>(i) Hold gage within the limits prescribed in § 213.53(b);</P> <P>(ii) Maintain surface within the limits prescribed in § 213.63; and</P> <P>(iii) Maintain alinement within the limits prescribed in § 213.55.</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) Broken through;</P> <P>(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;</P> <P>(3) So deteriorated that the tie plate or base of rail can move laterally more than <FR>1/2</FR> inch relative to the crossties; or</P> <P>(4) Cut by the tie plate through more than 40 percent of a ties' thickness.</P> <P>(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).</P> <GPOTABLE CDEF="s50,8,8" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Tangent track and curves ≤2 degrees</CHED> <CHED H="1">Turnouts and curved track over 2 degrees</CHED> </BOXHD> <ROW> <ENT I="01">Class 1 track</ENT> <ENT>5</ENT> <ENT>6</ENT> </ROW> <ROW> <ENT I="01">Class 2 track</ENT> <ENT>8</ENT> <ENT>9</ENT> </ROW> <ROW> <ENT I="01">Class 3 track</ENT> <ENT>8</ENT> <ENT>10</ENT> </ROW> <ROW> <ENT I="01">Class 4 and 5 track</ENT> <ENT>12</ENT> <ENT>14</ENT> </ROW> </GPOTABLE> <P>(e) Crossties counted to satisfy the requirements set forth in the table in paragraph (d) of this section shall not be—</P> <P>(1) Broken through;<PRTPAGE P="110"/> </P> <P>(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;</P> <P>(3) So deteriorated that the tie plate or base of rail can move laterally <FR>1/2</FR> inch relative to the crossties; or</P> <P>(4) Cut by the tie plate through more than 40 percent of a crosstie's thickness (this paragraph (e) is applicable September 21, 2000).</P> <P>(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:</P> <GPH DEEP="117" SPAN="2"> <GID>ER22JN98.003</GID> </GPH> <HD SOURCE="HD2">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.</HD> <GPH DEEP="113" SPAN="2"> <GID>ER22JN98.004</GID> </GPH> <HD SOURCE="HD2">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:</HD> <GPH DEEP="92" SPAN="2"> <PRTPAGE P="111"/> <GID>ER22JN98.005</GID> </GPH> <HD SOURCE="HD2">Two crossties, one on each side of the rail joint, whose centerlines are within 24″ of the rail joint location shown above.</HD> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.110</SECTNO> <SUBJECT>Gage restraint measurement systems.</SUBJECT> <P>(a) A track owner may elect to implement a Gage Restraint Measurement System (GRMS), supplemented by the use of a Portable Track Loading Fixture (PTLF), to determine compliance with the crosstie and fastener requirements specified in §§ 213.109 and 213.127 provided that—</P> <P>(1) The track owner notifies the appropriate FRA Regional office at least 30 days prior to the designation of any line segment on which GRMS technology will be implemented; and</P> <P>(2) The track owner notifies the appropriate FRA Regional office at least 10 days prior to the removal of any line segment from GRMS designation.</P> <P>(b) Initial notification under paragraph (a)(1) of this section shall include—</P> <P>(1) Identification of the line segment(s) by timetable designation, milepost limits, class of track, or other identifying criteria; and</P> <P>(2) The most recent record of million gross tons of traffic per year over the identified segment(s).</P> <P>(c) The track owner shall also provide to FRA sufficient technical data to establish compliance with the minimum design requirements of a GRMS vehicle which specify that—</P> <P>(1) Gage restraint shall be measured between the heads of rail—</P> <P>(A) At an interval not exceeding 16 inches;</P> <P>(B) Under an applied vertical load of no less than 10,000 pounds per rail; and</P> <P>(C) Under an applied lateral load which provides for a lateral/vertical load ratio between 0.5 and 1.25, and a load severity greater than 3,000 pounds but less than 8,000 pounds.</P> <P>(d) Load severity is defined by the formula—S=L-cV </P> <EXTRACT> <FP>Where—</FP> <FP SOURCE="FP-1">S=Load severity, defined as the lateral load applied to the fastener system (pounds).</FP> <FP SOURCE="FP-1">L=Actual lateral load applied (pounds).</FP> <FP SOURCE="FP-1">c=Coefficient of friction between rail/tie which is assigned a nominal value of (0.4).</FP> <FP SOURCE="FP-1">V=Actual vertical load applied (pounds).</FP> </EXTRACT> <P>(e) The measured gage values shall be converted to a Projected Loaded Gage 24 (PLG 24) as follows—</P> <MATH DEEP="13" SPAN="2"> <MID>ER10JA01.000</MID> </MATH> <EXTRACT> <FP>Where—</FP> <FP SOURCE="FP-1">UTG=Unloaded track gage measured by the GRMS vehicle at a point no less than 10 feet from any lateral or vertical load application.</FP> <FP SOURCE="FP-1">LTG=Loaded track gage measured by the GRMS vehicle at a point no more than 12 <PRTPAGE P="112"/>inches from the lateral load application point.</FP> <FP SOURCE="FP-1">A=The extrapolation factor used to convert the measured loaded gage to expected loaded gage under a 24,000 pound lateral load and a 33,000 pound vertical load.</FP> </EXTRACT> <P>For all track—</P> <MATH DEEP="29" SPAN="2"> <MID>ER10JA01.001</MID> </MATH> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The A factor shall not exceed (3.184) under any valid loading configuration.</P> </NOTE> <EXTRACT> <FP>where—</FP> <FP SOURCE="FP-1">L=Actual lateral load applied (pounds).</FP> <FP SOURCE="FP-1">V=Actual vertical load applied (pounds).</FP> </EXTRACT> <P>(f) The measured gage value shall be converted to a Gage Widening Ratio (GWR) as follows— </P> <MATH DEEP="25" SPAN="2"> <MID>ER10JA01.002</MID> </MATH> <P>(g) The GRMS vehicle shall be capable of producing output reports that provide a trace, on a constant-distance scale, of all parameters specified in paragraph (l) of this section.</P> <P>(h) The GRMS vehicle shall be capable of providing an exception report containing a systematic listing of all exceptions, by magnitude and location, to all the parameters specified in paragraph (l) of this section.</P> <P>(i) The exception reports required by this section shall be provided to the appropriate person designated as fully qualified under § 213.7 prior to the next inspection required under § 213.233.</P> <P>(j) The track owner shall institute the necessary procedures for maintaining the integrity of the data collected by the GRMS and PTLF systems. At a minimum, the track owner shall—</P> <P>(1) Maintain and make available to the Federal Railroad Administration documented calibration procedures on each GRMS vehicle which, at a minimum, shall specify a daily instrument verification procedure that will ensure correlation between measurements made on the ground and those recorded by the instrumentation with respect to loaded and unloaded gage parameters; and</P> <P>(2) Maintain each PTLF used for determining compliance with the requirements of this section such that the 4,000-pound reading is accurate to within five percent of that reading.</P> <P>(k) The track owner shall provide training in GRMS technology to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of this section. The training program shall be made available to the Federal Railroad Administration upon request. At a minimum, the training program shall address—</P> <P>(1) Basic GRMS procedures;</P> <P>(2) Interpretation and handling of exception reports generated by the GRMS vehicle;</P> <P>(3) Locating and verifying defects in the field;</P> <P>(4) Remedial action requirements;</P> <P>(5) Use and calibration of the PTLF; and</P> <P>(6) Recordkeeping requirements.</P> <P>(l) The GRMS record of lateral restraint shall identify two exception levels. At a minimum, the track owner shall initiate the required remedial action at each exception level as defined in the following table—<PRTPAGE P="113"/> </P> <GPOTABLE CDEF="xs40,xs40,r100" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">GRMS parameter <SU>1</SU> </CHED> <CHED H="1">If measurement value exceeds</CHED> <CHED H="1">Remedial action required</CHED> </BOXHD> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">First Level Exception</E> </ENT> </ROW> <ROW EXPSTB="00" RUL="s"> <ENT I="01">UTG</ENT> <ENT>58 inches</ENT> <ENT>(1) Immediately protect the exception location with a 10 mph speed restriction; then verify location; and<LI O="xl">(2) Restore lateral restraint and maintain in compliance with PTLF criteria as described in paragraph (m) of this section; and</LI> <LI O="xl">(3) Maintain compliance with § 213.53(b) of this part as measured with the PTLF.</LI> </ENT> </ROW> <ROW> <ENT I="01">LTG</ENT> <ENT>58 inches</ENT> </ROW> <ROW> <ENT I="01">PLG24</ENT> <ENT>59 inches</ENT> </ROW> <ROW> <ENT I="01">GWR</ENT> <ENT>1.0 inches</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Second Level Exception</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">LTG</ENT> <ENT>57<FR>3/4</FR> inches on Class 4 and 5 track <SU>2</SU> </ENT> <ENT> <SU>2</SU> Limit operating speed to no more than the maximum allowable under § 213.9 for Class 3 track; then verify location; and<LI O="xl">(1) Maintain in compliance with PTLF criteria as described in paragraph (m) of this section; and</LI> <LI O="xl">(2) Maintain compliance with § 213.53(b) of this part as measured with the PTLF.</LI> </ENT> </ROW> <ROW> <ENT I="01">PLG24</ENT> <ENT>58 inches</ENT> </ROW> <ROW> <ENT I="01">GWR</ENT> <ENT>0.75 inches</ENT> </ROW> <TNOTE> <SU>1</SU> Definitions for the GRMS parameters referenced in this table are found in paragraph (p) of this section.</TNOTE> <TNOTE> <SU>2</SU> This note recognizes that typical good track will increase in total gage by as much as <FR>1/4</FR> inch due to outward rail rotation under GRMS loading conditions. For Class 2 & 3 track, the GRMS LTG values are also increased by <FR>1/4</FR> inch to a maximum of 58 inches. However, for any Class of track, GRMS LTG values in excess of 58 inches are considered First Level exceptions and the appropriate remedial actions must be taken by the track owner. This <FR>1/4</FR>-inch increase in allowable gage applies only to GRMS LTG. For gage measured by traditional methods, or with the use of the PTLF, the table in § 213.53(b) will apply.</TNOTE> </GPOTABLE> <P>(m) Between GRMS inspections, the PTLF may be used as an additional analytical tool to assist fully qualified § 213.7 individuals in determining compliance with the crosstie and fastener requirements of §§ 213.109 and 213.127. When the PTLF is used, whether as an additional analytical tool or to fulfill the requirements of paragraph (l), it shall be used subject to the following criteria—</P> <P>(1) At any location along the track that the PTLF is applied, that location will be deemed in compliance with the crosstie and fastener requirements specified in §§ 213.109 and 213.127 provided that—</P> <P>(i) The total gage widening at that location does not exceed <FR>5/8</FR> inch when increasing the applied force from 0 to 4,000 pounds; and</P> <P>(ii) The gage of the track under 4,000 pounds of applied force does not exceed the allowable gage prescribed in § 213.53(b) for the class of track.</P> <P>(2) Gage widening in excess of <FR>5/8</FR> inch shall constitute a deviation from Class 1 standards.</P> <P>(3) A person designated as fully qualified under § 213.7 retains the discretionary authority to prescribe additional remedial actions for those locations which comply with the requirements of paragraph (m)(1)(i) and (ii) of this section.</P> <P>(4) When a functional PTLF is not available to a fully qualified person designated under § 213.7, the criteria for determining crosstie and fastener compliance shall be based solely on the requirements specified in §§ 213.109 and 213.127.</P> <P>(5) If the PTLF becomes non-functional or is missing, the track owner will replace or repair it before the next inspection required under § 213.233.</P> <P>(6) Where vertical loading of the track is necessary for contact with the lateral rail restraint components, a PTLF test will not be considered valid until contact with these components is restored under static loading conditions.</P> <P>(n) The track owner shall maintain a record of the two most recent GRMS inspections at locations which meet the requirements specified in § 213.241(b). At a minimum, records shall indicate the following—</P> <P>(1) Location and nature of each First Level exception; and</P> <P>(2) Nature and date of remedial action, if any, for each exception identified in paragraph (n)(1) of this section.</P> <P>(o) The inspection interval for designated GRMS line segments shall be such that—<PRTPAGE P="114"/> </P> <P>(1) On line segments where the annual tonnage exceeds two million gross tons, or where the maximum operating speeds for passenger trains exceeds 30 mph, GRMS inspections must be performed annually at an interval not to exceed 14 months; or</P> <P>(2) On line segments where the annual tonnage is two million gross tons or less and the maximum operating speed for passenger trains does not exceed 30 mph, the interval between GRMS inspections must not exceed 24 months.</P> <P>(p) As used in this section—</P> <P>(1) <E T="03">Gage Restraint Measurement System (GRMS)</E> means a track loading vehicle meeting the minimum design requirements specified in this section.</P> <P>(2) <E T="03">Gage Widening Ratio (GWR)</E> means the measured difference between loaded and unloaded gage measurements, linearly normalized to 16,000 pounds of applied lateral load.</P> <P>(3) <E T="03">L/V ratio</E> means the numerical ratio of lateral load applied at a point on the rail to the vertical load applied at that same point. GRMS design requirements specify an L/V ratio of between 0.5 and 1.25. GRMS vehicles using load combinations developing L/V ratios which exceed 0.8 must be operated with caution to protect against the risk of wheel climb by the test wheelset.</P> <P>(4) <E T="03">Load severity</E> means the amount of lateral load applied to the fastener system after friction between rail and tie is overcome by any applied gage-widening lateral load.</P> <P>(5) <E T="03">Loaded Track Gage (LTG)</E> means the gage measured by the GRMS vehicle at a point no more than 12 inches from the lateral load application point.</P> <P>(6) <E T="03">Portable Track Loading Fixture (PTLF)</E> means a portable track loading device capable of applying an increasing lateral force from 0 to 4,000 pounds on the web/base fillet of each rail simultaneously.</P> <P>(7) <E T="03">Projected Loaded Gage (PLG)</E> means an extrapolated value for loaded gage calculated from actual measured loads and deflections. PLG 24 means the extrapolated value for loaded gage under a 24,000 pound lateral load and a 33,000 pound vertical load.</P> <P>(8) <E T="03">Unloaded Track Gage (UTG)</E> means the gage measured by the GRMS vehicle at a point no less than 10 feet from any lateral or vertical load.</P> <CITA>[66 FR 1899, Jan. 10, 2001; 66 FR 8372, Jan. 31, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.113</SECTNO> <SUBJECT>Defective rails.</SUBJECT> <P>(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 § 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—</P> <P>(1) The rail is replaced; or</P> <P>(2) The remedial action prescribed in the table is initiated.</P> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="115"/> <GID>EN28SE98.059</GID> </GPH> <NOTE> <HD SOURCE="HED">Notes:</HD> <P>A. Assign person designated under § 213.7 to visually supervise each operation over defective rail.</P> <P>A2. Assign person designated under § 213.7 to make visual inspection. After a visual inspection, that person may authorize operation to continue without continuous visual <PRTPAGE P="116"/>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.</P> <P>B. Limit operating speed over defective rail to that as authorized by a person designated under § 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 § 213.9 for the class of track concerned, whichever is lower.</P> <P>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 § 213.9 for the class of track concerned, whichever is lower. When a search for internal rail defects is conducted under § 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 § 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 § 213.9 for the class of track concerned, whichever is lower.</P> <P>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 § 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 § 213.9 for the class of track concerned, whichever is lower.</P> <P>E. Apply joint bars to defect and bolt in accordance with § 213.121(d) and (e).</P> <P>F. Inspect rail 90 days after it is determined to continue the track in use.</P> <P>G. Inspect rail 30 days after it is determined to continue the track in use.</P> <P>H. Limit operating speed over defective rail to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower.</P> <P>I. Limit operating speed over defective rail to 30 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower.</P> </NOTE> <P>(b) As used in this section—</P> <P>(1) <E T="03">Transverse fissure</E> 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.</P> <P>(2) <E T="03">Compound fissure</E> 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.</P> <P>(3) <E T="03">Horizontal split head</E> 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.</P> <P>(4) <E T="03">Vertical split head</E> 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.</P> <P>(5) <E T="03">Split web</E> means a lengthwise crack along the side of the web and extending into or through it.</P> <P>(6) <E T="03">Piped rail</E> 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.</P> <P>(7) <E T="03">Broken base</E> means any break in the base of the rail.</P> <P>(8) <E T="03">Detail fracture</E> 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.</P> <P>(9) <E T="03">Engine burn fracture</E> 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 <PRTPAGE P="117"/>compound or even transverse fissures with which they should not be confused or classified.</P> <P>(10) <E T="03">Ordinary break</E> 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.</P> <P>(11) <E T="03">Damaged rail</E> means any rail broken or injured by wrecks, broken, flat, or unbalanced wheels, slipping, or similar causes.</P> <P>(12) <E T="03">Flattened rail</E> 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 <FR>3/8</FR> 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.</P> <P>(13) <E T="03">Bolt hole crack</E> 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.</P> <P>(14) <E T="03">Defective weld</E> 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.</P> <P>(15) <E T="03">Head and web separation</E> means a progressive fracture, longitudinally separating the head from the web of the rail at the head fillet area.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 51639, Sept. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.115</SECTNO> <SUBJECT>Rail end mismatch.</SUBJECT> <P>Any mismatch of rails at joints may not be more than that prescribed by the following table—</P> <GPOTABLE CDEF="s100,15,15" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Any mismatch of rails at joints may not be more than the following—</CHED> <CHED H="2">On the tread of the rail ends (inch)</CHED> <CHED H="2">On the gage side of the rail ends (inch)</CHED> </BOXHD> <ROW> <ENT I="01">Class 1 track</ENT> <ENT> <FR>1/4</FR> </ENT> <ENT> <FR>1/4</FR> </ENT> </ROW> <ROW> <ENT I="01">Class 2 track</ENT> <ENT> <FR>1/4</FR> </ENT> <ENT> <FR>3/16</FR> </ENT> </ROW> <ROW> <ENT I="01">Class 3 track</ENT> <ENT> <FR>3/16</FR> </ENT> <ENT> <FR>3/16</FR> </ENT> </ROW> <ROW> <ENT I="01">Class 4 and 5 track</ENT> <ENT> <FR>1/8</FR> </ENT> <ENT> <FR>1/8</FR> </ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.118</SECTNO> <SUBJECT>Continuous welded rail (CWR); plan review and approval.</SUBJECT> <P>(a) Each track owner with track constructed of CWR shall have in effect and comply with a plan that contains written procedures which address: the installation, adjustment, maintenance, and inspection of CWR; inspection of CWR joints; and a training program for the application of those procedures.</P> <P>(b) The track owner shall file its CWR plan with the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). Within 30 days of receipt of the submission, FRA will review the plan for compliance with this subpart. FRA will approve, disapprove or conditionally approve the submitted plan, and will provide written notice of its determination.</P> <P>(c) The track owner's existing plan shall remain in effect until the track owner's new plan is approved or conditionally approved and is effective pursuant to paragraph (d) of this section.<PRTPAGE P="118"/> </P> <P>(d) The track owner shall, upon receipt of FRA's approval or conditional approval, establish the plan's effective date. The track owner shall advise in writing FRA and all affected employees of the effective date.</P> <P>(e) FRA, for cause stated, may, subsequent to plan approval or conditional approval, require revisions to the plan to bring the plan into conformity with this subpart. Notice of a revision requirement shall be made in writing and specify the basis of FRA's requirement. The track owner may, within 30 days of the revision requirement, respond and provide written submissions in support of the original plan. FRA renders a final decision in writing. Not more than 30 days following any final decision requiring revisions to a CWR plan, the track owner shall amend the plan in accordance with FRA's decision and resubmit the conforming plan. The conforming plan becomes effective upon its submission to FRA.</P> <CITA>[74 FR 43002, Aug. 25, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.119</SECTNO> <SUBJECT>Continuous welded rail (CWR); plan contents.</SUBJECT> <P>The track owner shall comply with the contents of the CWR plan approved or conditionally approved under § 213.118. The plan shall contain the following elements—</P> <P>(a) Procedures for the installation and adjustment of CWR which include—</P> <P>(1) Designation of a desired rail installation temperature range for the geographic area in which the CWR is located; and</P> <P>(2) De-stressing procedures/methods which address proper attainment of the desired rail installation temperature range when adjusting CWR.</P> <P>(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.</P> <P>(c) CWR joint installation and maintenance procedures which require that—</P> <P>(1) Each rail shall be bolted with at least two bolts at each CWR joint;</P> <P>(2) In the case of a bolted joint installed during CWR installation after October 21, 2009, the track owner shall either, within 60 days—</P> <P>(i) Weld the joint;</P> <P>(ii) Install a joint with six bolts; or</P> <P>(iii) Anchor every tie 195 feet in both directions from the joint; and</P> <P>(3) In the case of a bolted joint in CWR experiencing service failure or a failed bar with a rail gap present, the track owner shall either—</P> <P>(i) Weld the joint;</P> <P>(ii) Replace the broken bar(s), replace the broken bolts, adjust the anchors and, within 30 days, weld the joint;</P> <P>(iii) Replace the broken bar(s), replace the broken bolts, install one additional bolt per rail end, and adjust anchors;</P> <P>(iv) Replace the broken bar(s), replace the broken bolts, and anchor every tie 195 feet in both directions from the CWR joint; or</P> <P>(v) Replace the broken bar(s), replace the broken bolts, add rail with provisions for later adjustment pursuant to paragraph (d)(2) of this section, and reapply the anchors.</P> <P>(d) 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—</P> <P>(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</P> <P>(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.</P> <P>(e) 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.</P> <P>(f) Procedures which govern train speed on CWR track when—<PRTPAGE P="119"/> </P> <P>(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</P> <P>(2) The difference between the average rail temperature and the average rail neutral temperature is in a range that causes buckling-prone conditions to be present at a specific location; and</P> <P>(3) In formulating the procedures under paragraphs (f)(1) and (f)(2) of this section, the track owner shall—</P> <P>(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</P> <P>(ii) Take into consideration the type of crossties used.</P> <P>(g) Procedures which prescribe when physical track inspections are to be performed.</P> <P>(1) At a minimum, these procedures shall address inspecting track to identify—</P> <P>(i) Buckling-prone conditions in CWR track, including—</P> <P>(A) Locations where tight or kinky rail conditions are likely to occur; and</P> <P>(B) Locations where track work of the nature described in paragraph (f)(1)(i) of this section has recently been performed; and</P> <P>(ii) Pull-apart prone conditions in CWR track, including locations where pull-apart or stripped-joint rail conditions are likely to occur; and</P> <P>(2) In formulating the procedures under paragraph (g)(1) of this section, the track owner shall—</P> <P>(i) Specify when the inspections will be conducted; and</P> <P>(ii) Specify the appropriate remedial actions to be taken when either buckling-prone or pull-apart prone conditions are found.</P> <P>(h) Procedures which prescribe the scheduling and conduct of inspections to detect cracks and other indications of potential failures in CWR joints. In formulating the procedures under this paragraph, the track owner shall—</P> <P>(1) Address the inspection of joints and the track structure at joints, including, at a minimum, periodic on-foot inspections;</P> <P>(2) Identify joint bars with visible or otherwise detectable cracks and conduct remedial action pursuant to § 213.121;</P> <P>(3) Specify the conditions of actual or potential joint failure for which personnel must inspect, including, at a minimum, the following items:</P> <P>(i) Loose, bent, or missing joint bolts;</P> <P>(ii) Rail end batter or mismatch that contributes to instability of the joint; and</P> <P>(iii) Evidence of excessive longitudinal rail movement in or near the joint, including, but not limited to; wide rail gap, defective joint bolts, disturbed ballast, surface deviations, gap between tie plates and rail, or displaced rail anchors;</P> <P>(4) Specify the procedures for the inspection of CWR joints that are imbedded in highway-rail crossings or in other structures that prevent a complete inspection of the joint, including procedures for the removal from the joint of loose material or other temporary material;</P> <P>(5) Specify the appropriate corrective actions to be taken when personnel find conditions of actual or potential joint failure, including on-foot follow-up inspections to monitor conditions of potential joint failure in any period prior to completion of repairs;</P> <P>(6) Specify the timing of periodic inspections, which shall be based on the configuration and condition of the joint:</P> <P>(i) Except as provided in paragraphs (h)(6)(ii) through (h)(6)(iv) of this section, track owners must specify that all CWR joints are inspected, at a minimum, in accordance with the intervals identified in the following table:<PRTPAGE P="120"/> </P> <GPOTABLE CDEF="s50,12,12,12,12,12" COLS="6" OPTS="L2"> <TTITLE>Minimum Number of Inspections per Calendar Year <SU>1</SU> </TTITLE> <BOXHD> <CHED H="1"/> <CHED H="1" O="L">Freight trains operating over track with an annual tonnage of:</CHED> <CHED H="2">Less than 40 mgt</CHED> <CHED H="2">40 to 60 mgt</CHED> <CHED H="2">Greater than 60 mgt</CHED> <CHED H="1" O="L">Passenger trains operating over track with an annual tonnage of:</CHED> <CHED H="2">Less than 20 mgt</CHED> <CHED H="2">Greater than or equal to 20 mgt</CHED> </BOXHD> <ROW> <ENT I="01">Class 5 & above</ENT> <ENT>2</ENT> <ENT>3 <SU>2</SU> </ENT> <ENT>4 <SU>2</SU> </ENT> <ENT>3 <SU>2</SU> </ENT> <ENT>3<SU>2</SU> </ENT> </ROW> <ROW> <ENT I="01">Class 4</ENT> <ENT>2</ENT> <ENT>3 <SU>2</SU> </ENT> <ENT>4 <SU>2</SU> </ENT> <ENT>2</ENT> <ENT>3 <SU>2</SU> </ENT> </ROW> <ROW> <ENT I="01">Class 3</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>2</ENT> <ENT>2</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Class 2</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Class 1</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>0</ENT> </ROW> <ROW> <ENT I="01">Excepted Track</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>n/a</ENT> <ENT>n/a</ENT> </ROW> <ROW EXPSTB="05" TOPRUL="s"> <ENT I="01">4 = Four times per calendar year, with one inspection in each of the following periods: January to March, April to June, July to September, and October to December; and with consecutive inspections separated by at least 60 calendar days.</ENT> </ROW> <ROW> <ENT I="01">3 = Three times per calendar year, with one inspection in each of the following periods: January to April, May to August, and September to December; and with consecutive inspections separated by at least 90 calendar days.</ENT> </ROW> <ROW> <ENT I="01">2 = Twice per calendar year, with one inspection in each of the following periods: January to June and July to December; and with consecutive inspections separated by at least 120 calendar days.</ENT> </ROW> <ROW> <ENT I="01">1 = Once per calendar year, with consecutive inspections separated by at least 180 calendar days.</ENT> </ROW> <TNOTE> <SU>1</SU> Where a track owner operates both freight and passenger trains over a given segment of track, and there are two different possible inspection interval requirements, the more frequent inspection interval applies.</TNOTE> <TNOTE> <SU>2</SU> When extreme weather conditions prevent a track owner from conducting an inspection of a particular territory within the required interval, the track owner may extend the interval by up to 30 calendar days from the last day that the extreme weather condition prevented the required inspection.</TNOTE> </GPOTABLE> <P>(ii) Consistent with any limitations applied by the track owner, a passenger train conducting an unscheduled detour operation may proceed over track not normally used for passenger operations at a speed not to exceed the maximum authorized speed otherwise allowed, even though CWR joints have not been inspected in accordance with the frequency identified in paragraph (h)(6)(i) of this section, provided that:</P> <P>(A) All CWR joints have been inspected consistent with requirements for freight service; and</P> <P>(B) The unscheduled detour operation lasts no more than 14 consecutive calendar days. In order to continue operations beyond the 14-day period, the track owner must inspect the CWR joints in accordance with the requirements of paragraph (h)(6)(i) of this section.</P> <P>(iii) Tourist, scenic, historic, or excursion operations, if limited to the maximum authorized speed for passenger trains over the next lower class of track, need not be considered in determining the frequency of inspections under paragraph (h)(6)(i) of this section.</P> <P>(iv) All CWR joints that are located in switches, turnouts, track crossings, lift rail assemblies or other transition devices on moveable bridges must be inspected on foot at least monthly, consistent with the requirements in § 213.235; and all records of those inspections must be kept in accordance with the requirements in § 213.241. A track owner may include in its § 213.235 inspections, in lieu of the joint inspections required by paragraph (h)(6)(i) of this section, CWR joints that are located in track structure that is adjacent to switches and turnouts, provided that the track owner precisely defines the parameters of that arrangement in the CWR plans.</P> <P>(7) Specify the recordkeeping requirements related to joint bars in CWR, including the following:</P> <P>(i) The track owner shall keep a record of each periodic and follow-up inspection required to be performed by the track owner's CWR plan, except for those inspections conducted pursuant to § 213.235 for which track owners must maintain records pursuant to § 213.241. The record shall be prepared on the day the inspection is made and signed by the person making the inspection. The record shall include, at a minimum, the following items: the boundaries of the territory inspected; the nature and location of any deviations at the joint from the requirements of this part or of the track owner's CWR plan, with the location identified with sufficient precision that personnel could return <PRTPAGE P="121"/>to the joint and identify it without ambiguity; the date of the inspection; the remedial action, corrective action, or both, that has been taken or will be taken; and the name or identification number of the person who made the inspection.</P> <P>(ii) The track owner shall generate a Fracture Report for every cracked or broken CWR joint bar that the track owner discovers during the course of an inspection conducted pursuant to § 213.119(g), § 213.233, or § 213.235 on track that is required under § 213.119(h)(6)(i) to be inspected.</P> <P>(A) The Fracture Report shall be prepared on the day the cracked or broken joint bar is discovered. The Report shall include, at a minimum: the railroad name; the location of the joint bar as identified by milepost and subdivision; the class of track; annual million gross tons for the previous calendar year; the date of discovery of the crack or break; the rail section; the type of bar (standard, insulated, or compromise); the number of holes in the joint bar; a general description of the location of the crack or break in bar; the visible length of the crack in inches; the gap measurement between rail ends; the amount and length of rail end batter or ramp on each rail end; the amount of tread mismatch; the vertical movement of joint; and in curves or spirals, the amount of gage mismatch and the lateral movement of the joint.</P> <P>(B) The track owner shall submit the information contained in the Fracture Reports to the FRA Associate Administrator twice annually, by July 31 for the preceding six-month period from January 1 through June 30 and by January 31 for the preceding six-month period from July 1 through December 31.</P> <P>(C) After February 1, 2010, any track owner may petition FRA to conduct a technical conference to review the Fracture Report data submitted through December of 2009 and assess whether there is a continued need for the collection of Fracture Report data. The track owner shall submit a written request to the Associate Administrator, requesting the technical conference and explaining the reasons for proposing to discontinue the collection of the data.</P> <P>(8) In lieu of the requirements for the inspection of rail joints contained in paragraphs (h)(1) through (h)(7) of this section, a track owner may seek approval from FRA to use alternate procedures.</P> <P>(i) The track owner shall submit the proposed alternate procedures and a supporting statement of justification to the Associate Administrator.</P> <P>(ii) If the Associate Administrator finds that the proposed alternate procedures provide an equivalent or higher level of safety than the requirements in paragraphs (h)(1) through (h)(7) of this section, the Associate Administrator will approve the alternate procedures by notifying the track owner in writing. The Associate Administrator will specify in the written notification the date on which the procedures will become effective, and after that date, the track owner shall comply with the procedures. If the Associate Administrator determines that the alternate procedures do not provide an equivalent level of safety, the Associate Administrator will disapprove the alternate procedures in writing, and the track owner shall continue to comply with the requirements in paragraphs (h)(1) through (h)(7) of this section.</P> <P>(iii) While a determination is pending with the Associate Administrator on a request submitted pursuant to paragraph (h)(8) of this section, the track owner shall continue to comply with the requirements contained in paragraphs (h)(1) through (h)(7) of this section.</P> <P>(i) The track owner shall have in effect a comprehensive training program for the application of these written CWR procedures, with provisions for annual re-training, for those individuals designated under § 213.7(c) as qualified to supervise the installation, adjustment, and maintenance of CWR track and to perform inspections of CWR track. The track owner shall make the training program available for review by FRA upon request.</P> <P>(j) The track owner shall prescribe and comply with recordkeeping requirements necessary to provide an adequate history of track constructed with CWR. At a minimum, these records must include:<PRTPAGE P="122"/> </P> <P>(1) Rail temperature, location, and date of CWR installations. Each record shall be retained for at least one year;</P> <P>(2) A record of any CWR installation or maintenance work that does not conform to 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; and</P> <P>(3) Information on inspection of rail joints as specified in paragraph (h)(7) of this section.</P> <P>(k) The track owner shall make readily available, at every job site where personnel are assigned to install, inspect or maintain CWR, a copy of the track owner's CWR procedures and all revisions, appendices, updates, and referenced materials related thereto prior to their effective date. Such CWR procedures shall be issued and maintained in one CWR standards and procedures manual.</P> <P>(l) As used in this section—</P> <P> <E T="03">Adjusting/de-stressing</E> means a procedure by which a rail's neutral 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.</P> <P> <E T="03">Annual re-training</E> means training every calendar year.</P> <P> <E T="03">Buckling incident</E> means the formation of a lateral misalignment sufficient in magnitude to constitute a deviation from the Class 1 requirements specified in § 213.55. These normally occur when rail temperatures are relatively high and are caused by high longitudinal compressive forces.</P> <P> <E T="03">Buckling-prone condition</E> means a track condition that can result in the track being laterally displaced due to high compression forces caused by critical rail temperature combined with insufficient track strength and/or train dynamics.</P> <P> <E T="03">Continuous welded rail (CWR)</E> means rail that has been welded together into lengths exceeding 400 feet. Rail installed as CWR remains CWR, regardless of whether a joint or plug is installed into the rail at a later time.</P> <P> <E T="03">Corrective actions</E> mean those actions which track owners specify in their CWR plans to address conditions of actual or potential joint failure, including, as applicable, repair, restrictions on operations, and additional on-foot inspections.</P> <P> <E T="03">CWR join</E>t means any joint directly connected to CWR.</P> <P> <E T="03">Desired rail installation temperature range</E> 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.</P> <P> <E T="03">Disturbed track</E> 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.</P> <P> <E T="03">Mechanical stabilization</E> 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.</P> <P> <E T="03">Pull apart or stripped joint</E> means a condition when no bolts are mounted through a joint on the rail end, rending the joint bar ineffective due to excessive expansive or contractive forces.</P> <P> <E T="03">Pull-apart prone condition</E> means a condition when the actual rail temperature is below the rail neutral temperature at or near a joint where longitudinal tensile forces may affect the fastenings at the joint.</P> <P> <E T="03">Rail anchors</E> mean 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.</P> <P> <E T="03">Rail neutral temperature</E> is the temperature at which the rail is neither in compression nor tension.</P> <P> <E T="03">Rail temperature</E> means the temperature of the rail, measured with a rail thermometer.</P> <P> <E T="03">Remedial actions</E> mean those actions which track owners are required to take as a result of requirements of this <PRTPAGE P="123"/>part to address a non-compliant condition.</P> <P> <E T="03">Tight/kinky rail</E> means CWR which exhibits minute alinement irregularities which indicate that the rail is in a considerable amount of compression.</P> <P> <E T="03">Tourist, scenic, historic, or excursion operations</E> mean railroad operations that carry passengers with the conveyance of the passengers to a particular destination not being the principal purpose.</P> <P> <E T="03">Track lateral resistance</E> means the resistance provided by the rail/crosstie structure against lateral displacement.</P> <P> <E T="03">Track longitudinal resistance</E> means the resistance provided by the rail anchors/rail fasteners and the ballast section to the rail/crosstie structure against longitudinal displacement.</P> <P> <E T="03">Train-induced forces</E> means the vertical, longitudinal, and lateral dynamic forces which are generated during train movement and which can contribute to the buckling potential of the rail.</P> <P> <E T="03">Unscheduled detour operation</E> means a short-term, unscheduled operation where a track owner has no more than 14 calendar days' notice that the operation is going to occur.</P> <CITA>[74 FR 43002, Aug. 25, 2009, as amended at 74 FR 53889, Oct. 21, 2009; 75 FR 4705, Jan. 29, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.121</SECTNO> <SUBJECT>Rail joints.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) If a joint bar is cracked or broken between the middle two bolt holes it shall be replaced.</P> <P>(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.</P> <P>(e) In the case of continuous welded rail track, each rail shall be bolted with at least two bolts at each joint.</P> <P>(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.</P> <P>(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.</P> <P>(h) No joint bar shall be reconfigured by torch cutting in Classes 3 through 5 track.</P> </SECTION> <SECTION> <SECTNO>§ 213.122</SECTNO> <SUBJECT>Torch cut rail.</SUBJECT> <P>(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 rail ends in Classes 3 through 5 track the following shall apply—</P> <P>(1) Within one year of September 21, 1998, all torch cut rail ends in Class 5 track shall be removed;</P> <P>(2) Within two years of September 21, 1998, all torch cut rail ends in Class 4 track shall be removed; and</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.123</SECTNO> <SUBJECT>Tie plates.</SUBJECT> <P>(a) In Classes 3 through 5 track where timber crossties are in use there shall <PRTPAGE P="124"/>be tie plates under the running rails on at least eight of any 10 consecutive ties.</P> <P>(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.)</P> </SECTION> <SECTION> <SECTNO>§ 213.127</SECTNO> <SUBJECT>Rail fastening systems.</SUBJECT> <P>Track shall be fastened by a system of components which effectively maintains gage within the limits prescribed in § 213.53(b). Each component of each such system shall be evaluated to determine whether gage is effectively being maintained.</P> </SECTION> <SECTION> <SECTNO>§ 213.133</SECTNO> <SUBJECT>Turnouts and track crossings generally.</SUBJECT> <P>(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.</P> <P>(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.)</P> <P>(c) Each flangeway at turnouts and track crossings shall be at least 1<FR>1/2</FR> inches wide.</P> </SECTION> <SECTION> <SECTNO>§ 213.135</SECTNO> <SUBJECT>Switches.</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> <P>(c) Each switch shall be maintained so that the outer edge of the wheel tread cannot contact the gage side of the stock rail.</P> <P>(d) The heel of each switch rail shall be secure and the bolts in each heel shall be kept tight.</P> <P>(e) Each switch stand and connecting rod shall be securely fastened and operable without excessive lost motion.</P> <P>(f) Each throw lever shall be maintained so that it cannot be operated with the lock or keeper in place.</P> <P>(g) Each switch position indicator shall be clearly visible at all times.</P> <P>(h) Unusually chipped or worn switch points shall be repaired or replaced. Metal flow shall be removed to insure proper closure.</P> <P>(i) Tongue & Plain Mate switches, which by design exceed Class 1 and excepted track maximum gage limits, are permitted in Class 1 and excepted track.</P> </SECTION> <SECTION> <SECTNO>§ 213.137</SECTNO> <SUBJECT>Frogs.</SUBJECT> <P>(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<FR>3/8</FR> inches, or less than 1<FR>1/2</FR> inches on Classes 2 through 5 track.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.139</SECTNO> <SUBJECT>Spring rail frogs.</SUBJECT> <P>(a) The outer edge of a wheel tread shall not contact the gage side of a spring wing rail.</P> <P>(b) The toe of each wing rail shall be solidly tamped and fully and tightly bolted.<PRTPAGE P="125"/> </P> <P>(c) Each frog with a bolt hole defect or head-web separation shall be replaced.</P> <P>(d) Each spring shall have compression sufficient to hold the wing rail against the point rail.</P> <P>(e) The clearance between the holddown housing and the horn shall not be more than one-fourth of an inch.</P> </SECTION> <SECTION> <SECTNO>§ 213.141</SECTNO> <SUBJECT>Self-guarded frogs.</SUBJECT> <P>(a) The raised guard on a self-guarded frog shall not be worn more than three-eighths of an inch.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.143</SECTNO> <SUBJECT>Frog guard rails and guard faces; gage.</SUBJECT> <P>The guard check and guard face gages in frogs shall be within the limits prescribed in the following table—</P> <GPOTABLE CDEF="s100,r100,xs80" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Guard check gage<LI>The distance between the gage line of a frog to the guard line <SU>1</SU> of its guard rail or guarding face, measured across the track at right angles to the gage line <SU>2</SU>, may not be less than—</LI> </CHED> <CHED H="1">Guard face gage<LI>The distance between guard lines <SU>1</SU>, measured across the track at right angles to the gage line <SU>2</SU>, may not be more than—</LI> </CHED> </BOXHD> <ROW> <ENT I="01">Class 1 track</ENT> <ENT>4′6<FR>1/8</FR>″</ENT> <ENT>4′ 5<FR>1/4</FR>″</ENT> </ROW> <ROW> <ENT I="01">Class 2 track</ENT> <ENT>4′6<FR>1/4</FR>″</ENT> <ENT>4′ 5<FR>1/8</FR>″</ENT> </ROW> <ROW> <ENT I="01">Class 3 and 4 track</ENT> <ENT>4′ 6<FR>3/8</FR>″</ENT> <ENT>4′5<FR>1/8</FR>″</ENT> </ROW> <ROW> <ENT I="01">Class 5 track</ENT> <ENT>4′6<FR>1/2</FR>″</ENT> <ENT>4′ 5″</ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> <TNOTE> <SU>2</SU> A line <FR>5/8</FR> 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.</TNOTE> </GPOTABLE> <GPH DEEP="141" SPAN="2"> <GID>ER22JN98.006</GID> </GPH> <GPH DEEP="100" SPAN="2"> <GID>ER22JN98.007</GID> </GPH> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="126"/> <HD SOURCE="HED">Subpart E—Track Appliances and Track-Related Devices</HD> <SECTION> <SECTNO>§ 213.201</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart prescribes minimum requirements for certain track appliances and track-related devices.</P> </SECTION> <SECTION> <SECTNO>§ 213.205</SECTNO> <SUBJECT>Derails.</SUBJECT> <P>(a) Each derail shall be clearly visible.</P> <P>(b) When in a locked position, a derail shall be free of lost motion which would prevent it from performing its intended function.</P> <P>(c) Each derail shall be maintained to function as intended.</P> <P>(d) Each derail shall be properly installed for the rail to which it is applied. (This paragraph (d) is applicable September 21, 1999.)</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Inspection</HD> <SECTION> <SECTNO>§ 213.231</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart prescribes requirements for the frequency and manner of inspecting track to detect deviations from the standards prescribed in this part.</P> </SECTION> <SECTION> <SECTNO>§ 213.233</SECTNO> <SUBJECT>Track inspections.</SUBJECT> <P>(a) All track shall be inspected in accordance with the schedule prescribed in paragraph (c) of this section by a person designated under § 213.7.</P> <P>(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—</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(c) Each track inspection shall be made in accordance with the following schedule—</P> <GPOTABLE CDEF="s100,r100,r100" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Type of track</CHED> <CHED H="1">Required frequency</CHED> </BOXHD> <ROW> <ENT I="01">Excepted track and Class 1, 2, and 3 track</ENT> <ENT>Main track and sidings</ENT> <ENT>Weekly with at least 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.</ENT> </ROW> <ROW> <ENT I="01">Excepted track and Class 1, 2, and 3 track</ENT> <ENT>Other than main track and sidings</ENT> <ENT>Monthly with at least 20 calendar days interval between inspections.</ENT> </ROW> <ROW> <ENT I="01">Class 4 and 5 track</ENT> <ENT/> <ENT>Twice weekly with at least 1 calendar day interval between inspections.</ENT> </ROW> </GPOTABLE> <PRTPAGE P="127"/> <P>(d) If the person making the inspection finds a deviation from the requirements of this part, the inspector shall immediately initiate remedial action. </P> <NOTE> <HD SOURCE="HED">Note to § 213.233:</HD> <P>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.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 213.235</SECTNO> <SUBJECT>Inspection of switches, track crossings, and lift rail assemblies or other transition devices on moveable bridges.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.237</SECTNO> <SUBJECT>Inspection of rail.</SUBJECT> <P>(a) In addition to the track inspections required by § 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.</P> <P>(b) Inspection equipment shall be capable of detecting defects between joint bars, in the area enclosed by joint bars.</P> <P>(c) Each defective rail shall be marked with a highly visible marking on both sides of the web and base.</P> <P>(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.</P> <P>(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—</P> <P>(1) Conduct a valid search for internal defects;</P> <P>(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</P> <P>(3) Remove the rail from service.</P> </SECTION> <SECTION> <SECTNO>§ 213.239</SECTNO> <SUBJECT>Special inspections.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.241</SECTNO> <SUBJECT>Inspection records.</SUBJECT> <P>(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.</P> <P>(b) Each record of an inspection under §§ 213.4, 213.119, 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.<PRTPAGE P="128"/> </P> <P>(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 § 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.</P> <P>(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.</P> <P>(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—</P> <P>(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;</P> <P>(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;</P> <P>(3) The electronic system shall ensure that each record cannot be modified in any way, or replaced, once the record is transmitted and stored;</P> <P>(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;</P> <P>(5) The electronic system shall provide for the maintenance of inspection records as originally submitted without corruption or loss of data;</P> <P>(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</P> <P>(7) Track inspection records shall be kept available to persons who performed the inspections and to persons performing subsequent inspections.</P> <CITA>[63 FR 34029, June 22, 1998, as amended at 70 FR 66298, Nov. 2, 2005]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Train Operations at Track Classes 6 and Higher</HD> <SECTION> <SECTNO>§ 213.301</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.303</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <P>(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—</P> <P>(1) Bring the track into compliance; or</P> <P>(2) Halt operations over that track.</P> <P>(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 party to that assignment, but shall be in writing and include the following—</P> <P>(1) The name and address of the track owner;</P> <P>(2) The name and address of the person to whom responsibility is assigned (assignee);</P> <P>(3) A statement of the exact relationship between the track owner and the assignee;</P> <P>(4) A precise identification of the track;</P> <P>(5) A statement as to the competence and ability of the assignee to carry out the duties of the track owner under this subpart;</P> <P>(6) A statement signed by the assignee acknowledging the assignment to that person of responsibility for purposes of compliance with this subpart.</P> <P>(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 § 213.15.<PRTPAGE P="129"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.305</SECTNO> <SUBJECT>Designation of qualified individuals; general qualifications.</SUBJECT> <P>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:</P> <P>(a) Supervise restorations and renewals of track shall meet the following minimum requirements:</P> <P>(1) At least;</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(2) Demonstrate to the track owner that the individual:</P> <P>(i) Knows and understands the requirements of this subpart;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and</P> <P>(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.</P> <P>(b) Inspect track for defects shall meet the following minimum qualifications:</P> <P>(1) At least:</P> <P>(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</P> <P>(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 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</P> <P>(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.</P> <P>(2) Demonstrate to the track owner that the individual:</P> <P>(i) Knows and understands the requirements of this subpart;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and<PRTPAGE P="130"/> </P> <P>(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.</P> <P>(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:</P> <P>(1) Current qualifications under either paragraph (a) or (b) of this section;</P> <P>(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</P> <P>(3) Demonstrated to the track owner that the individual:</P> <P>(i) Knows and understands the requirements of those written CWR procedures;</P> <P>(ii) Can detect deviations from those requirements; and</P> <P>(iii) Can prescribe appropriate remedial action to correct or safely compensate for those deviations; and</P> <P>(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.</P> <P>(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—</P> <P>(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;</P> <P>(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;</P> <P>(3) The person shall watch all movements over the broken rail or pull apart and be prepared to stop the train if necessary; and</P> <P>(4) Person(s) fully qualified under § 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.</P> <P>(e) With respect to designations under paragraphs (a), (b), (c) and (d) of this section, each track owner shall maintain written records of:</P> <P>(1) Each designation in effect;</P> <P>(2) The basis for each designation, including but not limited to:</P> <P>(i) The exact nature of any training courses attended and the dates thereof;</P> <P>(ii) The manner in which the track owner has determined a successful completion of that training course, including test scores or other qualifying results;</P> <P>(3) Track inspections made by each individual as required by § 213.369. These records shall be made available for inspection and copying by the Federal Railroad Administration during regular business hours.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.307</SECTNO> <SUBJECT>Class of track: operating speed limits.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section and §§ 213.329, 213.337(a) and 213.345(c), the following maximum allowable operating speeds apply:<PRTPAGE P="131"/> </P> <GPOTABLE CDEF="s25,xs48" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Over track that meets all of the requirements prescribed in this subpart for—</CHED> <CHED H="1">The maximum allowable operating speed for trains <SU>1</SU> is—</CHED> </BOXHD> <ROW> <ENT I="01">Class 6 track</ENT> <ENT>110 m.p.h.</ENT> </ROW> <ROW> <ENT I="01">Class 7 track</ENT> <ENT>125 m.p.h.</ENT> </ROW> <ROW> <ENT I="01">Class 8 track</ENT> <ENT>160 m.p.h. <SU>2</SU> </ENT> </ROW> <ROW> <ENT I="01">Class 9 track</ENT> <ENT>200 m.p.h.</ENT> </ROW> <TNOTE> <SU>1</SU> Freight may be transported at passenger train speeds if the following conditions are met:</TNOTE> <TNOTE>(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.</TNOTE> <TNOTE>(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.</TNOTE> <TNOTE>(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.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.309</SECTNO> <SUBJECT>Restoration or renewal of track under traffic conditions.</SUBJECT> <P>(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.</P> <P>(b) The following activities are expressly prohibited under traffic conditions:</P> <P>(1) Any work that interrupts rail continuity, e.g., as in joint bar replacement or rail replacement;</P> <P>(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</P> <P>(3) Removal and replacement of the rail fastenings on more than one tie at a time within 15 feet.</P> </SECTION> <SECTION> <SECTNO>§ 213.311</SECTNO> <SUBJECT>Measuring track not under load.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.317</SECTNO> <SUBJECT>Waivers.</SUBJECT> <P>(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.</P> <P>(b) Each petition for a waiver under this section shall be filed in the manner and contain the information required by §§ 211.7 and 211.9 of this chapter.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.319</SECTNO> <SUBJECT>Drainage.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.321</SECTNO> <SUBJECT>Vegetation.</SUBJECT> <P>Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not—</P> <P>(a) Become a fire hazard to track-carrying structures;</P> <P>(b) Obstruct visibility of railroad signs and signals:</P> <P>(1) Along the right of way, and</P> <P>(2) At highway-rail crossings;</P> <P>(c) Interfere with railroad employees performing normal trackside duties;</P> <P>(d) Prevent proper functioning of signal and communication lines; or</P> <P>(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.</P> </SECTION> <SECTION> <PRTPAGE P="132"/> <SECTNO>§ 213.323</SECTNO> <SUBJECT>Track gage.</SUBJECT> <P>(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.</P> <P>(b) Gage shall be within the limits prescribed in the following table:</P> <GPOTABLE CDEF="s25,xs36,xs36,6" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">The gage must be at least—</CHED> <CHED H="1">But not more than—</CHED> <CHED H="1">The change of gage within 31 feet must not be greater than—</CHED> </BOXHD> <ROW> <ENT I="01">6</ENT> <ENT>′8″</ENT> <ENT>4′9<FR>1/4</FR>″</ENT> <ENT> <FR>1/2</FR>″</ENT> </ROW> <ROW> <ENT I="01">7</ENT> <ENT>4′8″</ENT> <ENT>4′9<FR>1/4</FR>″</ENT> <ENT> <FR>1/2</FR>″</ENT> </ROW> <ROW> <ENT I="01">8</ENT> <ENT>4′8″</ENT> <ENT>4′9<FR>1/4</FR>″</ENT> <ENT> <FR>1/2</FR>″</ENT> </ROW> <ROW> <ENT I="01">9</ENT> <ENT>4′8<FR>1/4</FR>″</ENT> <ENT>4′9<FR>1/4</FR>″</ENT> <ENT> <FR>1/2</FR>″</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.327</SECTNO> <SUBJECT>Alinement.</SUBJECT> <P>(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:</P> <GPOTABLE CDEF="s25,xs36" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Chord length</CHED> <CHED H="1">Spacing</CHED> </BOXHD> <ROW> <ENT I="01">31′</ENT> <ENT>7′9″</ENT> </ROW> <ROW> <ENT I="01">62′</ENT> <ENT>15′6″</ENT> </ROW> <ROW> <ENT I="01">124′</ENT> <ENT>31′0″</ENT> </ROW> </GPOTABLE> <P>(b) For a single deviation, alinement may not deviate from uniformity more than the amount prescribed in the following table:</P> <GPOTABLE CDEF="s50,12,12,12" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 31-foot chord may not be more than—<LI>(inches)</LI> </CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 62-foot chord may not be more than—<LI>(inches)</LI> </CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 124-foot chord may not be more than—<LI>(inches)</LI> </CHED> </BOXHD> <ROW> <ENT I="01">6</ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> </ROW> <ROW> <ENT I="01">7</ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> </ROW> <ROW> <ENT I="01">8</ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> </ROW> <ROW> <ENT I="01">9</ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> </ROW> </GPOTABLE> <P>(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:</P> <GPOTABLE CDEF="s50,12,12,12" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 31-foot chord may not be more than—<LI>(inches)</LI> </CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 62-foot chord may not be more than—<LI>(inches)</LI> </CHED> <CHED H="1">The deviation from uniformity of the mid-chord offset for a 124-foot chord may not be more than—<LI>(inches)</LI> </CHED> </BOXHD> <ROW> <ENT I="01">6</ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">7</ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>7/8</FR> </ENT> </ROW> <ROW> <ENT I="01">8</ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> </ROW> <ROW> <ENT I="01">9</ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>3/8</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.329</SECTNO> <SUBJECT>Curves, elevation and speed limitations.</SUBJECT> <P>(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 <FR>1/2</FR> inch lower than the inside rail.</P> <P>(b) (1) The maximum allowable operating speed for each curve is determined by the following formula:</P> <GPH DEEP="27" SPAN="1"> <GID>ER22JN98.009</GID> </GPH> <EXTRACT> <FP>Where—</FP> <PRTPAGE P="133"/> <FP SOURCE="FP-1">V<E T="52">max</E> = Maximum allowable operating speed (miles per hour).</FP> <FP SOURCE="FP-1">E<E T="52">a</E> = Actual elevation of the outside rail (inches) <SU>4</SU>.<FTREF/> </FP> <FTNT> <P> <SU>4</SU> 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 E<E T="52">u</E> exceeds 4 inches, the Vmax formula applies to the spirals on both ends of the curve.</P> </FTNT> <FP SOURCE="FP-1">D = Degree of curvature (degrees) <SU>5</SU>.<FTREF/> </FP> <FTNT> <P> <SU>5</SU> Degree of curvature is determined by averaging the degree of curvature over the same track segment as the elevation.</P> </FTNT> <FP SOURCE="FP-1">3 = 3 inches of unbalance.</FP> </EXTRACT> <P>(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.</P> <P>(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:</P> <GPH DEEP="27" SPAN="1"> <GID>ER22JN98.008</GID> </GPH> <EXTRACT> <FP>Where—</FP> <FP SOURCE="FP-1">V<E T="52">max</E> = Maximum allowable operating speed (miles per hour).</FP> <FP SOURCE="FP-1">E<E T="52">a</E> = Actual elevation of the outside rail (inches) <SU>4</SU>.</FP> <FP SOURCE="FP-1">D = Degree of curvature (degrees) <SU>5</SU>.</FP> <FP SOURCE="FP-1">E<E T="52">u</E> = Unbalanced elevation (inches).</FP> </EXTRACT> <P>(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—</P> <P>(1) When positioned on a track with uniform superelevation, E<E T="52">a</E>, reflecting the intended target cant deficiency, E<E T="52">u</E>, 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.</P> <P>(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.</P> <P>(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 “E<E T="52">u</E>” term, above, will exceed three inches. This notification shall be in writing and shall contain, at a minimum, the following information:</P> <P>(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;</P> <P>(2) A complete description of the test procedure <SU>6</SU> <FTREF/> and instrumentation used to qualify the equipment and the maximum values for wheel unloading and roll angles which were observed during testing;</P> <FTNT> <P> <SU>6</SU> 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.</P> </FTNT> <P>(3) Procedures or standards in effect which relate to the maintenance of the suspension system for the particular class of equipment;</P> <P>(4) Identification of line segment on which the higher curving speeds are proposed to be implemented.</P> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.331</SECTNO> <SUBJECT>Track surface.</SUBJECT> <P>(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 <PRTPAGE P="134"/>limits prescribed in the following table:</P> <GPOTABLE CDEF="s100,8,8,8,8" COLS="5" OPTS="L2"> <BOXHD> <CHED H="1">Track surface</CHED> <CHED H="1">Class of track</CHED> <CHED H="2">6 (inches)</CHED> <CHED H="2">7 (inches)</CHED> <CHED H="2">8 (inches)</CHED> <CHED H="2">9 (inches)</CHED> </BOXHD> <ROW> <ENT I="01">The deviation from uniform <SU>1</SU> profile on either rail at the midordinate of a 31-foot chord may not be more than</ENT> <ENT>1</ENT> <ENT>1</ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> </ROW> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the midordinate of a 62-foot chord may not be more than</ENT> <ENT>1</ENT> <ENT>1</ENT> <ENT>1</ENT> <ENT> <FR>3/4</FR> </ENT> </ROW> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the midordinate of a 124-foot chord may not be more than</ENT> <ENT>1<FR>3/4</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> <ENT>1<FR>1/4</FR> </ENT> </ROW> <ROW> <ENT I="01">The difference in crosslevel between any two points less than 62 feet apart may not be more than <SU>2</SU> </ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> <ENT>1<FR>1/2</FR> </ENT> </ROW> <TNOTE> <SU>1</SU> Uniformity for profile is established by placing the midpoint of the specified chord at the point of maximum measurement.</TNOTE> <TNOTE> <SU>2</SU> However, to control harmonics on jointed track with staggered joints, the crosslevel differences shall not exceed 1<FR>1/4</FR> 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.</TNOTE> </GPOTABLE> <P>(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:</P> <GPOTABLE CDEF="s100,8,8,8,8" COLS="5" OPTS="L2"> <BOXHD> <CHED H="1">Track surface</CHED> <CHED H="1">Class of track</CHED> <CHED H="2">6 (inches)</CHED> <CHED H="2">7 (inches)</CHED> <CHED H="2">8 (inches)</CHED> <CHED H="2">9 (inches)</CHED> </BOXHD> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the midordinate of a 31-foot chord may not be more than</ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> <ENT> <FR>3/8</FR> </ENT> </ROW> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the midordinate of a 62-foot chord may not be more than</ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>3/4</FR> </ENT> <ENT> <FR>1/2</FR> </ENT> </ROW> <ROW> <ENT I="01">The deviation from uniform profile on either rail at the midordinate of a 124-foot chord may not be more than</ENT> <ENT>1<FR>1/4</FR> </ENT> <ENT>1</ENT> <ENT> <FR>7/8</FR> </ENT> <ENT> <FR>7/8</FR> </ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.333</SECTNO> <SUBJECT>Automated vehicle inspection systems.</SUBJECT> <P>(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.</P> <P>(b) A qualifying TGMS shall meet or exceed minimum design requirements which specify that—</P> <P>(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;</P> <P>(2) Track geometry measurements shall be taken and recorded on a distance-based sampling interval which shall not exceed 2 feet; and</P> <P>(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.</P> <P>(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: § 213.323, Track gage; § 213.327, Alinement; § 213.329, Curves; elevation and speed limitations; and § 213.331, Track surface.</P> <P>(d) A qualifying TGMS shall be capable of producing, within 24 hours of the inspection, output reports that—</P> <P>(1) Provide a continuous plot, on a constant-distance axis, of all measured track geometry parameters required in paragraph (c) of this section;</P> <P>(2) Provide an exception report containing a systematic listing of all <PRTPAGE P="135"/>track geometry conditions which constitute an exception to the class of track over the segment surveyed.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) Specify the date the inspection was made and the track segment involved; and</P> <P>(2) Specify the location, remedial action taken, and the date thereof, for all listed exceptions to the class.</P> <P>(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.</P> <P>(i) A GRMS shall meet or exceed minimum design requirements which specify that—</P> <P>(1) Gage restraint shall be measured between the heads of the rail—</P> <P>(i) At an interval not exceeding 16 inches;</P> <P>(ii) Under an applied vertical load of no less than 10,000 pounds per rail;</P> <P>(iii) Under an applied lateral load which provides for lateral/vertical load ratio of between 0.5 and 1.25 <SU>7</SU> <FTREF/>, and a load severity greater than 3,000 pounds but less than 8,000 pounds per rail. Load severity is defined by the formula—</P> <FTNT> <P> <SU>7</SU> 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.</P> </FTNT> <FP>S = L −cV</FP> <EXTRACT> <FP>where:</FP> <FP SOURCE="FP-1">S = Load severity, defined as the lateral load applied to the fastener system (pounds).</FP> <FP SOURCE="FP-1">L = Actual lateral load applied (pounds).</FP> <FP SOURCE="FP-1">c = Coefficient of friction between rail/tie which is assigned a nominal value of (0.4).</FP> <FP SOURCE="FP-1">V = Actual vertical load applied (pounds).</FP> </EXTRACT> <P>(2) The measured gage value shall be converted to a gage widening ratio (GWR) as follows:</P> <GPH DEEP="24" SPAN="1"> <GID>ER22JN98.010</GID> </GPH> <EXTRACT> <FP>Where:</FP> <FP SOURCE="FP-1">UTG=Unloaded track gage measured by the GRMS vehicle at a point no less than 10 feet from any lateral or vertical load application.</FP> <FP SOURCE="FP-1">LTG=Loaded track gage measured by the GRMS vehicle at the point of application of the lateral load.</FP> <FP SOURCE="FP-1">L=Actual lateral load applied (pounds).</FP> </EXTRACT> <P>(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.</P> <P>(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.<PRTPAGE P="136"/> </P> <P>(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.</P> <P>(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.</P> <GPH DEEP="337" SPAN="2"> <GID>EC15NO91.207</GID> </GPH> <EXTRACT> <P> <SU>1</SU> 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.</P> <P> <SU>2</SU> Carbody lateral and vertical accelerations shall be measured near the car ends at the floor level.</P> <P> <SU>3</SU> 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.<PRTPAGE P="137"/> </P> <P> <SU>4</SU> 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.</P> </EXTRACT> <CITA>[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.334</SECTNO> <SUBJECT>Ballast; general.</SUBJECT> <P>Unless it is otherwise structurally supported, all track shall be supported by material which will—</P> <P>(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;</P> <P>(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;</P> <P>(c) Provide adequate drainage for the track; and</P> <P>(d) Maintain proper track crosslevel, surface, and alinement.</P> </SECTION> <SECTION> <SECTNO>§ 213.335</SECTNO> <SUBJECT>Crossties.</SUBJECT> <P>(a) Crossties shall be made of a material to which rail can be securely fastened.</P> <P>(b) Each 39 foot segment of track shall have—</P> <P>(1) A sufficient number of crossties which in combination provide effective support that will—</P> <P>(i) Hold gage within the limits prescribed in § 213.323(b);</P> <P>(ii) Maintain surface within the limits prescribed in § 213.331; and</P> <P>(iii) Maintain alinement within the limits prescribed in § 213.327.</P> <P>(2) The minimum number and type of crossties specified in paragraph (c) of this section effectively distributed to support the entire segment; and</P> <P>(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.</P> <P>(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—</P> <P>(1) Broken through;</P> <P>(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;</P> <P>(3) So deteriorated that the tie plate or base of rail can move laterally <FR>3/8</FR> inch relative to the crossties;</P> <P>(4) Cut by the tie plate through more than 40 percent of a crosstie's thickness;</P> <P>(5) Configured with less than 2 rail holding spikes or fasteners per tie plate; or</P> <P>(6) So unable, due to insufficient fastener toeload, to maintain longitudinal restraint and maintain rail hold down and gage.</P> <P>(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—</P> <P>(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;</P> <P>(2) Configured with less than 2 fasteners on the same rail;</P> <P>(3) So deteriorated in the vicinity of the rail fastener such that the fastener assembly may pull out or move laterally more than <FR>3/8</FR> inch relative to the crosstie;</P> <P>(4) So deteriorated that the fastener base plate or base of rail can move laterally more than <FR>3/8</FR> inch relative to the crossties;</P> <P>(5) So deteriorated that rail seat abrasion is sufficiently deep so as to cause loss of rail fastener toeload;</P> <P>(6) Completely broken through; or</P> <P>(7) So unable, due to insufficient fastener toeload, to maintain longitudinal restraint and maintain rail hold down and gage.</P> <P>(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.</P> <P>(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.<PRTPAGE P="138"/> </P> <P>(g) In Classes 7, 8 and 9 there shall be at least three non-defective ties each side of a defective tie.</P> <P>(h) Where timber crossties are in use there shall be tie plates under the running rails on at least nine of 10 consecutive ties.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.337</SECTNO> <SUBJECT>Defective rails.</SUBJECT> <P>(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 § 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—</P> <P>(1) The rail is replaced; or</P> <P>(2) The remedial action prescribed in the table is initiated—</P> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="139"/> <GID>EN28SE98.059</GID> </GPH> <NOTE> <HD SOURCE="HED">Notes:</HD> <P>A. Assign person designated under § 213.305 to visually supervise each operation over defective rail.</P> <P>A2. Assign person designated under § 213.305 to make visual inspection. That person may authorize operation to continue without visual supervision at a maximum of 10 m.p.h. <PRTPAGE P="140"/>for up to 24 hours prior to another such visual inspection or replacement or repair of the rail.</P> <P>B. Limit operating speed over defective rail to that as authorized by a person designated under § 213.305(a)(1)(i) or (ii). The operating speed cannot be over 30 m.p.h.</P> <P>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 § 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.</P> <P>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 § 213.305(a)(1)(i) or (ii) until joint bars are applied; thereafter, limit speed to 50 m.p.h.</P> <P>E. Apply joint bars to defect and bolt in accordance with § 213.351(d) and (e).</P> <P>F. Inspect rail 90 days after it is determined to continue the track in use.</P> <P>G. Inspect rail 30 days after it is determined to continue the track in use.</P> <P>H. Limit operating speed over defective rail to 50 m.p.h.</P> <P>I. Limit operating speed over defective rail to 30 m.p.h.</P> </NOTE> <P>(b) As used in this section—</P> <P>(1) <E T="03">Transverse fissure</E> 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.</P> <P>(2) <E T="03">Compound fissure</E> 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.</P> <P>(3) <E T="03">Horizontal split head</E> 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.</P> <P>(4) <E T="03">Vertical split head</E> 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.</P> <P>(5) <E T="03">Split web</E> means a lengthwise crack along the side of the web and extending into or through it.</P> <P>(6) <E T="03">Piped rail</E> 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.</P> <P>(7) <E T="03">Broken base</E> means any break in the base of the rail.</P> <P>(8) <E T="03">Detail fracture</E> 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.</P> <P>(9) <E T="03">Engine burn fracture</E> 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.</P> <P>(10) <E T="03">Ordinary break</E> 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.</P> <P>(11) <E T="03">Damaged rail</E> means any rail broken or injured by wrecks, broken, flat, or unbalanced wheels, slipping, or similar causes.</P> <P>(12) <E T="03">Flattened rail</E> means a short length of rail, not a joint, which has flattened out across the width of the rail head to a depth of <FR>3/8</FR> inch or more below the rest of the rail. Flattened <PRTPAGE P="141"/>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.</P> <P>(13) <E T="03">Bolt hole crack</E> 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.</P> <P>(14) <E T="03">Defective weld</E> 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.</P> <P>(15) <E T="03">Head and web separation</E> means a progressive fracture, longitudinally separating the head from the web of the rail at the head fillet area.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 51638, Sept. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.339</SECTNO> <SUBJECT>Inspection of rail in service.</SUBJECT> <P>(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.</P> <P>(b) Inspection equipment shall be capable of detecting defects between joint bars, in the area enclosed by joint bars.</P> <P>(c) Each defective rail shall be marked with a highly visible marking on both sides of the web and base.</P> <P>(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 § 213.337(a).</P> <P>(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—</P> <P>(1) Conduct a valid search for internal defects;</P> <P>(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</P> <P>(3) Remove the rail from service.</P> </SECTION> <SECTION> <SECTNO>§ 213.341</SECTNO> <SUBJECT>Initial inspection of new rail and welds.</SUBJECT> <P>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:</P> <P>(a) <E T="03">In-service inspection.</E> A scheduled periodic inspection of rail and welds that have been placed in service, if conducted in accordance with the provisions of § 213.339, and if conducted not later than 90 days after installation, shall constitute compliance with paragraphs (b) and (c) of this section;</P> <P>(b) <E T="03">Mill inspection.</E> 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 § 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 § 213.339;</P> <P>(c) <E T="03">Welding plant inspection.</E> A continuous inspection at a welding plant, if 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 <PRTPAGE P="142"/>constitute compliance with the requirements for initial inspection of new rail and plant welds, or of new plant welds made in used rail; and</P> <P>(d) <E T="03">Inspection of field welds.</E> 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 § 213.339.</P> <P>(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 § 213.337 will apply.</P> </SECTION> <SECTION> <SECTNO>§ 213.343</SECTNO> <SUBJECT>Continuous welded rail (CWR).</SUBJECT> <P>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—</P> <P>(a) Procedures for the installation and adjustment of CWR which include—</P> <P>(1) Designation of a desired rail installation temperature range for the geographic area in which the CWR is located; and</P> <P>(2) De-stressing procedures/methods which address proper attainment of the desired rail installation temperature range when adjusting CWR.</P> <P>(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.</P> <P>(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—</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(e) Procedures which control train speed on CWR track when—</P> <P>(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</P> <P>(2) In formulating the procedures under this paragraph (e), the track owner shall—</P> <P>(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</P> <P>(ii) Take into consideration the type of crossties used.</P> <P>(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—</P> <P>(1) Locations where tight or kinky rail conditions are likely to occur;</P> <P>(2) Locations where track work of the nature described in paragraph (e)(1) of <PRTPAGE P="143"/>this section have recently been performed; and</P> <P>(3) In formulating the procedures under this paragraph (f), the track owner shall—</P> <P>(i) Specify the timing of the inspection; and</P> <P>(ii) Specify the appropriate remedial actions to be taken when buckling prone conditions are found.</P> <P>(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 § 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.</P> <P>(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:</P> <P>(1) Rail temperature, location and date of CWR installations. This record shall be retained for at least one year; and</P> <P>(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.</P> <P>(i) As used in this section—</P> <P>(1) <E T="03">Adjusting/de-stressing</E> 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.</P> <P>(2) <E T="03">Buckling incident</E> 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.</P> <P>(3) <E T="03">Continuous welded rail (CWR)</E> means rail that has been welded together into lengths exceeding 400 feet.</P> <P>(4) <E T="03">Desired rail installation temperature range</E> 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.</P> <P>(5) <E T="03">Disturbed track</E> 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.</P> <P>(6) <E T="03">Mechanical stabilization</E> 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.</P> <P>(7) <E T="03">Rail anchors</E> 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.</P> <P>(8) <E T="03">Rail temperature</E> means the temperature of the rail, measured with a rail thermometer.</P> <P>(9) <E T="03">Tight/kinky rail</E> means CWR which exhibits minute alinement irregularities which indicate that the rail is in a considerable amount of compression.</P> <P>(10) <E T="03">Train-induced forces</E> means the vertical, longitudinal, and lateral dynamic forces which are generated during train movement and which can contribute to the buckling potential.</P> <P>(11) <E T="03">Track lateral resistance</E> means the resistance provided to the rail/crosstie structure against lateral displacement.</P> <P>(12) <E T="03">Track longitudinal resistance</E> means the resistance provided by the rail anchors/rail fasteners and the ballast section to the rail/crosstie structure against longitudinal displacement.</P> <P>(j) Track owners shall revise their CWR plans to include provisions for the inspection of joint bars in accordance with §§ 213.119(g) and (i)(3).</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998, as amended at 70 FR 66298, Nov. 2, 2005]</CITA> </SECTION> <SECTION> <PRTPAGE P="144"/> <SECTNO>§ 213.345</SECTNO> <SUBJECT>Vehicle qualification testing.</SUBJECT> <P>(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.</P> <P>(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 § 213.333, and the testing shall demonstrate the following:</P> <P>(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.</P> <P>(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</P> <P>(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 (V<SU>2</SU> + L<SU>2</SU>) shall be limited to no greater than 0.604, where L may not exceed 0.3g and V may not exceed 0.55g.</P> <P>(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.</P> <P>(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 § 213.333(l).</P> <P>(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.</P> <P>(f) Based on test results and submissions, FRA will approve a maximum train speed and value of cant deficiency for revenue service.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.347</SECTNO> <SUBJECT>Automotive or railroad crossings at grade.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="145"/>traffic and high speed trains. Trains shall not operate at Class 7 speeds over any track segment having highway-rail grade crossings unless:</P> <P>(1) An FRA-approved warning/barrier system exists on that track segment; and</P> <P>(2) All elements of that warning/barrier system are functioning.</P> </SECTION> <SECTION> <SECTNO>§ 213.349</SECTNO> <SUBJECT>Rail end mismatch.</SUBJECT> <P>Any mismatch of rails at joints may not be more than that prescribed by the following table—</P> <GPOTABLE CDEF="s100,12,12" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Any mismatch of rails at joints may not be more than the following—</CHED> <CHED H="2">On the tread of the rail ends (inch)</CHED> <CHED H="2">On the gage side of the rail ends (inch)</CHED> </BOXHD> <ROW> <ENT I="01">Class 6, 7, 8 and 9</ENT> <ENT> <FR>1/8</FR> </ENT> <ENT> <FR>1/8</FR> </ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.351</SECTNO> <SUBJECT>Rail joints.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) If a joint bar is cracked or broken between the middle two bolt holes it shall be replaced.</P> <P>(d) Each rail shall be bolted with at least two bolts at each joint.</P> <P>(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.</P> <P>(f) No rail shall have a bolt hole which is torch cut or burned.</P> <P>(g) No joint bar shall be reconfigured by torch cutting.</P> </SECTION> <SECTION> <SECTNO>§ 213.352</SECTNO> <SUBJECT>Torch cut rail.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.353</SECTNO> <SUBJECT>Turnouts, crossovers, and lift rail assemblies or other transition devices on moveable bridges.</SUBJECT> <P>(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 § 213.347.</P> <P>(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.</P> <P>(c) Each flangeway at turnouts and track crossings shall be at least 1<FR>1/2</FR> inches wide.</P> <P>(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 <PRTPAGE P="146"/>Administration. The Guidebook shall contain at a minimum—</P> <P>(1) Inspection frequency and methodology including limiting measurement values for all components subject to wear or requiring adjustment.</P> <P>(2) Maintenance techniques.</P> <P>(e) Each hand operated switch shall be equipped with a redundant operating mechanism for maintaining the security of switch point position.</P> </SECTION> <SECTION> <SECTNO>§ 213.355</SECTNO> <SUBJECT>Frog guard rails and guard faces; gage.</SUBJECT> <P>The guard check and guard face gages in frogs shall be within the limits prescribed in the following table—</P> <GPOTABLE CDEF="s100,r100,xs80" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Guard check gage—The distance between the gage line of a frog to the guard line <SU>1</SU> of its guard rail or guarding face, measured across the track at right angles to the gage line, <SU>2</SU> may not be less than—</CHED> <CHED H="1">Guard face gage—The distance between guard lines, <SU>1</SU> measured across the track at right angles to the gage line, <SU>2</SU> may not be more than—</CHED> </BOXHD> <ROW> <ENT I="01">Class 6 track</ENT> <ENT>4′6<FR>1/2</FR>″</ENT> <ENT>4′5″</ENT> </ROW> <ROW> <ENT I="01">Class 7 track</ENT> <ENT>4′6<FR>1/2</FR>″</ENT> <ENT>4′5″</ENT> </ROW> <ROW> <ENT I="01">Class 8 track</ENT> <ENT>4′6<FR>1/2</FR>″</ENT> <ENT>4′5″</ENT> </ROW> <ROW> <ENT I="01">Class 9 track</ENT> <ENT>4′6<FR>1/2</FR>″</ENT> <ENT>4′ 5″</ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> <TNOTE> <SU>2</SU> A line <FR>5/8</FR> 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.</TNOTE> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 213.357</SECTNO> <SUBJECT>Derails.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Each derail shall be maintained to function as intended.</P> <P>(e) Each derail shall be properly installed for the rail to which it is applied.</P> <P>(f) If a track protected by a derail is occupied by standing railroad rolling stock, the derail shall be in derailing position.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.359</SECTNO> <SUBJECT>Track stiffness.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 213.361</SECTNO> <SUBJECT>Right of way.</SUBJECT> <P>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. At a minimum, the plan will contain provisions in areas of demonstrated need for the prevention of—<PRTPAGE P="147"/> </P> <P>(a) Vandalism;</P> <P>(b) Launching of objects from overhead bridges or structures into the path of trains; and</P> <P>(c) Intrusion of vehicles from adjacent rights of way.</P> </SECTION> <SECTION> <SECTNO>§ 213.365</SECTNO> <SUBJECT>Visual inspections.</SUBJECT> <P>(a) All track shall be visually inspected in accordance with the schedule prescribed in paragraph (c) of this section by a person designated under § 213.305.</P> <P>(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—</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(c) Each track inspection shall be made in accordance with the following schedule—</P> <GPOTABLE CDEF="s25,r100" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Class of track</CHED> <CHED H="1">Required frequency</CHED> </BOXHD> <ROW> <ENT I="01">6, 7, and 8</ENT> <ENT>Twice weekly with at least 2 calendar-day's interval between inspections.</ENT> </ROW> <ROW> <ENT I="01">9</ENT> <ENT>Three times per week.</ENT> </ROW> </GPOTABLE> <P>(d) If the person making the inspection finds a deviation from the requirements of this part, the person shall immediately initiate remedial action.</P> <P>(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 § 213.353.</P> <P>(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.</P> <CITA>[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 213.367</SECTNO> <SUBJECT>Special inspections.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 213.369</SECTNO> <SUBJECT>Inspection records.</SUBJECT> <P>(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.</P> <P>(b) Except as provided in paragraph (e) of this section, each record of an inspection under § 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 from the requirements of this part, and <PRTPAGE P="148"/>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.</P> <P>(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 § 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.</P> <P>(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.</P> <P>(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—</P> <P>(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;</P> <P>(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;</P> <P>(3) The electronic system shall ensure that each record cannot be modified in any way, or replaced, once the record is transmitted and stored;</P> <P>(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;</P> <P>(5) The electronic system shall provide for the maintenance of inspection records as originally submitted without corruption or loss of data; and</P> <P>(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 § 213.305. Such paper copies shall be made available to the track inspectors and at the locations specified in paragraph (b) of this section.</P> <P>(7) Track inspection records shall be kept available to persons who performed the inspection and to persons performing subsequent inspections.</P> <P>(f) Each vehicle/track interaction safety record required under § 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.</P> </SECTION> <APPENDIX> <EAR>Pt. 213, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 213—Maximum Allowable Curving Speeds<PRTPAGE P="149"/> </HD> <GPOTABLE CDEF="s50,6,6,6,6,6,6,6,6,6,6,6,6,6" COLS="14" OPTS="L2,tp9,p7,7/8,i1"> <TTITLE>Table 1—Three Inches Unbalance</TTITLE> <TDESC>[Elevation of outer rail (inches)]</TDESC> <BOXHD> <CHED H="1">Degree of curvature</CHED> <CHED H="1">0</CHED> <CHED H="1"> <FR>1/2</FR> </CHED> <CHED H="1">1</CHED> <CHED H="1">1<FR>1/2</FR> </CHED> <CHED H="1">2</CHED> <CHED H="1">2<FR>1/2</FR> </CHED> <CHED H="1">3</CHED> <CHED H="1">3<FR>1/2</FR> </CHED> <CHED H="1">4</CHED> <CHED H="1">4<FR>1/2</FR> </CHED> <CHED H="1">5</CHED> <CHED H="1">5<FR>1/2</FR> </CHED> <CHED H="1">6</CHED> </BOXHD> <ROW> <ENT I="22"/> </ROW> <ROW EXPSTB="13"> <ENT I="21">(12) Maximum allowable operating speed (mph) </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">0°30′</ENT> <ENT>93</ENT> <ENT>100</ENT> <ENT>107</ENT> <ENT>113</ENT> <ENT>120</ENT> <ENT>125</ENT> <ENT>131</ENT> <ENT>136</ENT> <ENT>141</ENT> <ENT>146</ENT> <ENT>151</ENT> <ENT>156</ENT> <ENT>160</ENT> </ROW> <ROW> <ENT I="01">0°40′</ENT> <ENT>80</ENT> <ENT>87</ENT> <ENT>93</ENT> <ENT>98</ENT> <ENT>103</ENT> <ENT>109</ENT> <ENT>113</ENT> <ENT>118</ENT> <ENT>122</ENT> <ENT>127</ENT> <ENT>131</ENT> <ENT>135</ENT> <ENT>139</ENT> </ROW> <ROW> <ENT I="01">0°50′</ENT> <ENT>72</ENT> <ENT>78</ENT> <ENT>83</ENT> <ENT>88</ENT> <ENT>93</ENT> <ENT>97</ENT> <ENT>101</ENT> <ENT>106</ENT> <ENT>110</ENT> <ENT>113</ENT> <ENT>117</ENT> <ENT>121</ENT> <ENT>124</ENT> </ROW> <ROW> <ENT I="01">1°00′</ENT> <ENT>66</ENT> <ENT>71</ENT> <ENT>76</ENT> <ENT>80</ENT> <ENT>85</ENT> <ENT>89</ENT> <ENT>93</ENT> <ENT>96</ENT> <ENT>100</ENT> <ENT>104</ENT> <ENT>107</ENT> <ENT>110</ENT> <ENT>113</ENT> </ROW> <ROW> <ENT I="01">1°15′</ENT> <ENT>59</ENT> <ENT>63</ENT> <ENT>68</ENT> <ENT>72</ENT> <ENT>76</ENT> <ENT>79</ENT> <ENT>83</ENT> <ENT>86</ENT> <ENT>89</ENT> <ENT>93</ENT> <ENT>96</ENT> <ENT>99</ENT> <ENT>101</ENT> </ROW> <ROW> <ENT I="01">1°30′</ENT> <ENT>54</ENT> <ENT>58</ENT> <ENT>62</ENT> <ENT>66</ENT> <ENT>69</ENT> <ENT>72</ENT> <ENT>76</ENT> <ENT>79</ENT> <ENT>82</ENT> <ENT>85</ENT> <ENT>87</ENT> <ENT>90</ENT> <ENT>93</ENT> </ROW> <ROW> <ENT I="01">1°45′</ENT> <ENT>50</ENT> <ENT>54</ENT> <ENT>57</ENT> <ENT>61</ENT> <ENT>64</ENT> <ENT>67</ENT> <ENT>70</ENT> <ENT>73</ENT> <ENT>76</ENT> <ENT>78</ENT> <ENT>81</ENT> <ENT>83</ENT> <ENT>86</ENT> </ROW> <ROW> <ENT I="01">2°00′</ENT> <ENT>46</ENT> <ENT>50</ENT> <ENT>54</ENT> <ENT>57</ENT> <ENT>60</ENT> <ENT>63</ENT> <ENT>66</ENT> <ENT>68</ENT> <ENT>71</ENT> <ENT>73</ENT> <ENT>76</ENT> <ENT>78</ENT> <ENT>80</ENT> </ROW> <ROW> <ENT I="01">2°15′</ENT> <ENT>44</ENT> <ENT>47</ENT> <ENT>50</ENT> <ENT>54</ENT> <ENT>56</ENT> <ENT>59</ENT> <ENT>62</ENT> <ENT>64</ENT> <ENT>67</ENT> <ENT>69</ENT> <ENT>71</ENT> <ENT>74</ENT> <ENT>76</ENT> </ROW> <ROW> <ENT I="01">2°30′</ENT> <ENT>41</ENT> <ENT>45</ENT> <ENT>48</ENT> <ENT>51</ENT> <ENT>54</ENT> <ENT>56</ENT> <ENT>59</ENT> <ENT>61</ENT> <ENT>63</ENT> <ENT>66</ENT> <ENT>68</ENT> <ENT>70</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">2°45′</ENT> <ENT>40</ENT> <ENT>43</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>51</ENT> <ENT>54</ENT> <ENT>56</ENT> <ENT>58</ENT> <ENT>60</ENT> <ENT>62</ENT> <ENT>65</ENT> <ENT>66</ENT> <ENT>68</ENT> </ROW> <ROW> <ENT I="01">3°00′</ENT> <ENT>38</ENT> <ENT>41</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>49</ENT> <ENT>51</ENT> <ENT>54</ENT> <ENT>56</ENT> <ENT>58</ENT> <ENT>60</ENT> <ENT>62</ENT> <ENT>64</ENT> <ENT>66</ENT> </ROW> <ROW> <ENT I="01">3°15′</ENT> <ENT>36</ENT> <ENT>39</ENT> <ENT>42</ENT> <ENT>45</ENT> <ENT>47</ENT> <ENT>49</ENT> <ENT>51</ENT> <ENT>54</ENT> <ENT>56</ENT> <ENT>57</ENT> <ENT>59</ENT> <ENT>61</ENT> <ENT>63</ENT> </ROW> <ROW> <ENT I="01">3°30′</ENT> <ENT>35</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>43</ENT> <ENT>45</ENT> <ENT>47</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>54</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>59</ENT> <ENT>61</ENT> </ROW> <ROW> <ENT I="01">3°45′</ENT> <ENT>34</ENT> <ENT>37</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>54</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>59</ENT> </ROW> <ROW> <ENT I="01">4°00′</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>54</ENT> <ENT>55</ENT> <ENT>57</ENT> </ROW> <ROW> <ENT I="01">4°30′</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>45</ENT> <ENT>47</ENT> <ENT>49</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>54</ENT> </ROW> <ROW> <ENT I="01">5°00′</ENT> <ENT>29</ENT> <ENT>32</ENT> <ENT>34</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>41</ENT> <ENT>43</ENT> <ENT>45</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>49</ENT> <ENT>51</ENT> </ROW> <ROW> <ENT I="01">5°30′</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>32</ENT> <ENT>34</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>41</ENT> <ENT>43</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>47</ENT> <ENT>48</ENT> </ROW> <ROW> <ENT I="01">6°00′</ENT> <ENT>27</ENT> <ENT>29</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>45</ENT> <ENT>46</ENT> </ROW> <ROW> <ENT I="01">6°30′</ENT> <ENT>26</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>42</ENT> <ENT>43</ENT> <ENT>45</ENT> </ROW> <ROW> <ENT I="01">7°00′</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>32</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>43</ENT> </ROW> <ROW> <ENT I="01">8°00′</ENT> <ENT>23</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>37</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>40</ENT> </ROW> <ROW> <ENT I="01">9°00′</ENT> <ENT>22</ENT> <ENT>24</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>37</ENT> <ENT>38</ENT> </ROW> <ROW> <ENT I="01">10°00′</ENT> <ENT>21</ENT> <ENT>22</ENT> <ENT>24</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>36</ENT> </ROW> <ROW> <ENT I="01">11°00′</ENT> <ENT>20</ENT> <ENT>21</ENT> <ENT>23</ENT> <ENT>24</ENT> <ENT>26</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>34</ENT> </ROW> <ROW> <ENT I="01">12°00′</ENT> <ENT>19</ENT> <ENT>20</ENT> <ENT>22</ENT> <ENT>23</ENT> <ENT>24</ENT> <ENT>26</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> </ROW> </GPOTABLE> <GPOTABLE CDEF="s50,6,6,6,6,6,6,6,6,6,6,6,6,6" COLS="14" OPTS="L2,tp9,p7,7/8,i1"> <TTITLE>Table 2—Four Inches Unbalance</TTITLE> <TDESC>[Elevation of outer rail (inches)]</TDESC> <BOXHD> <CHED H="1">Degree of curvature</CHED> <CHED H="1">0</CHED> <CHED H="1"> <FR>1/2</FR> </CHED> <CHED H="1">1</CHED> <CHED H="1">1<FR>1/2</FR> </CHED> <CHED H="1">2</CHED> <CHED H="1">2<FR>1/2</FR> </CHED> <CHED H="1">3</CHED> <CHED H="1">3<FR>1/2</FR> </CHED> <CHED H="1">4</CHED> <CHED H="1">4<FR>1/2</FR> </CHED> <CHED H="1">5</CHED> <CHED H="1">5<FR>1/2</FR> </CHED> <CHED H="1">6</CHED> </BOXHD> <ROW> <ENT I="22"/> </ROW> <ROW EXPSTB="13"> <PRTPAGE P="150"/> <ENT I="21">(12) Maximum allowable operating speed (mph)</ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">0°30′</ENT> <ENT>107</ENT> <ENT>113</ENT> <ENT>120</ENT> <ENT>125</ENT> <ENT>131</ENT> <ENT>136</ENT> <ENT>141</ENT> <ENT>146</ENT> <ENT>151</ENT> <ENT>156</ENT> <ENT>160</ENT> <ENT>165</ENT> <ENT>169</ENT> </ROW> <ROW> <ENT I="01">0°40′</ENT> <ENT>93</ENT> <ENT>98</ENT> <ENT>104</ENT> <ENT>109</ENT> <ENT>113</ENT> <ENT>118</ENT> <ENT>122</ENT> <ENT>127</ENT> <ENT>131</ENT> <ENT>135</ENT> <ENT>139</ENT> <ENT>143</ENT> <ENT>146</ENT> </ROW> <ROW> <ENT I="01">0°50′</ENT> <ENT>83</ENT> <ENT>88</ENT> <ENT>93</ENT> <ENT>97</ENT> <ENT>101</ENT> <ENT>106</ENT> <ENT>110</ENT> <ENT>113</ENT> <ENT>117</ENT> <ENT>121</ENT> <ENT>124</ENT> <ENT>128</ENT> <ENT>131</ENT> </ROW> <ROW> <ENT I="01">1°00′</ENT> <ENT>76</ENT> <ENT>80</ENT> <ENT>85</ENT> <ENT>89</ENT> <ENT>93</ENT> <ENT>96</ENT> <ENT>100</ENT> <ENT>104</ENT> <ENT>107</ENT> <ENT>110</ENT> <ENT>113</ENT> <ENT>116</ENT> <ENT>120</ENT> </ROW> <ROW> <ENT I="01">1°15′</ENT> <ENT>68</ENT> <ENT>72</ENT> <ENT>76</ENT> <ENT>79</ENT> <ENT>83</ENT> <ENT>86</ENT> <ENT>89</ENT> <ENT>93</ENT> <ENT>96</ENT> <ENT>99</ENT> <ENT>101</ENT> <ENT>104</ENT> <ENT>107</ENT> </ROW> <ROW> <ENT I="01">1°30′</ENT> <ENT>62</ENT> <ENT>65</ENT> <ENT>69</ENT> <ENT>72</ENT> <ENT>76</ENT> <ENT>79</ENT> <ENT>82</ENT> <ENT>85</ENT> <ENT>87</ENT> <ENT>90</ENT> <ENT>93</ENT> <ENT>95</ENT> <ENT>98</ENT> </ROW> <ROW> <ENT I="01">1°45′</ENT> <ENT>57</ENT> <ENT>61</ENT> <ENT>64</ENT> <ENT>67</ENT> <ENT>70</ENT> <ENT>73</ENT> <ENT>76</ENT> <ENT>78</ENT> <ENT>81</ENT> <ENT>83</ENT> <ENT>86</ENT> <ENT>88</ENT> <ENT>90</ENT> </ROW> <ROW> <ENT I="01">2°00′</ENT> <ENT>53</ENT> <ENT>57</ENT> <ENT>60</ENT> <ENT>63</ENT> <ENT>65</ENT> <ENT>68</ENT> <ENT>71</ENT> <ENT>73</ENT> <ENT>76</ENT> <ENT>78</ENT> <ENT>80</ENT> <ENT>82</ENT> <ENT>85</ENT> </ROW> <ROW> <ENT I="01">2°15′</ENT> <ENT>50</ENT> <ENT>53</ENT> <ENT>56</ENT> <ENT>59</ENT> <ENT>62</ENT> <ENT>64</ENT> <ENT>67</ENT> <ENT>69</ENT> <ENT>71</ENT> <ENT>73</ENT> <ENT>76</ENT> <ENT>78</ENT> <ENT>80</ENT> </ROW> <ROW> <ENT I="01">2°30′</ENT> <ENT>48</ENT> <ENT>51</ENT> <ENT>53</ENT> <ENT>56</ENT> <ENT>59</ENT> <ENT>61</ENT> <ENT>63</ENT> <ENT>65</ENT> <ENT>68</ENT> <ENT>70</ENT> <ENT>72</ENT> <ENT>74</ENT> <ENT>76</ENT> </ROW> <ROW> <ENT I="01">2°45′</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>51</ENT> <ENT>53</ENT> <ENT>56</ENT> <ENT>58</ENT> <ENT>60</ENT> <ENT>62</ENT> <ENT>64</ENT> <ENT>66</ENT> <ENT>68</ENT> <ENT>70</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">3°00′</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>49</ENT> <ENT>51</ENT> <ENT>53</ENT> <ENT>56</ENT> <ENT>58</ENT> <ENT>60</ENT> <ENT>62</ENT> <ENT>64</ENT> <ENT>65</ENT> <ENT>67</ENT> <ENT>69</ENT> </ROW> <ROW> <ENT I="01">3°15′</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>47</ENT> <ENT>49</ENT> <ENT>51</ENT> <ENT>53</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>59</ENT> <ENT>61</ENT> <ENT>63</ENT> <ENT>65</ENT> <ENT>66</ENT> </ROW> <ROW> <ENT I="01">3°30′</ENT> <ENT>40</ENT> <ENT>43</ENT> <ENT>45</ENT> <ENT>47</ENT> <ENT>49</ENT> <ENT>52</ENT> <ENT>53</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>59</ENT> <ENT>61</ENT> <ENT>62</ENT> <ENT>64</ENT> </ROW> <ROW> <ENT I="01">3°45′</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>53</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>59</ENT> <ENT>60</ENT> <ENT>62</ENT> </ROW> <ROW> <ENT I="01">4°00′</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>53</ENT> <ENT>55</ENT> <ENT>57</ENT> <ENT>58</ENT> <ENT>60</ENT> </ROW> <ROW> <ENT I="01">4°30′</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>45</ENT> <ENT>47</ENT> <ENT>49</ENT> <ENT>50</ENT> <ENT>52</ENT> <ENT>53</ENT> <ENT>55</ENT> <ENT>56</ENT> </ROW> <ROW> <ENT I="01">5°00′</ENT> <ENT>34</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>40</ENT> <ENT>41</ENT> <ENT>43</ENT> <ENT>45</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>49</ENT> <ENT>51</ENT> <ENT>52</ENT> <ENT>53</ENT> </ROW> <ROW> <ENT I="01">5°30′</ENT> <ENT>32</ENT> <ENT>34</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>43</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>47</ENT> <ENT>48</ENT> <ENT>50</ENT> <ENT>51</ENT> </ROW> <ROW> <ENT I="01">6°00′</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>42</ENT> <ENT>44</ENT> <ENT>45</ENT> <ENT>46</ENT> <ENT>48</ENT> <ENT>49</ENT> </ROW> <ROW> <ENT I="01">6°30′</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>41</ENT> <ENT>42</ENT> <ENT>43</ENT> <ENT>44</ENT> <ENT>46</ENT> <ENT>47</ENT> </ROW> <ROW> <ENT I="01">7°00′</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>32</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>40</ENT> <ENT>42</ENT> <ENT>43</ENT> <ENT>44</ENT> <ENT>45</ENT> </ROW> <ROW> <ENT I="01">8°00′</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>37</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>40</ENT> <ENT>41</ENT> <ENT>42</ENT> </ROW> <ROW> <ENT I="01">9°00′</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>37</ENT> <ENT>38</ENT> <ENT>39</ENT> <ENT>40</ENT> </ROW> <ROW> <ENT I="01">10°00′</ENT> <ENT>24</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>36</ENT> <ENT>37</ENT> <ENT>38</ENT> </ROW> <ROW> <ENT I="01">11°00′</ENT> <ENT>23</ENT> <ENT>24</ENT> <ENT>25</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> <ENT>36</ENT> </ROW> <ROW> <ENT I="01">12°00′</ENT> <ENT>22</ENT> <ENT>23</ENT> <ENT>24</ENT> <ENT>26</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> <ENT>34</ENT> <ENT>35</ENT> </ROW> </GPOTABLE> </APPENDIX> <APPENDIX> <PRTPAGE P="151"/> <EAR>Pt. 213, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 213—Schedule of Civil Penalties</HD> <GPOTABLE CDEF="s200,12,12" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Section</CHED> <CHED H="1">Violation</CHED> <CHED H="1">Willful Violation <SU>1</SU> </CHED> </BOXHD> <ROW> <ENT I="22">Subpart A—General:</ENT> </ROW> <ROW> <ENT I="03">213.4(a) Excepted track <SU>2</SU> </ENT> <ENT>$2,500</ENT> <ENT>$5,000</ENT> </ROW> <ROW> <ENT I="03">213.4(b) Excepted track <SU>2</SU> </ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.4(c) Excepted track <SU>2</SU> </ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.4(d) Excepted track <SU>2</SU> </ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="13">213.4(e):</ENT> </ROW> <ROW> <ENT I="05">(1) Excepted track </ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(2) Excepted track </ENT> <ENT>7,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="05">(3) Excepted track </ENT> <ENT>7,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="05">(4) Excepted track </ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.4(f) Excepted track</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">213.7 Designation of qualified persons to supervise certain renewals and inspect track</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.9 Classes of track: Operating speed limits</ENT> <ENT>2,500</ENT> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="03">213.11 Restoration or renewal of track under traffic conditions</ENT> <ENT>2,500</ENT> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="03">213.13 Measuring track not under load</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="22">Subpart B—Roadbed:</ENT> </ROW> <ROW> <ENT I="03">213.33 Drainage</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.37 Vegetation</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="22">Subpart C—Track Geometry:</ENT> </ROW> <ROW> <ENT I="03">213.53 Gage</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">13.55 Alinement</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.57 Curves; elevation and speed limitations</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.59 Elevation of curved track; runoff</ENT> <ENT>2,500</ENT> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="01">213.63 Track surface</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="22">Subpart D—Track surface:</ENT> </ROW> <ROW> <ENT I="03">213.103 Ballast; general</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="13">213.109 Crossties</ENT> </ROW> <ROW> <ENT I="05">(a) Material used</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(b) Distribution of ties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(c) Sufficient number of nondefective ties</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(d) Joint ties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(e) Track constructed without crossties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.113 Defective rails</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.115 Rail end mismatch</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.118 Continuous welded rail plan (a) through (e)</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.119 Continuous welded rail plan contents (a) through (k)</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.121 (a) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (b) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (c) Rail joints</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.121 (d) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (e) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (f) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (g) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.121 (h) Rail joints</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.122 Torch cut rail</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.123 Tie plates</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.127 Rail fastenings</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.133 Turnouts and track crossings, generally</ENT> <ENT>1,000</ENT> <ENT>1,000</ENT> </ROW> <ROW> <ENT I="13">213.135 Switches:</ENT> </ROW> <ROW> <ENT I="05">(a) through (g)</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(h) chipped or worn points</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.137 Frogs</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.139 Spring rail frogs</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.141 Self-guarded frogs</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.143 Frog guard rails and guard faces; gage</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22">Subpart E—Track appliances and track-related devices:</ENT> </ROW> <ROW> <ENT I="03">213.205 Derails</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22">Subpart F—Inspection:</ENT> </ROW> <ROW> <ENT I="03">213.233 Track inspections</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">213.235 Switches, crossings, transition devices</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">213.237 Inspection of rail</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.239 Special inspections</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.241 Inspection records</ENT> <ENT>1,000</ENT> <ENT>1,000</ENT> </ROW> <ROW> <ENT I="22">Subpart G—High Speed:</ENT> </ROW> <ROW> <ENT I="03">213.305 Designation of qualified individuals; general qualifications</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.307 Class of track; operating speed limits</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.309 Restoration or renewal of track under traffic conditions</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.311 Measuring track not under load</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.319 Drainage</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.321 Vegetation</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <PRTPAGE P="152"/> <ENT I="03">213.323 Track gage</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.327 Alinement</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.329 Curves, elevation and speed limits</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.331 Track surface</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.333 Automated vehicle inspection systems</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="13">213.335 Crossties</ENT> </ROW> <ROW> <ENT I="05">(a) Material used</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(b) Distribution of ties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(c) Sufficient number of nondefective ties, non-concrete</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(d) Sufficient number of nondefective concrete ties</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(e) Joint ties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(f) Track constructed without crossties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(g) Non-defective ties surrounding defective ties</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(h) Tie plates</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(i) Tie plates</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.337 Defective rails</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.339 Inspection of rail in service</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.341 Inspection of new rail</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.343 Continuous welded rail (a) through (h)</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.345 Vehicle qualification testing (a) through (b)</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(c) through (e)</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.347 Automotive or railroad crossings at grade</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.349 Rail end mismatch</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.351 (a) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.351 (b) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.351 (c) Rail joints</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03"> 213.351 (d) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.351 (e) Rail joints</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.351 (f) Rail joints</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.351 (g) Rail joints</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213. 352 Torch cut rails</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.353 Turnouts, crossovers, transition devices</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">213.355 Frog guard rails and guard faces; gage</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.357 Derails</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.359 Track stiffness</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.361 Right of way</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03">213.365 Visual inspections</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.367 Special inspections</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">213.369 Inspections records</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <TNOTE> <SU>1</SU> 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 $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <CITA>[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998, as amended at 70 FR 66299, Nov. 2, 2005; 73 FR 79701, Dec. 30, 2008; 74 FR 43006, Aug. 25, 2009]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 214</EAR> <HD SOURCE="HED">PART 214—RAILROAD WORKPLACE SAFETY</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>214.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>214.3</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>214.4</SECTNO> <SUBJECT>Preemptive effect.</SUBJECT> <SECTNO>214.5</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <SECTNO>214.7</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Bridge Worker Safety Standards</HD> <SECTNO>214.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>214.103</SECTNO> <SUBJECT>Fall protection, generally.</SUBJECT> <SECTNO>214.105</SECTNO> <SUBJECT>Fall protection systems standards and practices.</SUBJECT> <SECTNO>214.107</SECTNO> <SUBJECT>Working over or adjacent to water.</SUBJECT> <SECTNO>214.109</SECTNO> <SUBJECT>Scaffolding.</SUBJECT> <SECTNO>214.111</SECTNO> <SUBJECT>Personal protective equipment, generally.</SUBJECT> <SECTNO>214.113</SECTNO> <SUBJECT>Head protection.</SUBJECT> <SECTNO>214.115</SECTNO> <SUBJECT>Foot protection.</SUBJECT> <SECTNO>214.117</SECTNO> <SUBJECT>Eye and face protection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Roadway Worker Protection</HD> <SECTNO>214.301</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>214.302</SECTNO> <SUBJECT>Information collection requirements.</SUBJECT> <SECTNO>214.303</SECTNO> <SUBJECT>Railroad on-track safety programs, generally.</SUBJECT> <SECTNO>214.305</SECTNO> <SUBJECT>Compliance dates.</SUBJECT> <SECTNO>214.307</SECTNO> <SUBJECT>Review and approval of individual on-track safety programs by FRA.</SUBJECT> <SECTNO>214.309</SECTNO> <SUBJECT>On-track safety program documents.</SUBJECT> <SECTNO>214.311</SECTNO> <SUBJECT>Responsibility of employers.<PRTPAGE P="153"/> </SUBJECT> <SECTNO>214.313</SECTNO> <SUBJECT>Responsibility of individual roadway workers.</SUBJECT> <SECTNO>214.315</SECTNO> <SUBJECT>Supervision and communication.</SUBJECT> <SECTNO>214.317</SECTNO> <SUBJECT>On-track safety procedures, generally.</SUBJECT> <SECTNO>214.319</SECTNO> <SUBJECT>Working limits, generally.</SUBJECT> <SECTNO>214.321</SECTNO> <SUBJECT>Exclusive track occupancy.</SUBJECT> <SECTNO>214.323</SECTNO> <SUBJECT>Foul time.</SUBJECT> <SECTNO>214.325</SECTNO> <SUBJECT>Train coordination.</SUBJECT> <SECTNO>214.327</SECTNO> <SUBJECT>Inaccessible track.</SUBJECT> <SECTNO>214.329</SECTNO> <SUBJECT>Train approach warning provided by watchmen/lookouts.</SUBJECT> <SECTNO>214.331</SECTNO> <SUBJECT>Definite train location.</SUBJECT> <SECTNO>214.333</SECTNO> <SUBJECT>Informational line-ups of trains.</SUBJECT> <SECTNO>214.335</SECTNO> <SUBJECT>On-track safety procedures for roadway work groups.</SUBJECT> <SECTNO>214.337</SECTNO> <SUBJECT>On-track safety procedures for lone workers.</SUBJECT> <SECTNO>214.339</SECTNO> <SUBJECT>Audible warning from trains.</SUBJECT> <SECTNO>214.341</SECTNO> <SUBJECT>Roadway maintenance machines.</SUBJECT> <SECTNO>214.343</SECTNO> <SUBJECT>Training and qualification, general.</SUBJECT> <SECTNO>214.345</SECTNO> <SUBJECT>Training for all roadway workers.</SUBJECT> <SECTNO>214.347</SECTNO> <SUBJECT>Training and qualification for lone workers.</SUBJECT> <SECTNO>214.349</SECTNO> <SUBJECT>Training and qualification of watchmen/lookouts.</SUBJECT> <SECTNO>214.351</SECTNO> <SUBJECT>Training and qualification of flagmen.</SUBJECT> <SECTNO>214.353</SECTNO> <SUBJECT>Training and qualification of roadway workers who provide on-track safety for roadway work groups.</SUBJECT> <SECTNO>214.355</SECTNO> <SUBJECT>Training and qualification in on-track safety for operators of roadway maintenance machines.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—On-Track Roadway Maintenance Machines and Hi-Rail Vehicles</HD> <SECTNO>214.501</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>214.503</SECTNO> <SUBJECT>Good-faith challenges; procedures for notification and resolution.</SUBJECT> <SECTNO>214.505</SECTNO> <SUBJECT>Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs.</SUBJECT> <SECTNO>214.507</SECTNO> <SUBJECT>Required safety equipment for new on-track roadway maintenance machines.</SUBJECT> <SECTNO>214.509</SECTNO> <SUBJECT>Required visual illumination and reflective devices for new on-track roadway maintenance machines.</SUBJECT> <SECTNO>214.511</SECTNO> <SUBJECT>Required audible warning devices for new on-track roadway maintenance machines.</SUBJECT> <SECTNO>214.513</SECTNO> <SUBJECT>Retrofitting of existing on-track roadway maintenance machines; general.</SUBJECT> <SECTNO>214.515</SECTNO> <SUBJECT>Overhead covers for existing on-track roadway maintenance machines.</SUBJECT> <SECTNO>214.517</SECTNO> <SUBJECT>Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991.</SUBJECT> <SECTNO>214.518</SECTNO> <SUBJECT>Safe and secure positions for riders.</SUBJECT> <SECTNO>214.519</SECTNO> <SUBJECT>Floors, decks, stairs, and ladders of on-track roadway maintenance machines.</SUBJECT> <SECTNO>214.521</SECTNO> <SUBJECT>Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles.</SUBJECT> <SECTNO>214.523</SECTNO> <SUBJECT>Hi-rail vehicles.</SUBJECT> <SECTNO>214.525</SECTNO> <SUBJECT>Towing with on-track roadway maintenance machines or hi-rail vehicles.</SUBJECT> <SECTNO>214.527</SECTNO> <SUBJECT>On-track roadway maintenance machines; inspection for compliance and schedule for repairs.</SUBJECT> <SECTNO>214.529</SECTNO> <SUBJECT>In-service failure of primary braking system.</SUBJECT> <SECTNO>214.531</SECTNO> <SUBJECT>Schedule of repairs; general.</SUBJECT> <SECTNO>214.533</SECTNO> <SUBJECT>Schedule of repairs subject to availability of parts.</SUBJECT> <APP>Appendix A to Part 214—Schedule of Civil Penalties</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 20103, 20107, 21301, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>57 FR 28127, June 24, 1992, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 214.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The purpose of this part is to prevent accidents and casualties to employees involved in certain railroad inspection, maintenance and construction activities.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.3</SECTNO> <SUBJECT>Application.</SUBJECT> <P>This part applies to railroads that operate rolling equipment on track that is part of the general railroad system of transportation.</P> </SECTION> <SECTION> <SECTNO>§ 214.4</SECTNO> <SUBJECT>Preemptive effect.</SUBJECT> <P>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.</P> <CITA>[61 FR 65975, Dec. 16, 1996]</CITA> </SECTION> <SECTION> <PRTPAGE P="154"/> <SECTNO>§ 214.5</SECTNO> <SUBJECT>Responsibility for compliance.</SUBJECT> <P>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 $650 and not more than $25,000 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 $100,000 per violation may be assessed. See appendix A to this part for a statement of agency civil penalty policy.</P> <CITA>[57 FR 28127, June 24, 1992, as amended at 63 FR 11620, Mar. 10, 1998; 69 FR 30593, May 28, 2004; 72 FR 51196, Sept. 6, 2007; 73 FR 79701, Dec. 30, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.7</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Adjacent tracks</E> mean two or more tracks with track centers spaced less than 25 feet apart.</P> <P> <E T="03">Anchorage</E> means a secure point of attachment for lifelines, lanyards or deceleration devices that is independent of the means of supporting or suspending the employee.</P> <P> <E T="03">Body belt</E> means a strap that can be secured around the waist or body and attached to a lanyard, lifeline, or deceleration device.</P> <P> <E T="03">Body harness</E> means a device with straps that is secured about the person 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.</P> <P> <E T="03">Class I, Class II, and Class III</E> have the meaning assigned by, Title 49 Code of Federal Regulations part 1201, General Instructions 1-1.</P> <P> <E T="03">Competent person</E> 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.</P> <P> <E T="03">Control operator</E> 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.</P> <P> <E T="03">Controlled track</E> 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.</P> <P> <E T="03">Deceleration device</E> 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 a person during fall arrest.</P> <P> <E T="03">Definite train location</E> 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 § 214.331 of this part.</P> <P> <E T="03">Designated official</E> means any person(s) designated by the employer to receive notification of non-complying conditions on on-track roadway maintenance machines and hi-rail vehicles.</P> <P> <E T="03">Effective securing device</E> when used in relation to a manually operated switch or derail means one which is:</P> <P>(a) Vandal resistant;</P> <P>(b) Tamper resistant; and</P> <P>(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.</P> <P> <E T="03">Employee</E> 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.</P> <P> <E T="03">Employer</E> 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.</P> <P> <E T="03">Equivalent</E> means alternative designs, materials, or methods that the railroad or railroad contractor can demonstrate will provide equal or greater safety for <PRTPAGE P="155"/>employees than the means specified in this part.</P> <P> <E T="03">Exclusive track occupancy</E> 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 § 214.321 of this part.</P> <P> <E T="03">Flagman</E> 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.</P> <P> <E T="03">Foul time</E> 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 § 214.323 of this part.</P> <P> <E T="03">Fouling a track</E> 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.</P> <P> <E T="03">Free fall</E> means the act of falling before the personal fall arrest system begins to apply force to arrest the fall.</P> <P> <E T="03">Free fall distance</E> means the vertical displacement of the fall arrest attachment point on a person's 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.</P> <P> <E T="03">Hi-rail vehicle</E> means a roadway maintenance machine that is manufactured to meet Federal Motor Vehicle Safety Standards and is equipped with retractable flanged wheels so that the vehicle may travel over the highway or on railroad tracks.</P> <P> <E T="03">Hi-rail vehicle, new</E> means a hi-rail vehicle that is ordered after December 26, 2003 or completed after September 27, 2004.</P> <P> <E T="03">Inaccessible track</E> means a method of establishing working limits on non-controlled track by physically preventing entry and movement of trains and equipment.</P> <P> <E T="03">Individual train detection</E> 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.</P> <P> <E T="03">Informational line-up of trains</E> 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.</P> <P> <E T="03">Lanyard</E> means a flexible line of rope, wire rope, or strap that is used to secure a body harness to a deceleration device, lifeline, or anchorage.</P> <P> <E T="03">Lifeline</E> 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.</P> <P> <E T="03">Lone worker</E> 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.</P> <P> <E T="03">Non-controlled track</E> 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.</P> <P> <E T="03">On-track roadway maintenance machine</E> means a self-propelled, rail-mounted, non-highway, maintenance machine whose light weight is in excess of 7,500 pounds, and whose purpose is not for the inspection of railroad track.</P> <P> <E T="03">On-track roadway maintenance machine, existing</E> means any on-track roadway maintenance machine that does not meet the definition of a “new <PRTPAGE P="156"/>on-track roadway maintenance machine.”</P> <P> <E T="03">On-track roadway maintenance machine, new</E> means an on-track roadway maintenance machine that is ordered after December 26, 2003, and completed after September 27, 2004.</P> <P> <E T="03">On-track safety</E> 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.</P> <P> <E T="03">Personal fall arrest system</E> means a system used to arrest the fall of a person from a working level. It consists of an anchorage, connectors, body harness, lanyard, deceleration device, lifeline, or combination of these.</P> <P> <E T="03">Qualified</E> 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.</P> <P> <E T="03">Railroad</E> 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.</P> <P> <E T="03">Railroad bridge</E> 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.</P> <P> <E T="03">Railroad bridge worker or bridge worker</E> 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.</P> <P> <E T="03">Restricted speed</E> 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.</P> <P> <E T="03">Roadway maintenance machine</E> 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.</P> <P> <E T="03">Roadway work group</E> means two or more roadway workers organized to work together on a common task.</P> <P> <E T="03">Roadway worker</E> 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.</P> <P> <E T="03">Self-retracting lifeline/lanyard</E> 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.</P> <P> <E T="03">Snap-hook</E> 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.</P> <P> <E T="03">Train approach warning</E> means a method of establishing on-track safety <PRTPAGE P="157"/>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.</P> <P> <E T="03">Train coordination</E> 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.</P> <P> <E T="03">Train dispatcher</E> 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.</P> <P> <E T="03">Watchman/lookout</E> 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.</P> <P> <E T="03">Working limits</E> 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.</P> <CITA>[57 FR 28127, June 24, 1992, as amended at 61 FR 65975, Dec. 16, 1996; 67 FR 1906, Jan. 15, 2002; 68 FR 44407, July 28, 2003]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Bridge Worker Safety Standards</HD> <SECTION> <SECTNO>§ 214.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The purpose of this subpart is to prevent accidents and casualties arising from the performance of work on railroad bridges.</P> <P>(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.</P> <P>(c) These provisions apply to all railroad employees, railroads, and railroad contractors performing work on railroad bridges.</P> <P>(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 Labor, Occupational Safety and Health Administration.</P> </SECTION> <SECTION> <SECTNO>§ 214.103</SECTNO> <SUBJECT>Fall protection, generally.</SUBJECT> <P>(a) Except as provided in paragraphs (b) through (d) of this section, when bridge workers 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 § 214.105 of this subpart.</P> <P>(b)(1) This section shall not apply if the installation of the fall arrest system poses a greater 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.</P> <P>(2) This section shall not apply to bridge workers engaged in inspection of railroad bridges conducted in full compliance with the following conditions:</P> <P>(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;</P> <P>(ii) The bridge worker 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 provision of that program, and has accepted the designation;<PRTPAGE P="158"/> </P> <P>(iii) The bridge worker to whom this exception applies is familiar with the appropriate climbing techniques associated with all bridge structures the bridge worker is responsible for inspecting;</P> <P>(iv) The bridge worker 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</P> <P>(v) The bridge worker to whom this section applies is provided all equipment necessary to meet the needs of safety, including any specialized alternative systems required.</P> <P>(c) This section shall not apply where bridge workers are working on a railroad bridge equipped with walkways and railings of sufficient height, width, and strength to prevent a fall, so long as bridge workers do 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 § 214.105, this paragraph (c) is satisfied by:</P> <P>(1) Walkways and railings meeting standards set forth in the American Railway Engineering Association's Manual for Railway Engineering; and</P> <P>(2) Roadways attached to railroad bridges, provided that bridge workers on the roadway deck work or move at a distance six feet or more from the edge of the roadway deck, or from an opening through which a person could fall.</P> <P>(d) This section shall not apply where bridge workers 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.</P> <CITA>[67 FR 1906, Jan. 15, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.105</SECTNO> <SUBJECT>Fall protection systems standards and practices.</SUBJECT> <P>(a) <E T="03">General requirements.</E> All fall protection systems required by this subpart shall conform to the following:</P> <P>(1) Fall protection systems shall be used only for personal fall protection.</P> <P>(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.</P> <P>(3) All fall protection system components shall be protected from abrasions, corrosion, or any other form of deterioration.</P> <P>(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.</P> <P>(5) Prior to use and after any component or system is changed, bridge workers 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.</P> <P>(6) The railroad or railroad contractor shall provide for prompt rescue of bridge workers in the event of a fall.</P> <P>(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.</P> <P>(8) Connectors shall be drop forged, pressed or formed steel, or made of equivalent-strength materials.</P> <P>(9) Anchorages, including single- and double-head anchors, shall be capable of supporting at least 5,000 pounds per bridge worker attached, or shall be designed, installed, and used under supervision of a qualified person as part of a complete personal fall protection system that maintains a safety factor of at least two.</P> <P>(b) <E T="03">Personal fall arrest systems.</E> All components of a personal fall arrest system shall conform to the following standards:</P> <P>(1) Lanyards and vertical lifelines that tie off one bridge worker shall have a minimum breaking strength of 5,000 pounds.</P> <P>(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.<PRTPAGE P="159"/> </P> <P>(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.</P> <P>(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.</P> <P>(5) Lifelines shall not be made of natural fiber rope.</P> <P>(6) Body belts shall not be used as components of personal fall arrest systems.</P> <P>(7) The personal fall arrest system shall limit the maximum arresting force on a bridge worker to 1,800 pounds when used with a body harness.</P> <P>(8) The personal fall arrest system shall bring a bridge worker to a complete stop and limit maximum deceleration distance a bridge worker travels to 3.5 feet.</P> <P>(9) The personal fall arrest system shall have sufficient strength to withstand twice the potential impact energy of a bridge worker free falling a distance of six feet, or the free fall distance permitted by the system, whichever is less.</P> <P>(10) The personal fall arrest system shall be arranged so that a bridge worker cannot free fall more than six feet and cannot contact the ground or any lower horizontal surface of the bridge.</P> <P>(11) Personal fall arrest systems shall be worn with 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.</P> <P>(12) When vertical lifelines are used, each bridge worker shall be provided with a separate lifeline.</P> <P>(13) Devices used to connect to a horizontal lifeline that may become a vertical lifeline shall be capable of locking in either direction.</P> <P>(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.</P> <P>(15) Dee-rings and snap-hooks shall be capable of sustaining a minimum tensile load of 5,000 pounds.</P> <P>(16) Snap-hooks shall not be connected to each other.</P> <P>(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.</P> <P>(18) Unless of a locking type, snap-hooks shall not be engaged:</P> <P>(i) Directly, next to a webbing, rope, or wire rope;</P> <P>(ii) To each other;</P> <P>(iii) To a dee-ring to which another snap-hook or other connector is attached;</P> <P>(iv) To a horizontal lifeline; or</P> <P>(v) To any object that is incompatibly shaped or dimensioned in relation to the snap-hook so that unintentional disengagement could occur.</P> <P>(c) <E T="03">Safety net systems.</E> Use of safety net systems shall conform to the following standards and practices:</P> <P>(1) Safety nets shall be installed as close as practicable under the walking/working surface on which bridge workers are working, but shall not be installed more than 30 feet below such surface.</P> <P>(2) If the distance from the working surface to the net exceeds 30 feet, bridge workers shall be protected by personal fall arrest systems.</P> <P>(3) The safety net shall be installed such that any fall from the working surface to the net is unobstructed.</P> <P>(4) Except as provided in this section, 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<FR>1/2</FR> feet) working surface on which bridge workers are to be protected.</P> <P>(i) When the railroad or railroad contractor demonstrates that a drop-test is not feasible and, as a result, the test <PRTPAGE P="160"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(7) Safety nets shall extend outward from the outermost projection of the work surface as follows:</P> <P>(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.</P> <P>(ii) When the vertical distance from the working level to the horizontal plane of the net is 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.</P> <P>(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.</P> <P>(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.</P> <P>(9) Safety nets shall be inspected after any occurrence that could affect the integrity of the safety net system.</P> <P>(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.</P> <P>(11) Each safety net shall have a border rope for webbing with a minimum breaking strength of 5,000 pounds.</P> <P>(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.</P> <P>(13) Connections between safety net panels shall be as strong as integral net components and shall be spaced not more than 6 inches apart.</P> <CITA>[67 FR 1906, Jan. 15, 2002; 67 FR 11055, Mar. 12, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.107</SECTNO> <SUBJECT>Working over or adjacent to water.</SUBJECT> <P>(a) Bridge workers 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 bridge workers using personal fall arrest systems or safety nets that comply with this subpart or to bridge workers who are working under the provisions of § 214.103(b)(2), (c) or (d) of this subpart.</P> <P>(b) Prior to each use, all flotation devices shall be inspected for defects that reduce their strength or buoyancy by designated individuals trained by the railroad or railroad contractor. Defective units shall not be used.</P> <P>(c) 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.</P> <P>(d) Where life vests are required, at least one lifesaving skiff, inflatable <PRTPAGE P="161"/>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.</P> <CITA>[70 FR 7050, Feb. 10, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.109</SECTNO> <SUBJECT>Scaffolding.</SUBJECT> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(5) Midrails shall be installed at a height midway between the top edge of the guardrail system and the walking/working level.</P> <P>(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.</P> <P>(c) An access ladder or equivalent safe access shall be provided.</P> <P>(d) All exposed surfaces shall be prepared and cleared to prevent injury due to laceration, puncture, tripping, or falling hazard.</P> <P>(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.</P> <P>(f) Manually propelled mobile ladder stands and scaffolds shall conform to the following:</P> <P>(1) All manually propelled mobile ladder stands and scaffolds shall be capable of carrying the design load.</P> <P>(2) All ladder stands, scaffolds, and scaffold components shall be capable of supporting, without failure, displacement, or settlement, its own weight and at least four times the maximum intended load applied or transmitted to that ladder stand, scaffold, or scaffold component.</P> <P>(3) All exposed surfaces shall be free from sharp edges or burrs.</P> <P>(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.</P> <P>(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.</P> <P>(6) Guardrails and midrails shall conform to the requirements listed in paragraph (a) of this section.</P> <P>(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.</P> <P>(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 <PRTPAGE P="162"/>swivel lock to prevent movement. Ladder stands shall have at least two of the four casters and shall be of the swivel type.</P> </SECTION> <SECTION> <SECTNO>§ 214.111</SECTNO> <SUBJECT>Personal protective equipment, generally.</SUBJECT> <P>With the exception of foot protection, the railroad or railroad contractor shall provide and the bridge worker shall use 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 the hazards to railroad bridge workers. The railroad or railroad contractor shall require the use of foot protection when the potential for foot injury exists.</P> <CITA>[67 FR 1908, Jan. 15, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.113</SECTNO> <SUBJECT>Head protection.</SUBJECT> <P>(a) Railroad bridge workers 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.</P> <P>(b) Helmets for the protection of railroad bridge workers 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, 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, 25 West 43rd Street, New York, NY 10036. Copies may be inspected at the Federal Railroad Administration, Docket Clerk, 1200 New Jersey Avenue, SE., Washington, DC, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> </P> <CITA>[67 FR 1908, Jan. 15, 2002, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.115</SECTNO> <SUBJECT>Foot protection.</SUBJECT> <P>(a) The railroad or railroad contractor shall require railroad bridge workers 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.</P> <P>(b) Safety-toe footwear for railroad bridge workers 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 American National Standards Institute, 25 West 43rd Street, New York, NY 10036. Copies may be inspected at the Federal Railroad Administration, Docket Clerk, 1200 New Jersey Avenue, SE., Washington, DC, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> </P> <CITA>[67 FR 1908, Jan. 15, 2002, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.117</SECTNO> <SUBJECT>Eye and face protection.</SUBJECT> <P>(a) Railroad bridge workers 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.</P> <P>(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, 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 <PRTPAGE P="163"/>with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the American National Standards Institute, 25 West 43rd Street, New York, NY 10036. Copies may be inspected at the Federal Railroad Administration, Docket Clerk, 1200 New Jersey Avenue, SE., Washington, DC, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> </P> <P>(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.</P> <P>(d) Railroad bridge workers whose vision requires the use of corrective lenses, when required by this section to wear eye protection, shall be protected by goggles or spectacles of one of the following types:</P> <P>(i) Spectacles whose protective lenses provide optical correction the, frame of which includes shielding against objects reaching the wearer's eyes around the lenses;</P> <P>(ii) Goggles that can be worn over corrective lenses without disturbing the adjustment of the lenses; or</P> <P>(iii) Goggles that incorporate corrective lenses mounted behind the protective lenses.</P> <CITA>[67 FR 1908, Jan. 15, 2002; 67 FR 11055, Mar. 12, 2002, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Roadway Worker Protection</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 65976, Dec. 16, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 214.301</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.302</SECTNO> <SUBJECT>Information collection requirements.</SUBJECT> <P>(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, § 2, 109 Stat.163 (1995) (codified as revised at 44 U.S.C. §§ 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.</P> <P>(b) The information collection requirements are found in the following sections: §§ 214.303, 214.307, 214.309, 214.311, 214.313, 214.315, 214.319, 214.321, 214.323, 214.325, 214.327, 214.329, 214.331, 214.335, 214.341.</P> </SECTION> <SECTION> <SECTNO>§ 214.303</SECTNO> <SUBJECT>Railroad on-track safety programs, generally.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.305</SECTNO> <SUBJECT>Compliance dates.</SUBJECT> <P>Each program adopted by a railroad shall comply not later than the date specified in the following schedule:</P> <P>(a) For each Class I railroad (including National Railroad Passenger Corporation) and each railroad providing <PRTPAGE P="164"/>commuter service in a metropolitan or suburban area, March 15, 1997.</P> <P>(b) For each Class II railroad, April 15, 1997.</P> <P>(c) For each Class III railroad, switching and terminal railroad, and any railroad not otherwise classified, May 15, 1997.</P> <P>(d) For each railroad commencing operations after the pertinent date specified in this section, the date on which operations commence.</P> </SECTION> <SECTION> <SECTNO>§ 214.307</SECTNO> <SUBJECT>Review and approval of individual on-track safety programs by FRA.</SUBJECT> <P>(a) Each railroad shall notify, in writing, the Associate Administrator for Safety, Federal Railroad Administration, RRS-15, 1200 New Jersey Avenue, SE., 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.</P> <P>(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.</P> <P>(c) A railroad's on-track safety program will take effect by the established compliance dates in § 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.</P> <CITA>[61 FR 65976, Dec. 16, 1996, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.309</SECTNO> <SUBJECT>On-track safety program documents.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 214.311</SECTNO> <SUBJECT>Responsibility of employers.</SUBJECT> <P>(a) Each employer is responsible for the understanding and compliance by its employees with its rules and the requirements of this part.</P> <P>(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.</P> <P>(c) Each employer shall have in place a written procedure to achieve prompt and equitable resolution of challenges made in accordance with §§ 214.311(b) and 214.313(d).</P> </SECTION> <SECTION> <SECTNO>§ 214.313</SECTNO> <SUBJECT>Responsibility of individual roadway workers.</SUBJECT> <P>(a) Each roadway worker is responsible for following the on-track safety rules of the railroad upon which the roadway worker is located.</P> <P>(b) A roadway worker shall not foul a track except when necessary for the performance of duty.</P> <P>(c) Each roadway worker is responsible to ascertain that on-track safety is being provided before fouling a track.</P> <P>(d) Each roadway worker may refuse any directive to violate an on-track safety rule, and shall inform the employer in accordance with § 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.</P> </SECTION> <SECTION> <PRTPAGE P="165"/> <SECTNO>§ 214.315</SECTNO> <SUBJECT>Supervision and communication.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.317</SECTNO> <SUBJECT>On-track safety procedures, generally.</SUBJECT> <P>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 §§ 214.319 through 214.337 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 214.319</SECTNO> <SUBJECT>Working limits, generally.</SUBJECT> <P>Working limits established on controlled track shall conform to the provisions of § 214.321 Exclusive track occupancy, or § 214.323 Foul time, or § 214. 325 Train coordination. Working limits established on non-controlled track shall conform to the provision of § 214.327 Inaccessible track. Working limits established under any procedure shall, in addition, conform to the following provisions:</P> <P>(a) Only a roadway worker who is qualified in accordance with § 214.353 of this part shall establish or have control over working limits for the purpose of establishing on-track safety.</P> <P>(b) Only one roadway worker shall have control over working limits on any one segment of track.</P> <P>(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 § 214.329 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 214.321</SECTNO> <SUBJECT>Exclusive track occupancy.</SUBJECT> <P>Working limits established on controlled track through the use of exclusive track occupancy procedures shall comply with the following requirements:</P> <P>(a) The track within working limits shall be placed under the control of one roadway worker by either:</P> <P>(1) Authority issued to the roadway worker in charge by the train dispatcher or control operator who controls train movements on that track,<PRTPAGE P="166"/> </P> <P>(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</P> <P>(3) The roadway worker in charge causing fixed signals at each entrance to the working limits to display an aspect indicating “Stop.”</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) A flagman with instructions and capability to hold all trains and equipment clear of the working limits;</P> <P>(2) A fixed signal that displays an aspect indicating “Stop”;</P> <P>(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.</P> <P>(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</P> <P>(5) A clearly identifiable physical location prescribed by the operating rules of the railroad that trains may not pass without proper authority.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.323</SECTNO> <SUBJECT>Foul time.</SUBJECT> <P>Working limits established on controlled track through the use of foul time procedures shall comply with the following requirements:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.325</SECTNO> <SUBJECT>Train coordination.</SUBJECT> <P>Working limits established by a roadway worker through the use of train coordination shall comply with the following requirements:</P> <P>(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.</P> <P>(b) The roadway worker who establishes working limits by train coordination shall communicate with a member of the crew of the train holding the <PRTPAGE P="167"/>exclusive authority to move, and shall determine that:</P> <P>(1) The train is visible to the roadway worker who is establishing the working limits,</P> <P>(2) The train is stopped,</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.327</SECTNO> <SUBJECT>Inaccessible track.</SUBJECT> <P>(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:</P> <P>(1) A flagman with instructions and capability to hold all trains and equipment clear of the working limits;</P> <P>(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;</P> <P>(3) A discontinuity in the rail that precludes passage of trains or engines into the working limits;</P> <P>(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</P> <P>(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:</P> <P>(i) The control operator has secured the remotely controlled switch by applying a locking or blocking device to the control of the switch, and</P> <P>(ii) The control operator has notified the roadway worker who has established the working limits that the requested protection has been provided, and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.329</SECTNO> <SUBJECT>Train approach warning provided by watchmen/lookouts.</SUBJECT> <P>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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) Watchmen/lookouts shall communicate train approach warnings by a means that does not require a warned <PRTPAGE P="168"/>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.</P> <P>(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 § 214.349.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.331</SECTNO> <SUBJECT>Definite train location.</SUBJECT> <P>A roadway worker may establish on-track safety by using definite train location only where permitted by and in accordance with the following provisions:</P> <P>(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.</P> <P>(b) Each Class I or commuter railroad shall include in its on-track safety program for approval by FRA in accordance with § 214.307 of this part a schedule for phase-out of the use of definite train location to establish on-track safety.</P> <P>(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:</P> <P>(1) Such procedures were in use on January 15, 1997, or</P> <P>(2) The number of trains operated on the subdivision does not exceed:</P> <P>(i) Three during any nine-hour period in which roadway workers are on duty, and</P> <P>(ii) Four during any twelve-hour period in which roadway workers are on duty.</P> <P>(d) Definite train location shall only be used to establish on-track safety according to the following provisions:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(6) A railroad shall not permit a train to depart a location designated in a definite train location list before the time shown therein.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.333</SECTNO> <SUBJECT>Informational line-ups of trains.</SUBJECT> <P>(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.</P> <P>(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.<PRTPAGE P="169"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.335</SECTNO> <SUBJECT>On-track safety procedures for roadway work groups.</SUBJECT> <P>(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 §§ 214.319, 214.321, 213.323, 214.325, 214.327, 214.329 and 214.331 of this part.</P> <P>(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.</P> <P>(c) Roadway work groups engaged in large-scale maintenance or construction shall be provided with train approach warning in accordance with § 214.327 for movements on adjacent tracks that are not included within working limits.</P> </SECTION> <SECTION> <SECTNO>§ 214.337</SECTNO> <SUBJECT>On-track safety procedures for lone workers.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Individual train detection may be used to establish on-track safety only:</P> <P>(1) By a lone worker who has been trained, qualified, and designated to do so by the employer in accordance with § 214.347 of this subpart;</P> <P>(2) While performing routine inspection and minor correction work;</P> <P>(3) On track outside the limits of a manual interlocking, a controlled point, or a remotely controlled hump yard facility;</P> <P>(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;</P> <P>(5) Where no power-operated tools or roadway maintenance machines are in use within the hearing of the lone worker; and</P> <P>(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.</P> <P>(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.</P> <P>(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 moving in either direction as prescribed in this section.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.339</SECTNO> <SUBJECT>Audible warning from trains.</SUBJECT> <P>Each railroad shall require that the locomotive whistle be sounded, and the <PRTPAGE P="170"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 214.341</SECTNO> <SUBJECT>Roadway maintenance machines.</SUBJECT> <P>(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:</P> <P>(1) Training and qualification of operators of roadway maintenance machines.</P> <P>(2) Establishment and issuance of safety procedures both for general application and for specific types of machines.</P> <P>(3) Communication between machine operators and roadway workers assigned to work near or on roadway maintenance machines.</P> <P>(4) Spacing between machines to prevent collisions.</P> <P>(5) Space between machines and roadway workers to prevent personal injury.</P> <P>(6) Maximum working and travel speeds for machines dependent upon weather, visibility, and stopping capabilities.</P> <P>(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.</P> <P>(1) No roadway worker shall operate a roadway maintenance machine without having been trained in accordance with § 214.355.</P> <P>(2) No roadway worker shall operate a roadway maintenance machine without having complete knowledge of the safety instructions applicable to that machine.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.343</SECTNO> <SUBJECT>Training and qualification, general.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 214.345</SECTNO> <SUBJECT>Training for all roadway workers.</SUBJECT> <P>The training of all roadway workers shall include, as a minimum, the following:<PRTPAGE P="171"/> </P> <P>(a) Recognition of railroad tracks and understanding of the space around them within which on-track safety is required.</P> <P>(b) The functions and responsibilities of various persons involved with on-track safety procedures.</P> <P>(c) Proper compliance with on-track safety instructions given by persons performing or responsible for on-track safety functions.</P> <P>(d) Signals given by watchmen/lookouts, and the proper procedures upon receiving a train approach warning from a lookout.</P> <P>(e) The hazards associated with working on or near railroad tracks, including review of on-track safety rules and procedures.</P> </SECTION> <SECTION> <SECTNO>§ 214.347</SECTNO> <SUBJECT>Training and qualification for lone workers.</SUBJECT> <P>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.</P> <P>(a) The training and qualification for lone workers shall include, as a minimum, consideration of the following factors:</P> <P>(1) Detection of approaching trains and prompt movement to a place of safety upon their approach.</P> <P>(2) Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.</P> <P>(3) Rules and procedures prescribed by the railroad for individual train detection, establishment of working limits, and definite train location.</P> <P>(4) On-track safety procedures to be used in the territory on which the employee is to be qualified and permitted to work alone.</P> <P>(b) Initial and periodic qualification of a lone worker shall be evidenced by demonstrated proficiency.</P> </SECTION> <SECTION> <SECTNO>§ 214.349</SECTNO> <SUBJECT>Training and qualification of watchmen/lookouts.</SUBJECT> <P>(a) The training and qualification for roadway workers assigned the duties of watchmen/lookouts shall include, as a minimum, consideration of the following factors:</P> <P>(1) Detection and recognition of approaching trains.</P> <P>(2) Effective warning of roadway workers of the approach of trains.</P> <P>(3) Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.</P> <P>(4) Rules and procedures of the railroad to be used for train approach warning.</P> <P>(b) Initial and periodic qualification of a watchman/lookout shall be evidenced by demonstrated proficiency.</P> </SECTION> <SECTION> <SECTNO>§ 214.351</SECTNO> <SUBJECT>Training and qualification of flagmen.</SUBJECT> <P>(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.</P> <P>(b) Initial and periodic qualification of a flagman shall be evidenced by demonstrated proficiency.</P> </SECTION> <SECTION> <SECTNO>§ 214.353</SECTNO> <SUBJECT>Training and qualification of roadway workers who provide on-track safety for roadway work groups.</SUBJECT> <P>(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:</P> <P>(1) All the on-track safety training and qualification required of the roadway workers to be supervised and protected.</P> <P>(2) The content and application of the operating rules of the railroad pertaining to the establishment of working limits.</P> <P>(3) The content and application of the rules of the railroad pertaining to the establishment or train approach warning.</P> <P>(4) The relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.</P> <P>(b) Initial and periodic qualification of a roadway worker to provide on track safety for groups shall be evidenced by a recorded examination.</P> </SECTION> <SECTION> <PRTPAGE P="172"/> <SECTNO>§ 214.355</SECTNO> <SUBJECT>Training and qualification in on-track safety for operators of roadway maintenance machines.</SUBJECT> <P>(a) The training and qualification of roadway workers who operate roadway maintenance machines shall include, as a minimum:</P> <P>(1) Procedures to prevent a person from being struck by the machine when the machine is in motion or operation.</P> <P>(2) Procedures to prevent any part of the machine from being struck by a train or other equipment on another track.</P> <P>(3) Procedures to provide for stopping the machine short of other machines or obstructions on the track.</P> <P>(4) Methods to determine safe operating procedures for each machine that the operator is expected to operate.</P> <P>(b) Initial and periodic qualification of a roadway worker to operate roadway maintenance machines shall be evidenced by demonstrated proficiency.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—On-Track Roadway Maintenance Machines and Hi-Rail Vehicles</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>68 FR 44407, July 28, 2003, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 214.501</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The purpose of this subpart is to prevent accidents and casualties caused by the lawful operation of on-track roadway maintenance machines and hi-rail vehicles.</P> <P>(b) This subpart prescribes minimum safety standards for on-track roadway maintenance machines and hi-rail vehicles. An employer may prescribe additional or more stringent standards that are consistent with this subpart.</P> <P>(c) Any working condition that involves the protection of employees engaged in roadway maintenance duties covered by this subpart but is not within the subject matter addressed by this subpart, including employee exposure to noise, shall be governed by the regulations of the U.S. Department of Labor, Occupational Safety and Health Administration.</P> </SECTION> <SECTION> <SECTNO>§ 214.503</SECTNO> <SUBJECT>Good-faith challenges; procedures for notification and resolution.</SUBJECT> <P>(a) An employee operating an on-track roadway maintenance machine or hi-rail vehicle shall inform the employer whenever the employee makes a good-faith determination that the machine or vehicle does not comply with FRA regulations or has a condition that inhibits its safe operation.</P> <P>(b) Any employee charged with operating an on-track roadway maintenance machine or hi-rail vehicle covered by this subpart may refuse to operate the machine or vehicle if the employee makes a good-faith determination that it does not comply with the requirements of this subpart or has a condition that inhibits its safe operation. The employer shall not require the employee to operate the machine or vehicle until the challenge resulting from the good-faith determination is resolved.</P> <P>(c) Each employer shall have in place and follow written procedures to assure prompt and equitable resolution of challenges resulting from good-faith determinations made in accordance with this section. The procedures shall include specific steps to be taken by the employer to investigate each good-faith challenge, as well as procedures to follow once the employer finds a challenged machine or vehicle does not comply with this subpart or is otherwise unsafe to operate. The procedures shall also include the title and location of the employer's designated official.</P> </SECTION> <SECTION> <SECTNO>§ 214.505</SECTNO> <SUBJECT>Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs.</SUBJECT> <P>(a) The following new on-track roadway maintenance machines shall be equipped with enclosed cabs with operative heating systems, operative air conditioning systems, and operative positive pressurized ventilation systems:</P> <P>(1) Ballast regulators;</P> <P>(2) Tampers;</P> <P>(3) Mechanical brooms;</P> <P>(4) Rotary scarifiers;</P> <P>(5) Undercutters; and<PRTPAGE P="173"/> </P> <P>(6) Functional equivalents of any of the machines identified in paragraphs (a)(1) through (a)(5) of this section.</P> <P>(b) New on-track roadway maintenance machines, and existing on-track roadway maintenance machines specifically designated by the employer, of the types identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, shall be capable of protecting employees in the cabs of the machines from exposure to air contaminants, in accordance with 29 CFR 1910.1000.</P> <P>(c) An employer shall maintain a list of new and designated existing on-track roadway maintenance machines of the types identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto. The list shall be kept current and made available to the Federal Railroad Administration and other Federal and State agencies upon request.</P> <P>(d) An existing roadway maintenance machine of the type identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, becomes “designated” when the employer adds the machine to the list required in paragraph (c) of this section. The designation is irrevocable, and the designated existing roadway maintenance machine remains subject to paragraph (b) of this section until it is retired or sold.</P> <P>(e) If the ventilation system on a new on-track roadway maintenance machine or a designated existing on-track roadway maintenance machine of the type identified in paragraphs (a)(1) through (a)(5) of this section, or functionally equivalent thereto, becomes incapable of protecting an employee in the cab of the machine from exposure to air contaminants in accordance with 29 CFR 1910.1000, personal respiratory protective equipment shall be provided for each such employee until the machine is repaired in accordance with § 214.531.</P> <P>(f) Personal respiratory protective equipment provided under paragraph (e) of this section shall comply with 29 CFR 1910.134.</P> <P>(g) New on-track roadway maintenance machines with enclosed cabs, other than the types identified in paragraphs (a)(1) through (a)(5) of this section or functionally equivalent thereto, shall be equipped with operative heating and ventilation systems.</P> <P>(h) When new on-track roadway maintenance machines require operation from non-enclosed stations outside of the main cab, the non-enclosed stations shall be equipped, where feasible from an engineering standpoint, with a permanent or temporary roof, canopy, or umbrella designed to provide cover from normal rainfall and midday sun.</P> </SECTION> <SECTION> <SECTNO>§ 214.507</SECTNO> <SUBJECT>Required safety equipment for new on-track roadway maintenance machines.</SUBJECT> <P>(a) Each new on-track roadway maintenance machine shall be equipped with:</P> <P>(1) A seat for each operator, except as provided in paragraph (b) of this section;</P> <P>(2) A safe and secure position with handholds, handrails, or a secure seat for each roadway worker transported on the machine. Each position shall be protected from moving parts of the machine;</P> <P>(3) A positive method of securement for turntables, on machines equipped with a turntable, through engagement of pins and hooks that block the descent of turntable devices below the rail head when not in use;</P> <P>(4) A windshield with safety glass, or other material with similar properties, if the machine is designed with a windshield. Each new on-track roadway maintenance machine designed with a windshield shall also have power windshield wipers or suitable alternatives that provide the machine operator an equivalent level of vision if windshield wipers are incompatible with the windshield material;</P> <P>(5) A machine braking system capable of effectively controlling the movement of the machine under normal operating conditions;</P> <P>(6) A first-aid kit that is readily accessible and complies with 29 CFR 1926.50(d)(2); and</P> <P>(7) An operative and properly charged fire extinguisher of 5 BC rating or higher which is securely mounted and readily accessible to the operator from the operator's work station.<PRTPAGE P="174"/> </P> <P>(b) Each new on-track roadway maintenance machine designed to be operated and transported by the operator in a standing position shall be equipped with handholds and handrails to provide the operator with a safe and secure position.</P> <P>(c) Each new on-track roadway maintenance machine that weighs more than 32,500 pounds light weight and is operated in excess of 20 mph shall be equipped with a speed indicator that is accurate within ±5 mph of the actual speed at speeds of 10 mph and above.</P> <P>(d) Each new on-track roadway maintenance machine shall have its as-built light weight displayed in a conspicuous location on the machine.</P> <CITA>[68 FR 44407, July 28, 2003, as amended at 69 FR 8839, Feb. 26, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.509</SECTNO> <SUBJECT>Required visual illumination and reflective devices for new on-track roadway maintenance machines.</SUBJECT> <P>Each new on-track roadway maintenance machine shall be equipped with the following visual illumination and reflective devices:</P> <P>(a) An illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions;</P> <P>(b) Work lights, if the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels, unless equivalent lighting is otherwise provided;</P> <P>(c) An operative 360-degree intermittent warning light or beacon mounted on the roof of the machine. New roadway maintenance machines that are not equipped with fixed roofs and have a light weight less than 17,500 pounds are exempt from this requirement;</P> <P>(d) A brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and</P> <P>(e) Rearward viewing devices, such as rearview mirrors.</P> </SECTION> <SECTION> <SECTNO>§ 214.511</SECTNO> <SUBJECT>Required audible warning devices for new on-track roadway maintenance machines.</SUBJECT> <P>Each new on-track roadway maintenance machine shall be equipped with:</P> <P>(a) A horn or other audible warning device that produces a sound loud enough to be heard by roadway workers and other machine operators within the immediate work area. The triggering mechanism for the device shall be clearly identifiable and within easy reach of the machine operator; and</P> <P>(b) An automatic change-of-direction alarm which provides an audible signal that is at least three seconds long and is distinguishable from the surrounding noise. Change of direction alarms may be interrupted by the machine operator when operating the machine in the work mode if the function of the machine would result in a constant, or almost constant, sounding of the device. In any action brought by FRA to enforce the change-of-direction alarm requirement, the employer shall have the burden of proving that use of the change-of-direction alarm in a particular work function would cause a constant, or almost constant, sounding of the device.</P> </SECTION> <SECTION> <SECTNO>§ 214.513</SECTNO> <SUBJECT>Retrofitting of existing on-track roadway maintenance machines; general.</SUBJECT> <P>(a) Each existing on-track roadway maintenance machine shall have a safe and secure position with handholds, handrails, or a secure seat or bench position for each roadway worker transported on the machine. Each position shall be protected from moving parts of the machine.</P> <P>(b) By March 28, 2005, each existing on-track roadway maintenance machine shall be equipped with a permanent or portable horn or other audible warning device that produces a sound loud enough to be heard by roadway workers and other machine operators within the immediate work area. The triggering mechanism for the device shall be clearly identifiable and within easy reach of the machine operator.</P> <P>(c) By March 28, 2005, each existing on-track roadway maintenance machine shall be equipped with a permanent illumination device or a portable light that is securely placed and not <PRTPAGE P="175"/>hand-held. The illumination device or portable light shall be capable of illuminating obstructions on the track ahead for a distance of 300 feet under normal weather and atmospheric conditions when the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels.</P> <CITA>[68 FR 44407, July 28, 2003, as amended at 69 FR 8839, Feb. 26, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.515</SECTNO> <SUBJECT>Overhead covers for existing on-track roadway maintenance machines.</SUBJECT> <P>(a) For those existing on-track roadway maintenance machines either currently or previously equipped with overhead covers for the operator's position, defective covers shall be repaired, and missing covers shall be reinstalled, by March 28, 2005 and thereafter maintained in accordance with the provisions of § 214.531.</P> <P>(b) For those existing on-track roadway maintenance machines that are not already equipped with overhead covers for the operator's position, the employer shall evaluate the feasibility of providing an overhead cover on such a machine if requested in writing by the operator assigned to operate the machine or by the operator's designated representative. The employer shall provide the operator a written response to each request within 60 days. When the employer finds the addition of an overhead cover is not feasible, the response shall include an explanation of the reasoning used by the employer to reach that conclusion.</P> <P>(c) For purposes of this section, overhead covers shall provide the operator's position with cover from normal rainfall and midday sun.</P> </SECTION> <SECTION> <SECTNO>§ 214.517</SECTNO> <SUBJECT>Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991.</SUBJECT> <P>In addition to meeting the requirements of § 214.513, after March 28, 2005 each existing on-track roadway maintenance machine manufactured on or after January 1, 1991, shall have the following:</P> <P>(a) A change-of-direction alarm or rearview mirror or other rearward viewing device, if either device is feasible, given the machine's design, and if either device adds operational safety value, given the machine's function. In any action brought by FRA to enforce this requirement, the employer shall have the burden of proving that neither device is feasible or adds operational safety value, or both, given the machine's design or work function.</P> <P>(b) An operative heater, when the machine is operated at an ambient temperature less than 50 degrees Fahrenheit and is equipped with, or has been equipped with, a heater installed by the manufacturer or the railroad.</P> <P>(c) The light weight of the machine stenciled or otherwise clearly displayed on the machine, if the light weight is known.</P> <P>(d) Reflective material, or a reflective device, or operable brake lights.</P> <P>(e) Safety glass when its glass is normally replaced, except that replacement glass that is specifically intended for on-track roadway maintenance machines and is in the employer's inventory as of September 26, 2003 may be utilized until exhausted.</P> <P>(f) A turntable restraint device, on machines equipped with a turntable, to prevent undesired lowering, or a warning light indicating that the turntable is not in the normal travel position.</P> <CITA>[68 FR 44407, July 28, 2003, as amended at 69 FR 8839, Feb. 26, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.518</SECTNO> <SUBJECT>Safe and secure positions for riders.</SUBJECT> <P>On or after March 1, 2004, a roadway worker, other than the machine operator, is prohibited from riding on any on-track roadway maintenance machine unless a safe and secure position for each roadway worker on the machine is clearly identified by stenciling, marking, or other written notice.</P> <CITA>[69 FR 8839, Feb. 26, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.519</SECTNO> <SUBJECT>Floors, decks, stairs, and ladders of on-track roadway maintenance machines.</SUBJECT> <P>Floors, decks, stairs, and ladders of on-track roadway maintenance machines shall be of appropriate design and maintained to provide secure access and footing, and shall be free of oil, grease, or any obstruction which <PRTPAGE P="176"/>creates a slipping, falling, or fire hazard.</P> </SECTION> <SECTION> <SECTNO>§ 214.521</SECTNO> <SUBJECT>Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles.</SUBJECT> <P>Each on-track roadway maintenance machine and hi-rail vehicle shall have on board a flagging kit that complies with the operating rules of the railroad if:</P> <P>(a) The equipment is operated over trackage subject to a railroad operating rule requiring flagging; and</P> <P>(b)(1) The equipment is not part of a roadway work group; or</P> <P>(2) The equipment is the lead or trailing piece of equipment in a roadway work group operating under the same occupancy authority.</P> <CITA>[69 FR 8839, Feb. 26, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 214.523</SECTNO> <SUBJECT>Hi-rail vehicles.</SUBJECT> <P>(a) The hi-rail gear of all hi-rail vehicles shall be inspected for safety at least annually and with no more than 14 months between inspections. Tram, wheel wear, and gage shall be measured and, if necessary, adjusted to allow the vehicle to be safely operated.</P> <P>(b) Each employer shall keep records pertaining to compliance with paragraph (a) of this section. Records may be kept on forms provided by the employer or by electronic means. The employer shall retain the record of each inspection until the next required inspection is performed. The records shall be made available for inspection and copying during normal business hours by representatives of FRA and States participating under part 212 of this chapter. The records may be kept on the hi-rail vehicle or at a location designated by the employer.</P> <P>(c) A new hi-rail vehicle shall be equipped with:</P> <P>(1) An automatic change-of-direction alarm or backup alarm that provides an audible signal at least three seconds long and distinguishable from the surrounding noise; and</P> <P>(2) An operable 360-degree intermittent warning light or beacon mounted on the outside of the vehicle.</P> <P>(d)(1) The operator of a hi-rail vehicle shall check the vehicle for compliance with this subpart, prior to using the vehicle at the start of the operator's work shift.</P> <P>(2) A non-complying condition that cannot be repaired immediately shall be tagged and dated in a manner prescribed by the employer and reported to the designated official.</P> <P>(3) Non-complying automatic change-of-direction alarms, backup alarms, and 360-degree intermittent warning lights or beacons shall be repaired or replaced as soon as practicable within seven calendar days.</P> </SECTION> <SECTION> <SECTNO>§ 214.525</SECTNO> <SUBJECT>Towing with on-track roadway maintenance machines or hi-rail vehicles.</SUBJECT> <P>(a) When used to tow pushcars or other maintenance-of-way equipment, each on-track roadway maintenance machine or hi-rail vehicle shall be equipped with a towing bar or other coupling device that provides a safe and secure attachment.</P> <P>(b) An on-track roadway maintenance machine or hi-rail vehicle shall not be used to tow pushcars or other maintenance-of-way equipment if the towing would cause the machine or hi-rail vehicle to exceed the capabilities of its braking system. In determining the limit of the braking system, the employer must consider the track grade (slope), as well as the number and weight of pushcars or other equipment to be towed.</P> </SECTION> <SECTION> <SECTNO>§ 214.527</SECTNO> <SUBJECT>On-track roadway maintenance machines; inspection for compliance and schedule for repairs.</SUBJECT> <P>(a) The operator of an on-track roadway maintenance machine shall check the machine components for compliance with this subpart, prior to using the machine at the start of the operator's work shift.</P> <P>(b) Any non-complying condition that cannot be repaired immediately shall be tagged and dated in a manner prescribed by the employer and reported to the designated official.</P> <P>(c) The operation of an on-track roadway maintenance machine with a non-complying condition shall be governed by the following requirements:</P> <P>(1) An on-track roadway maintenance machine with headlights or work lights <PRTPAGE P="177"/>that are not in compliance may be operated for a period not exceeding 7 calendar days and only during the period between one-half hour before sunrise and one-half hour after sunset;</P> <P>(2) A portable horn may be substituted for a non-complying or missing horn for a period not exceeding seven calendar days;</P> <P>(3) A fire extinguisher readily available for use may temporarily replace a missing, defective or discharged fire extinguisher on a new on-track roadway maintenance machine for a period not exceeding 7 calendar days, pending the permanent replacement or repair of the missing, defective or used fire extinguisher;</P> <P>(4) Non-complying automatic change-of-direction alarms, backup alarms, and 360-degree intermittent warning lights or beacons shall be repaired or replaced as soon as practicable within 7 calendar days; and</P> <P>(5) A structurally defective or missing operator's seat shall be replaced or repaired within 24 hours or by the start of the machine's next tour of duty, whichever is later. The machine may be operated for the remainder of the operator's tour of duty if the defective or missing operator's seat does not prevent its safe operation.</P> </SECTION> <SECTION> <SECTNO>§ 214.529</SECTNO> <SUBJECT>In-service failure of primary braking system.</SUBJECT> <P>(a) In the event of a total in-service failure of its primary braking system, an on-track roadway maintenance machine may be operated for the remainder of its tour of duty with the use of a secondary braking system or by coupling to another machine, if such operations may be done safely.</P> <P>(b) If the total in-service failure of an on-track roadway maintenance machine's primary braking system occurs where other equipment is not available for coupling, the machine may, if it is safe to do so, travel to a clearance or repair point where it shall be placed out of service until repaired.</P> </SECTION> <SECTION> <SECTNO>§ 214.531</SECTNO> <SUBJECT>Schedule of repairs; general.</SUBJECT> <P>Except as provided in §§ 214.527(c)(5), 214.529, and 214.533, an on-track roadway maintenance machine or hi-rail vehicle that does not meet all the requirements of this subpart shall be brought into compliance as soon as practicable within seven calendar days. If repairs are not made within seven calendar days, the on-track roadway maintenance machine or hi-rail vehicle shall be placed out of on-track service.</P> </SECTION> <SECTION> <SECTNO>§ 214.533</SECTNO> <SUBJECT>Schedule of repairs subject to availability of parts.</SUBJECT> <P>(a) The employer shall order a part necessary to repair a non-complying condition on an on-track roadway maintenance machine or a hi-rail vehicle by the end of the next business day following the report of the defect.</P> <P>(b) When the employer cannot repair a non-complying condition as required by § 214.531 because of the temporary unavailability of a necessary part, the employer shall repair the on-track roadway maintenance machine or hi-rail vehicle within seven calendar days after receiving the necessary part. The employer may continue to use the on-track roadway maintenance machine or hi-rail vehicle with a non-complying condition until receiving the necessary part(s) for repair, subject to the requirements of § 214.503. However, if a non-complying condition is not repaired within 30 days following the report of the defect, the employer shall remove the on-track roadway maintenance machine or hi-rail vehicle from on-track service until it is brought into compliance with this subpart.</P> <P>(c) If the employer fails to order a part necessary to repair the reported non-complying condition, or if it fails to install an available part within the required seven calendar days, the on-track roadway maintenance machine or hi-rail vehicle shall be removed from on-track service until brought into compliance with this subpart.</P> <P>(d) Each employer shall maintain records pertaining to compliance with this section. Records may be kept on forms provided by the employer or by electronic means. The employer shall retain each record for at least one year, and the records shall be made available for inspection and copying during normal business hours by representatives of FRA and States participating under part 212 of this chapter. The records may be kept on the on-track roadway maintenance machine <PRTPAGE P="178"/>or hi-rail vehicle or at a location designated by the employer.</P> </SECTION> <APPENDIX> <EAR>Pt. 214, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 214—Schedule of Civil Penalties <SU>1</SU> </HD> <GPOTABLE CDEF="s100,10,10" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Section</CHED> <CHED H="1">Violation</CHED> <CHED H="1">Willful</CHED> </BOXHD> <ROW> <ENT I="21"> <E T="02">Subpart B—Bridge Worker Safety Standards</E> </ENT> </ROW> <ROW> <ENT I="11">214.103 Fall protection:</ENT> </ROW> <ROW> <ENT I="02">(i) Failure to provide fall protection</ENT> <ENT>$5,000</ENT> <ENT>$10,000</ENT> </ROW> <ROW> <ENT I="02">(ii) Failure to use fall protection</ENT> <ENT/> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="11">214.105 Standards and practices:</ENT> </ROW> <ROW> <ENT I="12">(a) General:</ENT> </ROW> <ROW> <ENT I="03">(1) Fall protection used for other purposes</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(2) Failure to remove from service</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(3) Failure to protect from deterioration</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(4) Failure to inspect and remove</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(5) Failure to train</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(6) Failure to provide for prompt rescue</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(7) Failure to prevent damage</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(8) Failure to use proper connectors</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(9) Failure to use proper anchorages</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="12">(b) Fall arrest system:</ENT> </ROW> <ROW> <ENT I="03">(1)-(17) Failure to provide conforming equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="12">(c) Safety net systems:</ENT> </ROW> <ROW> <ENT I="03">(1) Failure to install close to workplace</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(2) Failure to provide fall arrest if over 30 feet</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(3) Failure to provide for unobstructed fall</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(4) Failure to test</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(5) Failure to use proper equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(6) Failure to prevent contact with surface below</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(7) Failure to properly install</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(8) Failure to remove defective nets</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(9) Failure to inspect</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(10) Failure to remove objects</ENT> <ENT>1,000</ENT> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="03">(11)-(13) Failure to use conforming equipment</ENT> <ENT>2,500</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.107 Working over water:</ENT> </ROW> <ROW> <ENT I="02">(a)(i) Failure to provide life vest</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use life vest</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(c) Failure to inspect</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(e)(i) Failure to provide ring bouys</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use ring bouys</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(f)(i) Failure to provide skiff</ENT> <ENT>1,000</ENT> <ENT>2,500</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use skiff</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="11">214.109 Scaffolding:</ENT> </ROW> <ROW> <ENT I="02">(a)-(f) Failure to provide conforming equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="11">214.113 Head protection:</ENT> </ROW> <ROW> <ENT I="02">(a)(i) Failure to provide</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(b) or (c) Failure to provide conforming equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="11">214.115 Foot protection:</ENT> </ROW> <ROW> <ENT I="02">(a)(i) Failure to require use of</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="11">214.117 Eye and face protection:</ENT> </ROW> <ROW> <ENT I="02">(a)(i) Failure to provide</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to use</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(b) Failure to use conforming equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c) Use of defective equipment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(d) Failure to provide for corrective lenses</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="21"> <E T="02">Subpart C—Roadway Worker Protection Rule</E> </ENT> </ROW> <ROW> <ENT I="11">214.303 Railroad on-track safety programs, generally:</ENT> </ROW> <ROW> <ENT I="02">(a) Failure of a railroad to implement an On-track Safety Program</ENT> <ENT>10,000</ENT> <ENT>20,000</ENT> </ROW> <ROW> <ENT I="02">(b) On-track Safety Program of a railroad includes no internal monitoring procedure</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.305 Compliance Dates:</ENT> </ROW> <ROW> <ENT I="02">Failure of a railroad to comply by the specified dates</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.307 Review and approval of individual on-track safety programs by FRA:</ENT> </ROW> <ROW> <ENT I="02">(a)(i) Failure to notify FRA of adoption of On-track Safety Program</ENT> <ENT>1,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure to designate primary person to contact for program review</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="11">214.309 On-track safety program documents:</ENT> </ROW> <ROW> <ENT I="02">(1) On-track Safety Manual not provided to prescribed employees</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(2) On-track Safety Program documents issued in fragments</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="11">214.311 Responsibility of employers:</ENT> </ROW> <ROW> <ENT I="02">(b) Roadway worker required by employer to foul a track during an unresolved challenge</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <PRTPAGE P="179"/> <ENT I="02">(c) Roadway workers not provided with written procedure to resolve challenges of on-track safety procedures</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.313 Responsibility of individual roadway workers:</ENT> </ROW> <ROW> <ENT I="02">(b) Roadway worker fouling a track when not necessary in the performance of duty</ENT> <ENT/> <ENT>1,000</ENT> </ROW> <ROW> <ENT I="02">(c) Roadway worker fouling a track without ascertaining that provision is made for on-track safety</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(d) Roadway worker failing to notify employer of determination of improper on-track safety provisions</ENT> <ENT/> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="11">214.315 Supervision and communication:</ENT> </ROW> <ROW> <ENT I="02">(a) Failure of employer to provide job briefing</ENT> <ENT>2,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="02">(b) Incomplete job briefing</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c)(i) Failure to designate roadway worker in charge of roadway work group</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Designation of more than one roadway worker in charge of one roadway work group</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(iii) Designation of non-qualified roadway worker in charge of roadway work group</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="02">(d)(i) Failure to notify roadway workers of on-track safety procedures in effect</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="03">(ii) Incorrect information provided to roadway workers regarding on-track safety procedures in effect</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="03">(iii) Failure to notify roadway workers of change in on-track safety procedures</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="02">(e)(i) Failure of lone worker to communicate with designated employee for daily job briefing</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="03">(ii) Failure of employer to provide means for lone worker to receive daily job briefing</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="11">214.317 On-track safety procedures, generally:</ENT> </ROW> <ROW> <ENT I="03">On-track safety rules conflict with this part</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.319 Working limits, generally:</ENT> </ROW> <ROW> <ENT I="02">(a) Non-qualified roadway worker in charge of working limits</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="02">(b) More than one roadway worker in charge of working limits on the same track segment</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c)(1) Working limits released without notifying all affected roadway workers</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(2) Working limits released before all affected roadway workers are otherwise protected</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.321 Exclusive track occupancy:</ENT> </ROW> <ROW> <ENT I="02">(b) Improper transmission of authority for exclusive track occupancy</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(b)(1) Failure to repeat authority for exclusive track occupancy to issuing employee</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="03">(2) Failure to retain possession of written authority for exclusive track occupancy</ENT> <ENT/> <ENT>1,000</ENT> </ROW> <ROW> <ENT I="03">(3) Failure to record authority for exclusive track occupancy when issued</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="02">(c) Limits of exclusive track occupancy not identified by proper physical features</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="02">(d)(1) Movement authorized into limits of exclusive track occupancy without authority of roadway worker in charge</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(2) Movement authorized within limits of exclusive track occupancy without authority of roadway worker in charge</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(3) Movement within limits of exclusive track occupancy exceeding restricted speed without authority of roadway worker in charge</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.323 Foul time:</ENT> </ROW> <ROW> <ENT I="02">(a) Foul time authority overlapping movement authority of train or equipment</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="02">(b) Failure to repeat foul time authority to issuing employee</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="11">214.325 Train coordination:</ENT> </ROW> <ROW> <ENT I="02">(a) Train coordination limits established where more than one train is authorized to operate</ENT> <ENT>1,500</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="02">(b)(1) Train coordination established with train not visible to roadway worker at the time</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="03">(2) Train coordination established with moving train</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="03">(3) Coordinated train moving without authority of roadway worker in charge</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(4) Coordinated train releasing movement authority while working limits are in effect</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="11">214.327 Inaccessible track:</ENT> </ROW> <ROW> <ENT I="02">(a) Improper control of entry to inaccessible track</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="03">(5) Remotely controlled switch not properly secured by control operator</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="02">(b) Train or equipment moving within inaccessible track limits without permission of roadway worker in charge</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="02">(c) Unauthorized train or equipment located within inaccessible track limits</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="11">214.329 Train approach warning provided by watchmen/lookouts:</ENT> </ROW> <ROW> <ENT I="02">(a) Failure to give timely warning of approaching train</ENT> <ENT/> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(b)(1) Failure of watchman/lookout to give full attention to detecting approach of train</ENT> <ENT/> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="03">(2) Assignment of other duties to watchman/lookout</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c) Failure to provide proper warning signal devices</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(d) Failure to maintain position to receive train approach warning signal</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="02">(e) Failure to communicate proper warning signal</ENT> <ENT>1,500</ENT> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="02">(f)(1) Assignment of non-qualified person as watchman/lookout</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(2) Non-qualified person accepting assignment as watchman/lookout</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="02">(g) Failure to properly equip a watchman/lookout</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="11">214.331 Definite train location:</ENT> </ROW> <ROW> <ENT I="02">(a) Definite train location established where prohibited</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(b) Failure to phase out definite train location by required date</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(d)(1) Train location information issued by unauthorized person</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(2) Failure to include all trains operated on train location list</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(5) Failure to clear a by ten minutes at the last station at which time is shown</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(6) Train passing station before time shown in train location list</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(7) Non-qualified person using definite train location to establish on- track safety</ENT> <ENT>2,000</ENT> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="11">214.333 Informational line-ups of trains:</ENT> </ROW> <ROW> <ENT I="02">(a) Informational line-ups of trains used for on-track safety where prohibited</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <PRTPAGE P="180"/> <ENT I="02">(b) Informational line-up procedures inadequate to protect roadway workers</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="02">(c) Failure to discontinue informational line-ups by required date</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.335 On-track safety procedures for roadway work groups :</ENT> </ROW> <ROW> <ENT I="02">(a) Failure to provide on-track safety for a member of a roadway work group</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(b) Member of roadway work group fouling a track without authority of employee in charge</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="02">(c) Failure to provide train approach warning or working limits on adjacent track where required</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="11">214.337 On-track safety procedures for lone workers:</ENT> </ROW> <ROW> <ENT I="02">(b) Failure by employer to permit individual discretion in use of individual train detection</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="02">(c)(1) Individual train detection used by non-qualified employee</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(2) Use of individual train detection while engaged in heavy or distracting work</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(3) Use of individual train detection in controlled point or manual interlocking</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(4) Use of individual train detection with insufficient visibility</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(5) Use of individual train detection with interfering noise</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="03">(6) Use of individual train detection while a train is passing</ENT> <ENT/> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="02">(d) Failure to maintain access to place of safety clear of live tracks</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="02">(e) Lone worker unable to maintain vigilant lookout</ENT> <ENT/> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="02">(f)(1) Failure to prepare written statement of on-track safety</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="03">(2) Incomplete written statement of on-track safety</ENT> <ENT/> <ENT>1,000</ENT> </ROW> <ROW> <ENT I="03">(3) Failure to produce written statement of on-track safety to FRA</ENT> <ENT/> <ENT>1,500</ENT> </ROW> <ROW> <ENT I="11">214.339 Audible warning from trains:</ENT> </ROW> <ROW> <ENT I="02">(a) Failure to require audible warning from trains</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="02">(b) Failure of train to give audible warning where required</ENT> <ENT>1,000</ENT> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="11">214.341 Roadway maintenance machines:</ENT> </ROW> <ROW> <ENT I="02">(a) Failure of on-track safety program to include provisions for safety near roadway maintenance machines</ENT> <ENT>3,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(b) Failure to provide operating instructions</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(1) Assignment of non-qualified employee to operate machine</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(2) Operator unfamiliar with safety instructions for machine</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(3) Roadway worker working with unfamiliar machine</ENT> <ENT>2,000</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c) Roadway maintenance machine not clear of passing trains</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="11">214.343 Training and qualification, general:</ENT> </ROW> <ROW> <ENT I="02">(a)(1) Failure of railroad program to include training provisions</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(2) Failure to provide initial training</ENT> <ENT>3,000</ENT> <ENT>6,000</ENT> </ROW> <ROW> <ENT I="02">(b) Failure to provide annual training</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="02">(c) Assignment of non-qualified railroad employees to provide on-track safety</ENT> <ENT>4,000</ENT> <ENT>8,000</ENT> </ROW> <ROW> <ENT I="02">(d)(1) Failure to maintain records of qualifications</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(2) Incomplete records of qualifications</ENT> <ENT>1,000</ENT> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="03">(3) Failure to provide records of qualifications to FRA</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="11">214.345 Training for all roadway workers</ENT> </ROW> <ROW> <ENT I="11">214.347 Training and qualification for lone workers</ENT> </ROW> <ROW> <ENT I="11">214.349 Training and qualification of watchmen/lookouts</ENT> </ROW> <ROW> <ENT I="11">214.351 Training and qualification of flagmen</ENT> </ROW> <ROW> <ENT I="11">214.353 Training and qualification of roadway workers who provide on-track safety for roadway work groups</ENT> </ROW> <ROW> <ENT I="11">214.355 Training and qualification in on-track safety for operators of roadway maintenance machines</ENT> </ROW> <ROW> <ENT I="21"> <E T="02">Subpart D—On-Track Roadway Maintenance Machines and Hi-Rail Vehicles</E> </ENT> </ROW> <ROW> <ENT I="11">214.503Good-faith challenges; procedures for notification and resolution:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure of employee to notify employer that the machine or vehicle does not comply with this subpart or has a condition inhibiting safe operation</ENT> <ENT/> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(b) Roadway worker required to operate machine or vehicle when good-faith challenge not resolved</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(c) Failure of employer to have or follow written procedures to resolve good-faith challenges</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="22">214.505Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure to equip new machines with required systems</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(b) Failure of new or existing machines to protect employees from exposure to air contaminants</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(c) Failure of employer to maintain required list of machines or make list available</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(d) Removal of “designated machine” from list before retired or sold</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(e) Personal respiratory protective equipment not provided when ventilation system fails</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(f) Personal respiratory protective equipment fails to meet required standards</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(g) Other new machines with enclosed cabs not equipped with operable heating and ventilation systems</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(h) Non-enclosed station not equipped with covering, where feasible</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="11">214.507Required safety equipment for new on-track roadway maintenance machines:</ENT> </ROW> <ROW> <ENT I="03">(a)(1)-(5) Failure to equip new machine or provide protection as specified in these paragraphs</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(a)(6)-(7) Failure to equip new machine with first-aid kit or operative and charged fire extinguisher</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(b) Position for operator to stand not properly equipped to provide safe and secure position</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <PRTPAGE P="181"/> <ENT I="03">(c) New machine not equipped with accurate speed indicator, as required.</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(d) As-built light weight not conspicuously displayed on new machine</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="01">214.509Required visual illumination and reflective devices for new on-track roadway maintenance machines</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="01">214.511Required audible warning devices for new on-track roadway maintenance machines</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="22">214.513Retrofitting of existing on-track roadway maintenance machines; general:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure to provide safe and secure position and protection from moving parts 2,000 4,000 inside cab for each roadway worker transported on machine</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(b) Horn or other audible warning device is missing, inoperable, or has non-compliant triggering mechanism</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(c) Illumination device or portable light missing, inoperable, improperly secured, or incapable of illuminating track as required</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22">214.515Overhead covers for existing on-track roadway maintenance machines:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure to repair, reinstall, or maintain overhead cover as required</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(b) Failure to provide written response to operator's request within 60 days</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="22">214.517Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure to equip machine with change-of-direction alarm or rearward viewing device.</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(b) Failure to equip machine with operative heater</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(c) Failure to display light weight of machine as required</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(d) Failure to equip machine with reflective material, reflective device, or operable brake lights</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(e) Failure to install or replace safety glass as required</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(f) Failure to equip machine with turntable restraint device or warning light as required</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="01">214.518Safe and secure position for riders</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="01">214.519Floors, decks, stairs, and ladders for on-track roadway maintenance machines</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="01">214.521Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22">214.523Hi-rail vehicles:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure to inspect hi-rail gear annually</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="03">(b) Failure to maintain inspection record or make record available to FRA</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(c) Failure to equip new hi-rail vehicle with alarm and light or beacon as required</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(d)(2) Failure of operator to tag, date or report non-complying condition</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(d)(3) Failure to repair or replace non-complying alarms, lights or beacons as required</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="01">214.525Towing with on-track roadway maintenance machines or hi-rail vehicles</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="22">214.527On-track roadway maintenance machines; inspection for compliance and schedule for repairs:</ENT> </ROW> <ROW> <ENT I="03">(a) Failure of operator to check on-track roadway maintenance machine for compliance</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(b) Failure of oeprator to tag, date, or report noncomplying condition</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="03">(c)(1)-(4) Failure to meet requirements for operating on-track roadway maintenance machine with non-complying headlights, work lights, horn, fire extinguisher, alarm, warning light, or beacon</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(c)(5) Failure to repair or replace defective or missing operator's seat within required time period</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="01">214.529In-service failure of primary braking system</ENT> <ENT>5,000</ENT> <ENT>10,000</ENT> </ROW> <ROW> <ENT I="01">214.531Schedule of repairs; general</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="22">214.533Schedule of repairs subject to availability of parts:</ENT> </ROW> <ROW> <ENT I="03">(a)-(c) Failure to order necessary part(s), make repair(s), or remove on-track roadway maintenance machine or hi-rail vehicle from service as required</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">(d) Failure to maintain record or make record available to FRA</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <TNOTE> <SU>1</SU> 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 $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.</TNOTE> </GPOTABLE> <CITA>[57 FR 28127, June 24, 1992, as amended at 61 FR 65981, Dec. 16, 1996; 63 FR 11620, Mar. 10, 1998; 68 FR 44412, July 28, 2003; 69 FR 8839, Feb. 26, 2004; 69 FR 30593, May 28, 2004; 73 FR 79701, Dec. 30, 2008]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 215</EAR> <HD SOURCE="HED">PART 215—RAILROAD FREIGHT CAR SAFETY STANDARDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>215.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <SECTNO>215.3</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>215.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>215.7</SECTNO> <SUBJECT>Prohibited acts.</SUBJECT> <SECTNO>215.9</SECTNO> <SUBJECT>Movement of defective cars for repair.</SUBJECT> <SECTNO>215.11</SECTNO> <SUBJECT>Designated inspectors.</SUBJECT> <SECTNO>215.13</SECTNO> <SUBJECT>Pre-departure inspection.</SUBJECT> <SECTNO>215.15</SECTNO> <SUBJECT>Periodic inspection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Freight Car Components</HD> <SECTNO>215.101</SECTNO> <SUBJECT>Scope.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Suspension System</HD> <SECTNO>215.103</SECTNO> <SUBJECT>Defective wheel.</SUBJECT> <SECTNO>215.105</SECTNO> <SUBJECT>Defective axle.</SUBJECT> <SECTNO>215.107</SECTNO> <SUBJECT>Defective plain bearing box: General.</SUBJECT> <SECTNO>215.109</SECTNO> <SUBJECT>Defective plain bearing box: Journal lubrication system.<PRTPAGE P="182"/> </SUBJECT> <SECTNO>215.111</SECTNO> <SUBJECT>Defective plain bearing.</SUBJECT> <SECTNO>215.113</SECTNO> <SUBJECT>Defective plain bearing wedge.</SUBJECT> <SECTNO>215.115</SECTNO> <SUBJECT>Defective roller bearing.</SUBJECT> <SECTNO>215.117</SECTNO> <SUBJECT>Defective roller bearing adapter.</SUBJECT> <SECTNO>215.119</SECTNO> <SUBJECT>Defective freight car truck.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Car Bodies</HD> <SECTNO>215.121</SECTNO> <SUBJECT>Defective car body.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Draft System</HD> <SECTNO>215.123</SECTNO> <SUBJECT>Defective couplers.</SUBJECT> <SECTNO>215.125</SECTNO> <SUBJECT>Defective uncoupling device.</SUBJECT> <SECTNO>215.127</SECTNO> <SUBJECT>Defective draft arrangement.</SUBJECT> <SECTNO>215.129</SECTNO> <SUBJECT>Defective cushioning device.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Restricted Equipment</HD> <SECTNO>215.201</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>215.203</SECTNO> <SUBJECT>Restricted cars.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Stenciling</HD> <SECTNO>215.301</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>215.303</SECTNO> <SUBJECT>Stenciling of restricted cars.</SUBJECT> <SECTNO>215.305</SECTNO> <SUBJECT>Stenciling of maintenance-of-way equipment.</SUBJECT> <APP>Appendix A to Part 215—Railroad Freight Car Components</APP> <APP>Appendix B to Part 215—Schedule of Civil Penalties</APP> <APP>Appendix C to Part 215—FRA Freight Car Standards Defect Code</APP> <APP>Appendix D to Part 215—Pre-Departure Inspection Procedure</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>44 FR 77340, Dec. 31, 1979, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 215.1</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <P>This part prescribes minimum Federal safety standards for railroad freight cars.</P> </SECTION> <SECTION> <SECTNO>§ 215.3</SECTNO> <SUBJECT>Application.</SUBJECT> <P>(a) Except as provided in paragraphs (b) and (c) of this section, this part applies to each railroad freight car in service on:</P> <P>(1) Standard gage track of a railroad; or</P> <P>(2) Any other standard gage track while the car is being operated by, or is otherwise under the control of, a railroad.</P> <P>(b) Sections 215.15 and 215.303 of this part do not apply to any car:</P> <P>(1) Owned by a Canadian or Mexican Railroad; and</P> <P>(2) Having a Canadian or Mexican reporting mark and car number.</P> <P>(c) This part does not apply to a railroad freight car that is:</P> <P>(1) Operated solely on track inside an industrial or other non-railroad installation; or</P> <P>(2) Used exclusively in dedicated service as defined in § 215.5(d) of this part; or</P> <P>(3) Maintenance-of-way equipment (including self-propelled maintenance-of-way equipment) if that equipment is not used in revenue service and is stenciled in accordance with § 215.305 of this part.</P> <P>(4) Operated in a passenger train and that is inspected, tested, maintained, and operated pursuant to the requirements contained in part 238 of this chapter.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 65 FR 41305, July 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P>(a) <E T="03">Break</E> means a fracture resulting in complete separation into parts;</P> <P>(b) <E T="03">Cracked</E> 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”;</P> <P>(c) <E T="03">Railroad freight car</E> means a car designed to carry freight, or railroad personnel, by rail and includes a:</P> <P>(1) Box car;</P> <P>(2) Refrigerator car;</P> <P>(3) Ventilator car;</P> <P>(4) Stock car;</P> <P>(5) Gondola car;</P> <P>(6) Hopper car;</P> <P>(7) Flat car;</P> <P>(8) Special car;</P> <P>(9) Caboose car;</P> <P>(10) Tank car; and</P> <P>(11) Yard car.</P> <P>(d) <E T="03">Dedicated service</E> means the exclusive assignment of cars to the transportation of freight between specified points under the following conditions:</P> <P>(1) The cars are operated—</P> <P>(i) Primarily on track that is inside an industrial or other non-railroad installation; and</P> <P>(ii) Only occasionally over track of a railroad;</P> <P>(2) The cars are not operated—<PRTPAGE P="183"/> </P> <P>(i) At speeds of more than 15 miles per hour; and</P> <P>(ii) Over track of a railroad—</P> <P>(A) For more than 30 miles in one direction; or</P> <P>(B) On a round trip of more than 60 miles;</P> <P>(3) The cars are not freely interchanged among railroads;</P> <P>(4) The words “Dedicated Service” are stenciled, or otherwise displayed, in clearly legible letters on each side of the car body;</P> <P>(5) The cars have been examined and found safe to operate in dedicated service; and</P> <P>(6) The railroad must—</P> <P>(i) Notify the FRA in writing that the cars are to be operated in dedicated service;</P> <P>(ii) Identify in that notice—</P> <P>(A) The railroads affected;</P> <P>(B) The number and type of cars involved;</P> <P>(C) The commodities being carried; and</P> <P>(D) The territorial and speed limits within which the cars will be operated; and</P> <P>(iii) File the notice required by this paragraph not less than 30 days before the cars operate in dedicated service;</P> <P>(e) <E T="03">In service</E> when used in connection with a railroad freight car, means each railroad freight car subject to this part unless the car:</P> <P>(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 § 215.9 of this part;</P> <P>(2) Is in a repair shop or on a repair track;</P> <P>(3) Is on a storage track and is empty; or</P> <P>(4) Has been delivered in interchange but has not been accepted by the receiving carrier.</P> <P>(f) <E T="03">Railroad</E> 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.</P> <P>(g) <E T="03">State inspector</E> 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).</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26710, Apr. 21, 1980; 54 FR 33228, Aug. 14, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.7</SECTNO> <SUBJECT>Prohibited acts.</SUBJECT> <P>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 $650 and not more than $25,000 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 $100,000 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.</P> <CITA>[53 FR 28599, July 28, 1988, as amended at 53 FR 52925, Dec. 29, 1988; 63 FR 11620, Mar. 10, 1998; 69 FR 30593, May 28, 2004; 72 FR 51196, Sept. 6, 2007; 73 FR 79701, Dec. 30, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.9</SECTNO> <SUBJECT>Movement of defective cars for repair.</SUBJECT> <P>(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:</P> <P>(1) A person designated under § 215.11 shall determine:<PRTPAGE P="184"/> </P> <P>(i) That it is safe to move the car; and</P> <P>(ii) The maximum speed and other restrictions necessary for safely conducting the movement;</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(i) The reporting mark and car number;</P> <P>(ii) The name of the inspecting railroad;</P> <P>(iii) The inspection location and date;</P> <P>(iv) The nature of each defect;</P> <P>(v) Movement restrictions;</P> <P>(vi) The destination for shopping or repair; and</P> <P>(vii) The signature of a person designated under § 215.11.</P> <P>(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 § 215.11 of this part.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(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</P> <P>(2) Unloading is necessary for the safe repair of the car.</P> <P>(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.</P> <CITA>[44 FR 77340, Dec. 31, 1979; 45 FR 26710, Apr. 21, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.11</SECTNO> <SUBJECT>Designated inspectors.</SUBJECT> <P>(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 § 215.9 of this part.</P> <P>(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 § 215.9 of this part.</P> <P>(c) With respect to designations under this section, each railroad shall maintain written records of:</P> <P>(1) Each designation in effect; and</P> <P>(2) The basis for each designation.</P> <CITA>[45 FR 26710, Apr. 21, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.13</SECTNO> <SUBJECT>Pre-departure inspection.</SUBJECT> <P>(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.</P> <P>(b) At a location where an inspector designated under § 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.<PRTPAGE P="185"/> </P> <P>(c) At a location where a person designated under § 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.</P> <P>(d) Performance of the inspection prescribed by this section does not relieve a railroad of its liability under § 215.7 for failure to comply with any other provision of this part.</P> <CITA>[45 FR 26710, Apr. 21, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.15</SECTNO> <SUBJECT>Periodic inspection.</SUBJECT> <P>(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—</P> <P>(1) The car is a high utilization car built or reconditioned after December 31, 1977; or</P> <P>(2) The car is a non-high utilization car built or reconditioned after December 31, 1971.</P> <P>(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.</P> <P>(c) As used in this section, “high utilization car” means a car—</P> <P>(1) Specifically equipped to carry trucks, automobiles, containers, trailers, or removable trailer bodies for the transportation of freight; or</P> <P>(2) Assigned to a train that operates in a continuous round trip cycle between the same two points.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Freight Car Components</HD> <SECTION> <SECTNO>§ 215.101</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart contains safety requirements prohibiting a railroad from placing or continuing in service a freight car that has certain defective components.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Suspension System</HD> <SECTION> <SECTNO>§ 215.103</SECTNO> <SUBJECT>Defective wheel.</SUBJECT> <P>A railroad may not place or continue in service a car, if—</P> <P>(a) A wheel flange on the car is worn to a thickness of <FR>7/8</FR> of an inch, or less, at a point <FR>3/8</FR> of an inch above the tread of the wheel;</P> <P>(b) The height of a wheel flange on the car, from the tread to the top of the flange, is 1<FR>1/2</FR> inches, or more;</P> <P>(c) The thickness of a rim of a wheel on the car is <FR>11/16</FR> of an inch, or less;</P> <P>(d) A wheel rim, flange, plate, or hub area on the car has a crack or break;</P> <P>(e) A wheel on the car has a chip or gouge in the flange that is 1<FR>1/2</FR> inches in length and <FR>1/2</FR> inch in width, or more;</P> <P>(f) A wheel on the car has—</P> <P>(1) A slid flat or shelled spot that is more than 2<FR>1/2</FR> inches in length; or</P> <P>(2) Two adjoining flat or shelled spots each of which is more than two inches in length;</P> <P>(g) A wheel on the car shows evidence of being loose such as oil seepage on the back hub or back plate;</P> <P>(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,</P> <P>(i) A wheel on the car has been welded unless the car is being moved for repair in accordance with § 215.9 of this part.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 50 FR 13382, Apr. 4, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.105</SECTNO> <SUBJECT>Defective axle.</SUBJECT> <P>A railroad may not place or continue in service a car, if—</P> <P>(a) An axle on the car has a crack or is broken;</P> <P>(b) An axle on the car has a gouge in the surface that is—</P> <P>(1) Between the wheel seats; and</P> <P>(2) More than one-eighth inch in depth;</P> <P>(c) An axle on the car, used in conjunction with a plain bearing, has an end collar that is broken or cracked;</P> <P>(d) A journal on the car shows evidence of overheating, as evidenced by a <PRTPAGE P="186"/>pronounced blue black discoloration; or</P> <P>(e) The surface of the plain bearing journal on the axle, or the fillet on the axle, has—</P> <P>(1) A ridge;</P> <P>(2) A depression;</P> <P>(3) A circumferential score;</P> <P>(4) Corrugation;</P> <P>(5) A scratch;</P> <P>(6) A continuous streak;</P> <P>(7) Pitting;</P> <P>(8) Rust; or</P> <P>(9) Etching.</P> </SECTION> <SECTION> <SECTNO>§ 215.107</SECTNO> <SUBJECT>Defective plain bearing box: General.</SUBJECT> <P>A railroad may not place or continue in service a car, if the car has—</P> <P>(a) A plain bearing box that does not contain visible free oil;</P> <P>(b) A plain bearing box lid that is missing, broken, or open except to receive servicing; or</P> <P>(c) A plain bearing box containing foreign matter, such as dirt, sand, or coal dust, that can reasonably be expected to—</P> <P>(1) Damage the bearing; or</P> <P>(2) Have a detrimental effect on the lubrication of the journal and the bearings.</P> </SECTION> <SECTION> <SECTNO>§ 215.109</SECTNO> <SUBJECT>Defective plain bearing box: Journal lubrication system.</SUBJECT> <P>A railroad may not place or continue in service a car, if the car has a plain bearing box with a lubricating pad that—</P> <P>(a) Has a tear extending half the length or width of the pad, or more;</P> <P>(b) Shows evidence of having been scorched, burned, or glazed;</P> <P>(c) Contains decaying or deteriorated fabric that impairs proper lubrication of the pad;</P> <P>(d) Has—</P> <P>(1) An exposed center core (except by design); or</P> <P>(2) Metal parts contacting the journal; or</P> <P>(e) Is—</P> <P>(1) Missing; or</P> <P>(2) Not in contact with the journal.</P> </SECTION> <SECTION> <SECTNO>§ 215.111</SECTNO> <SUBJECT>Defective plain bearing.</SUBJECT> <P>A railroad may not place or continue in service a car, if the car has a plain bearing—</P> <P>(a) That is missing, cracked, or broken;</P> <P>(b) On which the bearing liner—</P> <P>(1) Is loose; or</P> <P>(2) Has a broken out piece; or</P> <P>(c) That shows signs of having been overheated, as evidenced by—</P> <P>(1) Melted babbitt;</P> <P>(2) Smoke from hot oil; or</P> <P>(3) Journal surface damage.</P> </SECTION> <SECTION> <SECTNO>§ 215.113</SECTNO> <SUBJECT>Defective plain bearing wedge.</SUBJECT> <P>A railroad may not place or continue in service a car, if a plain bearing wedge on that car is—</P> <P>(a) Missing;</P> <P>(b) Cracked;</P> <P>(c) Broken; or</P> <P>(d) Not located in its design position.</P> </SECTION> <SECTION> <SECTNO>§ 215.115</SECTNO> <SUBJECT>Defective roller bearing.</SUBJECT> <P>(a) A railroad may not place or continue in service a car, if the car has—</P> <P>(1) A roller bearing that shows signs of having been overheated as evidenced by—</P> <P>(i) Discoloration; or</P> <P>(ii) Other telltale signs of overheating such as damage to the seal or distortion of any bearing component;</P> <P>(2) A roller bearing with a—</P> <P>(i) Loose or missing cap screw; or</P> <P>(ii) Broken, missing, or improperly applied cap screw lock; or</P> <P>(3) A roller bearing with a seal that is loose or damaged, or permits leakage of lubricant in clearly formed droplets.</P> <P>(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:</P> <P>(i) Visual examination to determine whether it shows any sign of damage; and</P> <P>(ii) Spinning freely its wheel set or manually rotating the bearing to determine whether the bearing makes any unusual noise.</P> <P>(2) The roller bearing shall be disassembled from the axle and inspected internally if—</P> <P>(i) It shows any external sign of damage;</P> <P>(ii) It makes any unusual noise when its wheel set is spun freely or the bearing is manually rotated;<PRTPAGE P="187"/> </P> <P>(iii) Its truck was involved in a derailment at a speed of more than 10 miles per hour; or</P> <P>(iv) Its truck was dragged on the ground for more than 200 feet.</P> <P>(3) Each defective roller bearing shall be repaired or replaced before the car is placed back in service.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26711, Apr. 21, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 215.117</SECTNO> <SUBJECT>Defective roller bearing adapter.</SUBJECT> <P>A railroad may not place or continue in service a car, if the car has a roller bearing adapter that is—</P> <P>(a) Cracked or broken;</P> <P>(b) Not in its design position; or</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 215.119</SECTNO> <SUBJECT>Defective freight car truck.</SUBJECT> <P>A railroad may not place or continue in service a car, if the car has—</P> <P>(a) A side frame or bolster that—</P> <P>(1) Is broken; or</P> <P>(2) Has a crack of <FR>1/4</FR> of an inch or more in the transverse direction on a tension member;</P> <P>(b) A truck equipped with a snubbing device that is ineffective, as evidenced by—</P> <P>(1) A snubbing friction element that is worn beyond a wear indicator;</P> <P>(2) A snubber wear plate that is loose, missing (except by design), or worn through;</P> <P>(3) A broken or missing snubber activating spring; or</P> <GPH DEEP="249" SPAN="2"> <GID>EC01AP91.002</GID> </GPH> <P>(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.</P> <P>(c) A side bearing in any of the following conditions:</P> <P>(1) Part of the side bearing assembly is missing or broken;<PRTPAGE P="188"/> </P> <P>(2) The bearings at one end of the car, on both sides, are in contact with the body bolster (except by design);</P> <P>(3) The bearings at one end of the car have a total clearance from the body bolster of more than <FR>3/4</FR> of an inch; or</P> <P>(4) At diagonally opposite sides of the car, the bearings have a total clearance from the body bolsters of more than <FR>3/4</FR> of an inch;</P> <P>(d) Truck springs—</P> <P>(1) That do not maintain travel or load;</P> <P>(2) That are compressed solid; or</P> <P>(3) More than one outer spring of which is broken, or missing, in any spring cluster;</P> <P>(e) Interference between the truck bolster and the center plate that prevents proper truck rotations; or</P> <P>(f) Brake beam shelf support worn so excessively that it does not support the brake beam.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Car Bodies</HD> <SECTION> <SECTNO>§ 215.121</SECTNO> <SUBJECT>Defective car body.</SUBJECT> <P>A railroad may not place or continue in service a car, if:</P> <P>(a) Any portion of the car body, truck, or their appurtenances (except wheels) has less than a 2<FR>1/2</FR> inch clearance from the top of rail;</P> <P>(b) The car center sill is:</P> <P>(1) Broken;</P> <P>(2) Cracked more than 6 inches; or</P> <P>(3) Permanently bent or buckled more than 2<FR>1/2</FR> inches in any six foot length;</P> <P>(c) The car has a coupler carrier that is:</P> <P>(1) Broken;</P> <P>(2) Missing;</P> <P>(3) Non-resilient and the coupler has a type F head.</P> <P>(d) After December 1, 1983, the car is a box car and its side doors are not equipped with operative hangers, or the equivalent, to prevent the doors from becoming disengaged.</P> <P>(e) The car has a center plate:</P> <P>(1) That is not properly secured;</P> <P>(2) Any portion of which is missing; or</P> <P>(3) That is broken; or</P> <P>(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</P> <P>(f) The car has a broken sidesill, crossbearer, or body bolster.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 47 FR 53737, Dec. 29, 1982]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Draft System</HD> <SECTION> <SECTNO>§ 215.123</SECTNO> <SUBJECT>Defective couplers.</SUBJECT> <P>A railroad may not place or continue in service a car, if—</P> <P>(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;</P> <P>(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).</P> <P>(c) The car has a coupler knuckle that is broken or cracked on the inside pulling face of the knuckle.</P> <P>(d) The car has a knuckle pin or knuckle thrower that is:</P> <P>(1) Missing; or</P> <P>(2) Inoperative; or</P> <P>(e) The car has a coupler retainer pin lock that is—</P> <GPH DEEP="318" SPAN="2"> <PRTPAGE P="189"/> <GID>EC01AP91.003</GID> </GPH> <P>(1) Missing; or</P> <P>(2) Broken; or</P> <P>(f) The car has a coupler with any of the following conditions:</P> <P>(1) The locklift is inoperative;</P> <P>(2) The coupler assembly does not have anticreep protection to prevent unintentional unlocking of the coupler lock; or</P> <P>(3) The coupler lock is—</P> <P>(i) Missing;</P> <P>(ii) Inoperative;</P> <P>(iii) Bent;</P> <P>(iv) Cracked; or</P> <P>(v) Broken.</P> </SECTION> <SECTION> <SECTNO>§ 215.125</SECTNO> <SUBJECT>Defective uncoupling device.</SUBJECT> <P>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—</P> <P>(a) Fouling on curves; or</P> <P>(b) Unintentional uncouplings.</P> </SECTION> <SECTION> <SECTNO>§ 215.127</SECTNO> <SUBJECT>Defective draft arrangement.</SUBJECT> <P>A railroad may not place or continue in service a car, if—</P> <P>(a) The car has a draft gear that is inoperative;</P> <P>(b) The car has a broken yoke;</P> <P>(c) An end of car cushioning unit is—</P> <P>(1) Leaking clearly formed droplets; or</P> <P>(2) Inoperative;</P> <P>(d) A vertical coupler pin retainer plate—</P> <P>(1) Is missing (except by design); or</P> <P>(2) Has a missing fastener;</P> <P>(e) The car has a draft key, or draft key retainer, that is—<PRTPAGE P="190"/> </P> <P>(1) Inoperative; or</P> <P>(2) Missing; or</P> <P>(f) The car has a missing or broken follower plate.</P> </SECTION> <SECTION> <SECTNO>§ 215.129</SECTNO> <SUBJECT>Defective cushioning device.</SUBJECT> <P>A railroad may not place or continue in service a car if it has a cushioning device that is—</P> <P>(a) Broken;</P> <P>(b) Inoperative; or</P> <P>(c) Missing a part—</P> <FP>unless its sliding components have been effectively immobilized.</FP> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Restricted Equipment</HD> <SECTION> <SECTNO>§ 215.201</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This subpart contains requirements restricting the use of certain railroad freight cars.</P> </SECTION> <SECTION> <SECTNO>§ 215.203</SECTNO> <SUBJECT>Restricted cars.</SUBJECT> <P>(a) This section restricts the operation of any railroad freight car that is—</P> <P>(1) More than 50 years old, measured from the date of original construction;</P> <P>(2) Equipped with any design or type component listed in appendix A to this part; or</P> <P>(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.</P> <P>(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.</P> <P>(c) A railroad may petition the Administrator to continue in service a car described in paragraph (a) of this section. Each petition shall be</P> <P>(1) Be submitted not less than 90 days before the car is to be operated;</P> <P>(2) Be submitted; and</P> <P>(3) State or describe the following:</P> <P>(i) The name and principal business address of the petitioning railroad.</P> <P>(ii) The name and address of the entity that controls the operation and maintenance of the car involved.</P> <P>(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.</P> <P>(iv) The design, type component, or other item that causes the car to be restricted.</P> <P>(v) The maximum load the cars would carry.</P> <P>(vi) The maximum speed at which the cars would be operated.</P> <P>(vii) That each car has been examined and found to be safe to operate under the conditions set forth in the petition.</P> <P>(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.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 74 FR 25172, May 27, 2009]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Stenciling</HD> <SECTION> <SECTNO>§ 215.301</SECTNO> <SUBJECT>General.</SUBJECT> <P>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:</P> <P>(a) On each side of each railroad freight car body; and</P> <P>(b) In the case of a tank car, in any location that is visible to a person walking at track level beside the car.</P> </SECTION> <SECTION> <SECTNO>§ 215.303</SECTNO> <SUBJECT>Stenciling of restricted cars.</SUBJECT> <P>(a) Each restricted railroad freight car that is described in § 215.205(a) of this part shall be stenciled, or marked—</P> <P>(1) In clearly legible letters; and</P> <P>(2) In accordance with paragraphs (b) and (c) of this section.</P> <P>(b) The letter “R” shall be—</P> <P>(1) Placed immediately below or to the right of the car number;</P> <P>(2) The same color as the reporting mark; and</P> <P>(3) The same size as the reporting mark.</P> <P>(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:</P> <P>(1) Age.</P> <P>(2) Coupler.</P> <P>(3) Draft.<PRTPAGE P="191"/> </P> <P>(4) Bearings.</P> <P>(5) Truck.</P> <P>(6) Underframe.</P> <P>(7) Wheels.</P> <P>(8) Yoke.</P> </SECTION> <SECTION> <SECTNO>§ 215.305</SECTNO> <SUBJECT>Stenciling of maintenance-of-way equipment.</SUBJECT> <P>(a) Maintenance-of-way equipment (including self-propelled maintenance-of-way equipment) described in § 215.3(c)(3) shall be stenciled, or marked—</P> <P>(1) In clearly legible letters; and</P> <P>(2) In accordance with paragraph (b) of this section.</P> <P>(b) The letters “MW” must be—</P> <P>(1) At least 2 inches high; and</P> <P>(2) Placed on each side of the car.</P> <CITA>[44 FR 77340, Dec. 31, 1979, as amended at 45 FR 26711, Apr. 21, 1980]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 215, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 215—Railroad Freight Car Components</HD> <P>List of components whose use is restricted by § 215.203 of this part. </P> <FP>A.Air brakes:</FP> <P>The “K” type. </P> <FP>B.Axles:</FP> <P>1. Former AAR alternate standard tubular type.</P> <P>2. Axle with letters “RJ” stamped on the end of the journal. </P> <FP>C.Couplers:</FP> <P>1. AAR type “D”, top or bottom operated.</P> <P>2. AAR type “E” with 5″ by 7″ shank. </P> <FP>D.Draft arrangement:</FP> <P>1. Miner FR-16 and FR-19-F draft gears.</P> <P>2. Farlow draft attachment. </P> <FP>E.Plain journal bearings:</FP> <P>Cartridge type. </P> <FP>F.Roller bearings:</FP> <P>1. Nippon Sieko Kabushiki Kaish (NSK) size 6<FR>1/2</FR>″ by 12″ (marked “AAR 11”).</P> <P>2. Hyatt cylindrical bearing, all sizes (marked “AAR 2”).</P> <P>3. SKF “Piggybacker” spherical roller, size 6″ by 11″ (marked “AAR 7”). </P> <FP>G.Trucks:</FP> <P>1. Arch bar type.</P> <P>2. Truck with cast steel pedestal side frame, short wheel base, and no bolster. </P> <FP>H.Truck bolsters:</FP> <P>1. A bolster with one of the following pattern numbers listed according to manufacturer:</P> <GPOTABLE CDEF="s25,9,9,9" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">A.S.F.</CHED> <CHED H="1">Dresser (Symington)</CHED> <CHED H="1">Birdsboro</CHED> <CHED H="1">Lenoir car works</CHED> </BOXHD> <ROW> <ENT I="01">21183-B</ENT> <ENT>BO 5234</ENT> <ENT>1458</ENT> <ENT>CS-184.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT>1468</ENT> </ROW> <ROW> <ENT I="01">21183-N</ENT> <ENT>BO 5263</ENT> <ENT>1471</ENT> <ENT>CS-611.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>BO 7076</ENT> </ROW> <ROW> <ENT I="01">21648-C</ENT> <ENT>BO 7076-A</ENT> </ROW> <ROW> <ENT I="01">22056-E</ENT> <ENT>BO 7115</ENT> </ROW> </GPOTABLE> <P>2. Bolster cast before 1927.</P> <P>3. Bolster without an identification mark or pattern number.</P> <FP>I.1.Truck side frames:</FP> <P>A side frame with one of the following pattern numbers listed according to manufacturer:</P> <GPOTABLE CDEF="s25,9,9,9" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">A.S.F.</CHED> <CHED H="1">National castings</CHED> <CHED H="1">Buckeye</CHED> <CHED H="1">Dominion</CHED> </BOXHD> <ROW> <ENT I="01">7273</ENT> <ENT>33793-1B</ENT> <ENT>3-1776</ENT> <ENT>TF-5100</ENT> </ROW> <ROW> <ENT I="01">7323</ENT> <ENT/> <ENT>F-420</ENT> </ROW> <ROW> <ENT I="01">21362 (cast prior to June 1941)</ENT> </ROW> </GPOTABLE> <GPOTABLE CDEF="s25,9,9,9" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Pittsburgh steel foundry</CHED> <CHED H="1">Scullin steel</CHED> <CHED H="1">Bettendorf</CHED> <CHED H="1">Canadian steel foundry</CHED> </BOXHD> <ROW> <ENT I="01">31673</ENT> <ENT>42-CS-180</ENT> <ENT>UT 456</ENT> <ENT>26565</ENT> </ROW> <ROW> <ENT I="01">4-1862</ENT> </ROW> <ROW> <ENT I="01">3-1674</ENT> <ENT>4665</ENT> </ROW> <ROW> <ENT I="01">4-2045</ENT> <ENT>4770</ENT> </ROW> <ROW> <ENT I="01">12897</ENT> <ENT>4942</ENT> </ROW> <ROW> <ENT I="01">12921</ENT> <ENT>5220</ENT> </ROW> <ROW> <ENT I="01">21263</ENT> <ENT>5364</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>5364-C</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>5364-E</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>5811-A</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>5869-B</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>6577-A</ENT> </ROW> </GPOTABLE> <P>2. Side frame cast before 1927.</P> <P>3. Side frame without an identification mark or pattern number.</P> <P>4. Side frame with an “I”, “T”, or “L” section compression or tension member.</P> <FP>J.Wheels:</FP> <P>1. Cast iron wheel.</P> <P>2. Cast steel wheel marked “AAR X-2.”</P> <P>3. Southern cast steel wheel manufactured before May 7, 1958.</P> <P>4. Griffin, three-riser cast steel wheel, ball rim design, 70-ton capacity.</P> <P>5. Griffin, three-riser cast steel wheel, two-wear, 70- and 50-ton capacity, 33 inch, (marked X-5 or CS-2).</P> <P>6. Wrought steel wheel manufactured before 1927, as indicated by marking on wheel.</P> <P>7. Cast steel wheel marked AAR X-4.</P> <P>8. Davis cast steel wheel.</P> <P>9. One-wear, 70-ton Southern (ABEX) U1 cast steel wheels dated May 7, 1958 through December 31, 1969.</P> <P>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.”<PRTPAGE P="192"/> </P> <P>B.Wheels dated January 1, 1964 through December 31, 1969, are marked with the symbols “CJ-33” and “U-1” <E T="03">or</E> “70T” and “U-1” cast on the back of the wheel plate.</P> <FP>K.Yokes:</FP> <P>1. Riveted type.</P> <P>2. Keyless type.</P> <P>3. Vertical key type.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 215, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 215—Schedule of Civil Penalties <SU>1</SU> </HD> <GPOTABLE CDEF="s100,10,10" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Section</CHED> <CHED H="1">Violation</CHED> <CHED H="1">Willful violation</CHED> </BOXHD> <ROW> <ENT I="11">Subpart A—General:</ENT> </ROW> <ROW> <ENT I="13">215.9 Movement for repair:</ENT> </ROW> <ROW> <ENT I="05">(a), (c)</ENT> <ENT>(<SU>1</SU>)</ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="05">(b)</ENT> <ENT>$2,500</ENT> <ENT>$5,000</ENT> </ROW> <ROW> <ENT I="03">215.11Designation of qualified persons</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="03">215.13Pre-departure inspection</ENT> <ENT>2,000</ENT> <ENT>4,000</ENT> </ROW> <ROW> <ENT I="11">Subpart B—Freight Car Components:</ENT> </ROW> <ROW> <ENT I="03" O="xl">215.103Defective wheel:</ENT> </ROW> <ROW> <ENT I="15">(a) Flange thickness of:</ENT> </ROW> <ROW> <ENT I="07">(1) 7/8″ or less but more than <FR>13/16</FR>″</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) <FR>13/16</FR>″ or less</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(b) Flange height of:</ENT> </ROW> <ROW> <ENT I="07">(1) 1<FR>1/2</FR>″ or greater but less than 1<FR>5/8</FR>″</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) 1<FR>5/8</FR>″ or more</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(c) Rim thickness of:</ENT> </ROW> <ROW> <ENT I="07">(1) <FR>11/16</FR>″ or less but more than <FR>5/8</FR>″</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) <FR>5/8</FR>″ or less</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(d) Wheel rim, flange plate hub width:</ENT> </ROW> <ROW> <ENT I="07">(1) Crack of less than 1″</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) Crack of 1″ or more</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="07">(3) Break</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(e) Chip or gouge in flange of:</ENT> </ROW> <ROW> <ENT I="07">(1) 1<FR>1/2</FR>″ or more but less than 1<FR>5/8</FR>″ in length; and <FR>1/2</FR>″ or more but less than <FR>5/8</FR>″ in width.</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) 1<FR>5/8</FR>″ or more in length; or <FR>5/8</FR>″ or more in width</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(f) Slid flat or shelled spot(s):</ENT> </ROW> <ROW> <ENT I="07">(1)(i) One spot more than 2<FR>1/2</FR>″, but less than 3″, in length</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(ii) One spot 3″ or more in length</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="07">(2)(i) Two adjoining spots each of which is more than 2″ but less than 2<FR>1/2</FR>″ in length</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(ii) Two adjoining spots both of which are at least 2″ in length, if either spot is 2<FR>1/2</FR>″, or more in length</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(g) Loose on axle</ENT> <ENT>6,000</ENT> <ENT>8,500</ENT> </ROW> <ROW> <ENT I="15">(h) Overheated; discoloration extending:</ENT> </ROW> <ROW> <ENT I="07">(1) more than 4″ but less than 4<FR>1/2</FR>″</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(2) 4<FR>1/2</FR>″ or more</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="15">(i) Welded</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="03" O="xl">215.105Defective axle:</ENT> </ROW> <ROW> <ENT I="05">(a)(1) Crack of 1″ or less.</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(2) Crack of more than 1″</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(3) Break</ENT> <ENT>6,000</ENT> <ENT>8,500</ENT> </ROW> <ROW> <ENT I="05">(b) Gouge in surface that is between the wheel seats and is more than <FR>1/8</FR>″ in depth</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(c) End collar with crack or break</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(d) Journal overheated</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(e) Journal surface has: a ridge; a depression; a circumferential score; corrugation; a scratch; a continuous streak; pitting; rust; or etching</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="13">215.107Defective plain bearing box: general:</ENT> </ROW> <ROW> <ENT I="05">(a)(1) No visible free oil</ENT> <ENT>1,500</ENT> <ENT>3,000</ENT> </ROW> <ROW> <ENT I="05">(2) Lubricating pad dry (no expression of oil observed when pad is compressed)</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(b) Box lid is missing, broken, or open except to receive servicing</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(c) Contains foreign matter that can be expected to damage the bearing or have a detrimental effect on the lubrication of the journal and bearing</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="13">215.109Defective plain bearing box: journal lubrication system:</ENT> </ROW> <ROW> <ENT I="05">(a) Lubricating pad has a tear</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(b) Lubricating pad scorched, burned, or glazed</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(c) Lubricating pad contains decaying or deteriorating fabric</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(d) Lubricating pad has an exposed center core or metal parts contacting the journal</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(e) Lubricating pad is missing or not in contact with the journal</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="13">215.111Defective plain bearing:</ENT> </ROW> <ROW> <ENT I="05">(a) Missing</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(b) Bearing liner is loose or has piece broken out</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <PRTPAGE P="193"/> <ENT I="05">(c) Overheated</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="13">215.113Defective plain bearing wedge:</ENT> </ROW> <ROW> <ENT I="05">(a) Missing</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(b) Cracked</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(c) Broken</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(d) Not located in its design position</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="13">215.115Defective roller bearing:</ENT> </ROW> <ROW> <ENT I="05">(a)(1) Overheated</ENT> <ENT>5,000</ENT> <ENT>7,500</ENT> </ROW> <ROW> <ENT I="05">(2) (i) Cap screw(s) loose</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="07">(ii) Cap screw lock broken, missing or improperly applied</ENT> <ENT>1,000</ENT> <ENT>2,000</ENT> </ROW> <ROW> <ENT I="05">(3) Seal is loose or damaged, or permits leakage of lubricant</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(b)(1) Not inspected and tested after derailment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(2) Not disassembled after derailment</ENT> <ENT>2,500</ENT> <ENT>5,000</ENT> </ROW> <ROW> <ENT I="05">(3) Not repaired or replaced after derailment</ENT>