[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
49
Parts 200 to 399
Revised as of October 1, 2003
Transportation
Containing a codification of documents of general
applicability and future effect
As of October 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
For sale by the Superintendent of Documents, U.S. Government Printing
Office
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 49:
Subtitle B--Other Regulations Relating to Transportation--
(Continued):
Chapter II--Federal Railroad Administration,
Department of Transportation 5
Chapter III--Federal Motor Carrier Safety
Administration, Department of Transportation 751
Finding Aids:
Material Approved for Incorporation by Reference........ 1231
Table of CFR Titles and Chapters........................ 1235
Alphabetical List of Agencies Appearing in the CFR...... 1253
List of CFR Sections Affected........................... 1263
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 200.1 refers
to title 49, part 200,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
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those instances where a regulation published in the Federal Register
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2003.
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of eight volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-185, parts 186-199, parts 200-399, parts 400-599, parts 600-999,
parts 1000-1199, part 1200 to End. The first volume (parts 1-99)
contains current regulations issued under subtitle A--Office of the
Secretary of Transportation; the second volume (parts 100-185) and the
third volume (parts 186-199) contain the current regulations issued
under chapter I--Research and Special Programs Administration (DOT); the
fourth volume (parts 200-399) contains the current regulations issued
under chapter II--Federal Railroad Administration (DOT) and chapter III-
-Federal Motor Carrier Safety Administration (DOT); the fifth volume
(parts 400-599) contains the current regulations issued under chapter
IV--Coast Guard (DHS) and chapter V--National Highway Traffic Safety
Administration (DOT); the sixth volume (parts 600-999) contains 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 seventh volume (parts 1000-1199) contains the current
regulations issued under chapter X--Surface Transportation Board (DOT);
and the eighth volume (part 1200 to End) contains the current
regulations issued under chapter X--Surface Transportation Board,
chapter XI--Bureau of Transportation Statistics, and chapter XII--
Transportation Security Administration, Department of Homeland Security.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of October 1, 2003.
In the volume containing parts 100-185, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.
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[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 200 to 399)
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Part
SUBTITLE B--Other Regulations Relating To Transportation--(Continued)
chapter ii--Federal Railroad Administration, Department of
Transportation............................................ 200
chapter iii--Federal Motor Carrier Safety Administration,
Department of Transportation.............................. 301
[[Page 3]]
Subtitle B--Other Regulations Relating To Transportation (Continued)
[[Page 5]]
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
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Part Page
200 Informal rules of practice for passenger
service................................. 7
201 Formal rules of practice for passenger
service................................. 9
207 Railroad police officers.................... 15
209 Railroad safety enforcement procedures...... 16
210 Railroad noise emission compliance
regulations............................. 58
211 Rules of practice........................... 64
212 State safety participation regulations...... 82
213 Track safety standards...................... 92
214 Railroad workplace safety................... 143
215 Railroad freight car safety standards....... 171
216 Special notice and emergency order
procedures: Railroad track, locomotive
and equipment........................... 186
217 Railroad operating rules.................... 190
218 Railroad operating practices................ 193
219 Control of alcohol and drug use............. 207
220 Railroad communications..................... 248
221 Rear end marking device--passenger, commuter
and freight trains...................... 256
223 Safety glazing standards--locomotives,
passenger cars and cabooses............. 261
225 Railroad accidents/incidents: Reports
classification, and investigations...... 267
228 Hours of service of railroad employees...... 289
229 Railroad locomotive safety standards........ 302
230 Steam locomotive inspection and maintenance
standards............................... 331
231 Railroad safety appliance standards......... 396
232 Brake system safety standards for freight
and other non-passenger trains and
equipment; end-of-train devices......... 439
233 Signal systems reporting requirements....... 483
234 Grade crossing signal system safety......... 484
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235 Instructions governing applications for
approval of a discontinuance or material
modification of a signal system or
relief from the requirements of part 236 495
236 Rules, standards, and instructions governing
the installation, inspection,
maintenance, and repair of signal and
train control systems, devices, and
appliances.............................. 499
238 Passenger equipment safety standards........ 535
239 Passenger train emergency preparedness...... 610
240 Qualification and certification of
locomotive engineers.................... 621
241 United States locational requirement for
dispatching of United States rail
operations.............................. 669
244 Regulations on safety integration plans
governing railroad consolidations,
mergers, and acquisitions of control.... 676
245 Railroad user fees.......................... 682
250 Guarantee of certificates of trustees of
railroads in reorganization............. 687
256 Financial assistance for railroad passenger
terminals............................... 692
260 Regulations governing loans and loan
guarantees under the railroad
rehabilitation and improvement financing
program................................. 702
261 Credit assistance for surface transportation
projects................................ 715
265 Nondiscrimination in federally assisted
railroad programs....................... 715
266 Assistance to States for local rail service
under section 5 of the Department of
Transportation Act...................... 727
268 Magnetic levitation transportation
technology deployment program........... 742
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PART 200--INFORMAL RULES OF PRACTICE FOR PASSENGER SERVICE--Table of Contents
Sec.
200.1 Genera1.
200.3 Definitions.
200.5 Applications.
200.7 Objections.
200.9 Hearings.
200.11 Orders, approvals, and determinations.
200.13 Publication.
Authority: Secs. 402(e) and 406 of Pub. L. 91-518, 84 Stat. 1327, as
amended by sec. 10(2) of Pub. L. 93-146, 87 Stat. 548 and sec. 121 of
Pub. L. 96-73, 93 Stat. 537 (45 U.S.C. 562(e), 566); 49 CFR 1.49.
Source: 45 FR 64192, Sept. 29, 1980, unless otherwise noted.
Sec. 200.1 General.
This part prescribes procedures under which applications will be
received and heard and by which rules and orders will be issued under
subsection 402(e) and section 406 of the Rail Passenger Service Act (45
U.S.C. 562(e) and 566).
Sec. 200.3 Definitions.
(a) Act means the Rail Passenger Service Act (45 U.S.C. 500 et
seq.).
(b) Administrator means the Federal Railroad Administrator, the
Deputy Administrator of FRA, or the delegate of either.
(c) Amtrak means the National Railroad Passenger Corporation.
(d) Amtrak trains means trains operated by or on behalf of Amtrak.
(e) Chief Counsel means the Chief Counsel or Acting Chief Counsel of
the FRA.
(f) Downgrading of a facility means a reduction in track
classification as specified in FRA track safety standards (49 CFR part
213), or any other change in facilities which may increase the time
required for a passenger train to operate over the route on which such
facility is located.
(g) Facility means railroad tracks, right-of-way, fixed equipment
and facilities, real-property appurtenant thereto, and includes signal
systems, passenger station and repair tracks, station buildings,
platforms, and adjunct facilities such as water, fuel, steam, electric,
and air lines.
(h) FRA means the Federal Railroad Administration.
(i) Railroad means a person providing railroad transportation for
compensation.
(j) Shipper means a person contracting with one or more railroads
for freight transportation.
Sec. 200.5 Applications.
(a) Each application and objection under this part shall be
submitted in writing to: Docket Clerk, Office of the Chief Counsel,
Federal Railroad Administration, 400 7th Street, SW., Washington, DC
20590.
(b) Any procedural issues arising from the submission or
consideration of applications under this part, such as timeliness and
adequacy, shall be heard and decided by the Administration's panel
established under Sec. 200.9.
(c) Any railroad adversely affected by the preference requirement of
subsection 402(e) of the Act may apply to the Administrator for an order
altering that requirement. Each application shall:
(1) List by endpoints the routes that are so affected; and
(2) Explain for every route listed how the preference requirement of
subsection 402(e) will materially lessen the quality of freight service
afforded by the applicant to its shippers, including information, data
or documents sufficient to support that explanation; and
(3) Include an analysis of whether and by how much Amtrak's
compensation to the railroad should be reduced if the preference
requirement is altered.
(d) In accordance with section 406 of the Act, any railroad may
apply to the Administrator for approval to downgrade or dispose of its
facilities. Each application shall:
(1) List the facilities for proposed downgrading or disposal;
(2) Describe and give the location of each such facility and
identify the most recent passenger service that made use of such
facilities; and
(3) Contain for each facility an analysis of the costs the railroad
could avoid if it were not required to maintain or retain the facility
in the condition requested by Amtrak, including
[[Page 8]]
information, data and documents sufficient to support the analysis.
(e) In addition to the data provided with their applications,
applicants shall furnish the Administrator with any other information
that the Administrator finds necessary in order to make the
determinations required by the Act.
(f) Each applicant shall promptly notify, by registered or certified
mail, any party affected by any application, whether Amtrak or a
railroad, of the submission of such application under this part, and
shall provide a copy of the application with such notice. An official
United States Postal Service receipt from the registered or certified
mailing constitutes prima facie evidence of notice.
Sec. 200.7 Objections.
(a) Amtrak or any other party shall have 30 days from the date an
application is received by FRA pursuant to section 402(e) of the Act to
object to the proposed alteration of the preference requirement. Such
objections shall be in writing and shall reference, by date, railroad,
and former passenger routes, the application to which it pertains.
(b) Amtrak shall have 30 days from the date an application is
received by FRA pursuant to section 406 of the Act to object to any or
all of the facility downgradings or disposals proposed in such
application. Such objections shall be in writing and shall reference, by
date, railroad, and former passenger routes, the application to which it
pertains and shall list, by facility description and location, the
specific downgradings or disposals to which Amtrak objects.
Sec. 200.9 Hearings.
(a) Pursuant to any application under this part, a prehearing
conference will be held if found necessary or desirable by the
Administrator.
(b) Pursuant to any application under this part, an oral hearing
will be held if required by statute or if found necessary or desirable
by the Administrator.
(c) Hearings shall be conducted by a panel designated by the
Administrator, consisting of three FRA employees, including the Chief
Counsel or a member of his or her staff who shall serve as chairman of
the panel and the Associate Administrator for Intercity Programs or his
or her delegate.
(d) Hearings shall be informal fact-finding proceedings, limited to
the issues identified by the panel. Sections 556 and 557 of title 5,
U.S.C., shall not apply.
(e) All direct evidence shall be reduced to writing and submitted to
the Docket Clerk thirty days in advance of the hearing unless this
requirement is expressly waived by the panel. Copies shall be furnished
to all parties concurrently with the submission to the Docket Clerk.
(f) The panel may provide for oral presentations and cross-
examination, and shall apply rules of evidence as it finds necessary.
(g) To the extent deemed appropriate by the panel, interested
persons, including members of the public, may participate in the
hearings through the submission of written data, oral presentations, or
arguments.
Sec. 200.11 Orders, approvals, and determinations.
(a) The Administrator shall promptly approve the downgrading or
disposal of any facility to which Amtrak does not submit a timely
objection under this part.
(b) Orders, approvals, and determinations issued by the
Administrator's panel under this part constitute the Administrator's
action and shall be final.
(c) Determinations under this part are not required to be based
exclusively on the record of a hearing.
Sec. 200.13 Publication.
(a) General notice of any hearing under this subpart shall be
published in the Federal Register not less than 10 days before the
hearing, and shall include (1) a statement of the time, place, and
nature of the hearing, (2) a reference to the legal authority under
which the hearing is being held and (3) a description of the subject and
issues involved.
(b) Any order, approval, or determination resulting from any hearing
[[Page 9]]
held under this part shall be published in the Federal Register.
PART 201--FORMAL RULES OF PRACTICE FOR PASSENGER SERVICE--Table of Contents
Sec.
201.1 General.
201.3 Definitions.
201.4 Scope of regulations.
201.5 Applications.
201.6 Notice of hearing.
201.7 Notification by interested persons.
201.8 Presiding officer.
201.9 Direct testimony submitted as written documents.
201.10 Mailing address.
201.11 Inspection and copying of documents.
201.12 Ex parte communications.
201.13 Prehearing conference.
201.14 Final agenda of the hearing.
201.15 Determination to cancel the hearing.
201.16 Rebuttal testimony and new issues of fact in final agenda.
201.17 Waiver of right to participate.
201.18 Conduct of the hearing.
201.19 Direct testimony.
201.20 Cross-examination.
201.21 Oral and written arguments.
201.22 Recommended decision, certification of the transcript, and
submission of comments on the recommended decision.
201.23 Administrator's decision.
Authority: Secs. 402(f) and (h) of Pub. L. 91-518, 84 Stat. 1327, as
amended by sec. 10(2) of Pub. L. 93-146, 87 Stat. 548 and sec. 216 of
Pub. L 96-254, 94 Stat. 418 (45 U.S.C. 562 (f) and (h)); sec. 1.49 of
Title 49, Code of Federal Regulations.
Source: 46 FR 2614, Jan. 12, 1981, unless otherwise noted.
Sec. 201.1 General.
This part prescribes procedures under which applications will be
received and heard and by which rules and orders will be issued under
subsections 402(f) and (h) of the Rail Passenger Service Act (45 U.S.C.
562 (f) and (h)).
Sec. 201.3 Definitions.
(a) The definitions set forth in Sec. 200.3 shall apply to this
part.
(b) The following definitions shall also apply to this part:
(1) Party means--
(i) The Administrator or his representative; or
(ii) A person who has notified the Administrator by specified dates
of his or her intent to participate in the hearing pursuant to
Secs. 201.7 and 201.16(b).
(2) Witness means any person who submits written direct testimony on
an application to the Secretary under this part. A person may be both a
party and a witness.
Sec. 201.4 Scope of regulations.
The procedural regulations in this part govern the practice and
procedure in hearings held under subsections 402(f) and (h) of the Act.
These hearings will be governed by the provisions of 5 U.S.C. 556 and
557 of the Administrative Procedure Act. The regulations shall be
construed to secure the just, speedy, and inexpensive determination of
all issues raised with respect to any proposal to increase speeds or to
add trains pursuant to subsections 402(f) and (h) of the Act with full
protection for the rights of all persons affected thereby.
Sec. 201.5 Applications.
(a) Each application and objection under this part shall be
submitted in writing to: Docket Clerk, Office of the Chief Counsel,
Federal Railroad Administration, 400 7th Street, SW., Washington, DC
20590.
(b) Any procedural issues arising from the submission or
consideration of applications under this part, such as timeliness and
adequacy, shall be heard and decided by the presiding officer appointed
under Sec. 201.8.
(c) In accordance with subsection 402(f) of the Act, Amtrak may
apply to the Administrator for an order requiring a railroad to permit
accelerated speeds by Amtrak trains. Each application shall:
(1) List by endpoints the routes for which Amtrak desires such
acceleration;
(2) Not list routes of more than one railroad;
(3) Indicate by route and train the maximum speeds for Amtrak trains
permitted by the railroad and the maximum speeds desired by Amtrak;
(4) Indicate for each route listed the track classification as
specified in FRA track safety standards (49 CFR part 213); and
[[Page 10]]
(5) Explain why the maximum speeds Amtrak desires are safe and
practicable, or what track, signal system, or other facility
improvements would make such speeds safe and practicable.
(d) In accordance with subsection 402(h) of the Act, Amtrak may
apply to the Administrator for an order to require a railroad to permit
or provide the operation of additional passenger trains on its rail
lines. Each application shall:
(1) List the railroad, the endpoints of the proposed additional
train or trains, and the proposed schedule for such additional train or
trains, and
(2) Describe and give the background of all prior efforts and
negotiations to obtain a satisfactory voluntary agreement with the
railroad for the operation of the proposed additional train or trains.
(e) In addition to the data provided with their applications,
applicants shall furnish the Administrator with any other information
that the Administrator finds necessary in order to make the
determinations required by the Act.
(f) Each applicant shall promptly notify, by registered or certified
mail, any party affected by any application, whether Amtrak or a
railroad, of the submission of each application under this part, and
shall provide a copy of the application with such notice. An official U.
S. Postal Service return receipt from the registered or certified
mailing constitutes prima facie evidence of notice.
Sec. 201.6 Notice of hearing.
(a) A notice of hearing on an application shall be published in the
Federal Register.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less
than 60 days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) Issues of fact which may be involved in the hearing;
(5) If a draft Environmental Impact Statement is required, the date
of publication of the draft and the place(s) where the draft and
comments thereon may be viewed and copied;
(6) The place(s) where records and submitted direct testimony will
be kept for public inspection;
(7) The final date for filing a notice of intent to participate in
the hearing;
(8) The final date for submission of direct testimony on the
application, and the number of copies required;
(9) The docket number assigned to the case, which shall be used in
all subsequent proceedings; and
(10) The place and date of the prehearing conference.
Sec. 201.7 Notification by interested persons.
Any person desiring to participate as a party shall notify the
Administrator, by registered or certified mail, on or before the date
specified in the notice.
Sec. 201.8 Presiding officer.
(a) Upon publication of the notice of hearing pursuant to
Sec. 201.6, the Administrator shall appoint a presiding officer pursuant
to 5 U.S.C. 3105. No individual who has any conflict of interest,
financial or otherwise, shall serve as presiding officer in such
proceeding.
(b) The presiding officer, in any proceeding under this part, shall
have power to:
(1) Change the time and place of the hearing and adjourn the
hearing;
(2) Evaluate direct testimony submitted pursuant to these
regulations, make a preliminary determination of the issues, conduct a
prehearing conference to determine the issues for the hearing agenda,
and cause to be published in the Federal Register a final hearing
agenda;
(3) Rule upon motions, requests, and admissibility of direct
testimony;
(4) Administer oaths and affirmations, question witnesses, and
direct witnesses to testify;
(5) Modify or waive any rule (after notice) upon determining that no
party will be prejudiced;
(6) Receive written comments and hear oral agruments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media
coverage, for the maintenance of order at
[[Page 11]]
and the efficient conduct of the proceeding.
(c) In case of the absence of the original presiding officer or his
inability to act, the Administrator may assign to a successor the powers
and duties of the original presiding officer without abatement of the
proceeding unless otherwise ordered by the Administrator.
(d) The presiding officer may upon his own motion withdraw as
presiding officer in a proceeding if he deems himself to be
disqualified.
(e) A presiding officer may be requested to withdraw at any time
prior to the recommended decision. Upon the filing by an interested
person in good faith of a timely and sufficient affidavit alleging the
presiding officer's personal bias, malice, conflict of interest, or
other basis which might result in prejudice to a party, the hearing
shall recess. The Administrator shall immediately act upon such
allegation as a part of the record and decision in the proceeding, after
making such investigation or holding such hearings, or both, as he may
deem appropriate in the circumstances.
Sec. 201.9 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, shall be submitted to the presiding officer in
writing no later than the dates specified in the notice of the hearing,
the final hearing agenda, or within 15 days after the conclusion of the
prehearing conference, as the case may be. All direct testimony shall be
in affidavit form, and exhibits constituting part of such testimony,
referred to in the affidavit and made a part thereof, shall be attached
to the affidavit. Direct testimony submitted with exhibits shall state
the issue to which the exhibit relates; if no such statement is made,
the presiding officer shall determine the relevance of the exhibit to
the issues published in the Federal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding
and his position regarding the issues presented. If the direct testimony
is presented by a witness who is not a party, the witness shall state
his relationship to the party;
(2) Facts that are relevant and material; and
(3) Any proposed issues of fact not stated in the notice of the
hearing and the reason(s) why such issues should be considered at the
hearing.
(c) Ten copies of all direct testimony shall be submitted unless the
notice of the hearing specifies otherwise.
(d) Upon receipt, direct testimony shall be assigned a number and
stamped with that number and the docket number.
(e) Contemporaneous with the publication of the notice of hearing,
Amtrak's direct testimony in support of its application shall be
available for public inspection as specified in the notice of hearing.
Amtrak may submit additional direct testimony during the time periods
allowed for submission of such testimony by witnesses.
Sec. 201.10 Mailing address.
Unless otherwise specified in the notice of hearing, all direct
testimony shall be addressed to the Docket Clerk, Office of the Chief
Counsel, Federal Railroad Administration, 400 7th Street, SW.,
Washington, DC 20590. All affidavits and exhibits shall be clearly
marked with the docket number of the proceeding.
Sec. 201.11 Inspection and copying of documents.
(a) If confidential financial information is not involved, any
document in a file pertaining to any hearing authorized by this part or
any document forming part of the record of such a hearing may be
inspected or copied in the Office of the Chief Counsel, Federal Railroad
Administration, 400 7th Street, SW., Washington, DC 20590, unless the
file is in the care and custody of the presiding officer in which case
he shall notify the parties as to where and when the record may be
inspected.
(b) If confidential financial information is involved, the presiding
officer, at his discretion, upon the request of any party, may deny the
public inspection and copying of such information.
[[Page 12]]
Sec. 201.12 Ex parte communications.
(a) After notice of a hearing is published in the Federal Register,
all communications, whether oral or written, involving any substantive
or procedural issue and directed either to the presiding officer or to
the Administrator, without reference to these rules of procedure, shall
be deemed ex parte communications and shall not be considered part of
the record for decision. A record of oral ex parte communications shall
be made by the persons contacted. All written ex parte communications
shall be available for public viewing at the places(s) specified in the
notice of hearing.
(b) The presiding officer shall not consult any person or party on
any fact in issue or on the merits of the matter unless notice and
opportunity is given for all parties to participate.
Sec. 201.13 Prehearing conference.
(a) After an examination of all the direct testimony submitted, the
presiding officer shall make a preliminary determination of issues of
fact to be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
at least five days before the prehearing conference is held.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of
issues of fact for the hearing has omitted or misconstrued any
significant issues, and
(2) The nature of the interest of each party and which parties'
interests are adverse.
(d) Only parties may participate in the prehearing conference. A
party may appear in person or be represented by counsel.
(e) Parties who do not appear at the prehearing conference shall be
bound by the conference's determinations.
Sec. 201.14 Final agenda of the hearing.
(a) After the prehearing conference, the presiding officer shall
prepare a final agenda which shall be published in the Federal Register
within ten days after the conclusion of the conference. A copy of the
final agenda shall be mailed to all parties.
(b) The final agenda shall list:
(1) All the issues the hearing shall address, the order in which
those issues shall be presented, and the direct testimony submitted on
those issues; and
(2) A final date for submission of direct testimony on issues of
fact not included in the notice of hearing if such issues are presented.
The final agenda may also specify a final date for submission of direct
testimony to rebut testimony previously submitted during the time
specified in the notice of the hearing.
(c) The presiding officer shall publish with the final agenda a list
of witnesses who may appear at the hearing, a list of parties, the
nature of the interest of each party, and which parties' interests are
adverse on the issues presented.
Sec. 201.15 Determination to cancel the hearing.
(a) If the presiding officer concludes that no issues of fact are
presented by the direct testimony submitted, he shall publish such
conclusion in the Federal Register with a notice that a hearing shall
not be held. The notice shall set forth a date for filing written
comments on the proposed recommended decision. Written comments may
include proposed findings and conclusions, arguments, or briefs.
(b) A person need not be a party to submit written comments.
(c) Promptly after expiration of the period for receiving written
comments, the presiding officer shall make a recommended decision based
on the record, which in this case shall consist of the testimony,
exhibits, and written comments submitted. He shall transfer to the
Administrator his recommended decision, the record, and a certificate
stating that the record contains all the written direct testimony and
comments submitted. The Administrator shall then make a final decision
in accordance with these regulations.
[[Page 13]]
Sec. 201.16 Rebuttal testimony and new issues of fact in final agenda.
(a) Direct testimony to rebut testimony offered during the time
period specified in the notice of hearing may be submitted pursuant to
these regulations within fifteen days after the conclusion of the
prehearing conference unless the presiding officer otherwise specifies
in the final agenda.
(b) If the final agenda presents issues not included in the notice
of the hearing published pursuant to Sec. 201.6,
(1) Any person interested in participating at the hearing on such
issues presented shall notify the Administrator by certified mail of an
intent to participate not later than ten days after publication of the
final agenda. Such person may present direct testimony or cross-examine
witnesses only on such issues presented unless he previously notified
the Administrator pursuant to Sec. 201.7, and
(2) Additional written direct testimony concerning such issues may
be submitted within the time provided in the final agenda. Such direct
testimony will comply with the requirements of Sec. 201.9.
Sec. 201.17 Waiver of right to participate.
Persons who fail to notify the Administrator pursuant to Secs. 201.7
and 201.16 shall be deemed to have waived their right to participate as
parties in any part of the hearing.
Sec. 201.18 Conduct of the hearing.
(a) The hearing shall be held at the time and place fixed in the
notice of hearing, unless the presiding officer changes the time or
place. If a change occurs, the presiding officer shall publish the
change in the Federal Register and shall expeditiously notify all
parties by telephone or by mail; provided, that if the change in time or
place of hearing is made less than five days before the date previously
fixed for the hearing, the presiding officer shall also announce, or
cause to be announced, the change at the time and place previously fixed
for the hearing.
(b) The presiding officer shall, at the commencement of the hearing,
introduce into the record. The notice of hearing as published in the
Federal Register; all subsequent notices published in the Federal
Register; the draft Environmental Impact Statement if it is required,
and the comments thereon and agency responses to the comments; and a
list of all parties. Direct testimony shall then be received with
respect to the matters specified in the final agenda in such order as
the presiding officer shall announce. With respect to direct testimony
submitted as rebuttal testimony or in response to new issues presented
by the prehearing conference, the presiding officer shall determine the
relevance of such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by
an offical reporter.
(d) If a party objects to the admission or rejection of any direct
testimony or to any other ruling of the presiding officer during the
hearing, he shall state briefly the grounds of such objection, whereupon
an automatic exception will follow if the objection is overruled by the
presiding officer. The transcript shall not include argument or debate
thereon except as ordered by the presiding officer. The ruling of the
presiding officer on any objection shall be a part of the transcript and
shall be subject to review at the same time and in the same manner as
the Administrator's final decision. Only objections made before the
presiding officer may subsequently be relied upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by,
the presiding officer if made prior to his certification of the
transcript, or by the Administrator if made thereafter.
Sec. 201.19 Direct testimony.
(a) Direct testimony shall be submitted by affidavit as provided in
these regulations and introduced at the hearing by a witness in order to
be considered part of the record. Such direct testimony shall not be
read into evidence but shall become a part of the record subject to
exclusion of irrelevant and immaterial parts thereof.
(b) The witness introducing direct testimony shall:
(1) State his name, address, and occupation;
[[Page 14]]
(2) State his qualifications for introducing the direct testimony.
If an expert, the witness shall briefly state the scientific or
technical training that qualifies him as an expert;
(3) Identify the direct testimony previously submitted in accordance
with these regulations; and
(4) Submit to appropriate direct and cross examination. Cross-
examination shall be by a party whose interests are adverse to those of
the witness on the issue presented if the witness is a party, or adverse
to the interests of the party who presented the witness if the witness
is not a party.
(c) A party shall be deemed to have waived the right to introduce
direct testimony if such party fails to present a witness to introduce
the direct testimony.
(d) Offical notice may be taken of such matters as are judicially
noticed by the courts of the United States, provided, that parties shall
be given adequate notice by the presiding officer at the hearing of
matters so noticed and shall be given adequate opportunity to show that
such facts are inaccurate or are erroneously noticed.
Sec. 201.20 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
cross-examination;
(2) Prohibit parties from cross-examining witnesses unless the
presiding officer has determined that the cross-examiner has an adverse
interest on the facts at issue to the party-witness. For the purposes of
this subsection, the Administrator's or his representative's interest
shall be considered adverse to all parties;
(3) Limit the number of times any party or parties having a common
interest may cross-examine an ``adverse'' witness on the same matter;
and
(4) Exclude cross-examination questions that are immaterial,
irrelevant, or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or
counsel shall state his name, address, and occupation. If counsel cross-
examines the witness, counsel shall state for the record the authority
to act as counsel. Cross-examiners shall be assumed to be familiar with
the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing
to cross-examine an ``adverse'' witness shall be deemed to have waived
the right to cross-examine that witness.
(d) Scientific, technical, or commercial publications may be used
only for the limited purpose of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance
with these regulations.
Sec. 201.21 Oral and written arguments.
(a) The presiding officer may, in his discretion, provide for oral
argument at the end of the hearing. Such argument, when permitted, may
be limited by the presiding officer to the extent necessary for the
expeditious disposition of the proceeding.
(b) The presiding officer shall announce at the hearing a reasonable
period of time within which any interested person may file with the
presiding officer any written comments on the application, including
proposed findings and conclusions or written arguments or brief based
upon the record, citing where practicable the relevant page or pages of
the transcript. If a party filing a brief desires the presiding officer
to reconsider any objection made by such party to a ruling of the
presiding officer, he shall specifically identify such rulings by
reference to the pertinent pages of the transcript and shall state his
arguments thereon as a part of the brief.
(c) Oral or written arguments shall be limited to issues arising
from direct testimony on the record.
Sec. 201.22 Recommended decision, certification of the transcript, and submission of comments on the recommended decision.
(a) Promptly after expiration of the period for receiving written
briefs, the presiding officer shall make a recommended decision based on
the record and transmit the decision to the Administrator. The
recommended decision shall include:
[[Page 15]]
(1) A statement containing a description of the history of the
proceedings;
(2) Findings on issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Administrator
the transcript of the hearing, the original and all copies of the direct
testimony, and written comments. The presiding officer shall attach to
the original transcript of the hearing a certificate stating that, to
the best of his knowledge and belief, the transcript is a true
transcript of the testimony given at the hearing except in such
particulars as are specified.
(c) Immediately after receipt of the recommended decision, the
Administrator shall give notice thereof in the Federal Register, send
copies of the recommended decision to all parties, and provide
opportunity for the submission of comments. The recommended decision may
be reviewed and/or copied in the Office of the Chief Counsel, Federal
Railroad Administration, 400 7th Street, SW., Washington, DC 20590.
(d) Within twenty days after the notice of receipt of the
recommended decision has been published in the Federal Register, any
interested person may file with the Administrator any written comments
on the recommended decision. All comments shall be submitted during the
twenty-day period to the Administrator at the above address.
Sec. 201.23 Administrator's decision.
(a) Upon receipt of the recommended decision and transcript and
after the twenty-day period for receiving written comments on the
recommended decision has passed, the Administrator's decision may
affirm, modify, or set aside, in whole or in part, the recommended
findings, conclusions, and decision of the presiding officer. The
Administrator may also remand the hearing record to the presiding
officer for a fuller development of the record.
(b) The Administrator's decision shall include:
(1) A statement containing a description of the history of the
proceeding;
(2) Findings on issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(c) The Administrator's decision shall be published in the Federal
Register. If the Amtrak application is approved in whole or in part, the
final order shall be promulgated with the decision.
PART 207--RAILROAD POLICE OFFICERS--Table of Contents
Sec.
207.1 Application.
207.2 Definitions.
207.3 Designation and commissioning.
207.4 Notice to State officials.
207.5 Authority in States where officer not commissioned.
Authority: 45 U.S.C. 446; 49 CFR 1.49(ff).
Source: 59 FR 6587, Feb. 11, 1994, unless otherwise noted.
Sec. 207.1 Application.
This part applies to all railroads, as such term is defined in
section 202(e) of the Federal Railroad Safety Act of 1970, as amended,
Public Law 91-458 (45 U.S.C. 431(e)).
Sec. 207.2 Definitions.
As used in this part:
(a) Railroad police officer means a peace officer who is
commissioned in his or her state of legal residence or state of primary
employment and employed by a railroad to enforce state laws for the
protection of railroad property, personnel, passengers, and/or cargo.
(b) Commissioned means that a state official has certified or
otherwise designated a railroad employee as qualified under the
licensing requirements of that state to act as a railroad police officer
in that state.
(c) Property means rights-of-way, easements, appurtenant property,
equipment, cargo, facilities, and buildings and other structures owned,
leased, operated, maintained, or transported by a railroad.
Sec. 207.3 Designation and commissioning.
(a) A railroad may designate employees to be commissioned by a state
authority as railroad police officers to serve in the states in which
the railroad owns property.
[[Page 16]]
(b) The designated railroad police officer shall be commissioned by
the railroad police officer's state of legal residence or the railroad
police officer's state of primary employment.
Sec. 207.4 Notice to State officials.
(a) After the designated railroad police officer is commissioned by
a state or states, the railroad shall send, by certified mail, written
notice to appropriate officials of every other state in which the
railroad police officer shall protect the railroad's property,
personnel, passengers, and cargo. The notice of commission shall contain
the following information:
(1) The name of the railroad police officer;
(2) The badge number, identification number, rank, code, or other
identifying information assigned to the railroad police officer;
(3) The date of commission;
(4) The state or states where the railroad police officer is
commissioned;
(5) The date the railroad police officer received training or
retraining regarding the laws of such state or states;
(6) The name of the railroad official who designated the employee as
a railroad police officer; and
(7) Color photographs of the types of badges, identification cards,
and other identifying materials the railroad uses to identify its
railroad police officers.
(b) The railroad shall keep copies of all such notices at a central
location.
(c) The authority set forth in Sec. 207.5 shall be effective upon
receipt by such state(s) of written notice conforming to the
requirements of this section.
Sec. 207.5 Authority in States where officer not commissioned.
(a) A railroad police officer who is designated by a railroad and
commissioned under the laws of any state is authorized to enforce the
laws (as specified in paragraph (b) of this section) of any state in
which the railroad owns property and to which the railroad has provided
notice in accordance with Sec. 207.4.
(b) Under the authority of paragraph (a) of this section, a railroad
police officer may enforce only relevant laws for the protection of--
(1) The railroad's employees, passengers, or patrons;
(2) The railroad's property or property entrusted to the railroad
for transportation purposes;
(3) The intrastate, interstate, or foreign movement of cargo in the
railroad's possession or in possession of another railroad or non-rail
carrier while on the railroad property; and
(4) The railroad movement of personnel, equipment, and materials
vital to the national defense.
(c) The authority exercised under this part by an officer for whom
the railroad has provided notice in accordance with Sec. 207.4 shall be
the same as that of a railroad police officer commissioned under the
laws of that state.
(d) The railroad police officer's law enforcement powers shall apply
only on railroad property, except that an officer may pursue off
railroad property a person suspected of violating the law on railroad
property, and an officer may engage off railroad property in law
enforcement activities, including, without limitation, investigation and
arrest, if permissible under state law.
PART 209--RAILROAD SAFETY ENFORCEMENT PROCEDURES--Table of Contents
Subpart A--General
Sec.
209.1 Purpose.
209.3 Definitions.
209.5 Service.
209.6 Requests for admission.
209.7 Subpoenas; witness fees.
209.8 Depositions in formal proceedings.
209.9 Filing.
209.11 Request for confidential treatment.
209.13 Consolidation.
209.15 Rules of evidence.
209.17 Motions.
Subpart B--Hazardous Materials Penalties
Civil Penalties
209.101 Civil penalties generally.
209.103 Minimum and maximum penalties.
209.105 Notice of probable violation.
209.107 Reply.
209.109 Payment of penalty; compromise.
209.111 Informal response and assessment.
209.113 Request for hearing.
209.115 Hearing.
209.117 Presiding officer's decision.
209.119 Assessment considerations.
209.121 Appeal.
[[Page 17]]
Criminal Penalties
209.131 Criminal penalties generally.
209.133 Referral for prosecution.
Subpart C--Compliance Orders
209.201 Compliance orders generally.
209.203 Notice of investigation.
209.205 Reply.
209.207 Consent order.
209.209 Hearing.
209.211 Presiding officer's decision.
209.213 Appeal.
209.215 Time limitation.
Subpart D--Disqualification Procedures
209.301 Purpose and scope.
209.303 Coverage.
209.305 Notice of proposed disqualification.
209.307 Reply.
209.309 Informal response.
209.311 Request for hearing.
209.313 Discovery.
209.315 Subpoenas.
209.317 Official record.
209.319 Prehearing conference.
209.321 Hearing.
209.323 Initial decision.
209.325 Finality of decision.
209.327 Appeal.
209.329 Assessment considerations.
209.331 Enforcement of disqualification order.
209.333 Prohibitions.
209.335 Penalties.
209.337 Information collection.
Subpart E--Reporting of Remedial Actions
209.401 Purpose and scope.
209.403 Applicability.
209.405 Reporting of remedial actions.
209.407 Delayed reports.
209.409 Penalties.
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws
Appendix B to Part 209--Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments
Appendix C to Part 209--FRA's Policy Statement Concerning Small Entities
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20114, and 49 CFR
1.49.
Source: 42 FR 56742, Oct. 28, 1977, unless otherwise noted.
Subpart A--General
Sec. 209.1 Purpose.
Appendix A to this part contains a statement of agency policy
concerning enforcement of those laws. This part describes certain
procedures employed by the Federal Railroad Administration in its
enforcement of statutes and regulations related to railroad safety. By
delegation from the Secretary of Transportation, the Administrator has
responsibility for:
(a) Enforcement of subchapters B and C of chapter I, subtitle B,
title 49, CFR, with respect to the transportation or shipment of
hazardous materials by railroad (49 CFR 1.49(s));
(b) Exercise of the authority vested in the Secretary by the Federal
Railroad Safety Act of 1970, 45 U.S.C. 421, 431-441, as amended by the
Rail Safety Improvement Act of 1988, Public Law 100-342 (June 22, 1988)
(49 CFR 1.49(m)); and
(c) Exercise of the authority vested in the Secretary pertaining to
railroad safety as set forth in the statutes transferred to the
Secretary by section 6(e) of the Department of Transportation Act, 49
App. U.S.C. 1655(e) (49 CFR 1.49 (c), (d), (f), and (g)).
[42 FR 56742, Oct. 28, 1977, as amended at 53 FR 52920, Dec. 29, 1988;
54 FR 42905, Oct. 18, 1989]
Sec. 209.3 Definitions.
As used in this part--
Administrator means the Administrator of FRA, the Deputy
Administrator of FRA, or the delegate of either.
Chief Counsel means the Chief Counsel of FRA or his or her delegate.
Day means calendar day.
Federal railroad safety laws means the provisions of law generally
at 49 U.S.C. subtitle V, part A or 49 U.S.C. chap. 51 or 57 and the
rules, regulations, orders, and standards issued under any of those
provisions. See Pub. L. 103-272 (1994). Before recodification, these
statutory provisions were contained in the following statutes: (i) the
Federal Railroad Safety Act of 1970 (Safety Act) (49 U.S.C. 20101-20117,
20131, 20133-20141, 20143, 21301, 21302, 21304, 21311, 24902, and 24905,
and sections 4(b)(1), (i), and (t) of Pub. L. 103-272, formerly codified
at 45 U.S.C. 421, 431 et seq.); (ii) the Hazardous Materials
Transportation Act (Hazmat Act) (49 U.S.C. 5101 et seq., formerly
codified at 49 App. U.S.C. 1801 et seq.); (iii) the Sanitary Food
Transportation Act of 1990 (SFTA) (49 U.S.C.
[[Page 18]]
5713, formerly codified at 49 App. U.S.C. 2801 (note)); and those laws
transferred to the jurisdiction of the Secretary of Transportation by
subsection (e)(1), (2), and (6)(A) of section 6 of the Department of
Transportation Act (DOT Act), as in effect on June 1, 1994 (49 U.S.C.
20302, 21302, 20701-20703, 20305, 20502-20505, 20901, 20902, and 80504,
formerly codified at 49 App. U.S.C. 1655(e)(1), (2), and (6)(A)). 49
U.S.C. 20111 and 20109, formerly codified at 45 U.S.C. 437 (note) and
441(e). Those laws transferred by the DOT Act include, but are not
limited to, the following statutes: (i) the Safety Appliance Acts (49
U.S.C. 20102, 20301, 20302, 20304, 21302, and 21304, formerly codified
at 45 U.S.C. 1-14, 16); (ii) the Locomotive Inspection Act (49 U.S.C.
20102, 20701-20703, 21302, and 21304, formerly codified at 45 U.S.C. 22-
34); (iii) the Accident Reports Act (49 U.S.C. 20102, 20701, 20702,
20901-20903, 21302, 21304, and 21311, formerly codified at 45 U.S.C. 38-
43); (iv) the Hours of Service Act (49 U.S.C. 20102, 21101-21107, 21303,
and 21304, formerly codified at 45 U.S.C. 61-64b); and (v) the Signal
Inspection Act (49 U.S.C. 20102, 20502-20505, 20902, 21302, and 21304,
formerly codified at 49 App. U.S.C. 26).
FRA means the Federal Railroad Administration, U.S. Department of
Transportation.
FRA Safety Inspector means an FRA safety inspector, a state
inspector participating in railroad safety investigative and
surveillance activities under part 212 of this chapter, or any other
official duly authorized by FRA.
Motion means a request to a presiding officer to take a particular
action.
Person generally includes all categories of entities covered under 1
U.S.C. 1, including but not limited to the following: a railroad; any
manager, supervisor, official, or other employee or agent of a railroad;
any owner, manufacturer, lessor, or lessee of railroad equipment, track,
or facilities; any independent contractor providing goods or services to
a railroad; and any employee of such owner, manufacturer, lessor,
lessee, or independent contractor; however, person, when used to
describe an entity that FRA alleges to have committed a violation of the
provisions of law formerly contained in the Hazardous Materials
Transportation Act or contained in the Hazardous Materials Regulations,
has the same meaning as in 49 U.S.C. 5102(9) (formerly codified at 49
App. U.S.C. 1802(11)), i.e., an individual, firm, copartnership,
corporation, company, association, joint-stock association, including
any trustee, receiver, assignee, or similar representative thereof, or
government, Indian tribe, or authority of a government or tribe when
offering hazardous material for transportation in commerce or
transporting hazardous material to further a commercial enterprise, but
such term does not include the United States Postal Service or, for the
purposes of 49 U.S.C. 5123-5124 (formerly contained in sections 110 and
111 of the Hazardous Materials Transportation Act and formerly codified
at 49 App. U.S.C. 1809-1810), a department, agency, or instrumentality
of the Federal Government.
Pleading means any written submission setting forth claims,
allegations, arguments, or evidence.
Presiding Officer means any person authorized to preside over any
hearing or to make a decision on the record, including an administrative
law judge.
Railroad means any form of nonhighway ground transportation that
runs on rails or electro-magnetic guideways, including (i) commuter or
other short-haul railroad passenger service in a metropolitan or
suburban area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979; and (ii) high speed
ground transportation systems that connect metropolitan areas, without
regard to whether those systems use new technologies not associated with
traditional railroads; but does not include rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation.
Respondent means a person upon whom FRA has served a notice of
probable violation, notice of investigation, or notice of proposed
disqualification.
[59 FR 43676, Aug. 24, 1994]
Sec. 209.5 Service.
(a) Each order, notice, or other document required to be served
under this part shall be served personally or by
[[Page 19]]
registered or certified mail, except as otherwise provided herein.
(b) Service upon a person's duly authorized representative
constitutes service upon that person.
(c) Service by registered or certified mail is complete upon
mailing. An official United States Postal Service receipt from the
registered or certified mailing constitutes prima facie evidence of
service.
(d) Service of requests for admission and motions may be made by
first-class mail, postage prepaid.
(e) Each pleading must be accompanied by a certificate of service
specifying how and when service was made.
[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]
Sec. 209.6 Requests for admission.
(a) A party to any proceeding under subpart B, C, or D of this part
may serve upon any other party written requests for the admission of the
genuineness of any relevant documents identified within the request, the
truth of any relevant matters of fact, and the application of law to the
facts as set forth in the request.
(b) Each matter of which an admission is requested shall be deemed
to be admitted unless, within 30 days after receipt of the request, the
party to whom the request is directed serves upon the party requesting
the admission a written answer under oath or objection addressed to the
matter, signed by the party.
(c) The sworn answer shall specifically admit or deny the matter or
set forth in detail the reasons why the answering party cannot
truthfully admit or deny the matter. If an objection is made, the
reasons therefor shall be stated.
(d) Any matter admitted under this section is conclusively
established unless the presiding official permits withdrawal or
amendment of the admission for good cause shown.
(e) Upon motion, the presiding officer may order any party to
respond to a request for admission.
[54 FR 42906, Oct. 18, 1989]
Sec. 209.7 Subpoenas; witness fees.
(a) The Chief Counsel may issue a subpoena on his or her own
initiative in any matter related to enforcement of the railroad safety
laws. However, where a proceeding under subpart B, C, or D of this part
has been initiated, only the presiding officer may issue subpoenas, and
only upon the written request of any party to the proceeding who makes
an adequate showing that the information sought will materially advance
the proceeding.
(b) A subpoena may require attendance of a witness at a deposition
or hearing or the production of documentary or other tangible evidence
in the possession or control of the person served, or both.
(c) A subpoena may be served personally by any person who is not an
interested person and is not less than eighteen (18) years of age, or by
certified or registered mail.
(d) Service of a subpoena shall be made by delivering a copy of the
subpoena in the appropriate manner, as set forth below. Service of a
subpoena requiring attendance of a person is not complete unless
delivery is accompanied by tender of fees for one day's attendance and
mileage as specified by paragraph (f) of this section. However, when a
subpoena is issued upon the request of any officer or agency of the
United States, fees and mileage need not be tendered at the time of
service but will be paid by FRA at the place and time specified in the
subpoena for attendance.
Delivery of a copy of the subpoena may be made:
(1) To a natural person by:
(i) Handing it to the person;
(ii) Leaving it at his or her office with the person in charge
thereof;
(iii) Leaving it at his or her dwelling place or usual place of
abode with some person of suitable age and discretion then residing
therein;
(iv) Mailing it by registered or certified mail to him or her at his
or her last known address; or
(v) Any method whereby actual notice of the issuance and content is
given (and the fees are made available) prior to the return date.
(2) To an entity other than a natural person by:
[[Page 20]]
(i) Handing a copy of the subpoena to a registered agent for service
or to any officer, director, or agent in charge of any office of the
person;
(ii) Mailing it by registered or certified mail to any
representative listed in paragraph (d)(2)(i) of this section at his or
her last known address; or
(iii) Any method whereby actual notice is given to such
representative (and the fees are made available) prior to the return
date.
(e) The original subpoena bearing a certificate of service shall be
filed in accordance with Sec. 209.9.
(f) A witness subpoenaed by the FRA shall be entitled to the same
fees and mileage as would be paid to a witness in a proceeding in the
district courts of the United States. See 28 U.S.C. 1821. The witness
fees and mileage shall be paid by the person requesting that the
subpoena be issued. In an appropriate case, the Chief Counsel or the
hearing officer may direct the person requesting issuance of a subpoena
for the production of documentary or other tangible evidence to
reimburse the responding person for actual costs of producing and/or
transporting such evidence.
(g) Notwithstanding the provisions of paragraph (f) of this section,
and upon request, witness fees and mileage or the costs of producing
other evidence may be paid by the FRA if the official who issued the
subpoena determines on the basis of good cause shown that:
(1) The presence of the subpoenaed witness or evidence will
materially advance the proceedings; and
(2) The party at whose instance the subpoena was issued would suffer
a serious financial hardship if required to pay the witness fees and
mileage.
(h) Any person to whom a subpoena is directed may, prior to the time
specified therein for compliance, but in no event more than ten (10)
days after the date of service of such subpoena, apply in writing to the
official who issued the subpoena, or if that person is unavailable, to
the Chief Counsel, to quash or modify the subpoena. The application
shall contain a brief statement of the reasons relied upon in support of
the action sought therein. The issuing official or the Chief Counsel, as
the case may be, may:
(1) Deny the application;
(2) Quash or modify the subpoena; or
(3) In the case of subpoena to produce documentary or other tangible
evidence, condition denial of the application upon the advancement by
the party in whose behalf the subpoena is issued of the reasonable cost
of producing the evidence.
(i) If there is a refusal to obey a subpoena served upon any person
under the provisions of this section, the FRA may request the Attorney
General to seek the aid of the United States District Court for any
district in which the person is found to compel that person, after
notice, to appear and give testimony, or to appear and produce the
subpoenaed documents before the FRA, or both.
(j) Attendance of any FRA employee engaged in an investigation which
gave rise to a proceeding under subpart B or C of this part for the
purpose of eliciting factual testimony may be assured by filing a
request with the Chief Counsel at least fifteen (15) days before the
date of the hearing. The request must indicate the present intent of the
requesting person to call the employee as a witness and state generally
why the witness will be required.
[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]
Sec. 209.8 Depositions in formal proceedings.
(a) Any party to a proceeding under subpart B, C, or D of this part
may take the testimony of any person, including a party, by deposition
upon oral examination on order of the presiding officer following the
granting of a motion under paragraph (b) of this section. Depositions
may be taken before any disinterested person who is authorized by law to
administer oaths. The attendance of witnesses may be compelled by
subpoena as provided in Sec. 209.7 and, for proceedings under subpart D
of this part, Sec. 209.315.
(b) Any party desiring to take the deposition of a witness shall
file and serve a written motion setting forth the name of the witness;
the date, time, and place of the deposition; the subject matter of the
witness' expected testimony; whether any party objects to the taking of
the deposition; and the
[[Page 21]]
reasons for taking such deposition. Such motion shall be granted only
upon a showing of good cause. Good cause exists to take a person's
deposition when the information sought is relevant to the subject matter
involved in the proceeding and:
(1) The information is not obtainable from some other source that is
more convenient, less burdensome, and less expensive; or
(2) The request is not unreasonably cumulative, unduly burdensome,
or unduly expensive, taking into account the needs of the case,
limitations on the parties' resources, and the importance of the issues
in the case.
(c) Such notice as the presiding officer shall order will be given
for the taking of a deposition, but this shall not be less than 10 days'
written notice unless the parties agree to a shorter period.
(d) Each witness testifying upon deposition shall be sworn and the
adverse party shall have the right to cross-examine. The questions
propounded and the answers thereto, together with all objections made,
shall be reduced to writing, subscribed by the witness, and certified by
the reporter.
(e) Depositions taken under this section may be used for discovery,
to contradict or impeach the testimony of the deponent as a witness, or
as evidence in the proceeding as permitted by paragraph (f) of this
section and in accordance with the limitations of Fed. R. Civ. Pro. 32
as though it were applicable to these proceedings.
(f) Subject to such objections to the questions and answers as were
noted at the time of taking the deposition and as would be valid were
the witness personally present and testifying, such deposition may be
offered in evidence by any party to the proceeding.
[54 FR 42906, Oct. 18, 1989]
Sec. 209.9 Filing.
All materials filed with FRA or any FRA officer in connection with a
proceeding under subpart B, C, or D of this part shall be submitted in
duplicate to the Assistant Chief Counsel for Safety, (RCC-30), Office of
Chief Counsel, Federal Railroad Administration, 400 Seventh Street, SW.,
Washington, DC 20590, except that documents produced in accordance with
a subpoena shall be presented at the place and time specified by the
subpoena.
[54 FR 42906, Oct. 18, 1989]
Sec. 209.11 Request for confidential treatment.
(a) This section governs the procedures for requesting confidential
treatment of any document filed with or otherwise provided to FRA in
connecton with its enforcement of statutes related to railroad safety.
For purposes of this section, ``enforcement'' shall include all
investigative and compliance activities, in addition to the development
of violation reports and recommendations for prosecution.
(b) A request for confidential treatment with respect to a document
or portion thereof may be made on the basis that the information is--
(1) Exempt from the mandatory disclosure requirements of the Freedom
of Information Act (5 U.S.C. 552);
(2) Required to be held in confidence by 18 U.S.C. 1905; or
(3) Otherwise exempt by law from public disclosure.
(c) Any document containing information for which confidential
treatment is requested shall be accompanied at the time of filing by a
statement justifying nondisclosure and referring to the specific legal
authority claimed.
(d) Any document containing any information for which confidential
treatment is requested shall be marked ``CONFIDENTIAL'' or ``CONTAINS
CONFIDENTIAL INFORMATION'' in bold letters. If confidentiality is
requested as to the entire document, or if it is claimed that
nonconfidential information in the document is not reasonably segregable
from confidential information, the accompanying statement of
justification shall so indicate. If confidentiality is requested as to a
portion of the document, then the person filing the document shall file
together with the document a second copy of the document from which the
information for which confidential treatment is requested has been
deleted. If the person filing a document of which only a portion is
requested to be held in confidence does not submit a second copy of the
document with the confidential information deleted. FRA
[[Page 22]]
may assume that there is no objection to public disclosure of the
document in its entirety.
(e) FRA retains the right to make its own determination with regard
to any claim of confidentiality. Notice of a decision by the FRA to deny
a claim, in whole or in part, and an opportunity to respond shall be
given to a person claiming confidentiality of information no less than
five days prior to its public disclosure.
Sec. 209.13 Consolidation.
At the time a matter is set for hearing under subpart B, C, or D of
this part, the Chief Counsel may consolidate the matter with any similar
matter(s) pending against the same respondent or with any related
matter(s) pending against other respondent(s) under the same subpart.
However, on certification by the presiding officer that a consolidated
proceeding is unmanageable or otherwise undesirable, the Chief Counsel
will rescind or modify the consolidation.
[54 FR 42906, Oct. 18, 1989]
Sec. 209.15 Rules of evidence.
The Federal Rules of Evidence for United States Courts and
Magistrates shall be employed as general guidelines for proceedings
under subparts B, C, and D of this part. However, all relevant and
material evidence shall be received into the record.
[54 FR 42907, Oct. 18, 1989]
Sec. 209.17 Motions.
Motions shall be in writing, filed with the presiding officer, and
copies served upon the parties in accordance with Sec. 209.5, except
that oral motions may be made during the course of any hearing or
appearance before the presiding officer. Each motion shall state the
particular order, ruling, or action desired and the grounds therefor.
Unless otherwise specified by the presiding officer, any objection to a
written motion must be filed within 10 days after receipt of the motion.
[54 FR 42907, Oct. 18, 1989]
Subpart B--Hazardous Materials Penalties
Civil Penalties
Sec. 209.101 Civil penalties generally.
(a) Sections 209.101 through 209.121 prescribe rules of procedure
for the assessment of civil penalties pursuant to the Federal hazardous
materials transportation safety law, 49 U.S.C. Chapter 51.
(b) When the FRA has reason to believe that a person has knowingly
committed an act which is a violation of any provision of subchapter B
or C of chapter I, subtitle B of this title for which the FRA exercises
enforcement responsibility or any waiver or order issued thereunder, it
may conduct a proceeding to assess a civil penalty.
[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996]
Sec. 209.103 Minimum and maximum penalties.
A person who knowingly violates a requirement of subchapter A or C
of chapter I, Subtitle B of this title is liable for a civil penalty of
at least $250 but not more than $27,500 for each violation. When the
violation is a continuing one, each day of the violation constitutes a
separate offense. 49 U.S.C. 5123.
[61 FR 38646, July 25, 1996, as amended at 63 FR 11619, Mar. 10, 1998]
Sec. 209.105 Notice of probable violation.
(a) FRA, through the Chief Counsel, begins a civil penalty
proceeding by serving a notice of probable violation on a person
charging him or her with having violated one or more provisions of
subchapter A or C of chapter I, subtitle B of this title. Appendix B to
this part contains guidelines used by the chief counsel in making
initial penalty assessments.
(b) A notice of probable violation issued under this section
includes:
(1) A statement of the provision(s) which the respondent is believed
to have violated;
(2) A statement of the factual allegations upon which the proposed
civil penalty is being sought;
[[Page 23]]
(3) Notice of the maximum amount of civil penalty for which the
respondent may be liable;
(4) Notice of the amount of the civil penalty proposed to be
assessed;
(5) A description of the manner in which the respondent should make
payment of any money to the United States;
(6) A statement of the respondent's right to present written
explanations, information or any materials in answer to the charges or
in mitigation of the penalty; and
(7) A statement of the respondent's right to request a hearing and
the procedures for requesting a hearing.
(c) The FRA may amend the notice of probable violation at any time
prior to the entry of an order assessing a civil penalty. If the
amendment contains any new material allegation of fact, the respondent
is given an opportunity to respond. In an amended notice, FRA may change
the penalty amount proposed to be assessed up to and including the
maximum penalty amount of $25,000 for each violation.
[42 FR 56742, Oct. 28, 1977, as amended at 61 FR 38646, July 25, 1996]
Sec. 209.107 Reply.
(a) Within thirty (30) days of the service of a notice of probable
violation issued under Sec. 209.105, the respondent may--
(1) Pay as provided in Sec. 209.109(a) and thereby close the case;
(2) Make an informal response as provided in Sec. 209.111; or
(3) Request a hearing as provided in Sec. 209.113.
(b) The Chief Counsel may extend the thirty (30) days period for
good cause shown.
(c) Failure of the respondent to reply by taking one of the three
actions described in paragraph (a) of this section within the period
provided constitutes a waiver of his or her right to appear and contest
the allegations and authorizes the Chief Counsel, without further notice
to the respondent, to find the facts to be as alleged in the notice of
probable violation and to assess an appropriate civil penalty.
Sec. 209.109 Payment of penalty; compromise.
(a) Payment of a civil penalty should be made by certified check or
money order payable to the Federal Railroad Administration and sent to
the Accounting Division, Federal Railroad Administration, Department of
Transportation, Washington, DC 20590.
(b) At any time before an order assessing a penalty is referred to
the Attorney General for collection, the respondent may offer to
compromise for a specific amount by contracting the Chief Counsel.
Sec. 209.111 Informal response and assessment.
(a) If a respondent elects to make an informal response to a notice
of probable violation, respondent shall submit to the Chief Counsel such
written explanations, information or other materials as respondent may
desire in answer to the charges or in mitigation of the proposed
penalty.
(b) The respondent may include in his or her informal written
response a request for a conference. Upon receipt of such a request, the
Chief Counsel arranges for a conference as soon as practicable at a time
and place of mutual convenience.
(c) Written explanations, information or materials, submitted by the
respondent and relevant information presented during any conference held
under this section are considered by the Chief Counsel in reviewing the
notice of proposed violation and determining the fact of violation and
the amount of any penalty to be assessed.
(d) After consideration of an informal response, including any
relevant information presented at a conference, the Chief Counsel may
dismiss the notice of probable violation in whole or in part. If he or
she does not dismiss it in whole, he or she may issue an order assessing
a civil penalty.
Sec. 209.113 Request for hearing.
(a) If a respondent elects to request a hearing, he or she must
submit a written request to the Chief Counsel referring to the case
number which appeared on the notice of the probable violation. The
request must--
[[Page 24]]
(1) State the name and address of the respondent and of the person
signing the request if different from the respondent;
(2) State with respect to each allegation whether it is admitted or
denied; and
(3) State with particularity the issues to be raised by the
respondent at the hearing.
(b) After a request for hearing which complies with the requirements
of paragraph (a) of this section, the Chief Counsel schedules a hearing
for the earliest practicable date.
(c) The Chief Counsel or the hearing officer appointed under
Sec. 209.115 may grant extensions of the time of the commencement of the
hearing for good cause shown.
Sec. 209.115 Hearing.
(a) When a hearing is requested and scheduled under Sec. 209.113, a
hearing officer designated by the Chief Counsel convenes and presides
over the hearing. If requested by respondent and if practicable, the
hearing is held in the general vicinity of the place where the alleged
violation occurred, or at a place convenient to the respondent.
Testimony by witnesses shall be given under oath and the hearing shall
be recorded verbatim.
(b) The presiding official may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by Sec. 209.7;
(3) Adopt procedures for the submission of evidence in written form;
(4) Take or cause depositions to be taken;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, and adjourn and otherwise regulate
the course of the hearing;
(8) Hold conferences for settlement, simplification of the issues or
any other proper purpose; and
(9) Take any other action authorized by or consistent with the
provisions of this subpart pertaining to civil penalties and permitted
by law which may expedite the hearing or aid in the disposition of an
issue raised, therein.
(c) The Chief Counsel has the burden of providing the facts alleged
in the notice of proposed violation and may offer such relevant
information as may be necessary fully to inform the presiding officer as
to the matter concerned.
(d) The respondent may appear and be heard on his or her own behalf
or through counsel of his or her choice. The respondent or his or her
counsel may offer relevant information including testimony which he or
she believes should be considered in defense of the allegations or which
may bear on the penalty proposed to be assessed and conduct such cross-
examination as may be required for a full disclosure of the material
facts.
(e) At the conclusion of the hearing or as soon thereafter as the
hearing officer shall provide, the parties may file proposed findings
and conclusions, together with supporting reasons.
[42 FR 56742, Oct. 28, 1977; 42 FR 59755, Nov. 21, 1977]
Sec. 209.117 Presiding officer's decision.
(a) After consideration of the evidence of record, the presiding
officer may dismiss the notice of probable violation in whole or in
part. If the presiding officer does not dismiss it in whole, he or she
will issue and serve on the respondent an order assessing a civil
penalty. The decision of the presiding officer will include a statement
of findings and conclusions as well as the reasons therefor on all
material issues of fact, law, and discretion.
(b) If, within twenty (20) days after service of an order assessing
a civil penalty, the respondent does not pay the civil penalty or file
an appeal as provided in Sec. 209.121, the case may be referred to the
Attorney General with a request that an action to collect the penalty be
brought in the appropriate United States District Court.
Sec. 209.119 Assessment considerations.
The assessment of a civil penalty under Sec. 209.117 is made only
after considering:
(a) The nature and circumstances of the violation;
(b) The extent and gravity of the violation;
[[Page 25]]
(c) The degree of the respondent's culpabilty;
(d) The respondent's history of prior offenses;
(e) The respondent's ability to pay;
(f) The effect on the respondent's ability to continue in business;
and
(g) Such other matters as justice may require.
Sec. 209.121 Appeal.
(a) Any party aggrieved by a presiding officer's decision or order
issued under Sec. 209.117 assessing a civil penalty may file an appeal
with the Administrator. The appeal must be filed within twenty (20) days
of service of the presiding officer's order.
(b) Prior to rendering a final determination on an appeal, the
Administrator may remand the case for further proceedings before the
hearing officer.
(c) In the case of an appeal by a respondent, if the Administrator
affirms the assessment and the respondent does not pay the civil penalty
within twenty (20) days after service of the Administrator's decision on
appeal, the matter may be referred to the Attorney General with a
request that an action to collect the penalty be brought in the
appropriate United States District Court.
Criminal Penalties
Sec. 209.131 Criminal penalties generally.
The Federal hazardous materials transportation safety laws (49
U.S.C. 5124) provide a criminal penalty of a fine under title 18, United
States Code, and imprisonment for not more than 5 years, or both, for
any person who knowingly violates 49 U.S.C. 5104(b) or who willfully
violates chapter 51 of title 49, United States Code, or a regulation
prescribed or order issued under that chapter.
[61 FR 38647, July 25, 1996]
Sec. 209.133 Referral for prosecution.
If an inspector, including a certified state inspector under Part
212 of this chapter, or other employee of FRA becomes aware of a
possible willful violation of the Federal hazardous materials
transportation safety laws (49 U.S.C. Chapter 51) or a regulation issued
under those laws for which FRA exercises enforcement responsibility, he
or she reports it to the Chief Counsel. If evidence exists tending to
establish a prima facie case, and if it appears that assessment of a
civil penalty would not be an adequate deterrent to future violations,
the Chief Counsel refers the report to the Department of Justice for
criminal prosecution of the offender.
[61 FR 38647, July 25, 1996]
Subpart C--Compliance Orders
Sec. 209.201 Compliance orders generally.
(a) This subpart prescribes rules of procedure leading to the
issuance of compliance orders pursuant to the Federal railroad safety
laws at 49 U.S.C. 5121(a) and/or 20111(b).
(b) The FRA may commence a proceeding under this subpart when FRA
has reason to believe that a person is engaging in conduct or a pattern
of conduct that involves one or more violations of the Federal railroad
safety laws or any regulation or order issued under those laws for which
FRA exercises enforcement authority.
[61 FR 38647, July 25, 1996]
Sec. 209.203 Notice of investigation.
(a) FRA begins a compliance order proceeding by serving a notice of
investigation on the respondent.
(b) The notice of investigation contains:
(1) A statement of the legal authority for the proceeding;
(2) A statement of the factual allegations upon which the remedial
action is being sought; and
(3) A statement of the remedial action being sought in the form of a
proposed compliance order.
(c) The FRA may amend the notice of investigation at any time prior
to the entry of a final compliance order. If an amendment includes any
new material allegation of fact or seeks new or additional remedial
action, the respondent is given an opportunity to respond.
Sec. 209.205 Reply.
(a) Within thirty (30) days of service of a notice of investigation,
the respondent may file a reply with the FRA. The Chief Counsel may
extend
[[Page 26]]
the time for filing for good cause shown.
(b) The reply must be in writing, signed by the person filing it,
and state with respect to each factual allegation whether it is admitted
or denied. Even though formally denied, a factual allegation set forth
in a notice of investigation is considered to be admitted for purposes
of the proceeding unless:
(1) Opposed by the affidavit of an individual having personal
knowledge of the subject matter;
(2) Challenged as defective on its face together with a supporting
explanation as to why it is believed to be defective; or
(3) Otherwise actively put at issue through the submission of
relevant evidence.
(c) The reply must set forth any affirmative defenses and include a
statement of the form and nature of proof by which those defenses are to
be established.
(d) If it is necessary to respond to an amendment to the notice of
investigation, the respondent may amend the reply concerning the
substance of matters contained in the amendment to the notice at any
time before the issuance of an order under Sec. 209.211.
(e) If the respondent elects not to contest one or more factual
allegations, he or she should so state in the reply. An election not to
contest a factual allegation is an admission of that allegation solely
for the purpose of issuing a compliance order. That election constitutes
a waiver of hearing as to that allegation but does not, by itself,
constitute a waiver of the right to be heard on other issues. In
connection with a statement of election not to contest a factual
allegation, the respondent may propose an appropriate order for issuance
by the Administrator or propose the negotiation of a consent order.
(f) Failure of the respondent to file a reply within the period
provided constitutes a waiver of his or her right to appear and contest
the allegation and authorizes the Administrator, without further notice
to the respondent, to find the facts to be as alleged in the notice of
proposed violation and to issue an appropriate order directing
compliance.
Sec. 209.207 Consent order.
(a) At any time before the issuance of an order under Sec. 209.211,
the Chief Counsel and the respondent may execute an agreement proposing
the entry by consent of an order directing compliance. The Administrator
may accept the proposed order by signing it. If the Administrator
rejects the proposed order, he or she directs that the proceeding
continue.
(b) An agreement submitted to the Administrator under this section
must include:
(1) A proposed compliance order suitable for the Administrator's
signature;
(2) An admission of all jurisdictional facts;
(3) An express waiver of further procedural steps and of all right
to seek judicial review or otherwise challenge or contest the validity
of the order; and
(4) An acknowledgment that the notice of investigation may be used
to construe the terms of the order.
Sec. 209.209 Hearing.
(a) When a respondent files a reply contesting allegations in a
notice of investigation issued under Sec. 209.203 or when the FRA and
the respondent fail to agree upon an acceptable consent order, the
hearing officer designated by the Chief Counsel convenes and presides
over a hearing on the proposed compliance order.
(b) The presiding official may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by Sec. 209.7;
(3) Adopt procedures for the submission of evidence;
(4) Take or cause depositions to be taken;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, ad- journ and otherwise regulate the
course of the hearing;
(8) Hold conferences for settlement, simplification of the issues or
any other proper purpose; and
(9) Take any other action authorized by or consistent with the
provisions of this subpart pertaining to compliance orders and permitted
by law which may
[[Page 27]]
expedite the hearing or aid in the disposition of an issue raised
therein.
(c) The Chief Counsel has the burden of providing the facts alleged
in the notice of investigation and may offer such relevant information
as may be necessary fully to inform the presiding officer as to the
matter concerned.
(d) The respondent may appear and be heard on his or her own behalf
or through counsel of his or her choice. The respondent or his or her
counsel may offer relevant information, including testimony which he or
she believes should be considered in defense of the allegations or which
may bear on the remedial action being sought, and conduct such cross-
examination as may be required for a full disclosure of the material
facts.
(e) At the conclusion of the hearing or as soon thereafter as the
hearing officer shall provide, the parties may file proposed findings
and conclusions, together with supporting reasons therefor.
Sec. 209.211 Presiding officer's decision.
(a) After consideration of evidence, the presiding officer may
dismiss the notice of investigation or issue a compliance order. The
decision of the presiding officer will include a statement of findings
and conclusions as well as the reasons therefor on all material issues
of fact, law, and discretion.
(b) A compliance order issued under this section is effective twenty
(20) days from service on the respondent unless otherwise provided
therein.
Sec. 209.213 Appeal.
(a) Any party aggrieved by a presiding officer's decision may file
an appeal with the Administrator. The appeal must be filed within twenty
(20) days after service of the presiding officer's decision.
(b) Prior to rendering a final determination on an appeal, the
Administrator may remand the case for further proceedings before the
hearing officer.
(c) The filing of an appeal does not stay the effectiveness of a
compliance order unless the Administrator expressly so provides.
Sec. 209.215 Time limitation.
A proceeding for the issuance of a compliance order under the
Federal Railroad Safety Act of 1970, as amended, shall be completed
within twelve (12) months after issuance of the notice of investigation.
Subpart D--Disqualification Procedures
Source: 54 FR 42907, Oct. 18, 1989, unless otherwise noted.
Sec. 209.301 Purpose and scope.
(a) This subpart prescribes the rules of practice for administrative
proceedings relating to the determination of an individual's fitness for
performing safety-sensitive functions under section 209(f) of the
Federal Railroad Safety Act of 1970 (45 U.S.C. 438(f)).
(b) The purpose of this subpart is to prevent accidents and
casualties in railroad operations that result from the presence in the
work force of railroad employees, including managers and supervisors,
and agents of railroads who have demonstrated their unfitness to perform
the safety-sensitive functions described in Sec. 209.303 by violating
any rule, regulation, order or standard prescribed by FRA. Employees and
agents who evidence such unfitness may be disqualified, under specified
terms and conditions, temporarily or permanently, from performing such
safety-sensitive functions.
(c) This subpart does not preempt a railroad from initiating
disciplinary proceedings and imposing disciplinary sanctions against its
employees, including managers and supervisors, under its collective
bargaining agreements or in the normal and customary manner.
Disqualification determinations made under this subpart shall have no
effect on prior or subsequent disciplinary actions taken against such
employees by railroads.
Sec. 209.303 Coverage.
This subpart applies to the following individuals:
(a) Railroad employees who are assigned to perform service subject
to the Hours of Service Act (45 U.S.C. 61-64b)
[[Page 28]]
during a duty tour, whether or not the person has performed or is
currently performing such service, and any person who performs such
service.
(b) Railroad employees or agents who:
(1) Inspect, install, repair, or maintain track and roadbed;
(2) Inspect, repair or maintain, locomotives, passenger cars, and
freight cars;
(3) Conduct training and testing of employees when the training or
testing is required by the FRA's safety regulations; or
(c) Railroad managers, supervisors, or agents when they:
(1) Perform the safety-sensitive functions listed in paragraphs (a)
and (b) of this section;
(2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section; or
(3) Are in a position to direct the commission of violations of any
of the requirements of parts 213 through 236 of this title.
Sec. 209.305 Notice of proposed disqualification.
(a) FRA, through the Chief Counsel, begins a disqualification
proceeding by serving a notice of proposed disqualification on the
respondent charging him or her with having violated one or more rules,
regulations, orders, or standards promulgated by FRA, which render the
respondent unfit to perform safety-sensitive functions described in
Sec. 209.303.
(b) The notice of proposed disqualification issued under this
section shall contain:
(1) A statement of the rule(s), regulation(s), order(s), or
standard(s) that the respondent is alleged to have violated;
(2) A statement of the factual allegations that form the basis of
the initial determination that the respondent is not fit to perform
safety-sensitive functions;
(3) A statement of the effective date, duration, and other
conditions, if any, of the disqualification order;
(4) A statement of the respondent's right to answer the charges in
writing and furnish affidavits and any other documentary evidence in
support of the answer;
(5) A statement of the respondent's right to make an informal
response to the Chief Counsel;
(6) A statement of the respondent's right to request a hearing and
the procedures for requesting a hearing;
(7) A statement of the respondent's right to counsel or other
designated representative; and
(8) Notice of the consequences of the respondent's failure to take
any of the actions described in Sec. 209.307(a).
(c) The Chief Counsel shall enclose with the notice of proposed
disqualification a copy of the material that is relied on in support of
the charges. Nothing in this section precludes the Chief Counsel from
presenting at a subsequent hearing under Sec. 209.321 any evidence of
the charges set forth in the notice that the Chief Counsel acquires
after service thereof on the respondent. The Chief Counsel, however,
shall serve a copy of any such evidence on the respondent at or before
the prehearing conference required under Sec. 209.319. Failure to
furnish such evidence to respondent at or before the prehearing
conference bars its introduction at the hearing.
(d) The Chief Counsel shall provide a copy of the notice of proposed
disqualification to the railroad that employs the respondent.
Sec. 209.307 Reply.
(a) Within 30 days after receipt of the notice of proposed
disqualification issued under Sec. 209.305, the respondent shall reply
in writing to the charges. The respondent may furnish affidavits and any
other documentary evidence in support of the reply. Further, the
respondent may elect to--
(1) Stipulate to the charges and consent to the imposition of the
disqualification order under the conditions set forth in the notice;
(2) Make an informal response as provided in Sec. 209.309; or
(3) Request a hearing as provided in Sec. 209.311.
(b) The Chief Counsel may extend the reply period for good cause
shown, provided the request for extension is
[[Page 29]]
served before the expiration of the period provided in paragraph (a) of
this section.
(c) Failure of the respondent to reply to the notice of proposed
disqualification within the period provided in paragraph (a) of this
section or an extension thereto provided under paragraph (b) of this
section constitutes a waiver of the respondent's right to appear and
contest the charges or the proposed disqualification. Respondent's
failure to reply authorizes the Chief Counsel, without further notice to
the respondent, to find the respondent unfit for the performance of the
safety-sensitive functions described in Sec. 209.303 and to order the
respondent disqualified from performing them for the period and under
the other conditions described in the notice of proposed
disqualification. The Chief Counsel shall serve respondent with the
disqualification order and provide a copy of the order to the railroad
by which the respondent is employed.
Sec. 209.309 Informal response.
(a) If the respondent elects to make an informal response to a
notice of proposed disqualification, he or she shall submit to the Chief
Counsel such written explanations, information, or other materials as
respondent may desire in answer to the charges or in mitigation of the
proposed disqualification.
(b) The respondent may include in an informal written response a
request for a conference. Upon receipt of such a request, the Chief
Counsel shall arrange for a conference at a time and place designated by
the Chief Counsel.
(c) Written explanations, information, or materials submitted by the
respondent and relevant information presented during any conference held
under this section shall be considered by the Chief Counsel in reviewing
the notice of proposed disqualification, including the question of the
respondent's fitness and the conditions of any disqualification that may
be imposed.
(d) After consideration of an informal response, including any
relevant information presented at a conference, the Chief Counsel shall
take one of the following actions:
(1) Dismiss all the charges and terminate the notice of proposed
disqualification;
(2) Dismiss some of the charges and mitigate the proposed
disqualification;
(3) Mitigate the proposed disqualification; or
(4) Sustain the charges and proposed disqualification.
(e) Should the Chief Counsel sustain, in whole or in part, the
charges and proposed disqualification and reach settlement with the
respondent, the Chief Counsel shall issue an appropriate
disqualification order reflecting the settlement and shall provide a
copy of that order to the railroad by which the respondent is employed.
The duration of the disqualification period may be less than, but shall
be no greater than, the period set forth in the notice. Any settlement
reached shall be evidenced by a written agreement, which shall include
declarations from the respondent stipulating to the charges contained in
the disqualification order, consenting to the imposition of the
disqualification under the conditions set forth in the disqualification
order, and waiving his or her right to a hearing.
(f) If settlement of the charges against the respondent is not
achieved, the Chief Counsel shall terminate settlement discussions no
later than 30 days from service of the informal response upon the Chief
Counsel by serving respondent written notice of termination of
settlement negotiations.
(g) By electing to make an informal response to a notice of proposed
disqualification, the respondent does not waive the right to a hearing.
However, the respondent must submit the hearing request required by
Sec. 209.311(a) within l0 days after receipt of the notice of
termination of settlement negotiations from the Chief Counsel. Failure
to submit such a request constitutes a waiver of the respondent's right
to appear and contest the charges or the proposed disqualification.
(h) The Chief Counsel may extend the period for requesting a hearing
for good cause shown, provided the request for extension is served
before the expiration of the period provided in paragraph (g) of this
section.
[[Page 30]]
Sec. 209.311 Request for hearing.
(a) If the respondent elects to request a hearing, he or she must
submit a written request within the time periods specified in
Sec. 209.307(a) or Sec. 209.309(g) to the Chief Counsel referring to the
case number that appears on the notice of proposed disqualification. The
request must contain the following:
(1) The name, address, and telephone number of the respondent and of
the respondent's designated representative, if any;
(2) A specific response admitting, denying, or explaining each
allegation of the notice of disqualification order.
(3) A description of the claims and defenses to be raised by the
respondent at the hearing; and
(4) The signature of the respondent or the representative, if any.
(b) Upon receipt of a request for a hearing complying with the
requirements of paragraph (a) of this section, the Chief Counsel shall
arrange for the appointment of a presiding officer and transmit the
disqualification file to the presiding officer, who shall schedule the
hearing for the earliest practicable date within the time period set by
Sec. 209.321(a) of this subpart.
(c) Upon assignment of a presiding officer, further matters in the
proceeding generally are conducted by and through the presiding officer,
except that the Chief Counsel and respondent may settle or voluntarily
dismiss the case without order of the presiding officer. The Chief
Counsel shall promptly notify the presiding officer of any settlement or
dismissal of the case.
Sec. 209.313 Discovery.
(a) Disqualification proceedings shall be conducted as expeditiously
as possible with due regard to the rights of the parties. Discovery is
designed to enable a party to obtain relevant information needed for
preparation of the party's case. These regulations are intended to
provide a simple, timely, and relatively economical system for
discovery. They shall be interpreted and applied so as to avoid delay
and facilitate adjudication of the case.
(b) Discovery may be obtained by requests for admission under
Sec. 209.6, requests for production of documentary or other tangible
evidence under Sec. 209.7, and depositions under Sec. 209.8.
(c) A party may initiate the methods of discovery permitted under
paragraph (b) of this section at any time after respondent requests a
hearing under Sec. 209.311.
(d) Discovery shall be completed within 90 days after receipt of
respondent's request for a hearing under Sec. 209.311. Upon motion for
good cause shown, the presiding officer may extend this time period for
an additional 30 days. The presiding officer may grant an additional 30
day extension only when the party requesting the extension shows by
clear and convincing evidence that the party was unable to complete
discovery within the prescribed time period through no fault or lack of
due diligence of such party, and that denial of the request would result
in irreparable prejudice.
(e) If a party fails to comply with a discovery order or an order to
compel, the presiding officer may:
(1) Strike any appropriate part of the pleadings or other
submissions of the party failing to comply with such order;
(2) Prohibit the party failing to comply with such order from
introducing evidence relating to the information sought;
(3) Draw an inference in favor of the requesting party with regard
to the information sought; and
(4) Permit the requesting party to introduce secondary evidence
concerning the information sought.
Sec. 209.315 Subpoenas.
Once a notice of proposed disqualification has been issued in a
particular matter, only the presiding officer may issue, deny, quash, or
modify subpoenas under this subpart in accordance with Sec. 209.7.
Sec. 209.317 Official record.
The notice of proposed disqualification, respondent's reply,
exhibits, and verbatim record of testimony, if a hearing is held, and
all pleadings, stipulations, and admissions filed and rulings and orders
entered in the course of the proceeding shall constitute the exclusive
and official record.
[[Page 31]]
Sec. 209.319 Prehearing conference.
(a) The parties shall confer with the presiding officer, either in
person or by telephone, for a conference at least 10 days before the
hearing to consider:
(1) Formulation and simplification of the issues;
(2) Stipulations, admissions of fact, and admissions of the contents
and authenticity of documents;
(3) Advance rulings from the presiding officer on the admissibility
of evidence;
(4) Identification of witnesses, including the scope of their
testimony, and of hearing exhibits;
(5) Possibility of settlement; and
(6) Such other matters as the presiding officer deems necessary to
expedite the disposition of the proceeding.
(b) The record shall show the matters disposed of by order and by
agreement in such a prehearing conference. The subsequent course of the
hearing shall be controlled by such action.
(c) The prehearing conference shall be held within 150 days after
receipt of respondent's request for a hearing under Sec. 209.311.
Sec. 209.321 Hearing.
(a) Upon receipt of a hearing request complying with Sec. 209.311,
an administrative hearing for review of a notice of proposed
disqualification shall be conducted by a presiding officer, who can be
any person authorized by the FRA Administrator, including an
administrative law judge. The hearing shall begin within 180 days from
receipt of respondent's hearing request. Notice of the time and place of
the hearing shall be given to the parties at least 20 days before the
hearing. Testimony by witnesses shall be given under oath and the
hearing shall be recorded verbatim. The hearing shall be open to the
public, unless the presiding official determines that it would be in the
best interests of the respondent, a witness, or other affected persons,
to close all or any part of it. If the presiding official makes such a
determination, an appropriate order, which sets forth the reasons
therefor, shall be entered.
(b) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by Sec. 209.7;
(3) Adopt procedures for the submission of evidence in written form;
(4) Take or cause depositions to be taken as provided in Sec. 209.8;
(5) Rule on offers of proof and receive relevant evidence;
(6) Examine witnesses at the hearing;
(7) Convene, recess, reconvene, adjourn, and otherwise regulate the
course of the hearing;
(8) Hold conferences for settlement, simplification of the issues,
or any other proper purpose; and
(9) Take any other action authorized by or consistent with the
provisions of this subpart and permitted by law that may expedite the
hearing or aid in the disposition of an issue raised therein.
(c) FRA has the burden of proof, by a preponderance of the evidence,
as to the facts alleged in the notice of proposed disqualification, the
reasonableness of the conditions of the qualification proposed, and,
except as provided in Sec. 209.329(a), the respondent's lack of fitness
to perform safety-sensitive functions. The Chief Counsel may offer
relevant evidence, including testimony, in support of the allegations
contained in the notice of proposed disqualification and conduct such
cross-examination as may be required for a full disclosure of the
material facts.
(d) The respondent may appear and be heard on respondent's own
behalf or through respondent's designated representative. The respondent
may offer relevant evidence, including testimony, in defense of the
allegations or in mitigation of the proposed disqualification and
conduct such cross-examination as may be required for a full disclosure
of the material facts. Respondent has the burden of proof, by a
preponderance of the evidence, as to any affirmative defense, including
that respondent's actions were in obedience to the direct order of a
railroad supervisor or higher level official.
(e) The record shall be closed at the conclusion of the hearing,
unless the parties request the opportunity to submit proposed findings
and conclusions. When the presiding officer allows the parties to submit
proposed findings and conclusions, documents previously
[[Page 32]]
identified for introduction into evidence, briefs, or other posthearing
submissions the record shall be left open for such time as the presiding
officer grants for that purpose.
[54 FR 42907, Oct. 18, 1989, as amended at 60 FR 53136, Oct. 12, 1995]
Sec. 209.323 Initial decision.
(a) The presiding officer shall prepare an initial decision after
the closing of the record. The initial decision may dismiss the notice
of proposed disqualification, in whole or in part, sustain the charges
and proposed disqualification, or sustain the charges and mitigate the
proposed disqualification.
(b) If the presiding officer sustains the charges and the proposed
disqualification, dismisses some of the charges, or mitigates the
proposed disqualification, the presiding officer shall issue and serve
an appropriate order disqualifying respondent from engaging in the
safety-sensitive functions described in Sec. 209.303. If the presiding
officer dismisses all of the charges set forth in notice of proposed
disqualification, a dismissal order shall be issued and served.
(c) Each initial decision shall contain:
(1) Findings of fact and conclusions of law, as well as the reasons
or bases therefor, upon all the material issues of fact and law
presented on the record;
(2) An order, as described in paragraph (b) of this section;
(3) The dates any disqualification is to begin and end and other
conditions, if any, that the respondent must satisfy before the
disqualification order is discharged;
(4) The date upon which the decision will become final, as
prescribed in Sec. 209.325; and
(5) Notice of the parties' appeal rights, as prescribed in
Sec. 209.327.
(d) The decision shall be served upon the FRA Chief Counsel and the
respondent. The Chief Counsel shall provide a copy of the
disqualification order to the railroad by which the respondent is
employed.
Sec. 209.325 Finality of decision.
(a) The initial decision of the presiding officer shall become final
35 days after issuance. Such decisions are not precedent.
(b) Exception. The initial decision shall not become final if,
within 35 days after issuance of the decision, any party files an appeal
under Sec. 209.327. The timely filing of such an appeal shall stay the
order in the initial decision.
Sec. 209.327 Appeal.
(a) Any party aggrieved by an initial decision issued under
Sec. 209.323 may file an appeal. The appeal must be filed within 35 days
of issuance of the initial decision with the Federal Railroad
Administrator, 400 Seventh Street, SW., Washington, DC 20590. A copy of
the appeal shall be served on each party. The appeal shall set forth
objections to the initial decision, supported by reference to applicable
laws and regulations, and with specific reference to the record. If the
Administrator has played any role in investigating, prosecuting, or
deciding to prosecute the particular case, the Administrator shall
recuse him or herself and delegate his or her authority under this
section to a person not so involved.
(b) A party may file a reply to an appeal within 25 days of service
of the appeal. If the party relies on evidence contained in the record
for the reply, the party shall specifically refer to the pertinent
evidence in the record.
(c) The Administrator may extend the period for filing an appeal or
a response for good cause shown, provided the written request for
extension is served before the expiration of the applicable period
provided in paragraph (c) or (d) of this section.
(d) The Administrator has sole discretion to permit oral argument on
the appeal. On the Administrator's own initiative or upon written motion
by any party, the Administrator may determine that oral argument will
contribute substantially to the development of the issues on appeal and
may grant the parties an opportunity for oral argument.
(e) The Administrator may affirm, reverse, alter, or modify the
decision of the presiding officer, or may remand the case for further
proceedings before
[[Page 33]]
the presiding officer. The Administrator shall inform the parties and
the presiding officer of his or her decision.
(f) The decision of the Administrator is final, constitutes final
agency action, and is not subject to further administrative review.
Sec. 209.329 Assessment considerations.
(a) Proof of a respondent's willful violation of one of the
requirements of parts 213 through 236 (excluding parts 225, 228, and
233) of this title establishes a rebuttable presumption that the
respondent is unfit to perform the safety-sensitive functions described
in Sec. 209.303. Where such presumption arises, the respondent has the
burden of establishing that, taking account of the factors in paragraph
(b) of this section, he or she is fit to perform the foregoing safety-
sensitive functions for the period and under the other conditions, if
any, proposed in the notice of proposed disqualification.
(b) In determining respondent's lack of fitness to perform safety-
sensitive functions and the duration and other conditions, if any, of
appropriate disqualification orders under Secs. 209.309, 209.323, and
209.327, the factors to be considered, to the extent: Each is pertinent
to the respondent's case, include but are not limited to the following:
(1) The nature and circumstances of the violation, including whether
the violation was intentional, technical, or inadvertent, was committed
willfully, or was frequently repeated;
(2) The adverse impact or the potentially adverse impact of the
violation on the health and safety of persons and the safety of
property;
(3) The railroad's operating rules, safety rules, and repair and
maintenance standards;
(4) Repair and maintenance standards adopted by the industry;
(5) The consistency of the conditions of the proposed
disqualification with disqualification orders issued against other
employees for the same or similar violations;
(6) Whether the respondent was on notice of any safety regulations
that were violated or whether the respondent had been warned about the
conduct in question;
(7) The respondent's past record of committing violations of safety
regulations, including previous FRA warnings issued, disqualifications
imposed, civil penalties assessed, railroad disciplinary actions, and
criminal convictions therefor;
(8) The civil penalty scheduled for the violation of the safety
regulation in question;
(9) Mitigating circumstances surrounding the violation, such as the
existence of an emergency situation endangering persons or property and
the need for the respondent to take immediate action; and
(10) Such other factors as may be warranted in the public interest.
Sec. 209.331 Enforcement of disqualification order.
(a) A railroad that employs or formerly employed an individual
serving under a disqualification order shall inform prospective or
actual employers of the terms and conditions of the order upon receiving
notice that the disqualified employee is being considered for employment
with or is employed by another railroad to perform any of the safety-
sensitive functions described in Sec. 209.303.
(b) A railroad that is considering hiring an individual to perform
the safety-sensitive functions described in Sec. 209.303 shall ascertain
from the individual's previous employer, if such employer was a
railroad, whether the individual is subject to a disqualification order.
(c) An individual subject to a disqualification order shall inform
his or her employer of the order and provide a copy thereof within 5
days after receipt of the order. Such an individual shall likewise
inform any prospective employer who is considering hiring the individual
to perform any of the safety-sensitive functions described in
Sec. 209.303 of the order and provide a copy thereof within 5 days after
receipt of the order or upon application for the position, whichever
first occurs.
Sec. 209.333 Prohibitions.
(a) An individual subject to a disqualification order shall not work
for any railroad in any manner inconsistent with the order.
[[Page 34]]
(b) A railroad shall not employ any individual subject to a
disqualification order in any manner inconsistent with the order.
Sec. 209.335 Penalties.
(a) Any individual who violates Sec. 209.331(c) or Sec. 209.333(a)
may be permanently disqualified from performing the safety-sensitive
functions described in Sec. 209.303. Any individual who willfully
violates Sec. 209.331(c) or Sec. 209.333(a) may also be assessed a civil
penalty of at least $1,000 and not more than $5,000 per violation.
(b) Any railroad that violates Sec. 209.331 (a) or (b) or
Sec. 209.333(b) may be assessed a civil penalty of at least $5,000 and
not more than $11,000 per violation.
(c) Each day a violation continues shall constitute a separate
offense.
[54 FR 42907, Oct. 18, 1989, as amended at 63 FR 11619, Mar. 10, 1998]
Sec. 209.337 Information collection.
The information collection requirements in Sec. 209.331 of this part
have been reviewed by the Office of Management and Budget pursuant to
the Paperwork Reduction Act of 1980, (44 U.S.C. 3501 et seq.) and have
been assigned OMB control number 2130-0529.
[56 FR 66791, Dec. 26, 1991]
Subpart E--Reporting of Remedial Actions
Source: 59 FR 43676, Aug. 24, 1994, unless otherwise noted.
Sec. 209.401 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and
casualties arising from the operation of a railroad that result from a
railroad's failure to remedy certain violations of the Federal railroad
safety laws for which assessment of a civil penalty has been
recommended.
(b) To achieve this purpose, this subpart requires that if an FRA
Safety Inspector notifies a railroad both that assessment of a civil
penalty will be recommended for its failure to comply with a provision
of the Federal railroad safety laws and that a remedial actions report
must be submitted, the railroad shall report to the FRA Safety
Inspector, within 30 days after the end of the calendar month in which
such notification is received, actions taken to remedy that failure.
(c) This subpart does not relieve the railroad of the underlying
responsibility to comply with a provision of the Federal railroad safety
laws. The 30-day period after the end of the calendar month in which
notification is received is intended merely to provide the railroad with
an opportunity to prepare its report to FRA, and does not excuse
continued noncompliance.
(d) This subpart requires the submission of remedial actions reports
for the general categories of physical defects, recordkeeping and
reporting violations, and filing violations, where the railroad can
literally and specifically correct a failure to comply with a provision
of the Federal railroad safety laws, as reasonably determined by the FRA
Safety Inspector. No railroad is required to submit a report for a
failure involving either a completed or past transaction or a
transaction that it can no longer remedy.
Sec. 209.403 Applicability.
This subpart applies to any railroad that receives written
notification from an FRA Safety Inspector both (i) that assessment of a
civil penalty will be recommended for its failure to comply with a
provision of the Federal railroad safety laws and (ii) that it must
submit a remedial actions report.
Sec. 209.405 Reporting of remedial actions.
(a) Except as provided in Sec. 209.407, each railroad that has
received written notification on Form FRA F 6180.96 from an FRA Safety
Inspector both that assessment of a civil penalty will be recommended
for the railroad's failure to comply with a provision of the Federal
railroad safety laws and that it must submit a remedial actions report,
shall report on this form all actions that it takes to remedy that
failure. The railroad shall submit the completed form to the FRA Safety
Inspector within 30 days after the end of the calendar month in which
the notification is received.
(1) Date of receipt of notification. If the FRA Safety Inspector
provides written
[[Page 35]]
notification to the railroad by first class mail, then for purposes of
determining the calendar month in which notification is received, the
railroad shall be presumed to have received the notification five
business days following the date of mailing.
(2) Completion of Form FRA F 6180.96, including selection of
railroad remedial action code. Each railroad shall complete the remedial
actions report in the manner prescribed on the report form. The railroad
shall select the one remedial action code on the reporting form that
most accurately reflects the action or actions that it took to remedy
the failure, such as, repair or replacement of a defective component
without movement, movement of a locomotive or car for repair (where
permitted) and its subsequent repair, completion of a required test or
inspection, removal of a noncomplying item from service but not for
repair (where permitted), reduction of operating speed (where sufficient
to achieve compliance), or any combination of actions appropriate to
remedy the noncompliance cited. Any railroad selecting the remedial
action code ``other remedial actions'' shall also furnish FRA with a
brief narrative description of the action or actions taken.
(3) Submission of Form FRA F 6180.96. The railroad shall return the
form by first class mail to the FRA Safety Inspector whose name and
address appear on the form.
(b) Any railroad concluding that the violation alleged on the
inspection report may not have occurred may submit the remedial actions
report with an appropriate written explanation. Failure to raise all
pertinent defenses does not foreclose the railroad from doing so in
response to a penalty demand.
Sec. 209.407 Delayed reports.
(a) If a railroad cannot initiate or complete remedial actions
within 30 days after the end of the calendar month in which the
notification is received, it shall--
(1) Prepare, in writing, an explanation of the reasons for such
delay and a good faith estimate of the date by which it will complete
the remedial actions, stating the name and job title of the preparer and
including either:
(i) A photocopy of both sides of the Form FRA F 6180.96 on which the
railroad received notification; or
(ii) The following information:
(A) The inspection report number;
(B) The inspection date; and
(C) The item number; and
(2) Sign, date, and submit such written explanation and estimate, by
first class mail, to the FRA Safety Inspector whose name and address
appear on the notification, within 30 days after the end of the calendar
month in which the notification is received.
(b) Within 30 days after the end of the calendar month in which all
such remedial actions are completed, the railroad shall report in
accordance with the remedial action code procedures referenced in
Sec. 209.405(a). The additional time provided by this section for a
railroad to submit a delayed report shall not excuse it from liability
for any continuing violation of a provision of the Federal railroad
safety laws.
Sec. 209.409 Penalties.
Any person who violates any requirement of this subpart or causes
the violation of any such requirement is subject to a civil penalty of
at least $500 and not more than $11,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury to
persons, or has caused death or injury, a penalty not to exceed $22,000
per violation may be assessed. Each day a violation continues shall
constitute a separate offense. A person may also be subject to the
criminal penalties provided for in 49 U.S.C. 21311 (formerly codified in
45 U.S.C. 438(e)) for knowingly and willfully falsifying reports
required by this subpart.
[59 FR 43676, Aug. 24, 1994, as amended at 63 FR 11619, Mar. 10, 1998]
Appendix A to Part 209--Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws
The Federal Railroad Administration (``fra'') enforces the federal
railroad safety
[[Page 36]]
statutes under delegation from the Secretary of Transportation. See 49
CFR 1.49 (c), (d), (f), (g), and (m). Those statutes include the Federal
Railroad Safety Act of 1970 (``Safety Act''), 45 U.S.C. 421 et seq., and
a group of statutes enacted prior to 1970 referred to collectively
herein as the ``older safety statutes'': The Safety Appliance Acts, 45
U.S.C. 1-16; the Locomotive Inspection Act, 45 U.S.C. 22-34; the
Accident Reports Act, 45 U.S.C. 38-43; the Hours of Service Act, 45
U.S.C. 61-64b; and the Signal Inspection Act, 49 App. U.S.C. 26.
Regulations implementing those statutes are found at 49 CFR parts 213
through 236. The Rail Safety Improvement Act of 1988 (Pub. L. No. 100-
342, enacted June 22, 1988) (``RSIA'') raised the maximum civil
penalties available under the railroad safety laws and made individuals
liable for willful violations of those laws. FRA also enforces the
Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq., as
it pertains to the shipment or transportation of hazardous materials by
rail.
The Civil Penalty Process
The front lines in the civil penalty process are the FRA safety
inspectors: FRA employs over 300 inspectors, and their work is
supplemented by approximately 100 inspectors from states participating
in enforcement of the federal rail safety laws. These inspectors
routinely inspect the equipment, track, and signal systems and observe
the operations of the nation's railroads. They also investigate hundreds
of complaints filed annually by those alleging noncompliance with the
laws. When inspection or complaint investigation reveals noncompliance
with the laws, each noncomplying condition or action is listed on an
inspection report. Where the inspector determines that the best method
of promoting compliance is to assess a civil penalty, he or she prepares
a violation report, which is essentially a recommendation to the FRA
Office of Chief Counsel to assess a penalty based on the evidence
provided in or with the report.
In determining which instances of noncompliance merit penalty
recommendations, the inspector considers:
(1) The inherent seriousness of the condition or action;
(2) The kind and degree of potential safety hazard the condition or
action poses in light of the immediate factual situation;
(3) Any actual harm to persons or property already caused by the
condition or action;
(4) The offending person's (i.e., railroad's or individual's)
general level of current compliance as revealed by the inspection as a
whole;
(5) The person's recent history of compliance with the relevant set
of regulations, especially at the specific location or division of the
railroad involved;
(6) Whether a remedy other than a civil penalty (ranging from a
warning on up to an emergency order) is more appropriate under all of
the facts; and
(7) Such other factors as the immediate circumstances make relevant.
The civil penalty recommendation is reviewed at the regional level
by a specialist in the subject matter involved, who requires correction
of any technical flaws and determines whether the recommendation is
consistent with national enforcement policy in similar circumstances.
Guidance on that policy in close cases is sometimes sought from Office
of Safety headquarters. Violation reports that are technically and
legally sufficient and in accord with FRA policy are sent from the
regional office to the Office of Chief Counsel.
The exercise of this discretion at the field and regional levels is
a vital part of the enforcement process, ensuring that the exacting and
time-consuming civil penalty process is used to address those situations
most in need of the deterrent effect of penalties. FRA exercises that
discretion with regard to individual violators in the same manner it
does with respect to railroads.
The Office of Chief Counsel's Safety Division reviews each violation
report it receives from the regional offices for legal sufficiency and
assesses penalties based on those allegations that survive that review.
Historically, the Division has returned to the regional offices less
than five percent of the reports submitted in a given year, often with a
request for further work and resubmission.
Where the violation was committed by a railroad, penalties are
assessed by issuance of a penalty demand letter that summarizes the
claims, encloses the violation report with a copy of all evidence on
which FRA is relying in making its initial charge, and explains that the
railroad may pay in full or submit, orally or in writing, information
concerning any defenses or mitigating factors. The railroad safety
statutes, in conjunction with the Federal Claims Collection Act,
authorize FRA to adjust or compromise the initial penalty claims based
on a wide variety of mitigating factors. This system permits the
efficient collection of civil penalties in amounts that fit the actual
offense without resort to time-consuming and expensive litigation. Over
its history, FRA has had to request that the Attorney General bring suit
to collect a penalty on only a very few occasions.
Once penalties have been assessed, the railroad is given a
reasonable amount of time to investigate the charges. Larger railroads
usually make their case before FRA in an informal conference covering a
number of case files that have been issued and investigated since the
previous conference. Thus, in terms
[[Page 37]]
of the negotiating time of both sides, economies of scale are achieved
that would be impossible if each case were negotiated separately. The
settlement conferences, held either in Washington or another mutually
agreed on location, include technical experts from both FRA and the
railroad as well as lawyers for both parties. In addition to allowing
the two sides to make their cases for the relative merits of the various
claims, these conferences also provide a forum for addressing current
compliance problems. Smaller railroads usually prefer to handle
negotiations through the mail or over the telephone, often on a single
case at a time. Once the two sides have agreed to an amount on each
case, that agreement is put in writing and a check is submitted to FRA's
accounting division covering the full amount agreed on.
Cases brought under the Hazardous Materials Transportation Act, 49
App. U.S.C. 1801 et seq., are, due to certain statutory requirements,
handled under more formal administrative procedures. See 49 CFR part
209, subpart B.
Civil Penalties Against Individuals
The RSIA amended the penalty provisions of the railroad safety
statutes to make them applicable to any ``person (including a railroad
and any manager, supervisor, official, or other employee or agent of a
railroad)'' who fails to comply with the regulations or statutes. E.g.,
section 3 of the RSIA, amending section 209 of the Safety Act. However,
the RSIA also provided that civil penalties may be assessed against
individuals ``only for willful violations.''
Thus, any individual meeting the statutory description of ``person''
is liable for a civil penalty for a willful violation of, or for
willfully causing the violation of, the safety statutes or regulations.
Of course, as has traditionally been the case with respect to acts of
noncompliance by railroads, the FRA field inspector exercises discretion
in deciding which situations call for a civil penalty assessment as the
best method of ensuring compliance. The inspector has a range of
options, including an informal warning, a more formal warning letter
issued by the Safety Division of the Office of Chief Counsel,
recommendation of a civil penalty assessment, recommendation of
disqualification or suspension from safety-sensitive service, or, under
the most extreme circumstances, recommendation of emergency action.
The threshold question in any alleged violation by an individual
will be whether that violation was ``willful.'' (Note that section 3(a)
of the RSIA, which authorizes suspension or disqualification of a person
whose violation of the safety laws has shown him or her to be unfit for
safety-sensitive service, does not require a showing of willfulness.
Regulations implementing that provision are found at 49 CFR part 209,
subpart D.) FRA proposed this standard of liability when, in 1987, it
originally proposed a statutory revision authorizing civil penalties
against individuals. FRA believed then that it would be too harsh a
system to collect fines from individuals on a strict liability basis, as
the safety statutes permit FRA to do with respect to railroads. FRA also
believed that even a reasonable care standard (e.g., the Hazardous
Materials Transportation Act's standard for civil penalty liability, 49
U.S.C. 1809(a)) would subject individuals to civil penalties in more
situations than the record warranted. Instead, FRA wanted the authority
to penalize those who violate the safety laws through a purposeful act
of free will.
Thus, FRA considers a ``willful'' violation to be one that is an
intentional, voluntary act committed either with knowledge of the
relevant law or reckless disregard for whether the act violated the
requirements of the law. Accordingly, neither a showing of evil purpose
(as is sometimes required in certain criminal cases) nor actual
knowledge of the law is necessary to prove a willful violation, but a
level of culpability higher than negligence must be demonstrated. See
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Brock v.
Morello Bros. Constr., Inc. 809 F.2d 161 (1st Cir. 1987); and Donovan v.
Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984).
Reckless disregard for the requirements of the law can be
demonstrated in many ways. Evidence that a person was trained on or made
aware of the specific rule involved--or, as is more likely, its
corresponding industry equivalent--would suffice. Moreover, certain
requirements are so obviously fundamental to safe railroading (e.g., the
prohibition against disabling an automatic train control device) that
any violation of them, regardless of whether the person was actually
aware of the prohibition, should be seen as reckless disregard of the
law. See Brock, supra, 809 F.2d 164. Thus, a lack of subjective
knowledge of the law is no impediment to a finding of willfulness. If it
were, a mere denial of the content of the particular regulation would
provide a defense. Having proposed use of the word ``willful,'' FRA
believes it was not intended to insulate from liability those who simply
claim--contrary to the established facts of the case--they had no reason
to believe their conduct was wrongful.
A willful violation entails knowledge of the facts constituting the
violation, but actual, subjective knowledge need not be demonstrated. It
will suffice to show objectively what the alleged violator must have
known of the facts based on reasonable inferences drawn from the
circumstances. For example, a person shown to have been responsible for
performing an initial terminal air brake test that was not in fact
performed would not be
[[Page 38]]
able to defend against a charge of a willful violation simply by
claiming subjective ignorance of the fact that the test was not
performed. If the facts, taken as a whole, demonstrated that the person
was responsible for doing the test and had no reason to believe it was
performed by others, and if that person was shown to have acted with
actual knowledge of or reckless disregard for the law requiring such a
test, he or she would be subject to a civil penalty.
This definition of ``willful'' fits squarely within the parameters
for willful acts laid out by Congress in the RSIA and its legislative
history. Section 3(a) of the RSIA amends the Safety Act to provide:
For purposes of this section, an individual shall be deemed not to
have committed a willful violation where such individual has acted
pursuant to the direct order of a railroad official or supervisor, under
protest communicated to the supervisor. Such individual shall have the
right to document such protest.
As FRA made clear when it recommended legislation granting
individual penalty authority, a railroad employee should not have to
choose between liability for a civil penalty or insubordination charges
by the railroad. Where an employee (or even a supervisor) violates the
law under a direct order from a supervisor, he or she does not do so of
his or her free will. Thus, the act is not a voluntary one and,
therefore, not willful under FRA's definition of the word. Instead, the
action of the person who has directly ordered the commission of the
violation is itself a willful violation subjecting that person to a
civil penalty. As one of the primary sponsors of the RSIA said on the
Senate floor:
This amendment also seeks to clarify that the purpose of imposing
civil penalties against individuals is to deter those who, of their free
will, decide to violate the safety laws. The purpose is not to penalize
those who are ordered to commit violations by those above them in the
railroad chain of command. Rather, in such cases, the railroad official
or supervisor who orders the others to violate the law would be liable
for any violations his order caused to occur. One example is the
movement of railroad cars or locomotives that are actually known to
contain certain defective conditions. A train crew member who was
ordered to move such equipment would not be liable for a civil penalty,
and his participation in such movements could not be used against him in
any disqualification proceeding brought by FRA.
133 Cong. Rec. S.15899 (daily ed. Nov. 5, 1987) (remarks of Senator
Exon).
It should be noted that FRA will apply the same definition of
``willful'' to corporate acts as is set out here with regard to
individual violations. Although railroads are strictly liable for
violations of the railroad safety laws and deemed to have knowledge of
those laws, FRA's penalty schedules contain, for each regulation, a
separate amount earmarked as the initial assessment for willful
violations. Where FRA seeks such an extraordinary penalty from a
railroad, it will apply the definition of ``willful'' set forth above.
In such cases--as in all civil penalty cases brought by FRA--the
aggregate knowledge and actions of the railroad's managers, supervisors,
employees, and other agents will be imputed to the railroad. Thus, in
situations that FRA decides warrant a civil penalty based on a willful
violation, FRA will have the option of citing the railroad and/or one or
more of the individuals involved. In cases against railroads other than
those in which FRA alleges willfulness or in which a particular
regulation imposes a special standard, the principles of strict
liability and presumed knowledge of the law will continue to apply.
The RSIA gives individuals the right to protest a direct order to
violate the law and to document the protest. FRA will consider such
protests and supporting documentation in deciding whether and against
whom to cite civil penalties in a particular situation. Where such a
direct order has been shown to have been given as alleged, and where
such a protest is shown to have been communicated to the supervisor, the
person or persons communicating it will have demonstrated their lack of
willfulness. Any documentation of the protest will be considered along
with all other evidence in determining whether the alleged order to
violate was in fact given.
However, the absence of such a protest will not be viewed as
warranting a presumption of willfulness on the part of the employee who
might have communicated it. The statute says that a person who
communicates such a protest shall be deemed not to have acted willfully;
it does not say that a person who does not communicate such a protest
will be deemed to have acted willfully. FRA would have to prove from all
the pertinent facts that the employee willfully violated the law.
Moreover, the absence of a protest would not be dispositive with regard
to the willfulness of a supervisor who issued a direct order to violate
the law. That is, the supervisor who allegedly issued an order to
violate will not be able to rely on the employee's failure to protest
the order as a complete defense. Rather, the issue will be whether, in
view of all pertinent facts, the supervisor intentionally and
voluntarily ordered the employee to commit an act that the supervisor
knew would violate the law or acted with reckless disregard for whether
it violated the law.
FRA exercises the civil penalty authority over individuals through
informal procedures very similar to those used with respect to railroad
violations. However, FRA varies
[[Page 39]]
those procedures somewhat to account for differences that may exist
between the railroad's ability to defend itself against a civil penalty
charge and an individual's ability to do so. First, when the field
inspector decides that an individual's actions warrant a civil penalty
recommendation and drafts a violation report, the inspector or the
regional director informs the individual in writing of his or her
intention to seek assessment of a civil penalty and the fact that a
violation report has been transmitted to the Office of Chief Counsel.
This ensures that the individual has the opportunity to seek counsel,
preserve documents, or take any other necessary steps to aid his or her
defense at the earliest possible time.
Second, if the Office of Chief Counsel concludes that the case is
meritorious and issues a penalty demand letter, that letter makes clear
that FRA encourages discussion, through the mail, over the telephone or
in person, of any defenses or mitigating factors the individual may wish
to raise. That letter also advises the individual that he or she may
wish to obtain representation by an attorney and/or labor
representative. During the negotiation stage, FRA considers each case
individually on its merits and gives due weight to whatever information
the alleged violator provides.
Finally, in the unlikely event that a settlement cannot be reached,
FRA sends the individual a letter warning of its intention to request
that the Attorney General sue for the initially proposed amount and
giving the person a sufficient interval (e.g., 30 days) to decide if
that is the only alternative.
FRA believes that the intent of Congress would be violated if
individuals who agree to pay a civil penalty or are ordered to do so by
a court are indemnified for that penalty by the railroad or another
institution (such as a labor organization). Congress intended that the
penalties have a deterrent effect on individual behavior that would be
lessened, if not eliminated, by such indemnification.
Although informal, face-to-face meetings are encouraged during the
negotiation of a civil penalty charge, the RSIA does not require that
FRA give individuals or railroads the opportunity for a formal, trial-
type administrative hearing as part of the civil penalty process. FRA
does not provide that opportunity because such administrative hearings
would be likely to add significantly to the costs an individual would
have to bear in defense of a safety claim (and also to FRA's enforcement
expenses) without shedding any more light on what resolution of the
matter is fair than would the informal procedures set forth here. Of
course, should an individual or railroad decide not to settle, that
person would be entitled to a trial de novo when FRA, through the
Attorney General, sued to collect the penalty in the appropriate United
States district court.
Penalty Schedules; Assessment of Maximum Penalties
As recommended by the Department of Transportation in its initial
proposal for rail safety legislative revisions in 1987, the RSIA raised
the maximum civil penalties for violations of the safety regulations.
Under the Hours of Service Act, the penalty was changed from a flat $500
to a penalty of ``up to $1,000, as the Secretary of Transportation deems
reasonable.'' Under all the other statutes, the maximum penalty was
raised from $2,500 to $10,000 per violation, except that ``where a
grossly negligent violation or pattern of repeated violations has
created an imminent hazard of death or injury to persons, or has caused
death or injury,'' a penalty of up to $20,000 per violation may be
assessed.
The Rail Safety Enforcement and Review Act of 1992 (RSERA) increased
the maximum penalty from $1,000 to $10,000 and in some cases, $20,000
for a violation of the Hours of Service Laws, making these penalty
amounts uniform with those of FRA's other regulatory provisions. RSERA
also increased the minimum civil monetary penalty from $250 to $500 for
all of FRA's regulatory provisions. The Federal Civil Penalties
Inflation Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890,
note, as amended by Section 31001(s)(1) of the Debt Collection
Improvement Act of 1996 Public Law 104-134, 110 Stat. 1321-373, April
26, 1996 required that agencies adjust by regulation each maximum civil
monetary penalty within the agency's jurisdiction for inflation and make
subsequent adjustments once every four years after the initial
adjustment. Accordingly, FRA's maximum civil monetary penalties have
been adjusted.
FRA's traditional practice has been to issue penalty schedules
assigning to each particular regulation specific dollar amounts for
initial penalty assessments. The schedule (except where issued after
notice and an opportunity for comment) constitutes a statement of agency
policy, and is ordinarily issued as an appendix to the relevant part of
the Code of Federal Regulations. For each regulation, the schedule shows
two amounts within the $500 to $11,000 range in separate columns, the
first for ordinary violations, the second for willful violations
(whether committed by railroads or individuals). In one instance--part
231--the schedule refers to sections of the relevant FRA defect code
rather than to sections of the CFR text. Of course, the defect code,
which is simply a reorganized version of the CFR text used by FRA to
facilitate computerization of inspection data, is substantively
identical to the CFR text.
The schedule amounts are meant to provide guidance as to FRA's
policy in predictable situations, not to bind FRA from using
[[Page 40]]
the full range of penalty authority where extraordinary circumstances
warrant. The Senate report on the bill that became the RSIA stated:
It is expected that the Secretary would act expeditiously to set
penalty levels commensurate with the severity of the violations, with
imposition of the maximum penalty reserved for violation of any
regulation where warranted by exceptional circumstances. S. Rep. No.
100-153, 10th Cong., 2d Sess. 8 (1987).
Accordingly, under each of the schedules (ordinarily in a footnote),
and regardless of the fact that a lesser amount might be shown in both
columns of the schedule, FRA reserves the right to assess the statutory
maximum penalty of up to $22,000 per violation where a grossly negligent
violation has created an imminent hazard of death or injury. This
authority to assess a penalty for a single violation above $11,000 and
up to $22,000 is used only in very exceptional cases to penalize
egregious behavior. Where FRA avails itself of this right to use the
higher penalties in place of the schedule amount it so indicates in its
penalty demand letter.
The Extent And Exercise Of FRA's Safety Jurisdiction
The Safety Act and, as amended by the RSIA, the older safety
statutes apply to ``railroads.'' Section 202(e) of the Safety Act
defines railroad as follows:
The term ``railroad'' as used in this title means all forms of non-
highway ground transportation that run on rails or electromagnetic
guideways, including (1) commuter or other short-haul rail passenger
service in a metropolitan or suburban area, as well as any commuter rail
service which was operated by the Consolidated Rail Corporation as of
January 1, 1979, and (2) high speed ground transportation systems that
connect metropolitan areas, without regard to whether they use new
technologies not associated with traditional railroads. Such term does
not include rapid transit operations within an urban area that are not
connected to the general railroad system of transportation.
Prior to 1988, the older safety statutes had applied only to common
carriers engaged in interstate or foreign commerce by rail. The Safety
Act, by contrast, was intended to reach as far as the Commerce Clause of
the Constitution (i.e., to all railroads that affect interstate
commerce) rather than be limited to common carriers actually engaged in
interstate commerce. In reporting out the bill that became the 1970
Safety Act, the House Committee on Interstate and Foreign Commerce
stated:
The Secretary's authority to regulate extends to all areas of
railroad safety. This legislation is intended to encompass all those
means of rail transportation as are commonly included within the term.
Thus, ``railroad'' is not limited to the confines of ``common carrier by
railroad'' as that language is defined in the Interstate Commerce Act.
H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970).
FRA's jurisdiction was bifurcated until, in 1988, the RSIA amended
the older safety statutes to make them coextensive with the Safety Act
by making them applicable to railroads and incorporating the Safety
Act's definition of the term (e.g., 45 U.S.C. 16, as amended). The RSIA
also made clear that FRA's safety jurisdiction is not confined to
entities using traditional railroad technology. The new definition of
``railroad'' emphasized that all non-highway high speed ground
transportation systems--regardless of technology used--would be
considered railroads.
Thus, with the exception of self-contained urban rapid transit
systems, FRA's statutory jurisdiction extends to all entities that can
be construed as railroads by virtue of their providing non-highway
ground transportation over rails or electromagnetic guideways, and will
extend to future railroads using other technologies not yet in use. For
policy reasons, however, FRA does not exercise jurisdiction under all of
its regulations to the full extent permitted by statute. Based on its
knowledge of where the safety problems were occurring at the time of its
regulatory action and its assessment of the practical limitations on its
role, FRA has, in each regulatory context, decided that the best option
was to regulate something less than the total universe of railroads.
For example, all of FRA's regulations exclude from their reach
railroads whose entire operations are confined to an industrial
installation (i.e., ``plant railroads''), such as those in steel mills
that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1)
(accident reporting regulations). Some rules exclude passenger
operations that are not part of the general railroad system (such as
some tourist railroads) only if they meet the definition of ``insular.''
E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade
crossing signal safety). Other regulations exclude not only plant
railroads but all other railroads that are not operated as a part of, or
over the lines of, the general railroad system of transportation. E.g.,
49 CFR 214.3 (railroad workplace safety).
By ``general railroad system of transportation,'' FRA refers to the
network of standard gage track over which goods may be transported
throughout the nation and passengers may travel between cities and
within metropolitan and suburban areas. Much of this network is
interconnected, so that a rail vehicle can travel across the nation
without leaving the system. However, mere physical connection to the
system does not bring trackage within it. For example, trackage
[[Page 41]]
within an industrial installation that is connected to the network only
by a switch for the receipt of shipments over the system is not a part
of the system.
Moreover, portions of the network may lack a physical connection but
still be part of the system by virtue of the nature of operations that
take place there. For example, the Alaska Railroad is not physically
connected to the rest of the general system but is part of it. The
Alaska Railroad exchanges freight cars with other railroads by car float
and exchanges passengers with interstate carriers as part of the general
flow of interstate commerce. Similarly, an intercity high speed rail
system with its own right of way would be part of the general system
although not physically connected to it. The presence on a rail line of
any of these types of railroad operations is a sure indication that such
trackage is part of the general system: the movement of freight cars in
trains outside the confines of an industrial installation, the movement
of intercity passenger trains, or the movement of commuter trains within
a metropolitan or suburban area. Urban rapid transit operations are
ordinarily not part of the general system, but may have sufficient
connections to that system to warrant exercise of FRA's jurisdiction
(see discussion of passenger operations, below). Tourist railroad
operations are not inherently part of the general system and, unless
operated over the lines of that system, are subject to few of FRA's
regulations.
The boundaries of the general system are not static. For example, a
portion of the system may be purchased for the exclusive use of a single
private entity and all connections, save perhaps a switch for receiving
shipments, severed. Depending on the nature of the operations, this
could remove that portion from the general system. The system may also
grow, as with the establishment of intercity service on a brand new
line. However, the same trackage cannot be both inside and outside of
the general system depending upon the time of day. If trackage is part
of the general system, restricting a certain type of traffic over that
trackage to a particular portion of the day does not change the nature
of the line--it remains the general system.
Of course, even where a railroad operates outside the general
system, other railroads that are definitely part of that system may have
occasion to enter the first railroad's property (e.g., a major railroad
goes into a chemical or auto plant to pick up or set out cars). In such
cases, the railroad that is part of the general system remains part of
that system while inside the installation; thus, all of its activities
are covered by FRA's regulations during that period. The plant railroad
itself, however, does not get swept into the general system by virtue of
the other railroad's activity, except to the extent it is liable, as the
track owner, for the condition of its track over which the other
railroad operates during its incursion into the plant. Of course, in the
opposite situation, where the plant railroad itself operates beyond the
plant boundaries on the general system, it becomes a railroad with
respect to those particular operations, during which its equipment,
crew, and practices would be subject to FRA's regulations.
In some cases, the plant railroad leases track immediately adjacent
to its plant from the general system railroad. Assuming such a lease
provides for, and actual practice entails, the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant, the lease
would remove the plant railroad's operations on that trackage from the
general system for purposes of FRA's regulations, as it would make that
trackage part and parcel of the industrial installation. (As explained
above, however, the track itself would have to meet FRA's standards if a
general system railroad operated over it. See 49 CFR 213.5 for the rules
on how an owner of track may assign responsibility for it.) A lease or
practice that permitted other types of movements by general system
railroads on that trackage would, of course, bring it back into the
general system, as would operations by the plant railroad indicating it
was moving cars on such trackage for other than its own purposes (e.g.,
moving cars to neighboring industries for hire).
FRA exercises jurisdiction over tourist, scenic, and excursion
railroad operations whether or not they are conducted on the general
railroad system. There are two exceptions: (1) operations of less than
24-inch gage (which, historically, have never been considered railroads
under the Federal railroad safety laws); and (2) operations that are off
the general system and ``insular'' (defined below).
Insularity is an issue only with regard to tourist operations over
trackage outside of the general system used exclusively for such
operations. FRA considers a tourist operation to be insular if its
operations are limited to a separate enclave in such a way that there is
no reasonable expectation that the safety of any member of the
public'except a business guest, a licensee of the tourist operation or
an affiliated entity, or a trespasser'would be affected by the
operation. A tourist operation will not be considered insular if one or
more of the following exists on its line:
[sbull]A public highway-rail crossing that is in use;
[sbull]An at-grade rail crossing that is in use;
[sbull]A bridge over a public road or waters used for commercial
navigation; or
[[Page 42]]
[sbull]A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
When tourist operations are conducted on the general system, FRA
exercises jurisdiction over them, and all of FRA's pertinent regulations
apply to those operations unless a waiver is granted or a rule
specifically excepts such operations (e.g., the passenger equipment
safety standards contain an exception for these operations, 49 CFR
238.3(c)(3), even if conducted on the general system). When a tourist
operation is conducted only on track used exclusively for that purpose
it is not part of the general system. The fact that a tourist operation
has a switch that connects it to the general system does not make the
tourist operation part of the general system if the tourist trains do
not enter the general system and the general system railroad does not
use the tourist operation's trackage for any purpose other than
delivering or picking up shipments to or from the tourist operation
itself.
If a tourist operation off the general system is insular, FRA does
not exercise jurisdiction over it, and none of FRA's rules apply. If,
however, such an operation is not insular, FRA exercises jurisdiction
over the operation, and some of FRA's rules (i.e., those that
specifically apply beyond the general system to such operations) will
apply. For example, FRA's rules on accident reporting, steam
locomotives, and grade crossing signals apply to these non-insular
tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of
FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal
railroad safety statutes themselves.
In drafting safety rules, FRA has a specific obligation to consider
financial, operational, or other factors that may be unique to tourist
operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider
those factors in determining whether any particular rule will apply to
tourist operations. Therefore, although FRA asserts jurisdiction quite
broadly over these operations, we work to ensure that the rules we issue
are appropriate to their somewhat special circumstances.
It is important to note that FRA's exercise of its regulatory
authority on a given matter does not preclude it from subsequently
amending its regulations on that subject to bring in railroads
originally excluded. More important, the self-imposed restrictions on
FRA's exercise of regulatory authority in no way constrain its exercise
of emergency order authority under section 203 of the Safety Act. That
authority was designed to deal with imminent hazards not dealt with by
existing regulations and/or so dangerous as to require immediate, ex
parte action on the government's part. Thus, a railroad excluded from
the reach of any of FRA's regulations is fully within the reach of FRA's
emergency order authority, which is coextensive with FRA's statutory
jurisdiction over all railroads.
FRA's Policy on Jurisdiction Over Passenger Operations
Under the Federal railroad safety laws, FRA has jurisdiction over
all railroads except ``rapid transit operations in an urban area that
are not connected to the general railroad system of transportation.'' 49
U.S.C. 20102. Within the limits imposed by this authority, FRA exercises
jurisdiction over all railroad passenger operations, regardless of the
equipment they use, unless FRA has specifically stated below an
exception to its exercise of jurisdiction for a particular type of
operation. This policy is stated in general terms and does not change
the reach of any particular regulation under its applicability section.
That is, while FRA may generally assert jurisdiction over a type of
operation here, a particular regulation may exclude that kind of
operation from its reach. Therefore, this statement should be read in
conjunction with the applicability sections of all of FRA's regulations.
Intercity Passenger Operations
FRA exercises jurisdiction over all intercity passenger operations.
Because of the nature of the service they provide, standard gage
intercity operations are all considered part of the general railroad
system, even if not physically connected to other portions of the
system. Other intercity passenger operations that are not standard gage
(such as a magnetic levitation system) are within FRA's jurisdiction
even though not part of the general system.
Commuter Operations
FRA exercises jurisdiction over all commuter operations. Congress
apparently intended that FRA do so when it enacted the Federal Railroad
Safety Act of 1970, and made that intention very clear in the 1982 and
1988 amendments to that act. FRA has attempted to follow that mandate
consistently. A commuter system's connection to other railroads is not
relevant under the rail safety statutes. In fact, FRA considers commuter
railroads to be part of the general railroad system regardless of such
connections.
FRA will presume that an operation is a commuter railroad if there
is a statutory determination that Congress considers a particular
service to be commuter rail. For example, in the Northeast Rail Service
Act of 1981, 45 U.S.C. 1104(3), Congress listed specific commuter
authorities. If that presumption does not apply, and the operation does
not meet the description of a system that is presumptively urban rapid
transit (see below), FRA will determine whether a system is
[[Page 43]]
commuter or urban rapid transit by analyzing all of the system's
pertinent facts. FRA is likely to consider an operation to be a commuter
railroad if:
[sbull]The system serves an urban area, its suburbs, and more
distant outlying communities in the greater metropolitan area,
[sbull]The system's primary function is moving passengers back and
forth between their places of employment in the city and their homes
within the greater metropolitan area, and moving passengers from station
to station within the immediate urban area is, at most, an incidental
function, and
[sbull]The vast bulk of the system's trains are operated in the
morning and evening peak periods with few trains at other hours.
Examples of commuter railroads include Metra and the Northern
Indiana Commuter Transportation District in the Chicago area; Virginia
Railway Express and MARC in the Washington area; and Metro-North, the
Long Island Railroad, New Jersey Transit, and the Port Authority Trans
Hudson (PATH) in the New York area.
Other Short Haul Passenger Service
The federal railroad safety statutes give FRA authority over
``commuter or other short-haul railroad passenger service in a
metropolitan or suburban area.'' 49 U.S.C. 20102. This means that, in
addition to commuter service, there are other short-haul types of
service that Congress intended that FRA reach. For example, a passenger
system designed primarily to move intercity travelers from a downtown
area to an airport, or from an airport to a resort area, would be one
that does not have the transportation of commuters within a metropolitan
area as its primary purpose. FRA would ordinarily exercise jurisdiction
over such a system as ``other short-haul service'' unless it meets the
definition of urban rapid transit and is not connected in a significant
way to the general system.
Urban Rapid Transit Operations
One type of short-haul passenger service requires special treatment
under the safety statutes: ``rapid transit operations in an urban
area.'' Only these operations are excluded from FRA's jurisdiction, and
only if they are ``not connected to the general railroad system.'' FRA
will presume that an operation is an urban rapid transit operation if
the system is not presumptively a commuter railroad (see discussion
above) the operation is a subway or elevated operation with its own
track system on which no other railroad may operate, has no highway-rail
crossings at grade, operates within an urban area, and moves passengers
from station to station within the urban area as one of its major
functions.
Where neither the commuter railroad nor urban rapid transit
presumptions applies, FRA will look at all of the facts pertinent to a
particular operation to determine its proper characterization. FRA is
likely to consider an operation to be urban rapid transit if:
[sbull]The operation serves an urban area (and may also serve its
suburbs),
[sbull]Moving passengers from station to station within the urban
boundaries is a major function of the system and there are multiple
station stops within the city for that purpose (such an operation could
still have the transportation of commuters as one of its major functions
without being considered a commuter railroad), and
[sbull]The system provides frequent train service even outside the
morning and evening peak periods.
Examples of urban rapid transit systems include the Metro in the
Washington, D.C. area, CTA in Chicago, and the subway systems in New
York, Boston, and Philadelphia. The type of equipment used by such a
system is not determinative of its status. However, the kinds of
vehicles ordinarily associated with street railways, trolleys, subways,
and elevated railways are the types of vehicles most often used for
urban rapid transit operations.
FRA can exercise jurisdiction over a rapid transit operation only if
it is connected to the general railroad system, but need not exercise
jurisdiction over every such operation that is so connected. FRA is
aware of several different ways that rapid transit operations can be
connected to the general system. Our policy on the exercise of
jurisdiction will depend upon the nature of the connection(s). In
general, a connection that involves operation of transit equipment as a
part of, or over the lines of, the general system will trigger FRA's
exercise of jurisdiction. Below, we review some of the more common types
of connections and their effect on the agency's exercise of
jurisdiction. This is not meant to be an exhaustive list of connections.
Rapid Transit Connections Sufficient to Trigger FRA's Exercise of
Jurisdiction
Certain types of connections to the general railroad system will
cause FRA to exercise jurisdiction over the rapid transit line to the
extent it is connected. FRA will exercise jurisdiction over the portion
of a rapid transit operation that is conducted as a part of or over the
lines of the general system. For example, rapid transit operations are
conducted on the lines of the general system where the rapid transit
operation and other railroad use the same track. FRA will exercise its
jurisdiction over the operations conducted on the general system. In
situations involving joint use of the same track, it does not matter
that the rapid transit operation occupies the track only at times when
the freight,
[[Page 44]]
commuter, or intercity passenger railroad that shares the track is not
operating. While such time separation could provide the basis for waiver
of certain of FRA's rules (see 49 CFR part 211), it does not mean that
FRA will not exercise jurisdiction. However, FRA will exercise
jurisdiction over only the portions of the rapid transit operation that
are conducted on the general system. For example, a rapid transit line
that operates over the general system for a portion of its length but
has significant portions of street railway that are not used by
conventional railroads would be subject to FRA's rules only with respect
to the general system portion. The remaining portions would not be
subject to FRA's rules. If the non-general system portions of the rapid
transit line are considered a ``rail fixed guideway system'' under 49
CFR Part 659, those rules, issued by the Federal Transit Administration
(FTA), would apply to them.
Another connection to the general system sufficient to warrant FRA's
exercise of jurisdiction is a railroad crossing at grade where the rapid
transit operation and other railroad cross each other's tracks. In this
situation, FRA will exercise its jurisdiction sufficiently to assure
safe operations over the at-grade railroad crossing. FRA will also
exercise jurisdiction to a limited extent over a rapid transit operation
that, while not operated on the same tracks as the conventional
railroad, is connected to the general system by virtue of operating in a
shared right-of-way involving joint control of trains. For example, if a
rapid transit line and freight railroad were to operate over a movable
bridge and were subject to the same authority concerning its use (e.g.,
the same tower operator controls trains of both operations), FRA will
exercise jurisdiction in a manner sufficient to ensure safety at this
point of connection. Also, where transit operations share highway-rail
grade crossings with conventional railroads, FRA expects both systems to
observe its signal rules. For example, FRA expects both railroads to
observe the provision of its rule on grade crossing signals that
requires prompt reports of warning system malfunctions. See 49 CFR part
234. FRA believes these connections present sufficient intermingling of
the rapid transit and general system operations to pose significant
hazards to one or both operations and, in the case of highway-rail grade
crossings, to the motoring public. The safety of highway users of
highway-rail grade crossings can best be protected if they get the same
signals concerning the presence of any rail vehicles at the crossing and
if they can react the same way to all rail vehicles.
Rapid Transit Connections Not Sufficient to Trigger FRA's Exercise of
Jurisdiction
Although FRA could exercise jurisdiction over a rapid transit
operation based on any connection it has to the general railroad system,
FRA believes there are certain connections that are too minimal to
warrant the exercise of its jurisdiction. For example, a rapid transit
system that has a switch for receiving shipments from the general system
railroad is not one over which FRA would assert jurisdiction. This
assumes that the switch is used only for that purpose. In that case, any
entry onto the rapid transit line by the freight railroad would be for a
very short distance and solely for the purpose of dropping off or
picking up cars. In this situation, the rapid transit line is in the
same situation as any shipper or consignee; without this sort of
connection, it cannot receive or offer goods by rail.
Mere use of a common right-of-way or corridor in which the
conventional railroad and rapid transit operation do not share any means
of train control, have a rail crossing at grade, or operate over the
same highway-rail grade crossings would not trigger FRA's exercise of
jurisdiction. In this context, the presence of intrusion detection
devices to alert one or both carriers to incursions by the other one
would not be considered a means of common train control. These common
rights of way are often designed so that the two systems function
completely independently of each other. FRA and FTA will coordinate with
rapid transit agencies and railroads wherever there are concerns about
sufficient intrusion detection and related safety measures designed to
avoid a collision between rapid transit trains and conventional
equipment.
Where these very minimal connections exist, FRA will not exercise
jurisdiction unless and until an emergency situation arises involving
such a connection, which is a very unlikely event. However, if such a
system is properly considered a rail fixed guideway system, FTA's rules
(49 CFR part 659) will apply to it.
Coordination of the FRA and FTA Programs
FTA's rules on rail fixed guideway systems (49 CFR part 659) apply
to any rapid transit systems or portions thereof not subject to FRA's
rules. On rapid transit systems that are not sufficiently connected to
the general railroad system to warrant FRA's exercise of jurisdiction
(as explained above), FTA's rules will apply exclusively. On those rapid
transit systems that are connected to the general system in such a way
as warrant exercise of FRA's jurisdiction, only those portions of the
rapid transit system that are
[[Page 45]]
connected to the general system will generally be subject to FRA's
rules.
A rapid transit railroad may apply to FRA for a waiver of any FRA
regulations. See 49 CFR part 211. FRA will seek FTA's views whenever a
rapid transit operation petitions FRA for a waiver of its safety rules.
In granting or denying any such waiver, FRA will make clear whether its
rules do not apply to any segments of the operation so that it is clear
where FTA's rules do apply.
Extraordinary Remedies
While civil penalties are the primary enforcement tool under the
federal railroad safety laws, more extreme measures are available under
certain circumstances. FRA has authority to issue orders directing
compliance with the Federal Railroad Safety Act, the Hazardous Materials
Transportation Act, the older safety statutes, or regulations issued
under any of those statutes. See 45 U.S.C. 437(a) and (d), and 49 App.
U.S.C. 1808(a). Such an order may issue only after notice and
opportunity for a hearing in accordance with the procedures set forth in
49 CFR part 209, subpart C. FRA inspectors also have the authority to
issue a special notice requiring repairs where a locomotive or freight
car is unsafe for further service or where a segment of track does not
meet the standards for the class at which the track is being operated.
Such a special notice may be appealed to the regional director and the
FRA Administrator. See 49 CFR part 216, subpart B.
FRA may, through the Attorney General, also seek injunctive relief
in federal district court to restrain violations or enforce rules issued
under the railroad safety laws. See 45 U.S.C. 439 and 49 App. U.S.C.
1810.
FRA also has the authority to issue, after notice and an opportunity
for a hearing, an order prohibiting an individual from performing
safety-sensitive functions in the rail industry for a specified period.
This disqualification authority is exercised under procedures found at
49 CFR part 209, subpart D.
Criminal penalties are available for willful violations of the
Hazardous Materials Transportation Act or its regulations. See 49 App.
U.S.C. 1809(b), and 49 CFR 209.131, 133. Criminal penalties are also
available under 45 U.S.C. 438(e) for knowingly and willfully falsifying,
destroying, or failing to complete records or reports required to be
kept under the various railroad safety statutes and regulations. The
Accident Reports Act, 45 U.S.C. 39, also contains criminal penalties.
Perhaps FRA's most sweeping enforcement tool is its authority to
issue emergency safety orders ``where an unsafe condition or practice,
or a combination of unsafe conditions or practices, or both, create an
emergency situation involving a hazard of death or injury to persons * *
*'' 45 U.S.C. 432(a). After its issuance, such an order may be reviewed
in a trial-type hearing. See 49 CFR 211.47 and 216.21 through 216.27.
The emergency order authority is unique because it can be used to
address unsafe conditions and practices whether or not they contravene
an existing regulatory or statutory requirement. Given its extraordinary
nature, FRA has used the emergency order authority sparingly.
[53 FR 52920, Dec. 29, 1988, as amended at 63 FR 11619, Mar. 10, 1998;
64 FR 62864, Nov. 17, 1999; 65 FR 42544, July 10, 2000]
Appendix B to Part 209--Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments
These guidelines establish benchmarks to be used in determining
initial civil penalty assessments for violations of the Hazardous
Materials Regulations (HMR). The guideline penalty amounts reflect the
best judgment of the FRA Office of Safety Assurance and Compliance (RRS)
and of the Safety Law Division of the Office of Chief Counsel (RCC) on
the relative severity, on a scale of $250 to $25,000, of the various
violations routinely encountered by FRA inspectors. (49 U.S.C. 5123)
Unless otherwise specified, the guideline amounts refer to average
violations, that is, violations involving a hazardous material with a
medium level of hazard, and a violator with an average compliance
history. In an ``average violation,'' the respondent has committed the
acts due to a failure to exercise reasonable care under the
circumstances (``knowingly''). For some sections, the guidelines contain
a breakdown according to relative severity of the violation, for
example, the guidelines for shipping paper violations at 49 CFR
Secs. 172.200-.203. All penalties in these guidelines are subject to
change depending upon the circumstances of the particular case. The
general duty sections, for example Secs. 173.1 and 174.7, are not
ordinarily cited as separate violations; they are primarily used as
explanatory citations to demonstrate applicability of a more specific
section where applicability is otherwise unclear.
FRA believes that infractions of the regulations that lead to
personal injury are especially serious; this is directly in line with
Department of Transportation policy that hazardous materials are only
safe for transportation when they are securely sealed in a proper
package. (Some few containers, such as tank cars of carbon dioxide, are
designed to vent off excess internal pressure. They are exceptions to
the ``securely sealed'' rule.) ``Personal injury'' has become somewhat
of a term of art, especially in the fields of occupational safety and of
accident reporting. To avoid confusion, these penalty guidelines use the
notion of ``human contact'' to trigger
[[Page 46]]
penalty aggravation. In essence, any contact by a hazardous material on
a person during transportation is a per se injury and proof will not be
required regarding the extent of the physical contact or its
consequences. When a violation of the Hazardous Materials Regulations
causes a death or serious injury, the maximum penalty of $25,000 shall
always be assessed initially.
These guidelines are a preliminary assessment tool for FRA's use.
They create no rights in any party. FRA is free to vary from them when
it deems appropriate and may amend them from time to time without prior
notice. Moreover, FRA is not bound by any amount it initially proposes
should litigation become necessary. In fact, FRA reserves the express
authority to amend the NOPV to seek a penalty of up to $25,000 for each
violation at any time prior to issuance of an order.
Penalty Assessment Guidelines
------------------------------------------------------------------------
Emergency orders Guideline
------------------------------------------------------------------------
EO16............................... Penalties for 5,000
violations of EO16
vary depending on the
circumstances.
EO17............................... Penalties for (\1\)
violations of EO17
vary depending on the
circumstances.
Failure to file annual 5,000
report.
------------------------------------------------------------------------
\1\ Varies.
Penalty Assessment Guidelines
------------------------------------------------------------------------
49 CFR section Description Guideline
------------------------------------------------------------------------
PART 107
------------------------------------------------------------------------
107.608............................ Failure to register or 1,000
to renew
registration. (Note:
registration--or
renewal--is
mitigation.).
------------------------------------
PART 171
------------------------------------------------------------------------
171.2(c)........................... Representing (marking, 8,000
certifying, selling,
or offering) a
packaging as meeting
regulatory
specification when it
does not.
171.2(f)(2)........................ Billing, marking, etc. 2,000
for the presence of
HM when no HM is
present. (Mitigation
required for
shipments smaller
than a carload, i.e.,
single drum penalty
is 1,000).
171.12............................. Import shipments-- 4,000
Importer not
providing shipper and
forwarding agent with
US requirements.
Cannot be based on
inference.
Import shipments-- 2,000
Failure to certify by
shipper or forwarding
agent.
171.15............................. Failure to provide 6,000
immediate notice of
certain hazardous
materials incidents.
171.16............................. Failure to file 4,000
incident report (form
DOT 5800.1). (Note:
Multiple failures
will aggravate the
penalty; see the
expert attorney.).
------------------------------------
PART 172
------------------------------------------------------------------------
Shipping Papers:
172.200--.203.................. Offering hazardous
materials for
transportation when
the material is not
properly described on
the shipping paper as
required by Secs.
172.200--.203. (The
``shipping paper'' is
the document tendered
by the shipper/
offeror to the
carrier. The original
shipping paper
contains the
shipper's
certification at Sec.
172.204.).
--Information on the 15,000
shipping paper is
wrong to the extent
that it caused or
materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
shipping paper. (Some
shipping names alone
contain sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present but the
missing or improper
description could
cause mishandling by
the carrier or a
delay or error in
emergency response.
--When the improper 2,000
description is not
likely to cause
serious problem
(technical defect).
--Shipping paper 7,500
includes a hazardous
materials description
and no hazardous
materials are present.
Note: Failure to
include emergency
response information
is covered at Secs.
172.600-604; while
the normal unit of
violation for
shipping papers is
the whole document,
failure to provide
emergency response
information is a
separate violation.
172.204........................ Shipper's failure to 2,000
certify.
[[Page 47]]
172.205........................ Hazardous waste 4,000
manifest. (Applies
only to defects in
the Hazardous Waste
Manifest form [EPA
Form 8700-22 and 8700-
22A]; shipping paper
defects are cited and
penalized under Sec.
172.200-.203.).
Marking............................ The guidelines for
``marking''
violations
contemplate a total
lack of the
prescribed mark.
Obviously, where the
package (including a
whole car) is
partially marked,
mitigation should be
applied.
172.301........................ Failure to mark a non- 1,000
bulk package as
required (e.g., no
commodity name on a
55-gallon drum).
(Shipment is the unit
of violation.).
172.302........................ Failure to follow 2,000
standards for marking
bulk packaging.
(Note: If a more
specific section
applies, cite it and
its penalty
guideline.).
172.302(a)..................... ID number missing or 2,500
in improper location.
(The guideline is for
a portable tank; for
smaller bulk
packages, the
guideline should be
mitigated downward.).
172.302(b)..................... Failure to use the 2,000
correct size of
markings. (Note: If
Sec. 172.326(a) is
also cited, it takes
precedence and
.302(b) is not cited.
Note also: the
guideline is for a
gross violation of
marking size--\1/
2\ where
2 is
required--and
mitigation should be
considered for
markings approaching
the required size.).
172.302(c)..................... Failure to place 2,000
exemption number
markings on bulk
package.
172.303........................ Prohibited marking.
(Package is marked
for a hazardous
material and contains
either another
hazardous material or
no hazardous
material.)
--The marking is wrong 10,000
and caused or
contributed to a
wrong emergency
response.
--Inconsistent 5,000
marking; e.g.,
Shipping name and ID
number do not agree.
--Marked as a 2,000
hazardous material
when package does not
contain a hazardous
material.
172.313........................ ''Inhalation Hazard'' 2,500
not marked.
172.322........................ Failure to mark for 1,500
MARINE POLLUTANT
where required.
172.325(a)..................... Improper, or missing, 1,500
HOT mark for elevated
temperature material.
172.326(a)..................... Failure to mark a 2,500
portable tank with
the commodity name.
172.326(b)..................... Owner's/lessee's name 500
not displayed.
172.326(c)..................... Failure to mark 2,500
portable tank with ID
number.
172.330(a)(1)(i)............... Offering/transporting 2,500
hazardous materials
in a tank car that
does not have the
required shipping
name or common name
stenciled on the car;
include reference to
section requiring
stenciling, such as
Sec. 173.314(b) (5)
or (6).
172.330(a)(1)(ii).............. Offering/transporting 2,500
hazardous materials
in a tank car that
does not have the
required ID number
displayed on the car.
172.331(b)..................... Offering bulk 2,500
packaging other than
a portable tank,
cargo tank, or tank
car (e.g., a hopper
car) not marked with
UN/NA number. (I.e.,
a hopper car carrying
a hazardous
substance, where a
placard is not
required).
172.332........................ Improper display of 2,000
identification number
markings. Note:
Citation of this
section and Secs.
172.326 (portable
tanks), 172.328
(cargo tanks), or
172.330 (tank cars)
does not create two
separate violations.
172.334(a)..................... Displaying ID numbers 4,000
on a RADIOACTIVE,
EXPLOSIVES
1.1,1.2,1.3,1.4,1.5,
or 1.6, or DANGEROUS,
or subsidiary hazard
placard.
172.334(b)..................... --Improper display of 15,000
ID number that caused
or contributed to a
wrong emergency
response.
--Improper display of 5,000
ID number that could
cause carrier
mishandling or minor
error in emergency
response.
--Technical error..... 2,000
172.334(f)..................... Displaying ID number 1,500
on orange panel not
in proximity to the
placard.
Labeling:
172.400-.450................... Failure to label 2,500
properly. (See also
Sec. 172.301
regarding the marking
of packages.).
Placarding......................... The guidelines for
``placarding''
violations
contemplate a total
lack of the
prescribed placard.
Obviously, where the
package (including a
whole car) is
partially placarded,
mitigation should be
applied.
172.502........................ --Placarded as 2,000
hazardous material
when car does not
contain a hazardous
material.
--Placard does not 2,000
represent hazard of
the contents.
--Display of sign or 2,000
device that could be
confused with
regulatory placard.
Photograph or good,
clear description
necessary.
172.503........................ Improper display of ID (\1\)
number on placards.
(Note: Do not cite
this section; cite
Sec. 172.334.).
172.504(a)..................... Failure to placard;
affixing or
displaying wrong
placard. (See also
Secs. 172.502(a),
172.504(a), 172.505,
172.510(c), 172.516,
174.33, 174.59,
174.69; all
applicable sections
should be cited, but
the penalty should be
set at the amount for
the violation most
directly in point.)
(Generally, the car
is the unit of
violation, and
penalties vary with
the number of errors,
typically at the rate
of $1,000 per
placard.)
[[Page 48]]
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three;
then use the
guideline above).
-- Complete failure to 2,500
placard, but only 2
placards are required
(e.g., intermediate
bulk containers
[IBCs]).
172.504(b)..................... Improper use of 5,000
DANGEROUS placard for
mixed loads.
172.504(c)..................... Placarded for wrong 2,000
hazard class when no
placard was required
due to 1,001 pound
exemption.
172.504(e)..................... Use of placard other
than as specified in
the table:
--Improper placard 15,000
caused or contributed
to improper reaction
by emergency response
forces or caused or
contributed to
improper handling by
carrier that led to a
product release.
--Improper placard 5,000
that could cause
improper emergency
response or handling
by carrier.
--Technical violation. 2,500
172.505........................ Improper application 5,000
of placards for
subsidiary hazards.
(Note: This is in
addition to any
violation on the
primary hazard
placards.).
172.508(a)..................... Offering hazardous 7,500
material for rail
transportation
without affixing
placards. (Note: The
preferred section for
a total failure to
placard is
172.504(a); only one
section should be
cited to avoid a dual
penalty.) (Note also:
Persons offering
hazardous materials
for rail movement
must affix placards;
if offering for
highway movement, the
placards must be
tendered to the
carrier. Sec.
172.506.).
Placards OK, except 500
they were IMDG labels
instead of 10 placards. (Unit
of violation is the
packaging, usually a
portable tank.).
Placards on TOFC/COFC (\2\)
units not readily
visible. (Note: Do
not cite this
section, cite Sec.
172.516 instead.).
172.508(b)..................... Accepting hazardous 5,000
material for rail
transportation
without placards
affixed.
172.510(a)..................... EXPLOSIVES 1.1, 5,000
EXPLOSIVES 1.2,
POISON GAS, POISON
GAS-RESIDUE,
(Division 2.3, Hazard
Zone A), POISON, or
POISON-RESIDUE
(Division 6.1,
Packing Group I,
Hazard Zone A)
placards displayed
without square
background.
172.510(c)..................... Improper use of
RESIDUE placard.
--Placarded RESIDUE 4,000
when loaded.
--Placarded loaded 1,000
when car contains
only a residue.
--Placarded EMPTY when 500
RESIDUE is required.
172.514........................ Improper placarding of 2,000
bulk packaging other
than a tank car: For
the ``exception''
packages in
174.514(c). Note: Use
the regular
placarding sections
for the guideline
amounts for larger
bulk packages.
172.516........................ Placard not readily 1,000
visible, improperly
located or displayed,
or deteriorated. Good
color photos
``essential'' to
prove deterioration,
and considerable
weathering is
permissible. Placard
is the unit of
violation.
--When placards on an 2,000
intermodal container
are not visible, for
instance, because the
container is in a
well car. Container
is the unit of
violation, and, as a
matter of enforcement
policy, FRA accepts
the lack of
visibility of the end
placards.
Emergency Response Information..... Violations of Secs.
172.600-.604 are in
addition to shipping
paper violations. In
citing a carrier, if
the railroad's
practice is to carry
an emergency response
book or to put the E/
R information as an
attachment to the
consist, the unit of
violation is
generally the train
(or the consist).
``Telephone number''
violations are
generally best cited
against the shipper;
if against a
railroad, there
should be proof that
the number was given
to the railroad, that
is, it was on the
original shipping
document.
172.600-.602................... Where improper 15,000
emergency response
information has
caused an improper
reaction from
emergency forces and
the improper response
has aggravated the
situation. Note:
Proof of this will be
rigorous. For
instance, if the
emergency response
forces had chemical
information with the
correct response and
they relied, instead,
on shipper/carrier
information to their
detriment; the
$15,000 penalty
guideline applies.
Bad, missing, or 4,000
improper emergency
response information.
(Be careful in
transmitting
violations of this
section against a
railroad; there are
many sources of E/R
information and it
does not necessarily
``travel'' with the
shipping documents.).
172.602(c)..................... Failure to have 15,000
emergency response
information
``immediately
accessible''.
172.604........................ Improper or missing 2,500
emergency response
telephone number.
Training:
172.702(a)..................... General failure to 5,000
train hazmat
employees.
172.702(b)..................... Hazmat employee 1,000
performing covered
function without
training. (Unit of
violation is the
employee; see the
expert attorney if
more than 10
employees are
involved.).
172.704(a)..................... Failure to train in 2,500
the required areas:
[[Page 49]]
--General awareness/
familiarization
--Function-specific
--Safety
(Unit of violation is
the ``area,'' and,
for a total failure
to train, cite
172.702(a) and use
that penalty instead
of 172.704.)
172.704(c)..................... Initial and recurrent (\3\)
training. (Note: Cite
this and the relevant
substantive section,
e.g., 172.702(a), and
use penalty provided
there.).
172.704(d)..................... Failure to maintain 2,500
record of training.
(Unit of violation is
the record.).
------------------------------------
PART 173
------------------------------------------------------------------------
173.1.............................. General duty section 2,000
applicable to
shippers; also
includes subparagraph
(b), the requirement
to train employees
about applicable
regulations. (Cite
the appropriate
section in the
172.700-.704 series
for training
violations.).
173.9(a)........................... Early delivery of 5,000
transport vehicle
that has been
fumigated. (48 hours
must have elapsed
since fumigation.).
173.9(b)........................... Failure to display 1,000
fumigation placard.
(Ordinarily cited
against shipper only,
not against
railroad.).
173.10............................. Delivery requirements 3,000
for gases and for
flammable liquids.
See also 174.204 and
174.304.
173.22............................. Shipper (\4\)
responsibility: This
general duty section
should ordinarily be
cited only to support
a more specific
charge.
173.22a............................ Improper use of 2,500
packagings authorized
under exemption.
Failure to maintain 1,000
copy of exemption as
required..
173.24(b)(1) & 173.24(b)(2) and Securing closures:
173.24(f)(1) & 173.24(f)(1)(ii). These subsections are
the general ``no
leak'' standard for
all packagings. Sec.
173.24(b) deals
primarily with
packaging as a whole,
while Sec. 173.24(f)
focuses on closures.
Cite the sections
accordingly, using
both the leak/non-
leak criteria and the
package size
considerations to
reach the appropriate
penalty. Any actual
leak will aggravate
the guideline by,
typically, 50%; a
leak with contact
with a human being
will aggravate by at
least 100%, up to the
maximum of $25,000 if
the HMR violation
causes the injury.
With tank cars, Sec.
173.31(b) applies,
and IM portable tanks
[Sec. 173.32c], and
other tanks of that
size range, should
use the tank car
penalty amounts,
stated in reference
to that section.
--Small bottle or box. 1,000
--55-gallon drum...... 2,500
--Larger container, 5,000
e.g., IBC; not
portable tank or tank
car.
173.24(c).......................... Use of package not
meeting
specifications,
including required
stencils and
markings. The most
specific section for
the package involved
should be cited (see
below). The penalty
guideline should be
adjusted for the size
of the container. Any
actual leak will
aggravate the
guideline by,
typically, 50%; a
leak with contact
with a human being
will aggravate by at
least 100%, up to the
maximum of $25,000 if
the HMR violation
causes the injury.
--Small bottle or box. 1,000
--55-gallon drum...... 2,500
--Larger container, 5,000
e.g., IBC; not
portable tank or tank
car.
For more specific
sections: Tank cars--
Sec. 173.31(a),
portable tanks--Sec.
173.32, and IM
portable tanks--Secs.
173.32a, .32b, and
.32c, q.v
173.24a(a)(3)...................... Non-bulk packagings: 1,000
Failure to secure and
cushion inner
packagings.
--Causes leak......... 3,000
--Leak with any 10,000
contact between
product and any human
being.
173.24a(b)&(d)..................... Non-bulk packagings: 1,000
Exceeding filling
limits.
--Causes leak......... 3,000
--Leak with any 10,000
contact between
product and any human
being.
173.24b(a)......................... Insufficient outage: 3,000
--<1%
--Causes leak......... 5,000
--Leak with any 10,000
contact between
product and any human
being.
173.24b(a)(3)...................... Outage <5% on PIH 5,000
material.
--Causes leak......... 7,500
--Leak with any 10,000
contact between
product and any human
being.
173.26............................. Loaded beyond gross 5,000
weight or capacity as
stated in
specification.
(Applies only if
quantity limitations
do not appear in
packaging
requirements of Part
173.).
173.28............................. Improper reuse, 1,000
reconditioning, or
remanufacture of
packagings..
[[Page 50]]
173.29(a).......................... Offering residue tank
car for
transportation when
openings are not
tightly closed (Sec.
174.67(k) is also
usually applicable).
The regulation
requires offering
``in the same manner
as when'' loaded and
may be cited when a
car not meeting
specifications (see
Sec. 173.31(a)(1))
is released back into
transportation after
unloading; same
guideline amount.
Guidelines vary with
the type of commodity
involved:
--Hazardous material 2,000
with insignificant
vapor pressure and
without
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 5,000
--With leak allowing 15,000
the product to
contact any human
being.
--Hazardous material 5,000
with vapor pressure
(essentially any gas
or compressed gas)
and/or with
classification as
``poison'' or
``inhalation
hazard.''.
--With actual leak.... 7,500
--With leak allowing 15,000
the product (or fumes
or vapors) to contact
any human being. (In
the case of fumes,
the ``contact'' must
be substantial.).
--Where only violation 1,000
is failure to secure
a protective housing,
e.g., the covering
for the gaging device.
173.30............................. A general duty section
that should be cited
with the explicit
statement of the
duty.
173.31(a)(1)....................... Use of a tank car not
meeting
specifications and
the ``Bulk
packaging''
authorization in
Column 8 of the Sec.
172.101 Hazardous
Materials Table
reference is:
Sec. 173.240......... 1,000
Sec. 173.241......... 2,500
Sec. 173.242......... 5,000
Sec. 173.243......... 5,000
Sec. 173.244......... 7,500
Sec. 173.245......... 7,500
Sec. 173.247......... 1,000
Sec. 173.314, .315... 5,000
--Minor defect not 500
affecting the ability
of the package to
contain a hazardous
material, e.g., no
chain on a bottom
outlet closure plug.
Tank meets 1,000
specification, but
specification is not
stenciled on car.
Note: Sec. 179.1(e)
implies that only the
builder has the duty
here, but it is the
presence of the
stencil that gives
the shipper the right
to rely on the
builder. (See Sec.
173.22(a)(3).).
Tank car not stenciled
``Not for flammable
liquids,'' and it
should be. (AAR Tank
Car Manual, Appendix
C, C3.03(a)5.)
--Most cars........... 2,500
--Molten sulfur car... 500
--If flammable liquid 5,000
is actually in the
car.
173.31(a)(4)....................... Use of a tank car 5,000
stenciled for one
commodity to
transport another.
173.31(a)(5)....................... Use of DOT- 10,000
specification tank
car without shelf
couplers. (Note:
prior to November 15,
1992, this did not
apply to a car not
carrying hazardous
materials.).
--Against a carrier, 6,000
cite Sec. 174.3 and
this section.
173.31(a)(6)....................... Use of non-DOT 10,000
specification car
without shelf
couplers to carry
hazardous materials.
(Applies only since
November 15, 1990.).
--Against a carrier, 6,000
cite Sec. 174.3 and
this section.
173.31(a)(7)....................... Use of tank car 5,000
without air brake
support attachments
welded to pads.
(Effective July 1,
1991).
173.31(a)(15)...................... Tank car with 7,500
nonreclosing pressure
relief device used to
transport Class 2
gases, Class 3 or 4
liquids, or Division
6.1 liquids, PG I or
II.
173.31(a)(17)...................... Tank car with interior 7,500
heating coils used to
transport Division
2.3 or Division 6.1,
PG I, based on
inhalation toxicity.
173.31(b)(1), 173.31(b)(3)......... Shipper failure to 5,000
determine (to the
extent practicable)
that tank, safety
appurtenances, and
fittings are in
proper condition for
transportation;
failure to properly
secure closures.
(Sections
173.31(b)(1) &
.31(b)(3), often
cited as together for
loose closure
violations, are taken
as one violation.)
The unit of violation
is the car,
aggravated if
necessary for truly
egregious condition.
Sections 173.24(b) &
(f) establish a ``no-
leak'' design
standard, and 173.31
imposes that standard
on operations.
--With actual leak of 10,000
product.
--With actual leak 15,000
allowing the product
(or fumes or vapors)
to contact any human
being. (With safety
vent, be careful
because carrier might
be at fault.).
--Minor violation, 1,000
e.g., bottom outlet
cap loose on tank car
of molten sulfur
(because product is a
solid when shipped).
--Failure (.31(b)(1)) 1,000
to have bottom outlet
cap off during
loading.
[[Page 51]]
173.31(b)(4)....................... Filling and offering 6,000
for transportation a
tank car overdue for
retest of tank,
interior heater
system, and/or safety
relief valve. Note
that the car may be
filled while in-date,
held, and then
shipped out-of-date.
(Adjust penalty if
less than one month
or more than one year
overdue.).
173.31(c)(1)....................... Tank, interior heater
system, and/or safety
valve overdue for
retest. If these
conditions exist, the
violation is of Sec.
173.31(b)(4). If the
violation is for
improperly conducting
the test(s), see the
expert attorney.
173.31(c)(10)...................... Failure to properly 1,000
stencil a retest that
was performed.
173.32c............................ Loose closures on an 5,000
IM portable tank
(Sec. 173.24
establishes the
``tight closure''
standard; Sec.
172.32c applies it to
IM portable tanks.)
(The scale of
penalties is the same
as for tank cars.).
--With actual leak of 10,000
product.
--With actual leak and 15,000
human being contact.
--Minor violation..... 1,000
173.314(b)(5)...................... No commodity stencil, 2,500
compressed gas tank
car. (See also Sec.
172.330).
173.314(c)......................... Compressed gas loaded 6,000
in excess of filling
density (same basic
concept as
insufficient outage).
--``T'' car with 5,000
excessive voids in
the thermal coating,
such that the car no
longer complies with
the DOT
specification.
Section 173.31(a)(1)
requires tank cars
used to transport
hazardous materials
to meet the
requirements of the
applicable
specification and
this section (Sec.
173..314(c)) lists
112T/114T cars as
allowed for
compressed gases.
------------------------------------
PART 174
------------------------------------------------------------------------
General Requirements:
174.3.......................... Acceptance of
improperly prepared
shipment. This
general duty section
must be accompanied
by a citation to the
specific section
violated.
174.7.......................... Carrier's failure to (\5\)
instruct employees;
cannot be based on
inference; Secs.
172.700-.704 are
preferred citations.
174.8(b)....................... --Failure to inspect 4,000
hazardous materials
(and adjacent) cars
at point where train
is required to be
inspected. (Unit of
violation is the
train.) (Note: For
all ``failure to
inspect'' citations,
the mere presence of
a nonconforming
condition does not
prove a failure to
inspect.).
--Allowing unsafe 8,000
loaded placarded car
to continue in
transportation beyond
point where
inspection was
required). (Unit of
violation is the
car.).
--Failure to determine 5,000
whether placards are
in place and conform
to shipping papers
(at a required
inspection point).
(Unit of violation is
the car.).
174.9(a)....................... Failure to properly 4,000
inspect loaded,
placarded tank car at
origin or interchange.
174.9(b)....................... Loose or insecure 1,000
closures on tank car
containing a residue
of a hazardous
material. (FRA policy
is that, against a
railroad, this
violation must be
observable from the
ground because, for
reasons of safety,
railroad inspectors
do not climb on cars
absent an indication
of a leak.).
174.9(c)....................... Failure to ``card'' a 3,000
tank car overdue for
tank retest.
174.10(c)...................... Offering a 3,000
noncomplying shipment
in interchange.
174.10(d)...................... Offering leaking car 10,000
of hazardous
materials in
interchange.
174.12......................... Improper performance 3,000
of intermediate
shipper/carrier
duties; applies to
forwarders and
highway carriers
delivering TOFC/COFC
shipments to
railroads.
174.14......................... Failure to expedite: 1,000
violation of ``48-
hour rule.'' Note:
does not apply to
cars ``held short''
of destination or
constructively placed.
General Operating Requirements..... Note: This subpart
(Subpart B) of Part
174 has three
sections referring to
shipment
documentation: Sec.
174.24 relating to
accepting documents,
Sec. 174.25 relating
to the preparation of
movement documents,
and Sec. 174.26
relating to movement
documents in the
possession of the
train crew. Only the
most relevant section
should be cited. In
most cases, the unit
of violation is the
shipment, although
where a unified
consist is used to
give notice to the
crew, there is some
justification for
making it the train,
especially where the
discrepancy was
generated using
automated data
processing and the
error is repetitious.
174.24......................... Accepting hazardous
materials shipment
without properly
prepared shipping
paper. (Note: The
carrier's duty
extends only to the
document received,
that is, a shipment
of hazardous
materials in an
unplacarded transport
vehicle with a
shipping paper
showing other than a
hazardous material is
not a violation
against the carrier
unless knowledge of
the contents of the
vehicle is proved.
Likewise, receipt of
a tank car placarded
for Class 3 with a
shipping paper
indicating a
flammable liquid does
not create a carrier
violation if the car,
in fact, contains a
corrosive. On the
other hand, receipt
of a placarded
trailer with a
shipping paper
listing only FAK
(``freight-all-
kinds''), imposes a
duty on the carrier
to inquire further
and to reject the
shipment if it is
improperly billed.)
[[Page 52]]
--Improper hazardous 7,500
materials information
that could cause
delay or error in
emergency response.
--Total absence of 5,000
hazardous materials
information.
--Technical errors, 1,000
not likely to cause
problems, especially
with emergency
response.
--Minor errors not 500
relating to hazardous
materials emergency
response, e.g., not
listing an exemption
number and the
exemption is not one
affecting emergency
response.
174.25......................... Preparing improper
movement documents.
(Similar to the
requirements in Sec.
174.24, here the
carrier is held
responsible for
preparing a movement
document that
accurately reflects
the shipping paper
tendered to it. With
no hazardous
materials information
on the shipper's bill
of lading, the
carrier is not in
violation--absent
knowledge of
hazardous contents--
for preparing a
nonhazardous movement
document. While
``movement
documents'' in the
rail industry used to
be waybills or switch
tickets (almost
exclusively),
carriers are now
incorporating the
essential information
into a consist,
expanded from its
former role as merely
a listing of the cars
in the train.)
--Information on the 15,000
movement document is
wrong to the extent
that it actually
caused or materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
movement document.
(Some shipping names
alone contain
sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present, but the
missing or improper
description could
cause mishandling by
the carrier or a
delay or error in
emergency response,
including missing
RESIDUE description
required by Sec.
174.25(c).
--Missing/improper 3,500
endorsement, unless
on a switch ticket as
allowed under Sec.
174.25(b).
--Movement document 2,500
does not indicate,
for a flatcar
carrying trailers or
containers, which
trailers or
containers contain
hazardous materials.
(If all trailers or
containers on the
flatcar contain
hazardous materials,
there is no
violation.).
--When the improper 1,000
description is not
likely to cause
serious problem
(technical defect).
--Minor errors not 500
related to hazardous
materials emergency
response, e.g., not
listing an exemption
number and the
exemption is not one
affecting emergency
response.
Note: Failure to
include emergency
response information
is covered at Sec.
172.600-604; while
the normal unit of
violation for
movement documents is
the whole document,
failure to provide
emergency response
information is a
separate violation.
174.26(a)...................... Failure to execute the 5,000
required POISON GAS
and EXPLOSIVES 1.1/
1.2 notices. (The
notice is the unit of
violation, because
one notice can cover
several shipments.).
Failure to deliver the 5,000
required POISON GAS
and EXPLOSIVES 1.1/
1.2 notices to train
and engine crew.
(Cite this, or the
above, as
appropriate.).
Failure to transfer 3,000
notice from crew to
crew. (Note that this
is very likely an
individual liability
situation; the
penalty guideline
listed here, however,
presumes action
against a railroad.).
Failure to keep copy 1,000
of notice on file.
174.26(b)...................... Train crew does not 6,000
have a document
indicating position
in train of each
loaded, placarded
car. Aggravate by 50%
for Poison Gas, 2.3,
and Explosives, 1.1
and 1.2. (Train is
the unit of
violation.).
--Technical violation, 1,000
e.g., car is listed
in correct relative
order, but not in
exact numerical
order, usually
because of addition
of car or cars to
head or tail of
train. (Note: Applies
only if the actual
location is off by 10
or fewer cars.).
174.26(c)...................... Improper paperwork in
possession of train
crew. (If the
investigation of an
accident reveals a
violation of this
section and Sec.
174.25, cite this
section.) (Shipment
is unit of violation,
although there is
justification for
making it the train
if a unified consist
is used to carry this
information and the
violation is a
pattern one
throughout all, or
almost all, of the
hazardous materials
shipments. For
intermodal traffic,
``shipment'' can mean
the container or
trailer--e.g., a UPS
trailer with several
non-disclosed
hazardous materials
packages would be one
unit.)
[[Page 53]]
--Information on the 15,000
document possessed by
the train crew is
wrong to the extent
that it caused or
materially
contributed to a
reaction by emergency
responders that
aggravated the
situation or caused
or materially
contributed to
improper handling by
the carrier that led
to or materially
contributed to a
product release.
--Total lack of 7,500
hazardous materials
information on
movement document.
(Some shipping names
alone contain
sufficient
information to reduce
the guideline to the
next lower level, but
they may be such
dangerous products
that aggravation
needs to be
considered.).
--Some information is 5,000
present but the
error(s) could cause
mishandling by the
carrier or a delay or
error in emergency
response. Includes
missing RESIDUE
description required
by Sec. 174.25(c).
--Improper 3,500
information, but the
hazardous materials
are small shipments
(e.g., UPS moves) and
PG III (e.g., the
``low hazard''
materials allowed in
TOFC/COFC service
without an exemption
since HM-197).
--Technical defect not 1,000
likely to cause delay
or error in emergency
response or carrier
handling.
--Minor error not 500
relating to emergency
response or carrier
handling, e.g., not
listing the exemption
number on document
and the exemption is
not one affecting
emergency response.
174.33......................... --Failure to maintain
``an adequate supply
of placards.'' [The
violation is for
``failure to
replace''; if missing
placards are
replaced, the supply
is obviously
adequate, if not,
failure to have a
placard is not a
separate violation
from failure to
replace it.]
--Failure to replace 1,000
lost or destroyed
placards based on
shipping paper
information. (This is
in addition to the
basic placarding
mistakes in, for
instance, Sec.
172.504.).
Note: A railroad's
placarding duties are
to not accept a car
without placards
[Sec. 172.508(b)];
to maintain an
``adequate supply''
of placards and to
replace them based on
shipping paper
information [Sec.
174.33]; and to not
transport a car
without placards
[Sec. 174.59]. At
each inspection
point, a railroad
must determine that
all placards are in
place. [Sec.
172.8(b)] The ``next
inspection point''
replacement
requirement in Sec.
174.59, q.v., refers
to placards that
disappear between
inspection points; a
car at an inspection
point must be
placarded because it
is in transportation,
even if held up at
that point. [49
U.S.C. 5102(12)]
174.45......................... Failure to report
hazardous materials
accidents or
incidents. Cite Secs.
171.15 or 171.16 as
appropriate.
174.50......................... Moving leaking tank 7,500
car unnecessarily.
Failure to stencil 3,500
leaking tank car.
Loss of product 15,000
resulted in human
being contact because
of improper carrier
handling.
174.55......................... Failure to block and
brace as prescribed.
(See also Secs.
174.61, .63, .101,
.112, .115; where
these more specific
sections apply, cite
them.) Note: The
regulatory
requirement is that
hazardous materials
packages be loaded
and securely blocked
and braced to prevent
the packages from
changing position,
falling to the floor,
or sliding into each
other. If the load is
tight and secure,
pieces of lumber or
other materials may
not be necessary to
achieve the ``tight
load'' requirement.
Be careful on these
and consult freely
with the expert
attorney and
specialists in the
Hazardous Materials
Division.
--General failure to 5,000
block and brace.
--Inadequate blocking 2,500
and bracing (an
attempt was made but
blocking/bracing was
insufficient.).
--Inadequate blocking 7,500
and bracing leading
to a leak.
--Inadequate blocking 15,000
and bracing leading
to a leak and human
being contact.
[[Page 54]]
174.59......................... Marking and
placarding. Note: As
stated elsewhere, a
railroad's placarding
duties are to not
accept a car without
placards [Sec.
172.508(b)], to
maintain an
``adequate supply''
of placards and to
replace them based on
shipping paper
information [Sec.
174.33], and to not
transport a car
without placards
[Sec. 174.59]. At
each inspection
point, a railroad
must determine that
all placards are in
place. [Sec.
172.8(b)] The ``next
inspection point''
replacement
requirement in this
section refers to
placards that
disappear between
inspection points. A
car at an inspection
point must be
placarded because it
is in transportation
[49 U.S.C. 5102(12)],
even if held up at
that point. Because
the statute creates
civil penalty
liability only if a
violation is
``knowing,'' that is,
``a reasonable person
knew or should have
known that an act
performed by him was
in violation of the
HMR,'' and because
railroads are not
under a duty to
inspect hazardous
materials cars merely
standing in a yard,
violations written
for unplacarded cars
in yards must include
proof that the
railroad knew about
the unplacarded cars
and took no
corrective action
within a reasonable
time. (Note also that
the real problem with
unplacarded cars in a
railyard may be a
lack of emergency
response information,
Secs. 172.600-.604,
and investigation may
reveal that those
sections should be
cited instead of this
one.)
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three;
then use the
guideline above).
For other placarding
violations, see Secs.
172.500-.560 and
determine if one of
them more correctly
states the violation.
174.61......................... Improper 3,000
transportation of
transport vehicle or
freight container on
flat car. (Note: If
improper lading
restraint is the
violation, see Sec.
174.55; if improper
restraint of a bulk
packaging inside a
closed transport
vehicle is the
violation, see Sec.
174.63(b).).
174.63(a) & (c)................ --Improper 3,000
transportation of
portable tank or
other bulk packaging
in TOFC/COFC service.
--Improper 7,500
transportation
leading to a release
of product.
--Improper 15,000
transportation
leading to a release
and human being
contact.
174.63(b)...................... Improper securement of
bulk packaging inside
enclosed transport
vehicle or freight
container.
--General failure to 5,000
secure.
--Inadequate 2,500
securement (an
attempt to secure was
made but the means of
securement were
inadequate).
--Inadequate 7,500
securement leading to
a leak.
--Inadequate 15,000
securement leading to
a leak and human
being contact.
174.63(e)...................... Transportation of 7,500
cargo tank or multi-
unit tank car tank
without authorization
and in the absence of
an emergency.
174.67(a)(1)................... Tank car unloading 2,500
operations performed
by persons not
properly instructed
(case cannot be based
on inference).
174.67(a)(2)................... Unloading without
brakes set and/or
wheels blocked. (The
enforcement standard,
as per 1995 Hazardous
Materials Technical
Resolution Committee,
is that sufficient
handbrakes must be
applied on one or
more cars to prevent
movement and each car
with a handbrake set
must be blocked in
both directions. The
unloading facility
must make a
determination on how
many brakes to set.)
--No brakes set, no 5,000
wheels blocked, or
fewer brakes set/
wheels blocked than
facility's operating
plan.
--No brakes set, but 3,000
wheels blocked.
--Brakes set, but 4,000
wheels not blocked.
174.67(a)(3)................... Unloading without 2,000
cautions signs
properly displayed.
(See Part 218,
Subpart B).
174.67(c)(2)................... Failure to use non-
metallic block to
prop manway cover
open while unloading
through bottom outlet.
--Flammable or 3,000
combustible liquid,
or other product with
a vapor flash point
hazard.
--Material with no 500
vapor flammability
hazard.
174.67(h)...................... Insecure unloading 10,000
connections, such
that product is
actually leaking.
174.67(i)...................... Unattended unloading.. 5,000
174.67(j)...................... Discontinued unloading 2,000
without disconnecting
all unloading
connections,
tightening valves,
and applying closures
to all other
openings. (Note: If
the car is attended,
this subsection does
not apply.).
174.67(k)...................... Preparation of car
after unloading:
Removal of unloading
connections is
required, as is the
closing of all
openings with a
``suitable tool.''
Note: This subsection
requires unloading
connections to be
``removed'' when
unloading is
complete, Sec.
174.67(j) requires
them to be
``disconnected'' for
a temporary cessation
of unloading. The
penalties recommended
here mirror those in
Sec. 173.29, dealing
with insecure
closures generally.
[[Page 55]]
--Hazardous material 2,000
with insignificant
vapor pressure and
without
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 5,000
--With leak allowing 15,000
the product to
contact any human
being.
--Hazardous material 5,000
with vapor pressure
(essentially any gas
or compressed gas)
and/or with
classification as
``poison'' or
``inhalation hazard''.
--With actual leak.... 7,500
--With leak allowing 15,000
the product (or fumes
or vapors) to contact
any human being).
Note: Contact with
fumes must be
substantial.
174.69......................... --Complete failure to 6,000
remove loaded
placards and replace
with RESIDUE placard
on tank cars.
--Partial failure. 1,000
(Unit of violation is
the placard; the
guideline is used for
each placard up to 3,
then the penalty
above is applicable.).
174.81......................... --Failure to obey 6,000
segregation
requirements for
materials forbidden
to be stored or
transported together.
(``X'' in the table).
--Failure to obey 4,000
segregation
requirements for
materials that must
be separated to
prevent commingling
in the event of a
leak. (``O'' in the
table).
174.83(a)...................... Improper switching of 5,000
placarded rail cars.
174.83(b)...................... Improper switching of 8,000
loaded rail car
containing Division
1.1/1.2, 2.3 PG I
Zone A, or Division
6.1 PG I Zone A, or
DOT 113 tank car
placarded for 2.1.
174.83(c)-(e).................. Improper switching of 5,000
placarded flatcar.
174.83(f)...................... Switching Division 1.1/ 8,000
1.2 without a buffer
car or placement of
Division 1.1/1.2 car
under a bridge or
alongside a passenger
train or platform.
174.84......................... Improper handling of 4,000
Division 1.1/1.2, 2.3
PG I Zone A, 6.1 PG I
Zone A in relation to
guard or escort cars.
174.85......................... Improper Train
Placement (The unit
of violation under
this section is the
car. Where more than
one placarded car is
involved, e.g., if 2
placarded cars are
too close to the
engine, both are
violations. Where
both have a similar
violation, e.g., a
Division 1.1 car next
to a loaded tank car
of a Class 3
material, each car
gets the appropriate
penalty as listed
below.)
RESIDUE car without at 3,000
least 1 buffer from
engine or occupied
caboose.
Placard Group 1--
Division 1.1/1.2
(Class A explosive)
materials
--Fewer than 6 cars 8,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 7,000
least 1 buffer.
--No buffer at all 8,000
(where train length
doesn't permit 5).
--Next to open top car 7,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 6,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 7,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 7,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 2--
Division 1.3/1.4/1.5
(Class B and C
explosives); Class 2
(compressed gas,
other than Division
2.3, PG 1 Zone A;
Class 3 (flammable
liquids); Class 4
(flammable solid);
Class 5 (oxidizing
materials); Class 6,
(poisonous liquids),
except 6.1 PG 1 Zone
A; Class 8 (corrosive
materials).
For tank cars:
--Fewer than 6 cars 6,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 5,000
least 1 buffer.
No buffer at all 6,000
(where train length
doesn't permit 5).
--Next to open top car 5,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 4,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 5,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
For other rail cars:
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 3--
Divisions 2.3 (PG 1
Zone A; poisonous
gases) and 6.1 (PG 1
Zone A; poisonous
materials)
[[Page 56]]
For tank cars:
--Fewer than 6 cars 8,000
(where train length
permits) from engine
or occupied caboose.
--As above but with at 7,000
least 1 buffer.
No buffer at all 8,000
(where train length
doesn't permit 5).
--Next to open top car 7,000
with lading beyond
car ends or, if
shifted, would be
beyond car ends.
--Next to loaded flat 6,000
car, except closed
TOFC/COFC equipment,
auto carriers,
specially equipped
car with tie-down
devices, or car with
permanent bulkhead.
--Next to operating 7,000
temperature-control
equipment or internal
combustion engine in
operation.
--Next to placarded 7,000
car, except one from
same placard group or
COMBUSTIBLE.
For other rail cars:
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
Placard Group 4--Class
7 (radioactive)
materials.
For rail cars:
--Next to locomotive 8,000
or occupied caboose.
--Next to placarded 5,000
car, except one from
same placard group or
COMBUSTIBLE.
--Next to carload of 3,000
undeveloped film.
174.86......................... Exceeding maximum 3,000
allowable operating
speed (15 mph) while
transporting molten
metals or molten
glass.
174.101(o)(4).................. Failure to have proper
explosives placards
on flatcar carrying
trailers/containers
placarded for Class
1. (Except for a
complete failure to
placard, the unit of
violation is the
placard.).
--Complete failure to 7,500
placard.
--One placard missing 1,000
(add $1,000 per
missing placard up to
a total of three,
then use the
guideline above).
174.104(f)..................... Failure to retain car 1,000
certificates at
``forwarding
station''.
Failure to attach car 1,000
certificates to car.
(Unit of violation is
the certificate, 2
are required.).
174.204........................ Improper tank car 3,000
delivery of gases
(Class 2 materials).
174.304........................ Improper tank car 3,000
delivery of flammable
liquids (Class 3
materials).
174.600........................ Improper tank car 5,000
delivery of materials
extremely poisonous
by inhalation
(Division 2.3 Zone A
or 6.1 Zone A
materials).
------------------------------------
PART 178
------------------------------------------------------------------------
178.2(b)........................... Package not
constructed according
to specifications--
also cite section not
complied with.
--Bulk packages, 8,000
including portable
tanks.
--55-gallon drum...... 2,500
--Smaller package..... 1,000
------------------------------------
PART 179
------------------------------------------------------------------------
179.1(e)........................... Tank car not 8,000
constructed according
to specifications--
also cite section not
complied with. (Note:
Part 179 violations
are against the
builder or repairer.
Sections in this Part
are often cited in
conjunction with
violations of Secs.
172.330 and 173.31
(a)&(b) by shippers.
In such cases, the
Part 179 sections are
cited as references,
not as separate
alleged violations.).
179.6.............................. Repair procedures not 5,000
in compliance with
Appendix R of the
Tank Car Manual.
------------------------------------------------------------------------
\1\ See Sec. 172.334.
\2\ See Sec. 172.516.
\3\ Varies.
\4\ See specific section.
\5\ See penalties: 172.700-.704.
[61 FR 38647, July 25, 1996]
[[Page 57]]
Appendix C to Part 209--FRA's Policy Statement Concerning Small Entities
This policy statement required by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) explains
FRA's communication and enforcement policies concerning small entities
subject to the federal railroad safety laws. These policies have been
developed to take into account the unique concerns and operations of
small businesses in the administration of the national railroad safety
program, and will continue to evolve to meet the needs of the railroad
industry. For purposes of this policy statement, the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.), and the ``excessive demand''
provisions of the Equal Justice Act (5 U.S.C. 504 (a)(4), and 28 U.S.C.
2412 (d)(1)(D)), Class III railroads, contractors and hazardous
materials shippers meeting the economic criteria established for Class
III railroads in 49 CFR 1201.1-1, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less
constitute the class of organizations considered ``small entities'' or
``small businesses.''
FRA understands that small entities in the railroad industry have
significantly different characteristics than larger carriers and
shippers. FRA believes that these differences necessitate careful
consideration in order to ensure that those entities receive appropriate
treatment on compliance and enforcement matters, and enhance the safety
of railroad operations. Therefore, FRA has developed programs to respond
to compliance-related inquiries of small entities, and to ensure proper
handling of civil penalty and other enforcement actions against small
businesses.
Small Entity Communication Policy
It is FRA's policy that all agency personnel respond in a timely and
comprehensive fashion to the inquiries of small entities concerning rail
safety statutes, safety regulations, and interpretations of these
statutes and regulations. Also, FRA personnel provide guidance to small
entities, as needed, in applying the law to specific facts and
situations that arise in the course of railroad operations. These agency
communications take many forms, and are tailored to meet the needs of
the requesting party.
FRA inspectors provide training on the requirements of all railroad
safety statutes and regulations for new and existing small businesses
upon request. Also, FRA inspectors often provide impromptu training
sessions in the normal course of their inspection duties. FRA believes
that this sort of preventive, rather than punitive, communication
greatly enhances railroad safety. FRA's Office of Safety and Office of
Chief Counsel regularly provide oral and written responses to questions
raised by small entities concerning the plain meaning of the railroad
safety standards, statutory requirements, and interpretations of the
law. As required by the SBREFA, when FRA issues a final rule that has a
significant impact on a substantial number of small entities, FRA will
also issue a compliance guide for small entities concerning that rule.
It is FRA's policy to maintain frequent and open communications with
the national representatives of the primary small entity associations
and to consult with these organizations before embarking on new policies
that may impact the interests of small businesses. In some regions of
the country where the concentration of small entities is particularly
high, FRA Regional Administrators have established programs in which all
small entities in the region meet with FRA regional specialists on a
regular basis to discuss new regulations, persistent safety concerns,
emerging technology, and compliance issues. Also, FRA regional offices
hold periodic conferences, in which specific blocks of time are set
aside to meet with small businesses and hear their concerns.
In addition to these communication practices, FRA has instituted an
innovative partnership program that expands the extent to which small
entities participate in the development of policy and process. The
Railroad Safety Advisory Committee (RSAC) has been established to advise
the agency on the development and revision of railroad safety standards.
The committee consists of a wide range of industry representatives,
including organizations that represent the interests of small business.
The small entity representative groups that sit on the RSAC may appoint
members of their choice to participate in the development of new safety
standards. This reflects FRA's policy that small business interests must
be heard and considered in the development of new standards to ensure
that FRA does not impose unnecessary economic burdens on small
businesses, and to create more effective standards. Finally, FRA's Web
site (http://www.fra.dot.gov) makes pertinent agency information
available instantly to the public.
FRA's longstanding policy of open communication with small entities
is apparent in these practices. FRA will make every effort to develop
new and equally responsive communication procedures as is warranted by
new developments in the railroad industry.
Small Entity Enforcement Policy
FRA has adopted an enforcement policy that addresses the unique
nature of small entities in the imposition of civil penalties and
resolution of those assessments. Pursuant to FRA's statutory authority,
and as described in Appendix A to 49 CFR part 209, it is FRA's
[[Page 58]]
policy to consider a variety of factors in determining whether to take
enforcement action against persons, including small entities, who have
violated the safety laws and regulations. In addition to the seriousness
of the violation and the person's history of compliance, FRA inspectors
consider ``such other factors as the immediate circumstances make
relevant.'' In the context of violations by small entities, those
factors include whether the violations were made in good faith (e.g.,
based on an honest misunderstanding of the law), and whether the small
entity has moved quickly and thoroughly to remedy the violation(s). In
general, the presence of both good faith and prompt remedial action
militates against taking a civil penalty action, especially if the
violations are isolated events. On the other hand, violations involving
willful actions and/or posing serious health, safety, or environmental
threats should ordinarily result in enforcement actions, regardless of
the entity's size.
Once FRA has assessed a civil penalty, it is authorized to adjust or
compromise the initial penalty claims based on a wide variety of
mitigating factors, unless FRA must terminate the claim for some reason.
FRA has the discretion to reduce the penalty as it deems fit, but not
below the statutory minimums. The mitigating criteria FRA evaluates are
found in the railroad safety statutes and SBREFA: The severity of the
safety or health risk presented; the existence of alternative methods of
eliminating the safety hazard; the entity's culpability; the entity's
compliance history; the entity's ability to pay the assessment; the
impacts an assessment might exact on the entity's continued business;
and evidence that the entity acted in good faith. FRA staff attorneys
regularly invite small entities to present any information related to
these factors, and reduce civil penalty assessments based on the value
and integrity of the information presented. Staff attorneys conduct
conference calls or meet with small entities to discuss pending
violations, and explain FRA's view on the merits of any defenses or
mitigating factors presented that may have resulted or failed to result
in penalty reductions. Among the ``other factors'' FRA considers at this
stage is the promptness and thoroughness of the entity's remedial action
to correct the violations and prevent a recurrence. Small entities
should be sure to address these factors in communications with FRA
concerning civil penalty cases. Long-term solutions to compliance
problems will be given great weight in FRA's determinations of a final
settlement offer.
Finally, under FRA's Safety Assurance and Compliance Program (SACP),
FRA identifies systemic safety hazards that continue to occur in a
carrier or shipper operation, and in cooperation with the subject
business, develops an improvement plan to eliminate those safety
concerns. Often, the plan provides small entities with a reasonable time
frame in which to make improvements without the threat of civil penalty.
If FRA determines that the entity has failed to comply with the
improvement plan, however, enforcement action is initiated.
FRA's small entity enforcement policy is flexible and comprehensive.
FRA's first priority in its compliance and enforcement activities is
public and employee safety. However, FRA is committed to obtaining
compliance and enhancing safety with reasoned, fair methods that do not
inflict undue hardship on small entities.
[68 FR 24894, May 9, 2003]
PART 210--RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS--Table of Contents
Subpart A--General Provisions
Sec.
210.1 Scope of part.
210.3 Applicability.
210.5 Definitions.
210.7 Responsibility for noise defective railroad equipment.
210.9 Movement of a noise defective locomotive, rail car, or consist of
a locomotive and rail cars.
210.11 Waivers.
210.13 Penalty.
Subpart B--Inspection and Testing
210.21 Scope of subpart.
210.23 Authorization.
210.25 Measurement criteria and procedures.
210.27 New locomotive certification.
210.29 Operation standards (moving locomotives and rail cars).
210.31 Operation standards (stationary locomotives at 30 meters).
210.33 Operation standards (switcher locomotives, load cell test stands,
car coupling operations, and retarders).
Appendix A to Part 210--Summary of Noise Standards, 40 CFR Part 201
Appendix B to Part 210--Switcher Locomotive Enforcement Policy
Authority: Sec. 17, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 4916);
sec. 1.49(o) of the regulations of the Office of the Secretary of
Transportation, 49 CFR 1.49(o).
Source: 48 FR 56758, Dec. 23, 1983, unless otherwise noted.
[[Page 59]]
Subpart A--General Provisions
Sec. 210.1 Scope of part.
This part prescribes minimum compliance regulations for enforcement
of the Railroad Noise Emission Standards established by the
Environmental Protection Agency in 40 CFR part 201.
Sec. 210.3 Applicability.
(a) Except as provided in paragraph (b) of this section, the
provisions of this part apply to the total sound emitted by moving rail
cars and locomotives (including the sound produced by refrigeration and
air conditioning units that are an integral element of such equipment),
active retarders, switcher locomotives, car coupling operations, and
load cell test stands, operated by a railroad as defined in 45 U.S.C.
22, under the conditions described in this part and in 40 CFR part 201.
(b) The provisions of this part do not apply to--
(1) Steam locomotives;
(2) Street, suburban, or interurban electric railways unless
operated as a part of the general railroad system of transportation;
(3) Sound emitted by warning devices, such as horns, whistles, or
bells when operated for the purpose of safety;
(4) Special purpose equipment that may be located on or operated
from rail cars;
(5) As prescribed in 40 CFR 201.10, the provisions of 40 CFR 201.11
(a) and (b) and (c) do not apply to gas turbinepowered locomotives or
any locomotive type that cannot be connected by any standard method to a
load cell; or
(6) Inert retarders.
[48 FR 56758, Dec. 23, 1983, as amended at 54 FR 33228, Aug. 14, 1989]
Sec. 210.5 Definitions.
(a) Statutory definitions. All terms used in this part and defined
in the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.) have the
definition set forth in that Act.
(b) Definitions in standards. All terms used in this part and
defined in Sec. 201.1 of the Railroad Noise Emission Standards, 40 CFR
201.1, have the definition set forth in that section.
(c) Additional definitions. As used in this part--
Administrator means the Federal Railroad Administrator, the Deputy
Administrator, or any official of FRA to whom the Administrator has
delegated authority to act in the Administrator's stead.
Consist of a locomotive and rail cars means one or more locomotives
coupled to a rail car or rail cars.
FRA means the Federal Railroad Administration.
Inert retarder means a device or system for holding a classified cut
of cars and preventing it from rolling out the bottom of a railyard.
Inspector means FRA inspectors or FRA specialists.
Noise defective means the condition in which railroad equipment is
found to exceed the Railroad Noise Emission Standards, 40 CFR part 201.
Railroad equipment means rail cars, locomotives, active retarders,
and load cell test stands.
Standards means the Railroad Noise Emission Standards, 40 CFR part
201. (See appendix A in this part for a listing.)
Sec. 210.7 Responsibility for noise defective railroad equipment.
Any railroad that uses railroad equipment that is noise defective or
engages in a car coupling operating that results in excessive noise
according to the criteria established in this part and in the Standards
is responsible for compliance with this part. Subject to Sec. 210.9,
such railroad shall--
(a) Correct the noise defect;
(b) Remove the noise defective railroad equipment from service; or
(c) Modify the car coupling procedure to bring it within the
prescribed noise limits.
Sec. 210.9 Movement of a noise defective locomotive, rail car, or consist of a locomotive and rail cars.
A locomotive, rail car, or consist of a locomotive and rail cars
that is noise defective may be moved no farther than the nearest forward
facility where the noise defective conditions can be eliminated only
after the locomotive,
[[Page 60]]
rail car, or consist of a locomotive and rail cars has been inspected
and been determined to be safe to move.
Sec. 210.11 Waivers.
(a) Any person may petition the Administrator for a waiver of
compliance with any requirement in this part. A waiver of compliance
with any requirement prescribed in the Standards may not be granted
under this provision.
(b) Each petition for a waiver under this section must be filed in
the manner and contain information required by 49 CFR part 211.
(c) If the Administrator finds that a waiver of compliance applied
for under paragraph (a) of this section is in the public interest and is
consistent with railroad noise abatement and safety, the Administrator
may grant a waiver subject to any condition he deems necessary. Notice
of each waiver granted, including a statement of the reasons therefor,
will be published in the Federal Register.
Sec. 210.13 Penalty.
Any person who operates railroad equipment subject to the Standards
in violation of any requirement of this part or of the Standards is
liable to penalty as prescribed in section 11 of the Noise Control Act
of 1972 (42 U.S.C. 4910), as amended.
Subpart B--Inspection and Testing
Sec. 210.21 Scope of subpart.
This subpart prescribes the compliance criteria concerning the
requirements for inspection and testing of railroad equipment or
operations covered by the Standards.
Sec. 210.23 Authorization.
(a) An inspector is authorized to perform any noise test prescribed
in the Standards and in the procedures of this part at any time, at any
appropriate location, and without prior notice to the railroad, for the
purpose of determining whether railroad equipment is in compliance with
the Standards.
(b)(1) An inspector is authorized to request that railroad equipment
and appropriate railroad personnel be made available for a passby or
stationary noise emission test, as prescribed in the Standards and in
the procedures of this part, and to conduct such test, at a reasonable
time and location, for the purpose of determining whether the railroad
equipment is in compliance with the Standards.
(2) If the railroad has the capability to perform an appropriate
noise emission test, as prescribed in the Standards and in the
procedures of this part, an inspector is authorized to request that the
railroad test railroad equipment. The railroad shall perform the
appropriate test as soon as practicable.
(3) The request referred to in this paragraph will be in writing,
will state the grounds upon which the inspector has reason to believe
that the railroad equipment does not conform to the Standards, and will
be presented to an appropriate operating official of the railroad.
(4) Testing or submission for testing is not required if the cause
of the noise defect is readily apparent and the inspector verifies that
it is corrected by the replacement of defective components or by
instituting a normal maintenance or repair procedure.
(c)(1) An inspector is authorized to inspect or examine a
locomotive, rail car, or consist of a locomotive and rail cars operated
by a railroad, or to request that the railroad inspect or examine the
locomotive, rail car, or consist of a locomotive and rail cars, whenever
the inspector has reason to believe that it does not conform to the
requirements of the Standards.
(2) An inspector may request that a railroad conduct an inspection
or examination of a locomotive, rail car, or consist of a locomotive and
rail cars on the basis of an excessive noise emission level measured by
a passby test. If, after such inspection or examination, no mechanical
condition that would result in a noise defect can be found and the
inspector verifies that no such mechanical condition exists, the
locomotive, rail car, or consist of a locomotive and rail cars may be
continued in service.
(3) The requests referred to in this paragraph will be in writing,
will state the grounds upon which the inspector has reason to believe
that the locomotive, rail car, or consist of a locomotive and rail cars
does not conform
[[Page 61]]
to the Standards, and will be presented to an appropriate operating
official of the railroad.
(4) The inspection or examination referred to in this paragraph may
be conducted only at recognized inspection points or scheduled stopping
points.
Sec. 210.25 Measurement criteria and procedures.
The parameters and procedures for the measurement of the noise
emission levels are prescribed in the Standards.
(a) Quantities measured are defined in Sec. 201.21 of the Standards.
(b) Requirements for measurement instrumentation are prescribed in
Sec. 201.22 of the Standards. In addition, the following calibration
procedures shall be used:
(1)(i) The sound level measurement system including the microphone
shall be calibrated and appropriately adjusted at one or more nominal
frequencies in the range from 250 through 1000 Hz at the beginning of
each series of measurements, at intervals not exceeding 1 (one) hour
during continual use, and immediately following a measurement indicating
a violation.
(ii) The sound level measurement system shall be checked not less
than once each year by its manufacturer, a representative of its
manufacturer, or a person of equivalent special competence to verify
that its accuracy meets the manufacturer's design criteria.
(2) An acoustical calibrator of the microphone coupler type designed
for the sound level measurement system in use shall be used to calibrate
the sound level measurement system in accordance with paragraph
(b)(1)(i) of this section. The calibration must meet or exceed the
accuracy requirements specified in section 5.4.1 of the American
National Standard Institute Standards, ``Method for Measurement of Sound
Pressure Levels,'' (ANSI S1.13-1971) for field method measurements.
(c) Acoustical environment, weather conditions, and background noise
requirements are prescribed in Sec. 201.23 of the Standards. In
addition, a measurement tolerance of 2 dB(A) for a given measurement
will be allowed to take into account the effects of the factors listed
below and the interpretations of these effects by enforcement personnel:
(1) The common practice of reporting field sound level measurements
to the nearest whole decibel;
(2) Variations resulting from commercial instrument tolerances;
(3) Variations resulting from the topography of the noise
measurement site;
(4) Variations resulting from atmospheric conditions such as wind,
ambient temperature, and atmospheric pressure; and
(5) Variations resulting from reflected sound from small objects
allowed within the test site.
Sec. 210.27 New locomotive certification.
(a) A railroad shall not operate a locomotive built after December
31, 1979, unless the locomotive has been certified to be in compliance
with the Standards.
(b) The certification prescribed in this section shall be determined
for each locomotive model, by either--
(1) Load cell testing in accordance with the criteria prescribed in
the Standards; or
(2) Passby testing in accordance with the criteria prescribed in the
Standards.
(c) If passby testing is used under paragraph (b)(2) of this
section, it shall be conducted with the locomotive operating at maximum
rated horsepower output.
(d) Each new locomotive certified under this section shall be
identified by a permanent badge or tag attached in the cab of the
locomotive near the location of the inspection Form F 6180.49. The badge
or tag shall state:
(1) Whether a load cell or passby test was used;
(2) The date and location of the test; and
(3) The A-weighted sound level reading in decibels obtained during
the passby test, or the readings obtained at idle throttle setting and
maximum throttle setting during a load cell test.
Sec. 210.29 Operation standards (moving locomotives and rail cars).
The operation standards for the noise emission levels of moving
locomotives, rail cars, or consists of locomotives
[[Page 62]]
and rail cars are prescribed in the Standards and duplicated in appendix
A of this part.
(a) Measurements for compliance shall be made in compliance with the
provisions of subpart C of the Standards and the following:
(1) Consists of locomotives containing at least one locomotive unit
manufactured prior to December 31, 1979, shall be evaluated for
compliance in accordance with Sec. 201.12(a) of the Standards, unless a
locomotive within the consist is separated by at least 10 rail car
lengths or 500 feet from other locomotives in the consist, in which case
such separated locomotives may be evaluated for compliance according to
their respective built dates.
(2) Consists of locomotives composed entirely of locomotive units
manufactured after December 31, 1979, shall be evaluated for compliance
in accordance with Sec. 201.12(b) of the Standards.
(3) If the inspector cannot establish the built dates of all
locomotives in a consist of locomotives measured under moving
conditions, evaluation for compliance shall be made in accordance with
Sec. 201.12(a) of the Standards.
(b) Noise emission standards for rail cars operating under moving
conditions are contained in Sec. 201.13 of the Standards and are stated
in appendix A of this part. If speed measurement equipment used by the
inspector at the time of the measurement is not operating within an
accuracy of 5 miles per hour, evaluation for compliance shall be made in
accordance with Sec. 201.13(2) of the Standards.
(c) Locomotives and rail cars tested pursuant to the procedures
prescribed in this part and in the Standards shall be considered in
noncompliance whenever the test measurement, minus the appropriate
tolerance (Sec. 210.25), exceeds the noise emission levels prescribed in
appendix A of this part.
Sec. 210.31 Operation standards (stationary locomotives at 30 meters).
(a) For stationary locomotives at load cells:
(1) Each noise emission test shall begin after the engine of the
locomotive has attained the normal cooling water operating temperature
as prescribed by the locomotive manufacturer.
(2) Noise emission testing in idle or maximum throttle setting shall
start after a 40 second stabilization period in the throttle setting
selected for the test.
(3) After the stabilization period as prescribed in paragraph (a)(2)
of this section, the A-weighted sound level reading in decibels shall be
observed for an additional 30-second period in the throttle setting
selected for the test.
(4) The maximum A-weighted sound level reading in decibels that is
observed during the 30-second period of time prescribed in paragraph
(a)(3) of this section shall be used for test measurement purposes.
(b) The following data determined by any locomotive noise emission
test conducted after December 31, 1976, shall be recorded in the
``Remarks'' section on the reverse side of Form F 6180.49:
(1) Location of test;
(2) Type of test;
(3) Date of test; and
(4) The A-weighted sound level reading in decibels obtained during
the passby test, or the readings obtained at idle throttle setting and
maximum throttle setting during a load cell test.
(c) Any locomotive subject to this part that is found not to be in
compliance with the Standards as a result of a passby test shall be
subjected to a load cell test or another passby test prior to return to
service, except that no such retest shall be required if the cause of
the noise defect is readily apparent and is corrected by the replacement
of defective components or by a normal maintenance or repair procedure.
(d) The last entry recorded on Form F 6180.49 as required in
paragraph (b) of this section shall be transcribed to a new Form FRA F
6180.49 when it is posted in the locomotive cab.
(e) Locomotives tested pursuant to the procedures prescribed in this
part and in the Standards shall be considered in noncompliance wherever
the test measurement, minus the appropriate tolerance (Sec. 210.25),
exceeds the noise emission levels precribed in appendix A of this part.
[[Page 63]]
Sec. 210.33 Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders).
(a) Measurement on receiving property of the noise emission levels
from switcher locomotives, load cell test stands, car coupling
operations, and retarders shall be performed in accordance with the
requirements of 40 CFR part 201 and Sec. 210.25 of this part.
(b) These sources shall be considered in noncompliance whenever the
test measurement, minus the appropriate tolerance (Sec. 210.25), exceeds
the noise emission levels prescribed in appendix A of this part.
Appendix A to Part 210--Summary of Noise Standards, 40 CFR Part 201
----------------------------------------------------------------------------------------------------------------
Noise
standard--
A weighted
Paragraph and section Noise source sound Noise measure \1\ Measurement location
level in
dB
----------------------------------------------------------------------------------------------------------------
All Locomotives
Manufactured on or
Before 31 December
1979
201.11(a).................. Stationary, Idle 73 Lmax (slow)............ 30 m (100 ft)
Throttle Setting.
201.11(a).................. Stationary, All Other 93 ......do............... Do.
Throttle Settings.
201.12(a).................. Moving................ 96 Lmax (fast)............ Do.
All Locomotives
Manufactured After 31
December 1979
201.11(b).................. Stationary, Idle 70 Lmax (slow)............ Do.
Throttle Setting.
201.11(b).................. Stationary, All Other 87 ......do............... Do.
Throttle Settings.
201.12(b).................. Moving................ 90 Lmax (fast)............ Do.
201.11(c) and 201.12(c).... Additional Requirement 65 L90 (fast) \2\......... Receiving property
for Switcher
Locomotives
Manufactured on or
Before 31 December
1979 Operating in
Yards Where
Stationary Switcher
and other Locomotive
Noise Exceeds the
Receiving Property
Limit of.
201.11(c).................. Stationary, Idle 70 Lmax (slow)............ 30 m (100 ft)
Throttle Setting.
201.11(c).................. Stationary, All Other 87 ......do............... Do.
Throttle Settings.
201.12(c).................. Moving................ 90 Lmax (fast)............ Do.
Rail Cars
201.13(1).................. Moving at Speeds of 45 88 ......do............... Do.
mph or Less.
201.13(2).................. Moving at Speeds 93 ......do............... Do.
Greater than 45 mph.
Other Yard Equipment
and Facilities
201.14..................... Retarders............. 83 Ladjavemax (fast)...... Receiving property
201.15..................... Car-Coupling 92 ......do............... Do.
Operations.
201.16..................... Locomotive Load Cell 65 L90 (fast) \2\......... Do.
Test Stands, Where
the Noise from
Locomotive Load Cell
Operations Exceeds
the Receiving
Property Limits of.
201.16(a).................. Primary Standard...... 78 Lmax (slow)............ 30 m (100 ft).
201.16(b).................. Secondary Standard if 65 L90 (fast)............. Receiving property
30-m Measurement Not located more than 120
Feasible. m from Load Cell.
----------------------------------------------------------------------------------------------------------------
\1\ Lmax=Maximum sound level; L90=Statistical sound level exceeded 90% of the time; Ladjavemax=Adjusted average
maximum sound level.
\2\ L90 must be validated by determining that L10-L99 is less than or equal to 4dB (A).
[48 FR 56758, Dec. 23, 1983; 49 FR 1521, Jan. 12, 1984]
Appendix B to Part 210--Switcher Locomotive Enforcement Policy
The EPA standards require that the noise emissions from all switcher
locomotives in a particular facility be less than prescribed levels
measured at 30 meters, under all operating modes. This requirement is
deemed to be met unless ``receiving property'' noise due to switcher
locomotives exceeds 65 dB(A), when measured in accordance with subpart C
of 40 CFR part 201. The 65 dB(A) receiving property standard is the
``trigger'' for requiring the 30-meter test of switcher locomotives.
[[Page 64]]
The purpose underlying FRA's enforcement of the noise standards is
to reduce the impact of rail operations noise on receiving properties.
In some instances, measures other than the 30-meter test approach may
more effectively reduce the noise levels at receiving properties;
therefore, FRA enforcement efforts will focus on abatement procedures
that will achieve a reduction of receiving property noise levels to less
than 65 dB(A).
For example, a parked, idling locomotive, even if equipped with
exhaust silencing that meets the stationary locomotive standard (30-
meter test), may cause the receiving property standard to be exceeded if
located on trackage adjacent to the receiving property. In that case,
application of the 30-meter test to other switcher locomotives at the
facility may not serve to reduce the receiving property noise level. On
the other hand, operational changes by the railroad could significantly
reduce receiving property noise levels. In such case, FRA would consider
retesting after abatement measures have been taken. If the receiving
property noise level is below the trigger and the abatement action is
adopted, FRA would not make a 30-meter test of the switcher locomotives
at the facility.
PART 211--RULES OF PRACTICE--Table of Contents
Subpart A--General
Sec.
211.1 General.
211.3 Participation by interested persons.
211.5 Regulatory docket.
211.7 Filing requirements.
211.9 Content of rulemaking and waiver petitions.
Subpart B--Rulemaking Procedures
211.11 Processing of petitions for rulemaking.
211.13 Initiation and completion of rulemaking proceedings.
211.15 Notice and participation.
211.17 Publication and contents of notices.
211.19 Petitions for extensions of time to comment.
211.21 Consideration of comments received.
211.23 Additional public proceedings.
211.25 Hearings.
211.27 Publication of adopted rules and withdrawal of notices.
211.29 Petitions for reconsideration of a final rule.
211.31 Proceedings on petitions for reconsideration of a final rule.
Subpart C--Waivers
211.41 Processing of petitions for waiver of safety rules.
211.43 Processing of other waiver petitions.
Subpart D--Emergency Orders
211.47 Review procedures.
Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries
211.51 Tests.
211.53 Signal applications.
211.55 Special approvals.
211.57 Petitions for reconsideration.
211.59 Proceedings on petitions for reconsideration.
211.61 Informal safety inquiries.
Subpart F--Interim Procedures for the Review of Emergency Orders
211.71 General.
211.73 Presiding officer; powers.
211.75 Evidence.
211.77 Appeal to the Administrator.
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
Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49
CFR 1.49.
Source: 41 FR 54181, Dec. 13, 1976, unless otherwise noted.
Subpart A--General
Sec. 211.1 General.
(a) This part prescribes rules of practice that apply to rulemaking
and waiver proceedings, review of emergency orders issued under 45
U.S.C. 432, and miscellaneous safety-related proceedings and informal
safety inquiries. The specific time limits for disposition of
proceedings apply only to proceedings initiated after December 31, 1976,
under the Federal Railroad Safety Act of 1970 (45 U.S.C. 421 et seq.).
When warranted, FRA will extend these time limits in individual
proceedings. However, each proceeding under the Federal Railroad Safety
Act shall be disposed of within 12 months after the date it is
initiated. A proceeding shall be deemed to be initiated and the time
period for its disposition shall begin on the date a petition or
application that complies with the requirements of this chapter is
received by the person designated in Sec. 211.7.
(b) As used in this part--
[[Page 65]]
(1) Administrator means the Federal Railroad Administrator or the
Deputy Administrator or the delegate of either of them.
(2) Waiver includes exemption.
(3) Safety Act means the Federal Railroad Safety Act of 1970, as
amended (45 U.S.C. 421 et seq.).
(4) Docket Clerk means the Docket Clerk, Office of Chief Counsel,
Federal Railroad Administration, 1120 Vermont Avenue, N.W., Mail Stop
10, Washington, D.C. 20590 or the Docket Clerk, Department of
Transportation Central Docket Management System, Nassif Building, Room
Pl-401, 400 Seventh Street, S.W., Washington, D.C. 20590-0001.
(5) Railroad Safety Board means the Railroad Safety Board, Office of
Safety, Federal Railroad Administration, Washington, DC 20590.
(c) Records relating to proceedings and inquiries subject to this
part are available for inspection as provided in part 7 of this title.
[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]
Sec. 211.3 Participation by interested persons.
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.
Sec. 211.5 Regulatory docket.
(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 DOT 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 Sec. 211.55 and Sec. 238.21 of
this chapter, petitions for grandfathering approval under Sec. 238.203
of this chapter, signal applications under parts 235 and 236 of this
chapter, and informal safety inquiries under Sec. 211.61.
(2) Any person may examine docketed material created after November
1, 1998:
(i) At the DOT Docket Management System, room Pl-401 (plaza level),
400 Seventh Street, S.W. Washington, D.C. 20590. Copies of docketed
materials may be obtained upon payment of the fees prescribed by the
Docket Management System, or
(ii) Through the Internet at http://dms.dot.gov. All docketed
materials are available for viewing and may be downloaded for electronic
storage or printing. There is no charge for this service.
(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, seventh floor, 1120 Vermont Avenue,
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.
(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.
[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]
Sec. 211.7 Filing requirements.
(a) Any person may petition the Administrator for issuance,
amendment, repeal or permanent or temporary waiver of any rule or
regulation. 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.
(b)(1) All petitions and applications subject to this part,
including applications for special approval under Sec. 211.55 and
Sec. 238.21 of this chapter, petitions for grandfathering approval under
Sec. 238.203 of this chapter, and signal applications under parts 235
and 236 of
[[Page 66]]
this chapter, shall be submitted in triplicate 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.
(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
Sec. 211.55 and Sec. 238.21 of this chapter, petitions for
grandfathering approval under Sec. 238.203 of this chapter, and signal
applications under parts 235 and 236 of this chapter, shall be submitted
to the DOT Central 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 Central Docket Management System and
posted on its web site at http://dms.dot.gov.
[64 FR 70195, Dec. 16, 1999]
Sec. 211.9 Content of rulemaking and waiver petitions.
Each petition for rulemaking or waiver must:
(a) Set forth the text or substance of the rule, regulation,
standard or amendment proposed, or specify the rule, regulation or
standard that the petitioner seeks to have repealed or waived, as the
case may be;
(b) Explain the interest of the petitioner, and the need for the
action requested; in the case of a petition for waiver, explain the
nature and extent of the relief sought, and identify and describe the
persons, equipment, installations and locations to be covered by the
waiver;
(c) Contain sufficient information to support the action sought
including an evaluation of anticipated impacts of the action sought;
each evaluation shall include an estimate of resulting costs to the
private sector, to consumers, and to Federal, State and local
governments as well as an evaluation of resulting benefits, quantified
to the extent practicable. Each petition pertaining to safety
regulations must also contain relevant safety data.
Subpart B--Rulemaking Procedures
Sec. 211.11 Processing of petitions for rulemaking.
(a) General. Each petition for rulemaking filed as prescribed in
Secs. 211.7 and 211.9 is referred to the head of the office responsible
for the subject matter of the petition to review and recommend
appropriate action to the Administrator. No public hearing or oral
argument is held before the Administrator decides whether the petition
should be granted. However, a notice may be published in the Federal
Register inviting written comments concerning the petition. Each
petition shall be granted or denied not later than six months after its
receipt by the Docket Clerk.
(b) Grants. If the Administrator determines that a rulemaking
petition complies with the requirements of Sec. 211.9 and that
rulemaking is justified, he initiates a rulemaking proceeding by
publishing an advance notice or notice of proposed rulemaking in the
Federal Register.
(c) Denials. If the Administrator determines that a rulemaking
petition does not comply with the requirements of Sec. 211.9 or that
rulemaking is not justified, he denies the petition. If the petition
pertains to railroad safety, the Administrator may also initiate an
informal safety inquiry under Sec. 211.61.
(d) Notification; closing of docket. Whenever the Administrator
grants or denies a rulemaking petition, a notice of the grant or denial
is mailed to the petitioner. If the petition is denied, the proceeding
is terminated and the docket for that petition is closed.
Sec. 211.13 Initiation and completion of rulemaking proceedings.
The Administrator initiates all rulemaking proceedings on his own
motion by publishing an advance notice of proposed rulemaking or a
notice of proposed rulemaking in the Federal Register. However, he may
consider the recommendations of interested persons
[[Page 67]]
or other agencies of the United States. A separate docket is established
and maintained for each rulemaking proceeding. Each rulemaking
proceeding shall be completed not later than 12 months after the initial
notice in that proceeding is published in the Federal Register. However,
if it was initiated as the result of the granting of a rulemaking
petition, the rulemaking proceeding shall be completed not later than 12
months after the petition was filed as prescribed in Secs. 211.7 and
211.9.
Sec. 211.15 Notice and participation.
(a) Except as provided in paragraph (c) of this section, or when the
Administrator finds for good cause that notice is impractical,
unnecessary, or contrary to the public interest (and incorporates the
findings and a brief statement of the reasons therefore in the rules
issued), an advance notice or notice of proposed rulemaking is published
in the Federal Register and interested persons are invited to
participate in the rulemaking proceedings with respect to each
substantive rule.
(b) Unless the Administrator determines that notice and public
rulemaking proceedings are necessary or desirable, interpretive rules,
general statements of policy, and rules relating to organization,
procedure, or practice, including those relating to agency management or
personnel, are prescribed as final without notice or other public
rulemaking proceedings.
(c) An advance notice or notice of proposed rulemaking is issued and
interested persons are invited to participate in rulemaking proceedings
with respect only to those procedural and substantive rules of general
applicability relating to public property, loans, grants, benefits, or
contracts which the Administrator has determined to be of substantial
public interest.
Sec. 211.17 Publication and contents of notices.
Each advance notice or notice of proposed rulemaking is published in
the Federal Register and includes--
(a) A statement of the time, place and nature of the proposed
rulemaking proceeding;
(b) A reference to the authority under which it is issued;
(c) A description of the subjects or issues involved or the
substance or terms of the proposed rule;
(d) A statement of the time within which written comments must be
submitted and the required number of copies; and
(e) A statement of how and to what extent interested persons may
participate in the proceeding.
Sec. 211.19 Petitions for extensions of time to comment.
(a) Any person may petition the Administrator for an extension of
time to submit comments in response to an advance notice or notice of
proposed rulemaking. The petition must be received by the 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.
(b) The Administrator grants the petition only if the petitioner
shows a substantive interest in the proposed rule and good cause for the
extension, and if time permits and the extension is in the public
interest. Extensions will not be granted unless time permits and will
not exceed one month. If an extension is granted, it is granted as to
all persons and a notice of the extension is published in the Federal
Register.
[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]
Sec. 211.21 Consideration of comments received.
All timely comments are considered before final action is taken on a
rulemaking proposal. Late-filed comments will be considered so far as
possible without incurring additional expense or delay.
Sec. 211.23 Additional public proceedings.
The Administrator may conduct other public proceedings that he finds
necessary or desirable. For example, he may invite interested persons to
present oral arguments, participate in
[[Page 68]]
conferences, or appear at informal hearings.
Sec. 211.25 Hearings.
(a) A hearing will be held if required by statute or the
Administrator finds it necessary or desirable.
(b) Except for statutory hearings required to be on the record--
(1) Hearings are fact-finding proceedings, and there are no formal
pleadings or adverse parties;
(2) Any rule issued in a proceeding in which a hearing is held is
not based exclusively on the record of the hearing; and
(3) Hearings are conducted in accordance with section 553 of title
5, U.S.C.; section 556 and 557 of title 5 do not apply to hearings held
under this part.
(c) The Administrator conducts or designates a representative to
conduct any hearing held under this part. The Chief Counsel serves or
designates a member of his staff to serve as legal officer at the
hearing.
Sec. 211.27 Publication of adopted rules and withdrawal of notices.
Whenever the Administrator adopts a final rule or withdraws an
advance notice or notice of proposed rulemaking, the final rule or a
notice of withdrawal is published in the Federal Register.
Sec. 211.29 Petitions for reconsideration of a final rule.
(a) Any person may petition the Administrator for reconsideration of
any rule issued under this part. Except for good cause shown, such a
petition must be submitted not later than 60 days after publication of
the rule in the Federal Register, or 10 days prior to the effective date
of the rule, whichever is the earlier. The petition must contain a brief
statement of the complaint and an explanation as to why compliance with
the rule is not possible, is not practicable, is unreasonable, or is not
in the public interest.
(b) If the petitioner requests consideration of additional facts, he
must state the reason they were not presented to the Administrator
within the allotted time.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator specifically provides otherwise, and
publishes notice thereof in the Federal Register, the filing of a
petition under this section does not stay the effectiveness of a rule.
[41 FR 54181, Dec. 13, 1976, as amended at 42 FR 27593, May 31, 1977]
Sec. 211.31 Proceedings on petitions for reconsideration of a final rule.
(a) The Administrator may grant or deny, in whole or in part, any
petition for reconsideration of a final rule without further
proceedings. Each petition shall be decided not later than 4 months
after its receipt by the Docket Clerk. In the event he determines to
reconsider a rule, the Administrator may amend the rule or initiate a
new rulemaking proceeding. An appropriate notice is published in the
Federal Register.
(b) Whenever the Administrator determines that a petition should be
granted or denied, a notice of the grant or denial of a petition for
reconsideration is sent to the petitioner. When a petition is granted, a
notice is published in the Federal Register.
(c) The Administrator may consolidate petitions relating to the same
rule.
Subpart C--Waivers
Sec. 211.41 Processing of petitions for waiver of safety rules.
(a) General. Each petition for a permanent or temporary waiver of a
safety rule, regulation or standard filed as prescribed in Secs. 211.7
and 211.9, is referred to the Railroad Safety Board for decision and
decided not later than 9 months after receipt.
(b) Notice and hearing. If required by statute or the Administrator
or the Railroad Safety Board deems it desirable, a notice is published
in the Federal Register, an opportunity for public comment is provided,
and a hearing is held in accordance with Sec. 211.25, before the
petition is granted or denied.
(c) Grants. If the Railroad Safety Board determines that the
petition complies with the requirements of Sec. 211.9 and that a waiver
is justified, it grants the petition. Conditions may be imposed on the
grant of waiver if the
[[Page 69]]
Board concludes they are necessary to assure safety or are in the public
interest.
(d) Denials. If the Railroad Safety Board determines that the
petition does not comply with the requirements of Sec. 211.9 or that a
waiver is not justified, it denies the petition.
(e) Notification. Whenever the Railroad Safety Board grants or
denies a petition, a notice of that grant or denial is sent to the
petitioner. When a petition has been decided, interested persons are
also notified or a notice is published in the Federal Register.
(f) Petition for reconsideration. Any person may petition for
reconsideration of the grant or denial of a waiver under procedures set
forth in Sec. 211.57. Each petition shall be processed in accordance
with Sec. 211.59.
Sec. 211.43 Processing of other waiver petitions.
(a) General. Except as provided in Sec. 211.41, each petition for a
permanent or temporary waiver of a rule, regulation or standard shall be
filed and processed as prescribed in Secs. 211.7 and 211.9.
(b) Notice and hearing. If required by statute or the Administrator
deems it desirable, a notice is published in the Federal Register, an
opportunity for public comment is provided, and a hearing is held in
accordance with Sec. 211.25, before the petition is granted or denied.
(c) Grants. If the Administrator determines that the petition
complies with the requirements of Sec. 211.9 and that a waiver is
justified, he grants the waiver. Conditions may be imposed on the grant
of waiver if the Administrator concludes they are necessary to achieve
the purposes of programs affected by the grant of waiver or are
otherwise in the public interest.
(d) Denials. If the Administrator determines that the petition does
not comply with the requirements of Sec. 211.9 or that a waiver is not
justified, he denies the waiver.
(e) Notification. Whenever the Administrator grants or denies a
petition, a notice of the grant or denial is sent to the petitioner.
When a petition has been decided, interested persons are also notified
or a notice is published in the Federal Register.
(f) Petitions for reconsideration. Any person may petition for
reconsideration of the grant or denial of a waiver under procedures set
forth in Sec. 211.57. Each petition shall be processed in accordance
with Sec. 211.59.
Subpart D--Emergency Orders
Sec. 211.47 Review procedures.
(a) As specified in section 203, Public Law 91-458, 84 Stat. 972 (45
U.S.C. 432), opportunity for review of Emergency orders issued under
that section will be provided in accordance with section 554 of title 5
of the U.S.C.. Petitions for such review must be submitted in writing to
the Office of Chief Counsel, Federal Railroad Administration,
Washington, DC 20590. Upon receipt of a petition, FRA will immediately
contact the petitioner and make the necessary arrangements for a
conference to be held at the earliest date acceptable to the petitioner.
At this conference, the petitioner will be afforded an opportunity to
submit facts, arguments and proposals for modification or withdrawal of
the Emergency order. If the controversy is not resolved at the
conference and a hearing is desired, the petitioner must submit a
written request for a hearing within 15 days after the conference. The
hearing will commence within 14 calendar days f receipt of the request
and will be conducted in accordance with sections 556 and 575, title 5,
U.S.C. Each petition for review shall be decided not later than 3 months
after receipt.
(b) Unless stayed or modified by the Administrator, the requirements
of each Emergency order shall remain in effect and be observed pending
decision on a petition for review.
Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries
Sec. 211.51 Tests.
(a) Pursuant to the Department of Transportation Act (80 Stat. 931,
49 U.S.C. 1651 et seq.), the Federal Railroad Safety Act of 1970 (84
Stat. 971, 45 U.S.C. 421, 431-441), or both, the Administrator may
temporarily suspend compliance with a substantive rule of the Federal
Railroad Administration, if:
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(1) The suspension is necessary to the conduct of a Federal Railroad
Administration approved test program designed to evaluate the
effectiveness of new technology or operational approaches or instituted
in furtherance of a present or proposed rulemaking proceeding;
(2) The suspension is limited in scope and application to such
relief as may be necessary to facilitate the conduct of the test
program; and
(3) The suspension is conditioned on the observance of standards
sufficient to assure safety.
(b) When required by statute, a notice is published in the Federal
Register, an opportunity is provided for public comment, and a hearing
is held in accordance with Sec. 211.25, before the FRA approved test
program is implemented.
(c) When the Administrator approves suspension of compliance with
any rule in connection with a test program, a description of the test
program containing an explanatory statement responsive to paragraph (a)
of this section is published in the Federal Register.
Sec. 211.53 Signal applications.
Applications for approval of discontinuance or material modification
of a signal system authorized by part 235 or waiver of a requirement of
part 236 of this chapter must be submitted in triplicate to the
Secretary, Railroad Safety Board, handled in accordance with procedures
set forth in part 235 or 236, respectively, and decided not later than 9
months after receipt. When a decision is issued, the applicant and other
interested parties are notified or a notice is published in the Federal
Register.
Sec. 211.55 Special approvals.
Requests for special approval pertaining to safety not otherwise
provided for in this chapter, must be submitted in triplicate to the
Secretary, Railroad Safety Board; specifying the action requested. These
requests shall be considered by the Board and appropriate action shall
be taken not later than 9 months after receipt. When a decision is
issued, the requestor and other interested parties are notified or a
notice is published in the Federal Register.
Sec. 211.57 Petitions for reconsideration.
(a) Any person may petition the Administrator for reconsideration of
final action taken in proceedings subject to subpart C or E of this
part.
(b) The petition must specify with particularity the grounds for
modification or revocation of the action in question.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator specifically provides otherwise, and
gives notice to interested parties or publishes notice in the Federal
Register, the filing of a petition under this section does not stay the
effectiveness of the action sought to be reconsidered.
Sec. 211.59 Proceedings on petitions for reconsideration.
(a) The Administrator may invite public comment or seek a response
from the party at whose request the final action was taken before
deciding a petition for reconsideration submitted under Sec. 211.57.
(b) The Administrator may reaffirm, modify, or revoke the final
action without further proceedings and shall issue notification of his
decision to the petitioner and other interested parties or publish a
notice in the Federal Register. Each petition for reconsideration shall
be decided not later than 4 months after receipt. Petitions for
reconsideration relating to the same rule may be consolidated for
decision. In the event the Administrator determines to reconsider a
final action, and appropriate notice is published in the Federal
Register.
Sec. 211.61 Informal safety inquiries.
The Administrator may conduct informal safety inquiries to collect
information on selected topics relating to railroad safety. A notice of
each such inquiry will be published in the Federal Register outlining
the area of inquiry and inviting interested persons to assist by
submitting written material or participating in informal public
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conferences and discussions. Upon completion of the inquiry, the
Administrator will review the information obtained and may, on his own
motion, initiate a rulemaking proceeding under Sec. 211.13 or take
whatever other action he deems appropriate.
Subpart F--Interim Procedures for the Review of Emergency Orders
Authority: Secs. 203 and 208(a), 84 Stat. 972, 974-975 (45 U.S.C.
432, 437(a)) and 5 U.S.C. 554-559.
Source: 44 FR 13029, Mar. 9, 1979, unless otherwise noted.
Sec. 211.71 General.
(a) This subpart consists of interim procedures for the review of
emergency orders issued under section 203 of the Federal Railroad Safety
Act of 1970, supplementing Sec. 211.47 of this part.
(b) Proceedings under this subpart are subject to the requirements
of 5 U.S.C. 554-559.
(c) Notwithstanding Sec. 211.1 of this part, as used in this subpart
Administrator means the Federal Railroad Administrator or Deputy
Administrator.
Sec. 211.73 Presiding officer; powers.
(a) An administrative hearing for the review of an emergency order
is presided over by the Administrator or by an administrative law judge
designated at the request of FRA pursuant to 5 CFR 930.213.
(b) The presiding officer may exercise the powers of the FRA to
regulate the conduct of the hearing and associated proceedings for the
purpose of achieving a prompt and fair determination of all material
issues in controversy.
(c) The final decision of the presiding officer shall set forth
findings and conclusions based on the administrative record. That
decision may set aside, modify or affirm the requirements of the
emergency order under review.
(d) Except as provided in Sec. 211.77, the decision of the presiding
officer is administratively final.
Sec. 211.75 Evidence.
(a) The Federal Rules of Evidence for United States Courts and
Magistrates shall be employed as general guidelines for the introduction
of evidence in proceedings under this subpart. However, except as
provided in paragraph (b) of this section, all relevant and probative
evidence offered by a party shall be received in evidence.
(b) The presiding officer may deny the admission of evidence which
is determined to be--
(1) Unduly repetitive; or
(2) So extensive and lacking in relevance or probative effect that
its admission would impair the prompt, orderly, and fair resolution of
the proceeding.
Sec. 211.77 Appeal to the Administrator.
(a) Any party aggrieved by the final decision of a presiding officer
(other than the Administrator) may appeal to the Administrator. The
appeal must be filed within twenty (20) days from issuance of the
presiding officer's decision and must set forth the specific exceptions
of the party to the decision, making reference to the portions of the
administrative record which are believed to support the exceptions. The
notice of appeal and any supporting papers shall be accompanied by a
certificate stating that they have been served on all parties to the
proceeding.
(b) [Reserved]
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
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.
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
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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.
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.
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.
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.
I. Preliminary Jurisdictional Determinations
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, 1120 Vermont Ave., NW., 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 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.
II. General Factors to Address in a Petition for Approval of Shared Use
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.
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.
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
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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.
A. Description of operations. 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.
[sbull]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.
[sbull]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.
[sbull]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.
B. Description of equipment. (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.
(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.
C. Alternative safety measures to be employed in place of each rule
for which waiver is sought. 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.
(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.
(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.
D. Documentation of agreement with affected railroads. Conventional
railroads that will share track with the light rail operation need not
join as a co-petitioner in the light
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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).
III. Waiver Petitions Involving No Shared Use of Track and Limited
Connections Between Light Rail and Conventional Operations
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.
1. Rail crossings at grade. 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.
2. Shared train control systems. 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.
3. Highway-Rail Grade Crossings. 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.
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.
IV. Factors to Address Related to Specific Regulations and Statutes
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 (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.
1. Track, structures, and signals.
A. Track safety standards (part 213). 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.
B. Signal systems reporting requirements (part 233). 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
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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.
C. Grade crossing signal system safety (part 234). 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.
D. Approval of signal system modifications (part 235). 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 Sec. 235.20. The
petition should discuss whether the light rail operator or conventional
railroad is responsible for maintaining the signal system.
E. Standards for signal and train control systems (part 236). 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.
2. Motive power and equipment.
A. Railroad noise emission compliance regulations (part 210). 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.
If the light rail equipment would normally meet the standards in
this rule, there would
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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).
B. Railroad freight car safety standards (part 215). 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.
C. Rear end marking devices (part 221). 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.
D. Safety glazing standards (part 223). 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 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.
E. Locomotive safety standards (part 229). (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.
(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.
(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.
[[Page 77]]
F. Safety appliance laws (49 U.S.C. 20301-20305). (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 Sec. 20306 with its review under part 211 of a
light rail operation's petition for waivers of FRA's regulations.
(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.
(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.
G. Safety appliance standards (part 231). (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.
(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.
H. Passenger equipment safety standards (part 238). 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.
3. Operating practices.
A. Railroad workplace safety (part 214). (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.
(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
[[Page 78]]
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.
B. Railroad operating rules (part 217). 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.
C. Railroad operating practices (part 218). 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.
D. Control of alcohol and drug use (part 219). 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.)
E. Railroad communications (part 220). 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.
F. Railroad accident/incident reporting (part 225). (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.
(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
[[Page 79]]
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.
G. Hours of service laws (49 U.S.C. 21101-21108). (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 Sec. 21108
with its review under part 211 of a light rail operation's petition for
waivers of FRA's regulations.
(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.
H. Hours of service recordkeeping (part 228). 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 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.
I. Passenger train emergency preparedness (part 239). 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.
J. Qualification and certification of locomotive engineers (part
240). 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
[[Page 80]]
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.
V. Waivers That May be Appropriate for Time-Separated Light Rail
Operations
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.
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.
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 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.
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.
[[Page 81]]
Possible Waivers for Light Rail Operations on the General Railroad System Based on Separation in Time From
Conventional Operations
----------------------------------------------------------------------------------------------------------------
Title 49 CFR part Subject of rule Likely treatment Comments
----------------------------------------------------------------------------------------------------------------
Track, Structures, and Signals
----------------------------------------------------------------------------------------------------------------
213.................................. Track safety standards. Comply (assuming light If the conventional RR
rail operator owns owns the track, light
track or has been rail will have to
assigned observe speed limits
responsibility for it). for class of track.
233, 235, 236........................ Signal and train Comply (assuming light If conventional RR
control. rail operator or its maintains signals,
contractor has light rail will have
responsibility for to abide by
signal maintenance). operational
limitations and report
signal failures.
234.................................. Grade crossing signals. Comply (assuming light If conventional RR
rail operator or its maintains devices,
contractor has light rail will have
responsibility for to comply with
crossing devices). sections concerning
crossing accidents,
activation failures,
and false activations.
213, Appendix C...................... Bridge safety policy... Not a rule. Compliance
voluntary..
--------------------------------------
Motive Power and Equipment
----------------------------------------------------------------------------------------------------------------
210.................................. Noise emission......... Waive.................. State safety oversight.
215.................................. Freight car safety Waive.................. State safety oversight.
standards.
221.................................. Rear end marking Waive.................. State safety oversight.
devices.
223.................................. Safety glazing Waive.................. State safety oversight.
standards.
229.................................. Locomotive safety Waive, except for State safety oversight.
standards. arrangement of
auxiliary lights,
which is important for
grade crossing safety.
231*................................. Safety appliance Waive.................. State safety oversight;
standards. see note below on
statutory
requirements.
238.................................. Passenger equipment Waive.................. State safety oversight.
standards.
--------------------------------------
Operating Practices
----------------------------------------------------------------------------------------------------------------
214.................................. Bridge worker.......... Waive.................. OSHA standards.
214.................................. Roadway worker safety.. Comply.................
217.................................. Operating rules........ Waive.................. State safety oversight.
218.................................. Operating practices.... Waive, except for State safety oversight.
prohibition on
tampering with safety
devices related to
signal system, and
blue signal rules on
shared track.
219.................................. Alcohol and drug....... Waive if FTA rule FTA rule may apply.
otherwise applies.
220.................................. Radio communications... Waive, except to extent State safety oversight.
communications with
freight trains and
roadway workers are
necessary.
225.................................. Accident reporting and Comply with regard to Employee injuries would
investigation. train accidents and be reported under FTA
crossing accidents; or OSHA rules.
waive as to injuries;
FRA accident
investigation
authority not subject
to waiver.
228**................................ Hours of service Waive (in concert with See note below on
recordkeeping. waiver of statute); possible waiver of
waiver not likely for statutory
personnel who dispatch requirements.
conventional RR or
maintain signal system
on shared use track.
239.................................. Passenger train Waive.................. State safety oversight.
emergency preparedness.
240.................................. Engineer certification. Waive.................. State safety oversight.
----------------------------------------------------------------------------------------------------------------
* Safety Appliance Statute. 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.
** Hours of Service Statute. 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.
[65 FR 42546, July 10, 2000]
[[Page 82]]
PART 212--STATE SAFETY PARTICIPATION REGULATIONS--Table of Contents
Subpart A--General
Sec.
212.1 Purpose and scope.
212.3 Definitions.
212.5 Filing.
Subpart B--State/Federal Roles
212.101 Program principles.
212.103 Investigative and surveillance authority.
212.105 Agreements.
212.107 Certification.
212.109 Joint planning of inspections.
212.111 Monitoring and other inspections.
212.113 Program termination.
212.115 Enforcement actions.
Subpart C--State Inspection Personnel
212.201 General qualifications of State inspection personnel.
212.203 Track inspector.
212.205 Apprentice track inspector.
212.207 Signal and train control inspector.
212.209 Train control inspector.
212.211 Apprentice signal and train control inspector.
212.213 Motive power and equipment (MP&E) inspector.
212.215 Locomotive inspector.
212.217 Car inspector.
212.219 Apprentice MP&E inspector.
212.221 Operating practices inspector.
212.223 Operating practices compliance inspector.
212.225 Apprentice operating practices inspector.
212.227 Hazardous materials inspector.
212.229 Apprentice hazardous materials inspector.
212.231 Highway-rail grade crossing inspector.
212.233 Apprentice highway-rail grade crossing inspector.
212.235 Inapplicable qualification requirements.
Authority: 49 U.S.C. 20103, 20106, 20105, and 20113 (formerly secs.
202, 205, 206, and 208, of the Federal Railroad Safety Act of 1970, as
amended (45 U.S.C. 431, 434, 435, and 436)); and 49 CFR 1.49.
Source: 47 FR 41051, Sept. 16, 1982, unless otherwise noted.
Subpart A--General
Sec. 212.1 Purpose and scope.
This part establishes standards and procedures for State
participation in investigative and surveillance activities under the
Federal railroad safety laws and regulations.
Sec. 212.3 Definitions.
As used in this part:
(a) Administrator means the Federal Railroad Administrator or the
Deputy Administrator or the delegate of either of them.
(b) Associate Administrator means the Associate Administrator for
Safety, Federal Railroad Administration (FRA), or the Deputy Associate
Administrator for Safety, FRA.
(c) FRA means the Federal Railroad Administration.
(d) Federal railroad safety laws means the following enactments,
together with regulations and orders issued under their authority:
(1) The Federal Railroad Safety Act of 1970, as amended (45 U.S.C.
421, 431-441);
(2) The Safety Appliance Acts, as amended (45 U.S.C. 1-16);
(3) The Locomotive Inspection Act, as amended (45 U.S.C. 22-34);
(4) The Signal Inspection Act, as amended (49 U.S.C. 26);
(5) The Accident Reports Act, as amended (45 U.S.C. 38-42);
(6) The Hours of Service Act, as amended (45 U.S.C. 61-64(b); and
(7) The Hazardous Materials Transportation Act (49 app. U.S.C. 1801
et seq.), as it pertains to shipment or transportation by railroad.
(e) Manufacturer means a person that manufactures, fabricates,
marks, maintains, reconditions, repairs, or tests containers which are
represented, marked, certified, or sold for use in the bulk
transportation of hazardous materials by railroad.
(f) Shipper means a person that offers a hazardous material for
transportation or otherwise causes it to be transported.
(g) Planned compliance inspections means investigative and
surveillance activities described in the annual work plan required by
Sec. 212.109 of this part that provide basic surveillance of railroad
facilities, equipment and/or operations for the purpose of determining
the level of compliance with relevant Federal safety requirements.
[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]
[[Page 83]]
Sec. 212.5 Filing.
Each State agency desiring to conduct investigative and surveillance
activities must submit to the Associate Administrator for Safety,
Federal Railroad Administration, 400 Seventh Street, SW., Washington, DC
20590, the documentation which contains the information prescribed by
Secs. 212.105 and 212.107.
Subpart B--State/Federal Roles
Sec. 212.101 Program principles.
(a) The purpose of the national railroad safety program is to
promote safety in all areas of railroad operations in order to reduce
deaths, injuries and damage to property resulting from railroad
accidents.
(b)(1) The national railroad safety program is carried out in part
through the issuance of mandatory Federal safety requirements and
through inspection efforts designed to monitor compliance with those
requirements. FRA and State inspections determine the extent to which
the railroads, shippers, and manufacturers have fulfilled their
obligations with respect to inspection, maintenance, training, and
supervision. The FRA and participating States do not conduct inspections
of track, equipment, signal systems, operating practices, and hazardous
materials handling for the railroads, shippers, and manufacturers.
(2) The national railroad safety program is also carried out through
routine inspections, accident investigations, formal and informal
educational efforts, complaint investigations, safety assessments,
special inquiries, regulatory development, research and similar
initiatives.
(c) It is the policy of the FRA to maintain direct oversight of
railroad, shipper, and manufacturer conditions and practices relevant to
safety by conducting inspections and investigations in concert with
participating State agencies.
(d) The principal role of the State Safety Participation Program in
the national railroad safety effort is to provide an enhanced
investigative and surveillance capability through assumption, by
participating State agencies, of responsibility for planned routine
compliance inspections. The FRA encourages further State contributions
to the national railroad safety program consistent with overall program
needs, individual State capabilities, and the willingness of the States
to undertake additional investigative and surveillance activities.
(e) It is the policy of the FRA to promote the growth and vitality
of the State Safety Participation Program through liaison with State
government, coordination of Federal and State investigative and
surveillance activities, and training of inspection personnel.
[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]
Sec. 212.103 Investigative and surveillance authority.
(a) Subject to the requirements of this part, a State agency with
jurisdiction under State law may participate in investigative and
surveillance activities concerning Federal railroad safety laws and
regulations by entering into an agreement under Sec. 212.105 for the
exercise of specified authority.
(b) Subject to requirements of this part, a State agency with
jurisdiction under State law may participate in investigative and
surveillance activities with respect to particular rules, regulations,
orders or standards issued under the regulatory authority of the Federal
Railroad Safety Act of 1970 by filing an annual certification under
Sec. 212.107.
Sec. 212.105 Agreements.
(a) Scope. The principal method by which States may participate in
investigative and surveillance activities is by agreement with FRA. An
agreement may delegate investigative and surveillance authority with
respect to all or any part of the Federal railroad safety laws.
(b) Duration. An agreement may be for a fixed term or for an
indefinite duration.
(c) Amendments. An agreement may be amended to expand or contract
its scope by consent of FRA and the State.
(d) Common terms. Each agreement entered into under this section
provides that:
[[Page 84]]
(1) The State agency is delegated certain specified authority with
respect to investigative and surveillance activities;
(2) The delgation is effective only to the extent it is carried out
through personnel recognized by the State and the FRA (pursuant to
subpart C of this part) to be qualified to perform the particular
investigative and surveillance activities to which the personnel are
assigned; and
(3) The State agency agrees to provide the capability necessary to
assure coverage of facilities, equipment, and operating practices
through planned routine compliance inspections for all, or a specified
part of, the territory of the State.
(e) Request for agreement. A request for agreement shall contain the
following information:
(1) An opinion of the counsel for the State agency stating that:
(i) The agency has jurisdiction over the safety practices of the
facilities, equipment, rolling stock, and operations of railroads in
that State and whether the agency has jurisdiction over shippers and
manufacturers;
(ii) The agency has the authority and capability to conduct
investigative and surveillance activities in connection with the rules,
regulations, orders, and standards issued by the Administrator under the
Federal railroad safety laws; and
(iii) State funds may be used for this purpose.
(2) A statement that the State agency has been furnished a copy of
each Federal safety statute, rule, regulation, order, or standard
pertinent to the State's participation;
(3) The names of the railroads operating in the State together with
the number of miles of main and branch lines operated by each railroad
in the State;
(4) The name, title and telephone number of the person designated by
the agency to coordinate the program; and
(5) A description of the organization, programs, and functions of
the agency with respect to railroad safety.
(f) Developmental agreement. Consistent with national program
requirements, the Associate Administrator may enter into an agreement
under this section prior to the qualification of inspection personnel of
the State under subpart C of this part. In such a case, the agreement
shall (1) specify the date at which the State will assume investigative
and surveillance duties, and (2) refer to any undertaking by the FRA to
provide training for State inspection personnel, including a schedule
for the training courses that will be made available.
(g) Action on request. The Associate Administrator responds to a
request for agreement by entering into an agreement based on the
request, by declining the request, or by suggesting modifications.
(Approved by the Office of Management and Budget under control number
2130-0509)
[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]
Sec. 212.107 Certification.
(a) Scope. In the event the FRA and the State agency do not agree on
terms for the participation of the State under Sec. 212.105 of this part
and the State wishes to engage in investigative and surveillance
activities with respect to any rule, regulation, order, or standard
issued under the authority of the Federal Railroad Safety Act of 1970,
the State shall file an annual certification with respect to such
activities.
(b) Content. The annual certification shall be filed not less than
60 days before the beginning of the Federal fiscal year to which it
applies, shall contain the information required by Sec. 212.105(e) of
this part and, in addition, shall certify that:
(1) The State agency has the authority and capability to conduct
investigative and surveillance activities under the requirements of this
part with respect to each rule, regulation, order or standard for which
certification is submitted; and
(2) The State agency will, at a minimum, conduct planned compliance
inspections meeting the level of effort prescribed in the applicable
appendix to this part.
(c) Action on certification. The Associate Administrator responds to
the filing of an annual certification within 60 days of its receipt by
accepting it or by rejecting it for cause stated.
[[Page 85]]
(d) Delegation of authority. Acceptance of an annual certification
constitutes a delegation of authority to conduct investigative and
surveillance activities only to the extent that the delegation is
carried out through personnel recognized by the State and the FRA
(pursuant to subpart C of this part) to be qualified to perform the
particular investigative and surveillance activities to which the
personnel are assigned.
(Approved by the Office of Management and Budget under control number
2130-0509)
Sec. 212.109 Joint planning of inspections.
Prior to the beginning of each calendar year, each participating
State applying for grant assistance under subpart D of this part shall
develop, in conjunction with the FRA Regional Director of the region in
which the State is located, an annual work plan for the conduct of
investigative and surveillance activities by the State agency. The plan
shall include a program of inspections designed to monitor the
compliance of the railroads, shippers, and manufacturers operating
within the State (or portion thereof) with applicable Federal railroad
safety laws and regulations. In the event the participating State and
the FRA Regional Director cannot agree on an annual work plan, the
Associate Administrator for Safety shall review the matter.
(Approved by the Office of Management and Budget under control number
2130-0509)
[57 FR 28115, June 24, 1992]
Sec. 212.111 Monitoring and other inspections.
(a) It is the policy of the FRA to monitor State investigative and
surveillance practices at the program level.
(b) It is the policy of the FRA to coordinate its direct inspection
and investigative functions in participating States with the responsible
State agency, providing prior advice to the States whenever practicable.
(c) The FRA may conduct such monitoring of State investigative and
surveillance practices and such other inspection and investigation as
may be necessary to aid in the enforcement of the Federal railroad
safety laws.
Sec. 212.113 Program termination.
(a) A State agency participating in investigative and surveillance
activities by agreement or certification shall provide thirty (30) days
notice of its intent to terminate its participation.
(b) The Administrator may, on his own initiative, terminate the
participation of a State agency if, after at least thirty (30) days
notice an opportunity for oral hearing under section 553 of title 5
U.S.C., the State agency does not establish that it has complied and is
complying with:
(1) The requirements of this part;
(2) Relevant directives, enforcement manuals, and written
interpretations of law and regulations provided by the FRA for guidance
of the program; and
(3) The rule of national uniformity of laws, rules, regulations,
orders, and standards relating to railroad safety as expressed in
section 205 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 434).
Sec. 212.115 Enforcement actions.
(a) Except as provided in paragraph (b) of this section, the FRA
reserves exclusive authority to assess and compromise penalties, to
issue emergency orders and compliance orders, institute or cause to be
instituted actions for collection of civil penalties or for injunctive
relief, and to commence any and all other enforcement actions under the
Federal railroad safety laws.
(b)(1) Section 207(a) of the Federal Railroad Safety Act of 1970, as
amended (45 U.S.C. 436(a)), authorizes a participating State to bring an
action for assessment and collection of a civil penalty in a Federal
district court of proper venue, if the FRA has not acted on a request
for civil penalty assessment originated by the State, within sixty (60)
days of receipt, by assessing the penalty or by determining in writing
that no violation occurred.
(2) Section 207(b) of the Federal Railroad Safety Act of 1970, as
amended (45 U.S.C. 436(b)), authorizes a participating State to bring an
action for injunctive relief in a Federal district court of proper
venue, if the FRA has not acted on a request to initiate such
[[Page 86]]
an action within fifteen (15) days of receipt, by referring the matter
to the Attorney General for litigation, by undertaking other enforcement
action, or by determining in writing that no violation has occurred.
(3) For purposes of this paragraph, a request for legal action is
deemed to be received when a legally sufficient investigative report
specifying the action requested is received by the designated FRA
offices.
(c)(1) Requests for civil penalty assessments and other
administrative actions shall be submitted to the FRA Regional Director
for Railroad Safety for the FRA region in which the State is located.
(2) Requests for the institution of injunctive actions shall be
submitted simultaneously to (i) the FRA Regional Director for Railroad
Safety for the FRA region in which the State is located and (ii) the
Enforcement Division, Office of Chief Counsel, FRA, Washington, DC
20590.
Subpart C--State Inspection Personnel
Sec. 212.201 General qualifications of State inspection personnel.
(a) This subpart prescribes the minimum qualification requirements
for State railroad safety inspectors, compliance inspectors and
inspector apprentices. A State agency may establish more stringent or
additional requirements for its employees.
(b) An inspector, compliance inspector, or apprentice inspector
shall be recognized as qualified under this part by the State agency and
the Associate Administrator prior to assuming the responsibilities of
the position.
(c) Each inspector, compliance inspectors and apprentice inspector
shall be a bona fide employee of the State agency.
(d) Each inspector, compliance inspector, and apprentice inspector
shall demonstrate:
(1) The ability to read and comprehend written materials such as
training and enforcement manuals, regulations, operating and safety
rules of the railroad, and similar materials;
(2) The ability to compose narrative reports of investigative
findings that are clear, complete, and grammatically acceptable;
(3) The ability to record data on standard report forms with a high
degree of accuracy;
(4) The ability to communicate orally; and
(5) Basic knowledge of rail transportation functions, the
organization of railroad, shipper, and manufacturer companies, and
standard industry rules for personal safety.
(e) Each inspector shall demonstrate a thorough knowledge of:
(1) Railroad rules, practices, record systems, and terminology
common to operating and maintenance functions; and
(2) The scope and major requirements of all of the Federal railroad
safety laws and regulations.
(f) In addition to meeting the requirements of this section, each
inspector and apprentice inspector shall meet the applicable
requirements of Secs. 212.203 through 212.229 of this subpart.
[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]
Sec. 212.203 Track inspector.
(a) The track inspector is required, at a minimum, to be able to
conduct independent inspections of track structures for the purpose of
determining compliance with the Track Safety Standards (49 CFR part
213), to make reports of those inspections, and to recommend the
institution of enforcement actions when appropriate to promote
compliance.
(b) The track inspector is required, at a minimum to have at least
four years of recent experience in track construction or maintenance. A
bachelor's degree in engineering or a related technical specialization
may be substituted for two of the four years of this experience
requirement and successful completion of the apprentice training program
may be substituted for the four years of this experience requirement.
(c) The track inspector shall demonstrate the following specific
qualifications:
(1) A comprehensive knowledge of track nomenclature, track
inspection techniques, track maintenance methods, and track equipment;
[[Page 87]]
(2) The ability to understand and detect deviations from:
(i) Track maintenance standards accepted in the industry; and
(ii) The Track Safety Standards (49 CFR part 213).
(3) Knowledge of operating practices and vehicle/track interaction
sufficient to understand the safety significance of deviations and
combinations of deviations; and
(4) Specialized knowledge of the requirements of the Track Safety
Standards, including the remedial action required to bring defective
track into compliance with the standards.
Sec. 212.205 Apprentice track inspector.
(a) The apprentice track inspector must be enrolled in a program of
training prescribed by the Associate Administrator leading to
qualification as a track inspector. The apprentice track inspector may
not participate in investigative and surveillance activities, except as
an assistant to a qualified State or FRA inspector while accompanying
that qualified inspector.
(b) An apprentice track inspector shall demonstrate basic knowledge
of track inspection techniques, track maintenance methods, and track
equipment prior to being enrolled in the program.
Sec. 212.207 Signal and train control inspector.
(a) The signal and train control inspector is required, at a
minimum, to be able to conduct independent inspections of all types of
signal and train control systems for the purpose of determining
compliance with the Rules, Standards and Instructions for Railroad
Signal Systems (49 CFR part 236), to make reports of those inspections,
and to recommend the institution of enforcement actions when appropriate
to promote compliance.
(b) The signal and train inspector is required, at a minimum, to
have at least four years of recent experience in signal construction or
maintenance. A bachelor's degree in electrical engineering or a related
technical specialization may be substituted for two of the four years of
this experience requirement and successful completion of the apprentice
training program may be substituted for the four years of this
requirement.
(c) The signal and train control inspector shall demonstrate the
following specific qualifications:
(1) A comprehensive knowledge of signal and train control systems,
maintenance practices, test and inspection techniques;
(2) The ability to understand and detect deviations from:
(i) Signal and train control maintenance standards accepted in the
industry; and
(ii) The Rules, Standards and Instructions for Railroad Signal
Systems (49 CFR part 236).
(3) The ability to examine plans and records, to make inspections of
signal train control systems and to determine adequacy of stopping
distances from prescribed speeds;
(4) Knowledge of operating practices and signal systems sufficient
to understand the safety significance of deviations and combination of
deviations; and
(5) Specialized knowledge of the requirements of the Rules,
Standards and Instructions for Railroad Signal Systems, including the
remedial action required to bring signal and train control systems into
compliance with the standards.
Sec. 212.209 Train control inspector.
(a) The train control inspector is required, at a minimum, to be
able to conduct independent inspections of automatic cab signal,
automatic train stop, and automatic train control devices on board
locomotives for the purpose of determining compliance with subpart E of
the Rules, Standards and Instructions for Railroad Signal Systems (49
CFR part 236) and to recommend the institution of enforcement action
when appropriate to promote compliance.
(b) The train control inspector is required, at a minimum, to have
at least four years of recent experience in locomotive construction or
maintenance. A bachelor's degree in electrical engineering or a related
technical specialization may be substituted for two of the four years of
this experience requirement and successful completion of the apprentice
training program may
[[Page 88]]
be substituted for the four year experience requirement.
(c) The train control inspector shall demonstrate the following
specific qualifications:
(1) A comprehensive knowledge of the various train control systems
used on board locomotives, locomotive air brake systems and test and
inspection procedures;
(2) The ability to understand and detect deviations from:
(i) Train control maintenance standards accepted in the industry;
and
(ii) Subpart E of the Rules, Standards and Instructions for Railroad
Signal Systems (49 CFR part 236);
(3) Knowledge of operating practices and train control systems
sufficient to understand the safety significance of deviations and
combinations of deviations; and
(4) Specialized knowledge of the requirements of subpart E of the
Rules, Standards and Instructions for Railroad Signal Systems, including
the remedial action required to bring train control systems used on
board locomotives into compliance with the standards.
Sec. 212.211 Apprentice signal and train control inspector.
(a) The apprentice signal and train control inspector must be
enrolled in a program of training prescribed by the Associate
Administrator leading to qualification as a signal and train control
inspector. The apprentice inspector may not participate in the
investigative and surveillance activities, except as an assistant to a
qualified State or FRA inspector while accompanying that qualified
inspector.
(b) Prior to being enrolled in the program the apprentice inspector
shall demonstrate:
(1) Working knowledge of basic electricity and the ability to use
electrical test equipment in direct current and alternating current
circuits; and
(2) A basic knowledge of signal and train control inspection and
maintenance methods and procedures.
Sec. 212.213 Motive power and equipment (MP&E) inspector.
(a) The MP&E inspector is required, at a minimum, to be able to
conduct independent inspections of railroad equipment for the purpose of
determining compliance with all sections of the Freight Car Safety
Standards (49 CFR part 215), Safety Glazing Standards (49 CFR part 223),
Locomotive Safety Standards (49 CFR part 229), Safety Appliance
Standards (49 CFR part 231), and Power Brake Standards (49 CFR part
232), to make reports of those inspections and to recommend the
institution of enforcement actions when appropriate to promote
compliance.
(b) The MP&E inspector is required, at a minimum, to have at least
four years of recent experience in the construction or maintenance of
railroad rolling equipment. A bachelor's degree in engineering or a
related technical specialization may be substituted for two of the four
years of this experience requirement and successful completion of the
apprentice training program may be substituted for the four year
experience requirement.
(c) The MP&E inspector shall demonstrate the following
qualifications:
(1) A comprehensive knowledge of construction, testing, inspecting
and repair of railroad freight cars, passenger cars, locomotives and air
brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad equipment maintenance standards accepted in the
industry; and
(ii) The Freight Car Safety Standards, Safety Glazing Standards,
Locomotive Safety Standards, Safety Appliance Standards and Power Brake
Standards.
(3) The knowledge of railroad operating procedures associated with
the operation of freight cars, passenger cars, locomotives and air
brakes sufficient to understand the safety significance of deviations
and combinations of deviations; and
(4) Specialized knowledge of proper remedial action to be taken in
order to bring defective freight cars, passenger cars, locomotives, and
air brakes into compliance with applicable Federal standards.
Sec. 212.215 Locomotive inspector.
(a) The locomotive inspector is required, at a minimum, to be able
to
[[Page 89]]
conduct independent inspections of locomotives and air brake systems for
the purpose of determining compliance with applicable sections of the
Safety Glazing Standards (49 CFR part 223), Locomotive Safety Standards
(49 CFR part 229), Safety Appliance Standards (49 CFR part 231) and
Power Brake Standards (49 CFR part 232), to make reports of those
inspections and to recommend the institution of enforcement actions when
appropriate to promote compliance.
(b) The locomotive inspector is required, at a minimum, to have at
least four years of experience in locomotive construction or
maintenance. A bachelor's degree in mechanical engineering or a related
technical specialization may be substituted for two of the four years of
this experience requirement and successful completion of the apprentice
training program may be substituted for the four year experience
requirement.
(c) The locomotive inspector shall demonstrate the following
specific qualifications:
(1) A comprehensive knowledge of construction, testing, inspecting
and repair of locomotive and air brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad equipment maintenance standards accepted in the
industry; and
(ii) Safety Glazing Standards, Locomotive Safety Standards, Safety
Appliance Standards and Power Brake Standards;
(3) The knowledge of railroad operating procedures associated with
the operation of locomotives and air brakes sufficient to understand the
safety significance of deviations and combinations of deviations; and
(4) Specialized knowledge of proper remedial action to be taken in
order to bring defective locomotives, and air brakes into compliance
with applicable Federal standards.
Sec. 212.217 Car inspector.
(a) The car inspector is required, at a minimum, to be able to
conduct independent inspections of railroad rolling stock for the
purpose of determining compliance with all sections of the Freight Car
Safety Standards (49 CFR part 215), Safety Glazing Standards (49 CFR
part 223), Safety Appliance Standards (49 CFR part 231) and Power Brake
Standards (49 CFR part 232), to make reports of those inspections and to
recommend the institution of enforcement actions when appropriate to
promote compliance.
(b) The car inspector is required, at a minimum, to have at least
two years of recent experience in freight car or passenger car
construction, maintenance or inspection. Successful completion of the
apprentice training program may be substituted for this two year
experience requirement.
(c) The car inspector shall demonstrate the following specific
qualifications:
(1) A comprehensive knowledge of the construction and testing of
freight and passenger cars and air brakes;
(2) The ability to understand and detect deviations from:
(i) Railroad freight and passenger car maintenance standards
accepted in the industry; and
(ii) The Freight Car Safety Standards (49 CFR part 215), Safety
Glazing Standards (49 CFR part 223), Safety Appliance Standards (49 CFR
part 231) and Power Brake Standards (49 CFR part 232);
(3) The knowledge of railroad operating procedures associated with
the operation of freight and passenger cars and air brakes sufficient to
understand the safety significance of deviations and combinations of
deviations; and
(4) Specialized knowledge of proper remedial action to be taken in
order to bring defective freight and passenger car equipment and air
brakes into compliance with applicable Federal standards.
Sec. 212.219 Apprentice MP&E inspector.
(a) The apprentice MP&E inspector must be enrolled in a program of
training prescribed by the Associate Administrator leading to
qualification as an MP&E inspector. The apprentice may not participate
in investigative and surveillance activities, except as an assistant to
a qualified State or FRA inspector while accompanying that qualified
inspector.
(b) An apprentice MP&E inspector shall demonstrate basic knowledge
of
[[Page 90]]
railroad equipment and air brake inspection, testing and maintenance,
prior to being enrolled in the program.
Sec. 212.221 Operating practices inspector.
(a) The operating practices inspector is required, at a minimum, to
be able to conduct independent inspections for the purpose of
determining compliance with all sections of the Federal operating
practice regulations (49 CFR parts 217, 218, 219, 220, 221, 225 and 228)
and the Hours of Service Act (45 U.S.C. 61-64b), to make reports of
those inspections, and to recommend the institution of enforcement
actions when appropriate to promote compliance.
(b) The operating practices inspector is required at a minimum to
have at least four years of recent experience in developing or
administering railroad operating rules. Successful completion of the
apprentice training program may be substituted for this four year
experience requirement.
(c) The operating practices inspector shall demonstrate the
following specific qualifications:
(1) A comprehensive knowledge of railroad operating practices,
railroad operating rules, duties of railroad employees, and general
railroad nomenclature;
(2) The ability to understand and detect deviations from:
(i) Railroad operating rules accepted in the industry; and
(ii) Federal operating practice regulations;
(3) Knowledge of operating practices and rules sufficient to
understand the safety significance of deviations; and
(4) Specialized knowledge of the requirements of the Federal
operating practices regulations listed in paragraph (a) of this section,
including the remedial action required to bring railroad operations into
compliance with the regulations.
[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]
Sec. 212.223 Operating practices compliance inspector.
(a) The operating practices compliance inspector is required, at a
minimum, to be able to conduct independent inspections for the purpose
of determining compliance with the requirements of the following:
(1) Operating Rules--blue flag (49 CFR part 218);
(2) Control of Alcohol and Drug Use (49 CFR part 219);
(3) Rear End Marking Device Regulations (49 CFR part 221);
(4) Railroad accidents/incidents: reports classification and
investigations (49 CFR part 225); and
(5) Hours of Service Act (45 U.S.C. 61-64b) and implementing
regulations (49 CFR part 228); to make reports of those inspections and
to recommend the institution of enforcement actions when appropriate to
promote compliance.
(b) The operating practices compliance inspector is required, at a
minimum, to have at least two years of recent experience in developing
or administering railroad operating rules. Successful completion of the
apprentice training program may be substituted for the two year
experience requirement.
(c) The compliance inspector shall demonstrate the following
specific qualifications.
(1) A basic knowledge of railroad operations, duties of railroad
employees and general railroad safety as it relates to the protection of
railroad employees;
(2) A basic knowledge of railroad rules and practices;
(3) The ability to understand and detect deviations from the
requirements cited in paragraph (a) of this section; and
(4) Specialized knowledge of the requirements of the Federal
operating practices regulations listed in paragraph (a) of this section,
including the remedial action required to bring defective conditions
into compliance with the applicable Federal standards.
[47 FR 41051, Sept. 16, 1982, as amended at 50 FR 31578, Aug. 2, 1985]
Sec. 212.225 Apprentice operating practices inspector.
(a) The apprentice operating practices inspector must be enrolled in
a program of training prescribed by the Associate Administrator leading
to qualification as an inspector. The apprentice inspector may not
participate
[[Page 91]]
in investigative and surveillance activities, except as an assistant to
a qualified State or FRA inspector while accompanying that qualified
inspector.
(b) An apprentice operating practices inspector shall demonstrate
basic knowledge of railroad operating practices, railroad operating
rules and general duties of railroad employees prior to being enrolled
in the program.
Sec. 212.227 Hazardous materials inspector.
(a) The hazardous materials inspector is required, at a minimum, to
be able to conduct independent inspections to determine compliance with
all pertinent sections of the Federal hazardous materials regulations
(49 CFR parts 171 through 174, and 179), to make reports of those
inspections and findings, and to recommend the institution of
enforcement actions when appropriate to promote compliance.
(b) The hazardous materials inspector is required, at a minimum, to
have at least two years of recent experience in developing,
administering, or performing managerial functions related to compliance
with the hazardous materials regulations; four years of recent
experience in performing functions related to compliance with the
hazardous materials regulations; or a bachelor's degree in a related
technical specialization. Successful completion of the apprentice
training program may be substituted for this requirement.
(c) The hazardous materials inspector shall demonstrate the
following specific qualifications:
(1) A comprehensive knowledge of the transportation and operating
procedures employed in the railroad, shipping, or manufacturing
industries associated with the transportation of hazardous materials;
(2) Knowledge and ability to understand and detect deviations from
the Department of Transportation's Hazardous Materials Regulations,
including Federal requirements and industry standards for the
manufacturing of bulk packaging used in the transportation of hazardous
materials by railroad;
(3) Knowledge of the physical and chemical properties and chemical
hazards associated with hazardous materials that are transported by
railroad;
(4) Knowledge of the proper remedial actions required to bring
railroad, shipper, and/or manufacturing facilities into compliance with
the Federal regulations; and
(5) Knowledge of the proper remedial actions required when a
hazardous materials transportation accident or incident occurs.
[57 FR 28115, June 24, 1992]
Sec. 212.229 Apprentice hazardous materials inspector.
(a) The apprentice hazardous materials inspector must be enrolled in
a program of training prescribed by the Associate Administrator for
Safety leading to qualification as a hazardous materials inspector. The
apprentice may not participate in investigative and surveillance
activities, except as an assistant to a qualified State or FRA inspector
while accompanying that qualified inspector.
(b) An apprentice hazardous materials inspector shall demonstrate a
basic knowledge of the chemical hazards associated with hazardous
materials that are transported by railroad, including requirements such
as shipping papers, marking, labeling, placarding, and the manufacturing
and maintenance of packagings associated with these shipments.
[57 FR 28116, June 24, 1992]
Sec. 212.231 Highway-rail grade crossing inspector.
(a) The highway-rail grade crossing inspector is required, at a
minimum, to be able to conduct independent inspections of all types of
highway-rail grade crossing warning systems for the purpose of
determining compliance with Grade Crossing Signal System Safety Rules
(49 CFR part 234), to make reports of those inspections, and to
recommend institution of enforcement actions when appropriate to promote
compliance.
(b) The highway-rail grade crossing inspector is required, at a
minimum, to have at least four years of recent experience in highway-
rail grade crossing
[[Page 92]]
construction or maintenance. A bachelor's degree in engineering or a
related technical specialization may be substituted for two of the four
years of this experience requirement. Successful completion of an
apprentice training program under Sec. 212.233 may be substituted for
the four years of this experience requirement.
(c) The highway-rail grade crossing inspector shall demonstrate the
following specific qualifications:
(1) A comprehensive knowledge of highway-rail grade crossing
nomenclature, inspection techniques, maintenance requirements, and
methods;
(2) The ability to understand and detect deviations from:
(i) Grade crossing signal system maintenance, inspection and testing
standards accepted in the industry; and
(ii) The Grade Crossing Signal System Safety Rules (49 CFR part
234);
(3) Knowledge of operating practices and highway-rail grade crossing
systems sufficient to understand the safety significance of deviations
and combinations of deviations from Sec. 212.231(c)(2) (i) and (ii);
(4) Specialized knowledge of the requirements of the Grade Crossing
Signal System Safety Rules (49 CFR part 234), including the remedial
action required to bring highway-rail grade crossing signal systems into
compliance with those Rules;
(5) Specialized knowledge of highway-rail grade crossing standards
contained in the Manual on Uniform Traffic Control Devices; and
(6) Knowledge of railroad signal systems sufficient to ensure that
highway-rail grade crossing warning systems and inspections of those
systems do not adversely affect the safety of railroad signal systems.
(d) A State signal and train control inspector qualified under this
part and who has demonstrated the ability to understand and detect
deviations from the Grade Crossing Signal System Safety Rules (49 CFR
part 234) is deemed to meet all requirements of this section and is
qualified to conduct independent inspections of all types of highway-
rail grade crossing warning systems for the purpose of determining
compliance with Grade Crossing Signal System Safety Rules (49 CFR part
234), to make reports of those inspections, and to recommend institution
of enforcement actions when appropriate to promote compliance.
[59 FR 50104, Sept. 30, 1994]
Sec. 212.233 Apprentice highway-rail grade crossing inspector.
(a) An apprentice highway-rail grade crossing inspector shall be
enrolled in a program of training prescribed by the Associate
Administrator for Safety leading to qualification as a highway-rail
grade crossing inspector. The apprentice inspector may not participate
in investigative and surveillance activities, except as an assistant to
a qualified State or FRA inspector while accompanying that qualified
inspector.
(b) Prior to being enrolled in the program the apprentice inspector
shall demonstrate:
(1) Working basic knowledge of electricity;
(2) The ability to use electrical test equipment in direct current
and alternating current circuits; and
(3) A basic knowledge of highway-rail grade crossing inspection and
maintenance methods and procedures.
[59 FR 50104, Sept. 30, 1994]
Sec. 212.235 Inapplicable qualification requirements.
The Associate Administrator may determine that a specific
requirement of this subpart is inapplicable to an identified position
created by a State agency if it is not relevant to the actual duties of
the position. The determination is made in writing.
[47 FR 41051, Sept. 16, 1982. Redesignated at 57 FR 28115, June 24,
1992. Further redesignated at 59 FR 50104, Sept. 30, 1994]
PART 213--TRACK SAFETY STANDARDS--Table of Contents
Subpart A--General
Sec.
213.1 Scope of part.
213.2 Preemptive effect.
213.3 Application.
213.4 Excepted track.
213.5 Responsibility for compliance.
213.7 Designation of qualified persons to supervise certain renewals and
inspect track.
[[Page 93]]
213.9 Classes of track: operating speed limits.
213.11 Restoration or renewal of track under traffic conditions.
213.13 Measuring track not under load.
213.15 Penalties.
213.17 Waivers.
213.19 Information collection.
Subpart B--Roadbed
213.31 Scope.
213.33 Drainage.
213.37 Vegetation.
Subpart C--Track Geometry
213.51 Scope.
213.53 Gage.
213.55 Alinement.
213.57 Curves; elevation and speed limitations.
213.59 Elevation of curved track; runoff.
213.63 Track surface.
Subpart D--Track Structure
213.101 Scope.
213.103 Ballast; general.
213.109 Crossties.
213.110 Gage restraint measurement systems.
213.113 Defective rails.
213.115 Rail end mismatch.
213.119 Continuous welded rail (CWR); general.
213.121 Rail joints.
213.122 Torch cut rail.
213.123 Tie plates.
213.127 Rail fastening systems.
213.133 Turnouts and track crossings generally.
213.135 Switches.
213.137 Frogs.
213.139 Spring rail frogs.
213.141 Self-guarded frogs.
213.143 Frog guard rails and guard faces; gage.
Subpart E--Track Appliances and Track-Related Devices
213.201 Scope.
213.205 Derails
Subpart F--Inspection
213.231 Scope.
213.233 Track inspections.
213.235 Inspection of switches, track crossings, and lift rail
assemblies or other transition devices on moveable bridges.
213.237 Inspection of rail.
213.239 Special inspections.
213.241 Inspection records.
Subpart G--Train Operations at Track Classes 6 and Higher
213.301 Scope of subpart.
213.303 Responsibility for compliance.
213.305 Designation of qualified individuals; general qualifications.
213.307 Class of track: operating speed limits.
213.309 Restoration or renewal of track under traffic conditions.
213.311 Measuring track not under load.
213.317 Waivers.
213.319 Drainage.
213.321 Vegetation.
213.323 Track gage.
213.327 Alinement.
213.329 Curves, elevation and speed limitations.
213.331 Track surface.
213.333 Automated vehicle inspection systems.
213.334 Ballast; general.
213.335 Crossties.
213.337 Defective rails.
213.339 Inspection of rail in service.
213.341 Initial inspection of new rail and welds.
213.343 Continuous welded rail (CWR).
213.345 Vehicle qualification testing.
213.347 Automotive or railroad crossings at grade.
213.349 Rail end mismatch.
213.351 Rail joints.
213.352 Torch cut rail.
213.353 Turnouts, crossovers, and lift rail assemblies or other
transition devices on moveable bridges.
213.355 Frog guard rails and guard faces; gage.
213.357 Derails.
213.359 Track stiffness.
213.361 Right of way.
213.365 Visual inspections.
213.367 Special inspections.
213.369 Inspection records.
Appendix A to Part 213--Maximum Allowable Curving Speeds
Appendix B to Part 213--Schedule of Civil Penalties
Appendix C to Part 213--Statement of Agency Policy on the Safety of
Railroad Bridges
Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461; and 49
CFR1.49(m).
Source: 63 FR 34029, June 22, 1998, unless otherwise noted.
[[Page 94]]
Subpart A--General
Sec. 213.1 Scope of part.
(a) This part prescribes minimum safety requirements for railroad
track that is part of the general railroad system of transportation. The
requirements prescribed in this part apply to specific track conditions
existing in isolation. Therefore, a combination of track conditions,
none of which individually amounts to a deviation from the requirements
in this part, may require remedial action to provide for safe operations
over that track. This part does not restrict a railroad from adopting
and enforcing additional or more stringent requirements not inconsistent
with this part.
(b) Subparts A through F apply to track Classes 1 through 5. Subpart
G and 213.2, 213.3, and 213.15 apply to track over which trains are
operated at speeds in excess of those permitted over Class 5 track.
Sec. 213.2 Preemptive effect.
Under 49 U.S.C. 20106, issuance of these regulations preempts any
State law, regulation, or order covering the same subject matter, except
an additional or more stringent law, regulation, or order that is
necessary to eliminate or reduce an essentially local safety hazard; is
not incompatible with a law, regulation, or order of the United States
Government; and that does not impose an unreasonable burden on
interstate commerce.
Sec. 213.3 Application.
(a) Except as provided in paragraph (b) of this section, this part
applies to all standard gage track in the general railroad system of
transportation.
(b) This part does not apply to track--
(1) Located inside an installation which is not part of the general
railroad system of transportation; or
(2) Used exclusively for rapid transit operations in an urban area
that are not connected with the general railroad system of
transportation.
Sec. 213.4 Excepted track.
A track owner may designate a segment of track as excepted track
provided that--
(a) The segment is identified in the timetable, special
instructions, general order, or other appropriate records which are
available for inspection during regular business hours;
(b) The identified segment is not located within 30 feet of an
adjacent track which can be subjected to simultaneous use at speeds in
excess of 10 miles per hour;
(c) The identified segment is inspected in accordance with
213.233(c) and 213.235 at the frequency specified for Class 1 track;
(d) The identified segment of track is not located on a bridge
including the track approaching the bridge for 100 feet on either side,
or located on a public street or highway, if railroad cars containing
commodities required to be placarded by the Hazardous Materials
Regulations (49 CFR part 172), are moved over the track; and
(e) The railroad conducts operations on the identified segment under
the following conditions:
(1) No train shall be operated at speeds in excess of 10 miles per
hour;
(2) No occupied passenger train shall be operated;
(3) No freight train shall be operated that contains more than five
cars required to be placarded by the Hazardous Materials Regulations (49
CFR part 172); and
(4) The gage on excepted track shall not be more than 4 feet 10\1/4\
inches. This paragraph (e)(4) is applicable September 21, 1999.
(f) A track owner shall advise the appropriate FRA Regional Office
at least 10 days prior to removal of a segment of track from excepted
status.
Sec. 213.5 Responsibility for compliance.
(a) Except as provided in paragraph (b) of this section, any owner
of track to which this part applies who knows or has notice that the
track does not comply with the requirements of this part, shall--
(1) Bring the track into compliance;
(2) Halt operations over that track; or
(3) Operate under authority of a person designated under
Sec. 213.7(a), who has at least one year of supervisory experience in
railroad track maintenance,
[[Page 95]]
subject to conditions set forth in this part.
(b) If an owner of track to which this part applies designates a
segment of track as ``excepted track'' under the provisions of
Sec. 213.4, operations may continue over that track without complying
with the provisions of subparts B, C, D, and E of this part, unless
otherwise expressly stated.
(c) If an owner of track to which this part applies assigns
responsibility for the track to another person (by lease or otherwise),
written notification of the assignment shall be provided to the
appropriate FRA Regional Office at least 30 days in advance of the
assignment. The notification may be made by any party to that
assignment, but shall be in writing and include the following--
(1) The name and address of the track owner;
(2) The name and address of the person to whom responsibility is
assigned (assignee);
(3) A statement of the exact relationship between the track owner
and the assignee;
(4) A precise identification of the track;
(5) A statement as to the competence and ability of the assignee to
carry out the duties of the track owner under this part; and
(6) A statement signed by the assignee acknowledging the assignment
to him of responsibility for purposes of compliance with this part.
(d) The Administrator may hold the track owner or the assignee or
both responsible for compliance with this part and subject to penalties
under Sec. 213.15.
(e) A common carrier by railroad which is directed by the Surface
Transportation Board to provide service over the track of another
railroad under 49 U.S.C. 11123 is considered the owner of that track for
the purposes of the application of this part during the period the
directed service order remains in effect.
(f) When any person, including a contractor for a railroad or track
owner, performs any function required by this part, that person is
required to perform that function in accordance with this part.
Sec. 213.7 Designation of qualified persons to supervise certain renewals and inspect track.
(a) Each track owner to which this part applies shall designate
qualified persons to supervise restorations and renewals of track under
traffic conditions. Each person designated shall have--
(1) At least--
(i) 1 year of supervisory experience in railroad track maintenance;
or
(ii) A combination of supervisory experience in track maintenance
and training from a course in track maintenance or from a college level
educational program related to track maintenance;
(2) Demonstrated to the owner that he or she--
(i) Knows and understands the requirements of this part;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely
compensate for those deviations; and
(3) Written authorization from the track owner to prescribe remedial
actions to correct or safely compensate for deviations from the
requirements in this part.
(b) Each track owner to which this part applies shall designate
qualified persons to inspect track for defects. Each person designated
shall have--
(1) At least--
(i) 1 year of experience in railroad track inspection; or
(ii) A combination of experience in track inspection and training
from a course in track inspection or from a college level educational
program related to track inspection;
(2) Demonstrated to the owner that he or she--
(i) Knows and understands the requirements of this part;
(ii) Can detect deviations from those requirements; and
(iii) Can prescribe appropriate remedial action to correct or safely
compensate for those deviations; and
(3) Written authorization from the track owner to prescribe remedial
actions to correct or safely compensate for deviations from the
requirements of this part, pending review by a qualified
[[Page 96]]
person designated under paragraph (a) of this section.
(c) Persons not fully qualified to supervise certain renewals and
inspect track as outlined in paragraphs (a) and (b) of this section, but
with at least one year of maintenance-of-way or signal experience, may
pass trains over broken rails and pull aparts provided that--
(1) The track owner determines the person to be qualified and, as
part of doing so, trains, examines, and re-examines the person
periodically within two years after each prior examination on the
following topics as they relate to the safe passage of trains over
broken rails or pull aparts: rail defect identification, crosstie
condition, track surface and alinement, gage restraint, rail end
mismatch, joint bars, and maximum distance between rail ends over which
trains may be allowed to pass. The sole purpose of the examination is to
ascertain the person's ability to effectively apply these requirements
and the examination may not be used to disqualify the person from other
duties. A minimum of four hours training is adequate for initial
training;
(2) The person deems it safe and train speeds are limited to a
maximum of 10 m.p.h. over the broken rail or pull apart;
(3) The person shall watch all movements over the broken rail or
pull apart and be prepared to stop the train if necessary; and
(4) Person(s) fully qualified under Sec. 213.7 of this part are
notified and dispatched to the location promptly for the purpose of
authorizing movements and effecting temporary or permanent repairs.
(d) With respect to designations under paragraphs (a), (b), and (c)
of this section, each track owner shall maintain written records of--
(1) Each designation in effect;
(2) The basis for each designation; and
(3) Track inspections made by each designated qualified person as
required by Sec. 213.241. These records shall be kept available for
inspection or copying by the Federal Railroad Administration during
regular business hours.
Sec. 213.9 Classes of track: operating speed limits.
(a) Except as provided in paragraph (b) of this section and
Secs. 213.57(b), 213.59(a), 213.113(a), and 213.137(b) and (c), the
following maximum allowable operating speeds apply--
[In miles per hour]
------------------------------------------------------------------------
The maximum The maximum
Over track that meets all of the allowable allowable
requirements prescribed in this operating speed operating speed
part for-- for freight for passenger
trains is-- trains is--
------------------------------------------------------------------------
Excepted track.................... 10 N/A
Class 1 track..................... 10 15
Class 2 track..................... 25 30
Class 3 track..................... 40 60
Class 4 track..................... 60 80
Class 5 track..................... 80 90
------------------------------------------------------------------------
(b) If a segment of track does not meet all of the requirements for
its intended class, it is reclassified to the next lowest class of track
for which it does meet all of the requirements of this part. However, if
the segment of track does not at least meet the requirements for Class 1
track, operations may continue at Class 1 speeds for a period of not
more than 30 days without bringing the track into compliance, under the
authority of a person designated under Sec. 213.7(a), who has at least
one year of supervisory experience in railroad track maintenance, after
that person determines that operations may safely continue and subject
to any limiting conditions specified by such person.
Sec. 213.11 Restoration or renewal of track under traffic conditions.
If during a period of restoration or renewal, track is under traffic
conditions and does not meet all of the requirements prescribed in this
part, the
[[Page 97]]
work on the track shall be under the continuous supervision of a person
designated under Sec. 213.7(a) who has at least one year of supervisory
experience in railroad track maintenance, and subject to any limiting
conditions specified by such person. The term ``continuous supervision''
as used in this section means the physical presence of that person at a
job site. However, since the work may be performed over a large area, it
is not necessary that each phase of the work be done under the visual
supervision of that person.
Sec. 213.13 Measuring track not under load.
When unloaded track is measured to determine compliance with
requirements of this part, the amount of rail movement, if any, that
occurs while the track is loaded must be added to the measurements of
the unloaded track.
Sec. 213.15 Penalties.
(a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $500 and not more than $11,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury to
persons, or has caused death or injury, a penalty not to exceed $22,000
per violation may be assessed. ``Person'' means an entity of any type
covered under 1 U.S.C. 1, including but not limited to the following: a
railroad; a manager, supervisor, official, or other employee or agent of
a railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any independent contractor providing
goods or services to a railroad; any employee of such owner,
manufacturer, lessor, lessee, or independent contractor; and anyone held
by the Federal Railroad Administrator to be responsible under
Sec. 213.5(d) or Sec. 213.303(c). Each day a violation continues shall
constitute a separate offense. See appendix B to this part for a
statement of agency civil penalty policy.
(b) Any person who knowingly and willfully falsifies a record or
report required by this part may be subject to criminal penalties under
49 U.S.C. 21311.
Sec. 213.17 Waivers.
(a) Any owner of track to which this part applies, or other person
subject to this part, may petition the Federal Railroad Administrator
for a waiver from any or all requirements prescribed in this part. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(b) Each petition for a waiver under this section shall be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If the Administrator finds that a waiver is in the public
interest and is consistent with railroad safety, the Administrator may
grant the exemption subject to any conditions the Administrator deems
necessary. Where a waiver is granted, the Administrator publishes a
notice containing the reasons for granting the waiver.
213.19 Information collection.
(a) The information collection requirements of this part were
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and are
assigned OMB control number 2130-0010.
(b) The information collection requirements are found in the
following sections: Secs. 213.4, 213.5, 213.7, 213.17, 213.57, 213.119,
213.122, 213.233, 213.237, 213.241, 213.303, 213.305, 213.317, 213.329,
213.333, 213.339, 213.341, 213.343, 213.345, 213.353, 213.361, 213.369.
Subpart B--Roadbed
Sec. 213.31 Scope.
This subpart prescribes minimum requirements for roadbed and areas
immediately adjacent to roadbed.
Sec. 213.33 Drainage.
Each drainage or other water carrying facility under or immediately
adjacent to the roadbed shall be maintained and kept free of
obstruction, to
[[Page 98]]
accommodate expected water flow for the area concerned.
Sec. 213.37 Vegetation.
Vegetation on railroad property which is on or immediately adjacent
to roadbed shall be controlled so that it does not--
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals:
(1) Along the right-of-way, and
(2) At highway-rail crossings; (This paragraph (b)(2) is applicable
September 21, 1999.)
(c) Interfere with railroad employees performing normal trackside
duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving
equipment from their normal duty stations.
Subpart C--Track Geometry
Sec. 213.51 Scope.
This subpart prescribes requirements for the gage, alinement, and
surface of track, and the elevation of outer rails and speed limitations
for curved track.
Sec. 213.53 Gage.
(a) Gage is measured between the heads of the rails at right-angles
to the rails in a plane five-eighths of an inch below the top of the
rail head.
(b) Gage shall be within the limits prescribed in the following
table--
----------------------------------------------------------------------------------------------------------------
Class of track The gage must be at least-- But not more than--
----------------------------------------------------------------------------------------------------------------
Excepted track.......................... N/A............................ 4[foot]10\1/4\.
Class 1 track........................... 4[foot]8............ 4[foot]10.
Class 2 and 3 track..................... 4[foot]8............ 4[foot]9\3/4\.
Class 4 and 5 track..................... 4[foot]8............ 4[foot]9\1/2\.
----------------------------------------------------------------------------------------------------------------
Sec. 213.55 Alinement.
Alinement may not deviate from uniformity more than the amount
prescribed in the following table:
----------------------------------------------------------------------------------------------------------------
Tangent track Curved track
--------------------------------------------------------
The deviation of The deviation of The deviation of
the mid-offset the mid-ordinate the mid-ordinate
Class of track from a 62-foot from a 31-foot from a 62-foot
line \1\ may not chord \2\ may not chord \2\ may not
be more than-- be more than-- be more than--
(inches) (inches) (inches)
----------------------------------------------------------------------------------------------------------------
Class 1 track.......................................... 5 \3\ N/A 5
Class 2 track.......................................... 3 \3\ N/A 3
Class 3 track.......................................... 1\3/4\ 1\1/4\ 1\3/4\
Class 4 track.......................................... 1\1/2\ 1 1\1/2\
Class 5 track.......................................... \3/4\ \1/2\ \5/8\
----------------------------------------------------------------------------------------------------------------
\1\ The ends of the line shall be at points on the gage side of the line rail, five-eighths of an inch below the
top of the railhead. Either rail may be used as the line rail, however, the same rail shall be used for the
full length of that tangential segment of track.
\2\ The ends of the chord shall be at points on the gage side of the outer rail, five-eighths of an inch below
the top of the railhead.
\3\ N/A--Not Applicable.
Sec. 213.57 Curves; elevation and speed limitations.
(a) The maximum crosslevel on the outside rail of a curve may not be
more than 8 inches on track Classes 1 and 2 and 7 inches on Classes 3
through 5. Except as provided in Sec. 213.63, the outside rail of a
curve may not be lower than the inside rail. (The first sentence of
paragraph (a) is applicable September 21, 1999.)
(b)(1) The maximum allowable operating speed for each curve is
determined by the following formula--
[GRAPHIC] [TIFF OMITTED] TR22JN98.001
[[Page 99]]
Where--
Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches).\1\
---------------------------------------------------------------------------
\1\ Actual elevation for each 155 foot track segment in the body of
the curve is determined by averaging the elevation for 10 points through
the segment at 15.5 foot spacing. If the curve length is less than 155
feet, average the points through the full length of the body of the
curve.
---------------------------------------------------------------------------
D = Degree of curvature (degrees).\2\
---------------------------------------------------------------------------
\2\ Degree of curvature is determined by averaging the degree of
curvature over the same track segment as the elevation.
(2) Table 1 of Appendix A is a table of maximum allowable operating
speed computed in accordance with this formula for various elevations
and degrees of curvature.
(c)(1) For rolling stock meeting the requirements specified in
paragraph (d) of this section, the maximum operating speed for each
curve may be determined by the following formula--
[GRAPHIC] [TIFF OMITTED] TR22JN98.002
Where--
Vmax = Maximum allowable operating speed (miles per hour).
Ea = Actual elevation of the outside rail (inches).\1\
D = Degree of curvature (degrees).\2\
(2) Table 2 of Appendix A is a table of maximum allowable operating
speed computed in accordance with this formula for various elevations
and degrees of curvature.
(d) Qualified equipment may be operated at curving speeds determined
by the formula in paragraph (c) of this section, provided each specific
class of equipment is approved for operation by the Federal Railroad
Administration and the railroad demonstrates that:
(1) When positioned on a track with a uniform 4-inch superelevation,
the roll angle between the floor of the equipment and the horizontal
does not exceed 5.7 degrees; and
(2) When positioned on a track with a uniform 6 inch superelevation,
no wheel of the equipment unloads to a value of 60 percent of its static
value on perfectly level track, and the roll angle between the floor of
the equipment and the horizontal does not exceed 8.6 degrees.
(3) The track owner shall notify the Federal Railroad Administrator
no less than 30 calendar days prior to the proposed implementation of
the higher curving speeds allowed under the formula in paragraph (c) of
this section. The notification shall be in writing and shall contain, at
a minimum, the following information--
(i) A complete description of the class of equipment involved,
including schematic diagrams of the suspension systems and the location
of the center of gravity above top of rail;
(ii) A complete description of the test procedure \3\ and
instrumentation used to qualify the equipment and the maximum values for
wheel unloading and roll angles which were observed during testing;
---------------------------------------------------------------------------
\3\ The test procedure may be conducted in a test facility whereby
all the wheels on one side (right or left) of the equipment are
alternately raised and lowered by 4 and 6 inches and the vertical wheel
loads under each wheel are measured and a level is used to record the
angle through which the floor of the equipment has been rotated.
---------------------------------------------------------------------------
(iii) Procedures or standards in effect which relate to the
maintenance of the suspension system for the particular class of
equipment; and
(iv) Identification of line segment on which the higher curving
speeds are proposed to be implemented.
(e) A track owner, or an operator of a passenger or commuter
service, who provides passenger or commuter service over trackage of
more than one track owner with the same class of equipment may provide
written notification to the Federal Railroad Administrator with the
written consent of the other affected track owners.
(f) Equipment presently operating at curving speeds allowed under
the formula in paragraph (c) of this section, by reason of conditional
waivers granted by the Federal Railroad Administration, shall be
considered to have successfully complied with the requirements of
paragraph (d) of this section.
(g) A track owner or a railroad operating above Class 5 speeds, may
request approval from the Federal Railroad Administrator to operate
specified equipment at a level of cant deficiency
[[Page 100]]
greater than four inches in accordance with Sec. 213.329(c) and (d) on
curves in Class 1 through 5 track which are contiguous to the high speed
track provided that--
(1) The track owner or railroad submits a test plan to the Federal
Railroad Administrator for approval no less than thirty calendar days
prior to any proposed implementation of the higher curving speeds. The
test plan shall include an analysis and determination of carbody
acceleration safety limits for each vehicle type which indicate wheel
unloading of 60 percent in a steady state condition and 80 percent in a
transient (point by point) condition. Accelerometers shall be laterally-
oriented and floor-mounted near the end of a representative vehicle of
each type;
(2) Upon FRA approval of a test plan, the track owner or railroad
conducts incrementally increasing train speed test runs over the curves
in the identified track segment(s) to demonstrate that wheel unloading
is within the limits prescribed in paragraph (g)(1) of this section;
(3) Upon FRA approval of a cant deficiency level, the track owner or
railroad inspects the curves in the identified track segment with a
Track Geometry Measurement System (TGMS) qualified in accordance with
Sec. 213.333 (b) through (g) at an inspection frequency of at least
twice annually with not less than 120 days interval between inspections;
and
(4) The track owner or railroad operates an instrumented car having
dynamic response characteristics that are representative of other
equipment assigned to service or a portable device that monitors on-
board instrumentation on trains over the curves in the identified track
segment at the revenue speed profile at a frequency of at least once
every 90-day period with not less than 30 days interval between
inspections. The instrumented car or the portable device shall monitor a
laterally-oriented accelerometer placed near the end of the vehicle at
the floor level. If the carbody lateral acceleration measurement exceeds
the safety limits prescribed in paragraph (g)(1), the railroad shall
operate trains at curving speeds in accordance with paragraph (b) or (c)
of this section; and
(5) The track owner or railroad shall maintain a copy of the most
recent exception printouts for the inspections required under paragraphs
(g)(3) and (4) of this section.
[63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998]
Sec. 213.59 Elevation of curved track; runoff.
(a) If a curve is elevated, the full elevation shall be provided
throughout the curve, unless physical conditions do not permit. If
elevation runoff occurs in a curve, the actual minimum elevation shall
be used in computing the maximum allowable operating speed for that
curve under Sec. 213.57(b).
(b) Elevation runoff shall be at a uniform rate, within the limits
of track surface deviation prescribed in Sec. 213.63, and it shall
extend at least the full length of the spirals. If physical conditions
do not permit a spiral long enough to accommodate the minimum length of
runoff, part of the runoff may be on tangent track.
Sec. 213.63 Track surface.
Each owner of the track to which this part applies shall maintain
the surface of its track within the limits prescribed in the following
table:
----------------------------------------------------------------------------------------------------------------
Class of track
------------------------------------------------------
Track surface 1 2 3 4 5
(inches) (inches) (inches) (inches) (inches)
----------------------------------------------------------------------------------------------------------------
The runoff in any 31 feet of rail at the end of a raise 3\1/2\ 3 2 1\1/2\ 1
may not be more than....................................
The deviation from uniform profile on either rail at the 3 2\3/4\ 2\1/4\ 2 1\1/4\
mid-ordinate of a 62-foot chord may not be more than....
The deviation from zero crosslevel at any point on 3 2 1\3/4\ 1\1/4\ 1
tangent or reverse crosslevel elevation on curves may
not be more than........................................
The difference in crosslevel between any two points less 3 2\1/4\ 2 1\3/4\ 1\1/2\
than 62 feet apart may not be more than* 1, 2..........
[[Page 101]]
* Where determined by engineering decision prior to the 2 1\3/4\ 1\1/4\ 1 \3/4\
promulgation of this rule, due to physical restrictions
on spiral length and operating practices and experience,
the variation in crosslevel on spirals per 31 feet may
not be more than........................................
----------------------------------------------------------------------------------------------------------------
\1\ Except as limited by Sec. 213.57(a), where the elevation at any point in a curve equals or exceeds 6
inches, the difference in crosslevel within 62 feet between that point and a point with greater elevation may
not be more than 1\1/2\ inches. (Footnote 1 is applicable September 21, 1999.)
\2\ However, to control harmonics on Class 2 through 5 jointed track with staggered joints, the crosslevel
differences shall not exceed 1\1/4\ inches in all of six consecutive pairs of joints, as created by 7 low
joints. Track with joints staggered less than 10 feet shall not be considered as having staggered joints.
Joints within the 7 low joints outside of the regular joint spacing shall not be considered as joints for
purposes of this footnote. (Footnote 2 is applicable September 21, 1999.)
[63 FR 34029, June 22, 1998; 63 FR 45959, Aug. 28, 1998]
Subpart D--Track Structure
Sec. 213.101 Scope.
This subpart prescribes minimum requirements for ballast, crossties,
track assembly fittings, and the physical conditions of rails.
Sec. 213.103 Ballast; general.
Unless it is otherwise structurally supported, all track shall be
supported by material which will --
(a) Transmit and distribute the load of the track and railroad
rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically
under dynamic loads imposed by railroad rolling equipment and thermal
stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
Sec. 213.109 Crossties.
(a) Crossties shall be made of a material to which rail can be
securely fastened.
(b) Each 39 foot segment of track shall have--
(1) A sufficient number of crossties which in combination provide
effective support that will--
(i) Hold gage within the limits prescribed in Sec. 213.53(b);
(ii) Maintain surface within the limits prescribed in Sec. 213.63;
and
(iii) Maintain alinement within the limits prescribed in
Sec. 213.55.
(2) The minimum number and type of crossties specified in paragraphs
(c) and (d) of this section effectively distributed to support the
entire segment; and
(3) At least one crosstie of the type specified in paragraphs (c)
and (d) of this section that is located at a joint location as specified
in paragraph (f) of this section.
(c) Each 39 foot segment of: Class 1 track shall have five
crossties; Classes 2 and 3 track shall have eight crossties; and Classes
4 and 5 track shall have 12 crossties, which are not:
(1) Broken through;
(2) Split or otherwise impaired to the extent the crossties will
allow the ballast to work through, or will not hold spikes or rail
fasteners;
(3) So deteriorated that the tie plate or base of rail can move
laterally more than \1/2\ inch relative to the crossties; or
(4) Cut by the tie plate through more than 40 percent of a ties'
thickness.
(d) Each 39 foot segment of track shall have the minimum number and
type of crossties as indicated in the following table (this paragraph
(d) is applicable September 21, 2000).
------------------------------------------------------------------------
Turnouts
Tangent and
track and curved
Class of track curves track
[le]2 over 2
degrees degrees
------------------------------------------------------------------------
Class 1 track..................................... 5 6
Class 2 track..................................... 8 9
Class 3 track..................................... 8 10
Class 4 and 5 track............................... 12 14
------------------------------------------------------------------------
(e) Crossties counted to satisfy the requirements set forth in the
table in paragraph (d) of this section shall not be--
(1) Broken through;
[[Page 102]]
(2) Split or otherwise impaired to the extent the crossties will
allow the ballast to work through, or will not hold spikes or rail
fasteners;
(3) So deteriorated that the tie plate or base of rail can move
laterally \1/2\ inch relative to the crossties; or
(4) Cut by the tie plate through more than 40 percent of a
crosstie's thickness (this paragraph (e) is applicable September 21,
2000).
(f) Class 1 and Class 2 track shall have one crosstie whose
centerline is within 24 inches of each rail joint location, and Classes
3 through 5 track shall have one crosstie whose centerline is within 18
inches of each rail joint location or, two crossties whose centerlines
are within 24 inches either side of each rail joint location. The
relative position of these ties is described in the following diagrams:
[GRAPHIC] [TIFF OMITTED] TR22JN98.003
Each rail joint in Classes 1 and 2 track shall be supported by at least
one crosstie specified in paragraphs (c) and (d) of this section whose
centerline is within 48 shown above.
[GRAPHIC] [TIFF OMITTED] TR22JN98.004
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:
[[Page 103]]
[GRAPHIC] [TIFF OMITTED] TR22JN98.005
Two crossties, one on each side of the rail joint, whose centerlines are
within 24 of the rail joint location shown above.
(g) For track constructed without crossties, such as slab track,
track connected directly to bridge structural components and track over
servicing pits, the track structure shall meet the requirements of
paragraphs (b)(1)(i), (ii), and (iii) of this section.
[63 FR 34029, June 22, 1998; 63 FR 46102, Aug. 28, 1998]
Sec. 213.110 Gage restraint measurement systems.
(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 Secs. 213.109 and 213.127 provided
that--
(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
(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.
(b) Initial notification under paragraph (a)(1) of this section
shall include--
(1) Identification of the line segment(s) by timetable designation,
milepost limits, class of track, or other identifying criteria; and
(2) The most recent record of million gross tons of traffic per year
over the identified segment(s).
(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--
(1) Gage restraint shall be measured between the heads of rail --
(A) At an interval not exceeding 16 inches;
(B) Under an applied vertical load of no less than 10,000 pounds per
rail; and
(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.
(d) Load severity is defined by the formula--S=L-cV
Where--
S=Load severity, defined as the lateral load applied to the fastener
system (pounds).
L=Actual lateral load applied (pounds).
c=Coefficient of friction between rail/tie which is assigned a nominal
value of (0.4).
V=Actual vertical load applied (pounds).
(e) The measured gage values shall be converted to a Projected
Loaded Gage 24 (PLG 24) as follows--
[GRAPHIC] [TIFF OMITTED] TR10JA01.000
Where--
UTG=Unloaded track gage measured by the GRMS vehicle at a point no less
than 10 feet from any lateral or vertical load application.
LTG=Loaded track gage measured by the GRMS vehicle at a point no more
than 12
[[Page 104]]
inches from the lateral load application point.
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.
For all track--
[GRAPHIC] [TIFF OMITTED] TR10JA01.001
Note: The A factor shall not exceed (3.184) under any valid loading
configuration.
where--
L=Actual lateral load applied (pounds).
V=Actual vertical load applied (pounds).
(f) The measured gage value shall be converted to a Gage Widening
Ratio (GWR) as follows --
[GRAPHIC] [TIFF OMITTED] TR10JA01.002
(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.
(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.
(i) The exception reports required by this section shall be provided
to the appropriate person designated as fully qualified under Sec. 213.7
prior to the next inspection required under Sec. 213.233.
(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--
(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
(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.
(k) The track owner shall provide training in GRMS technology to all
persons designated as fully qualified under Sec. 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--
(1) Basic GRMS procedures;
(2) Interpretation and handling of exception reports generated by
the GRMS vehicle;
(3) Locating and verifying defects in the field;
(4) Remedial action requirements;
(5) Use and calibration of the PTLF; and
(6) Recordkeeping requirements.
(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--
[[Page 105]]
------------------------------------------------------------------------
If measurement value
GRMS parameter \1\ exceeds Remedial action required
------------------------------------------------------------------------
First Level Exception
------------------------------------------------------------------------
UTG.................. 58 inches........... (1) Immediately protect the
exception location with a
10 mph speed restriction;
then verify location; and
(2) Restore lateral
restraint and maintain in
compliance with PTLF
criteria as described in
paragraph (m) of this
section; and
(3) Maintain compliance
with Sec. 213.53(b) of
this part as measured with
the PTLF.
----------------------
LTG.................. 58 inches...........
PLG24................ 59 inches...........
GWR.................. 1.0 inches..........
Second Level Exception
------------------------------------------------------------------------
LTG.................. 57\3/4\ inches on \2\ Limit operating speed
Class 4 and 5 track to no more than the
\2\. maximum allowable under
Sec. 213.9 for Class 3
track; then verify
location; and
(1) Maintain in compliance
with PTLF criteria as
described in paragraph (m)
of this section; and
(2) Maintain compliance
with Sec. 213.53(b) of
this part as measured with
the PTLF.
PLG24................ 58 inches...........
GWR.................. 0.75 inches.........
------------------------------------------------------------------------
\1\ Definitions for the GRMS parameters referenced in this table are
found in paragraph (p) of this section.
\2\ This note recognizes that typical good track will increase in total
gage by as much as \1/4\ inch due to outward rail rotation under GRMS
loading conditions. For Class 2 & 3 track, the GRMS LTG values are
also increased by \1/4\ 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 \1/4\-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 Sec.
213.53(b) will apply.
(m) Between GRMS inspections, the PTLF may be used as an additional
analytical tool to assist fully qualified Sec. 213.7 individuals in
determining compliance with the crosstie and fastener requirements of
Secs. 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--
(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 Secs. 213.109 and 213.127 provided that--
(i) The total gage widening at that location does not exceed \5/8\
inch when increasing the applied force from 0 to 4,000 pounds; and
(ii) The gage of the track under 4,000 pounds of applied force does
not exceed the allowable gage prescribed in Sec. 213.53(b) for the class
of track.
(2) Gage widening in excess of \5/8\ inch shall constitute a
deviation from Class 1 standards.
(3) A person designated as fully qualified under Sec. 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.
(4) When a functional PTLF is not available to a fully qualified
person designated under Sec. 213.7, the criteria for determining
crosstie and fastener compliance shall be based solely on the
requirements specified in Secs. 213.109 and 213.127.
(5) If the PTLF becomes non-functional or is missing, the track
owner will replace or repair it before the next inspection required
under Sec. 213.233.
(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.
(n) The track owner shall maintain a record of the two most recent
GRMS inspections at locations which meet the requirements specified in
Sec. 213.241(b). At a minimum, records shall indicate the following--
(1) Location and nature of each First Level exception; and
(2) Nature and date of remedial action, if any, for each exception
identified in paragraph (n)(1) of this section.
(o) The inspection interval for designated GRMS line segments shall
be such that--
[[Page 106]]
(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
(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) As used in this section--
(1) Gage Restraint Measurement System (GRMS) means a track loading
vehicle meeting the minimum design requirements specified in this
section.
(2) Gage Widening Ratio (GWR) means the measured difference between
loaded and unloaded gage measurements, linearly normalized to 16,000
pounds of applied lateral load.
(3) L/V ratio 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.
(4) Load severity 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.
(5) Loaded Track Gage (LTG) means the gage measured by the GRMS
vehicle at a point no more than 12 inches from the lateral load
application point.
(6) Portable Track Loading Fixture (PTLF) 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.
(7) Projected Loaded Gage (PLG) 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.
(8) Unloaded Track Gage (UTG) means the gage measured by the GRMS
vehicle at a point no less than 10 feet from any lateral or vertical
load.
[66 FR 1899, Jan. 10, 2001; 66 FR 8372, Jan. 31, 2001]
Sec. 213.113 Defective rails.
(a) When an owner of track to which this part applies learns,
through inspection or otherwise, that a rail in that track contains any
of the defects listed in the following table, a person designated under
Sec. 213.7 shall determine whether or not the track may continue in use.
If he determines that the track may continue in use, operation over the
defective rail is not permitted until--
(1) The rail is replaced; or
(2) The remedial action prescribed in the table is initiated.
[[Page 107]]
[GRAPHIC] [TIFF OMITTED] TN28SE98.059
Notes A. Assign person designated under Sec. 213.7 to visually
supervise each operation over defective rail.
A2. Assign person designated under Sec. 213.7 to make visual
inspection. After a visual inspection, that person may authorize
operation to continue without continuous visual
[[Page 108]]
supervision at a maximum of 10 m.p.h. for up to 24 hours prior to
another such visual inspection or replacement or repair of the rail.
B. Limit operating speed over defective rail to that as authorized
by a person designated under Sec. 213.7(a), who has at least one year of
supervisory experience in railroad track maintenance. The operating
speed cannot be over 30 m.p.h. or the maximum allowable speed under
Sec. 213.9 for the class of track concerned, whichever is lower.
C. Apply joint bars bolted only through the outermost holes to
defect within 20 days after it is determined to continue the track in
use. In the case of Classes 3 through 5 track, limit operating speed
over defective rail to 30 m.p.h. until joint bars are applied;
thereafter, limit speed to 50 m.p.h. or the maximum allowable speed
under Sec. 213.9 for the class of track concerned, whichever is lower.
When a search for internal rail defects is conducted under Sec. 213.237,
and defects are discovered in Classes 3 through 5 which require remedial
action C, the operating speed shall be limited to 50 m.p.h., or the
maximum allowable speed under Sec. 213.9 for the class of track
concerned, whichever is lower, for a period not to exceed 4 days. If the
defective rail has not been removed from the track or a permanent repair
made within 4 days of the discovery, limit operating speed over the
defective rail to 30 m.p.h. until joint bars are applied; thereafter,
limit speed to 50 m.p.h. or the maximum allowable speed under Sec. 213.9
for the class of track concerned, whichever is lower.
D. Apply joint bars bolted only through the outermost holes to
defect within 10 days after it is determined to continue the track in
use. In the case of Classes 3 through 5 track, limit operating speed
over the defective rail to 30 m.p.h. or less as authorized by a person
designated under Sec. 213.7(a), who has at least one year of supervisory
experience in railroad track maintenance, until joint bars are applied;
thereafter, limit speed to 50 m.p.h. or the maximum allowable speed
under Sec. 213.9 for the class of track concerned, whichever is lower.
E. Apply joint bars to defect and bolt in accordance with
Sec. 213.121(d) and (e).
F. Inspect rail 90 days after it is determined to continue the track
in use.
G. Inspect rail 30 days after it is determined to continue the track
in use.
H. Limit operating speed over defective rail to 50 m.p.h. or the
maximum allowable speed under Sec. 213.9 for the class of track
concerned, whichever is lower.
I. Limit operating speed over defective rail to 30 m.p.h. or the
maximum allowable speed under Sec. 213.9 for the class of track
concerned, whichever is lower.
(b) As used in this section--
(1) Transverse fissure means a progressive crosswise fracture
starting from a crystalline center or nucleus inside the head from which
it spreads outward as a smooth, bright, or dark, round or oval surface
substantially at a right angle to the length of the rail. The
distinguishing features of a transverse fissure from other types of
fractures or defects are the crystalline center or nucleus and the
nearly smooth surface of the development which surrounds it.
(2) Compound fissure means a progressive fracture originating in a
horizontal split head which turns up or down in the head of the rail as
a smooth, bright, or dark surface progressing until substantially at a
right angle to the length of the rail. Compound fissures require
examination of both faces of the fracture to locate the horizontal split
head from which they originate.
(3) Horizontal split head means a horizontal progressive defect
originating inside of the rail head, usually one-quarter inch or more
below the running surface and progressing horizontally in all
directions, and generally accompanied by a flat spot on the running
surface. The defect appears as a crack lengthwise of the rail when it
reaches the side of the rail head.
(4) Vertical split head means a vertical split through or near the
middle of the head, and extending into or through it. A crack or rust
streak may show under the head close to the web or pieces may be split
off the side of the head.
(5) Split web means a lengthwise crack along the side of the web and
extending into or through it.
(6) Piped rail means a vertical split in a rail, usually in the web,
due to failure of the shrinkage cavity in the ingot to unite in rolling.
(7) Broken base means any break in the base of the rail.
(8) Detail fracture means a progressive fracture originating at or
near the surface of the rail head. These fractures should not be
confused with transverse fissures, compound fissures, or other defects
which have internal origins. Detail fractures may arise from shelly
spots, head checks, or flaking.
(9) Engine burn fracture means a progressive fracture originating in
spots where driving wheels have slipped on top of the rail head. In
developing downward they frequently resemble the
[[Page 109]]
compound or even transverse fissures with which they should not be
confused or classified.
(10) Ordinary break means a partial or complete break in which there
is no sign of a fissure, and in which none of the other defects
described in this paragraph (b) are found.
(11) Damaged rail means any rail broken or injured by wrecks,
broken, flat, or unbalanced wheels, slipping, or similar causes.
(12) Flattened rail means a short length of rail, not at a joint,
which has flattened out across the width of the rail head to a depth of
\3/8\ inch or more below the rest of the rail. Flattened rail
occurrences have no repetitive regularity and thus do not include
corrugations, and have no apparent localized cause such as a weld or
engine burn. Their individual length is relatively short, as compared to
a condition such as head flow on the low rail of curves.
(13) Bolt hole crack means a crack across the web, originating from
a bolt hole, and progressing on a path either inclined upward toward the
rail head or inclined downward toward the base. Fully developed bolt
hole cracks may continue horizontally along the head/web or base/web
fillet, or they may progress into and through the head or base to
separate a piece of the rail end from the rail. Multiple cracks
occurring in one rail end are considered to be a single defect. However,
bolt hole cracks occurring in adjacent rail ends within the same joint
must be reported as separate defects.
(14) Defective weld means a field or plant weld containing any
discontinuities or pockets, exceeding 5 percent of the rail head area
individually or 10 percent in the aggregate, oriented in or near the
transverse plane, due to incomplete penetration of the weld metal
between the rail ends, lack of fusion between weld and rail end metal,
entrainment of slag or sand, under-bead or other shrinkage cracking, or
fatigue cracking. Weld defects may originate in the rail head, web, or
base, and in some cases, cracks may progress from the defect into either
or both adjoining rail ends.
(15) Head and web separation means a progressive fracture,
longitudinally separating the head from the web of the rail at the head
fillet area.
[63 FR 34029, June 22, 1998; 63 FR 51639, Sept. 28, 1998]