Revised Proposal for Revisions to the Schedules of Civil Penalties for a Violation of a Federal Railroad Safety Law or Federal Railroad Administration Safety Regulation or Order

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209, 213, 214, 215, 217, 218, 219, 220, 221, 222, 223, 224, 225, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 240, and 241

[Docket No. FRA-2006-25274, Notice No. 2]

RIN 2130-ZA00

Revised Proposal for Revisions to the Schedules of Civil Penalties for a Violation of a Federal Railroad Safety Law or Federal Railroad Administration Safety Regulation or Order

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Revised proposal for revisions to schedules of civil penalties, with request for comments.

SUMMARY:

FRA is issuing for comment a revised proposal (New Proposal) that, if adopted, would amend, line-by-line, FRA's schedules of civil penalties (“Schedules”) issued as appendices to FRA's rail safety regulations, as well as other guidance, in order to reflect more accurately the degree of safety risk associated with a violation of each regulatory requirement and to ensure that the civil monetary penalty amounts are consistent across all FRA safety regulations. The New Proposal represents a revision of FRA's December 2006 proposal to amend the Schedules for the same purposes (December 2006 Proposal or Initial Proposal).

DATES:

Written comments must be received by October 21, 2010. Comments received after that date will be considered to the extent possible without incurring additional delay or expense.

ADDRESSES:

Comments:

Comments related to this Docket No. FRA 2006-25274, Notice No. 2, may be submitted by any of the following methods:

•

Fax:

202-493-2251.

•

Mail:

U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

•

Hand Delivery:

U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

•

Federal eRulemaking Portal:

Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

Instructions:

All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to

http://www.regulations.gov

including any personal information provided.

Docket:

For access to the docket to read background documents or comments received go to

http://www.regulations.gov

at any time or to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Edward Pritchard, Director, Office of Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6247),

edward.pritchard @dot.gov;

or Brian Roberts, Trial Attorney, Office of the Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 (telephone 202-493-6052),

brian.roberts@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. General Background

II. Proceedings to Date, Provision of Opportunity for Comment, Comparison of Initial and New Proposals

A. Initial Proposal

B. Subsequent Changes in the Minimum and Ordinary Maximum Civil Penalties

C. Provision of Opportunity for Comment, With Comparison of the Initial and New Proposals

III. FRA's New Proposed Approach to Reevaluating the Schedules of Civil Penalties

IV. Rankings of the Rail Safety Regulatory Provisions and the Hours of Service Laws in the New Proposal

A. Motive Power and Equipment Regulations (MP&E) (49 CFR Parts 215, 218 (Partially), 223, 224, 227, 229, 230, 231, 232, 238, and 239 (Partially))

B. Track and Workplace Safety Regulations (49 CFR Parts 213 and 214)

C. Grade Crossing Signal Systems and Signal and Train Control Regulations (49 CFR Parts 233, 234, 235, and 236)

D. Operating Practices Regulations (49 CFR Parts 217, 218 (Partially), 219, 220, 221, 222, 225, 228, 239 (Partially), 240, and 241) and the Hours of Service Laws (49 U.S.C. Chapter 211)

V. Response to Public Comment on the Schedules Proposed in December 2006

A. Concerns Related to Respondents That Are Small Businesses

B. Concerns About Initially Proposed Penalty Amounts for Violations of 49 CFR Parts 222, 225, and 229

C. Concerns Related to Respondents Who Are Cited as Individuals

D. Concerns About Effects on FRA's Confidential Close Call Reporting Project

E. Concerns About Proposed Monetary Increases in the Civil Penalty Amounts

I. General Background

FRA last published comprehensive, line-by-line final revisions to the Schedules of its safety regulations on December 29, 1988. 53 FR 52918. The revisions reflected the higher maximum penalty amounts made available by the enactment of the Rail Safety Improvement Act of 1988 (Pub. L. 100-342). With the exception of the penalties relating to the hours of service laws (49 U.S.C. chapter 211), the Rail Safety Improvement Act of 1988 raised the maximum penalty for any ordinary violation from $2,500 to $10,000 (“the ordinary maximum”) and to $20,000 for a grossly negligent violation or a pattern of repeated violations that has created an imminent hazard of death or injury or caused death or injury (“the aggravated maximum”). Therefore, FRA published amendments to the Schedules in order to “give effect to the full range of civil penalties * * * permitted to be assessed for violation of specific regulations.” 53 FR 52918. These amendments revised not only the maximum civil penalty amount for any violation, but also the individual line-item penalties for specific sections or subsections of the regulations.

The Rail Safety Enforcement and Review Act (“RSERA”) (Pub. L. 102-365), which was enacted September 3, 1992, increased the maximum penalty for a violation of the hours of service laws, from $1,000 to $10,000 and in some cases to $20,000, making these penalty amounts uniform with those of FRA's other regulatory provisions. RSERA also increased the minimum penalty from $250 to $500 for all of FRA's regulatory provisions.

Since the publication of the Schedules in 1988, FRA has periodically adjusted its minimum and its ordinary or aggravated maximum penalty to conform to the mandates of the Federal Civil Penalties Inflation Adjustment Act of 1990. 28 U.S.C. 2461 note, as amended (“Inflation Act”). The Inflation Act requires that an agency adjust by regulation each maximum penalty, or range of minimum and maximum penalties, within that agency's jurisdiction periodically to reflect inflation. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the penalties by having the agencies

charged with enforcement responsibility administratively adjust the penalties. Currently FRA's minimum penalty is $650, the ordinary maximum is $25,000 and the aggravated maximum is $100,000 (for when a “grossly negligent violation or pattern of repeated violations has caused an imminent hazard or death or injury to individuals, or has caused death or injury”).

The Inflation Act requires only that the minimum, the ordinary maximum, and the aggravated maximum civil penalty for a violation be adjusted, not that the guideline penalty amounts for a specific type of violation (

e.g.,

a section of a particular regulation) be adjusted. As a result, FRA has not adjusted the line-item guideline penalties found in the Schedules in conjunction with its adjustments of the minimum, maximum and aggravated maximum civil penalties. FRA's practice has been to issue Schedules assigning to each section or subsection of the regulations specific dollar amounts for initial penalty assessments. These Schedules (and all line-item penalty amounts found within them) are statements of agency policy that specify the penalty that FRA will ordinarily assess for the violation of a particular section or subsection of a safety regulation, and are published to inform members of the regulated community of the amount that they are likely to be assessed for a given violation within the range of $650 to $25,000. The Schedules are “meant to provide guidance as to FRA's policy in predictable situations, not to bind FRA from using the full range of penalty authority where extraordinary circumstances warrant.” 49 CFR part 209, appendix A. Thus, regardless of the amounts shown in the Schedules, FRA continues to reserve the right to assess, within the range established by the rail safety statutes (49 U.S.C. chapter 213) or by regulation pursuant to the Inflation Act, an amount other than that listed in the Schedules based on the circumstances of the alleged violation. 73 FR 79698, Dec. 30, 2008.

II. Proceedings to Date, Provision of Opportunity for Comment, and Comparison of Initial and New Proposals

A. Initial Proposal

FRA published 25 proposed Schedules with a request for comments on December 5, 2006, which first presented the agency's intention of once again comprehensively revising the civil penalty amounts. 71 FR 70590. In this Initial Proposal, FRA explained its approach to reevaluating the Schedules and explained the severity scale that was developed for setting line-item penalty amounts in the Schedules. The severity scale's penalty amounts were assessed within the statutory range for civil penalties at that time, which was from the minimum of $550 to the ordinary maximum of $11,000, as follows:

Severity level (explained in the Initial Proposal and below)

Ordinary

violations

Willful violations

Level A

$8,500

$11,000

Level B

6,500

9,000

Level C

5,000

7,500

Level D

3,000

4,500

Level E

1,500

2,500

B. Subsequent Changes in the Minimum and Ordinary Maximum Civil Penalties

Subsequently, in 2007, pursuant to the requirements of the Inflation Act, FRA recalculated the ordinary maximum penalty and raised it from $11,000 to $16,000. 71 FR 51194, Sept. 6, 2007. Then, on October 16, 2008, the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A) (“RSIA”) was enacted; Section 302 of the RSIA increased the ordinary and aggravated maximum penalty amounts to $25,000 and $100,000, respectively. In a final rule published on December 30, 2008, FRA adjusted its minimum penalty from $550 to $650 pursuant to Inflation Act requirements. 73 FR 79698. In that rule FRA also evaluated whether it needed to increase the ordinary and aggravated maximum penalties pursuant to the Inflation Act; however, the enactment of the RSIA statutorily changed the ordinary and aggravated maximum penalties to $25,000 and $100,000, respectively, and therefore rendered any inflationary adjustments to either figure unnecessary. Instead, FRA adopted $25,000 as the ordinary maximum and $100,000 as the aggravated maximum required by the RSIA. (

See also

correcting amendment to the Schedule for 49 CFR part 232. 74 FR 15387, April 6, 2009.)

C. Provision of Opportunity for Comment, With Comparison of the Initial and New Proposals

Given the large statutorily mandated increase in the ordinary maximum civil penalty from $11,000 to $25,000 after publication of the Initial Proposal, FRA is offering the public an opportunity to review and comment on the new higher civil penalty amounts assessed for violations on each severity scale level in the New Proposal.

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In the New Proposal, FRA is issuing another set of proposed Schedules and seeking comments from the general public. Comments on the new proposed Schedules will be useful to the agency's decision making process.

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For example, the severity scale in this New Proposal has five levels like the severity scale proposed in the Initial Proposal. However, the severity scale in the New Proposal differs from the severity scale in the Initial Proposal in several ways. First, FRA has adding the word “materially” to the description of what constitutes a Level E violation in the New Proposal. Therefore, Level E violations in the New Proposal are violations that do not materially increase the likelihood that a rail equipment accident/incident or other accident/incident will occur. This is a clarification from the previous definition for Level E violations in the Initial Proposal where Level E violations were defined as violations that did not increase the likelihood that a rail equipment accident/incident or other accident/incident would occur. This definition did not make sense because failure to follow any FRA safety regulation would have some direct or indirect impact on railroad safety and thereby increase, even infinitesimally, the likelihood of an accident or incident. As a result, the word “materially” was added to the criteria for a Level E violation in the severity scale in this New Proposal. Second, FRA has provided more transparency and referenced the regulatory language found in 49 CFR 225.19(d) to explain what FRA means when it says “Other accident/incident” in Levels A-D in the severity scale in the New Proposal. Third, FRA has clarified in the New Proposal that civil monetary penalties associated with violations of FRA Orders or railroad safety statutes will be assessed according to severity scale criteria. Finally, as stated below, FRA has modified its approach for establishing civil penalties in the severity scale in this New Proposal. FRA is taking a graduated approach to assessing civil penalties for ordinary (non-willful) violations while increasing the civil penalty amounts in steady increments for willful violations.

FRA has also slightly modified the severity scale in the New Proposal from the severity scale in the Initial Proposal. In the New Proposal, FRA has used a targeted enforcement approach for establishing the civil penalties for ordinary (non-willful) violations of railroad safety regulations. As part of the targeted enforcement approach,

ordinary violations occurring at the middle and lower levels of the severity scale are assessed smaller civil penalties in relation to the ordinary maximum while the highest penalty amounts are assessed for ordinary Level A violations where serious injuries, deaths, or other railroad accidents or incidents are most likely to occur. FRA did not take a targeted enforcement approach for establishing the civil penalty amounts for willful violations in the New Proposal. Instead, the civil penalty amounts for willful violations increase up the severity scale in steady dollar amounts, not in graduated percentage increases like the civil penalties for ordinary violations.

Higher penalty amounts for violations of Federal railroad safety laws and regulations are necessary because many of FRA's civil penalties have not been changed in real terms for many years. As a result, inflation has somewhat eroded the deterrent effects of most of FRA's civil penalties because the amounts have not been increased to account for the effects of inflation. While many of the penalty amounts in the New Proposal would represent large increases in penalty amounts even after adjusting for inflation, some penalty amounts for violations would remain unchanged (

e.g.,

49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA because of the uniform rating of FRA's existing penalties on the severity scale. The new penalty amounts in this New Proposal will maintain the deterrent effects of FRA's rail safety penalties, aiding the success of FRA's mission to make the United States rail system safer.

FRA has also reexamined how it had ranked individual rail safety violations on the severity scale in the Initial Proposal. Upon second review of the severity scale rankings, FRA is proposing to move certain regulatory provisions to higher or lower levels on the severity scale in order to refine the agency's application of the severity scale to the various violations. For example, FRA is proposing to raise the severity scale ranking of 49 CFR 219.3 (“Application: Railroad does not have required program”), in this New Proposal from a “C” level penalty to a “B” level penalty. This change is necessary because the failure of a railroad covered by 49 CFR part 219 to have an alcohol and drug testing program is more likely than not to cause a rail equipment accident/incident or other accident/incident involving death, injury, or occupational illness rather than just substantially increase the likelihood that one of these events could occur. Conversely, in this New Proposal, FRA would lower the severity scale ranking of 49 CFR 225.35 (“Access to records and reports”), from an “A” level penalty to a “D” level penalty. This proposed change in severity scale level reflects FRA's judgment that denying its inspectors access to records and reports required by 49 CFR part 225 is not extremely likely to lead to a railroad accident/incident or other accident/injury including death, injury, or occupational illness, but could slightly increase the likelihood of one of the above mentioned occurrences if FRA is not provided access to accident reporting records and reports. FRA expects that these proposed changes to the severity scale rankings of some of its violations in the Initial Proposal better refine the agency's application of the Severity Scale to the various violations.

In addition, FRA is proposing minor changes to its Schedules in this New Proposal to correct errors and omissions and to reflect more accurately FRA's current enforcement practices. Such errors include obvious spelling or typographical errors that were caught during the review process. Omissions corrected include line-item penalties for any existing section or subsection that had been inadvertently omitted from an existing Schedule, such as 49 CFR 213.110. Other proposed minor revisions to the Schedules include, but are not limited to, adding or deleting a suggested penalty for a violation (

e.g.,

49 CFR 213.109(c), 214.343(a)(2), 220.38, and 240.201(b)), rewording a line-item description for a violation (

e.g.,

49 CFR 219.23(f) and 233.9), renumbering violation subsections (

e.g.,

49 CFR 214.343(b)(1), 236.587, 236.905(d), and 236.913(j)), and adding or revising footnotes to the Schedules (

e.g.,

49 CFR parts 214, 232, and 239). For example, FRA is proposing to add a footnote 3 to the Schedule for 49 CFR part 214 to clarify that FRA will consult the suggested penalty amounts under 49 CFR 214.343 (“Training and qualification, general:”) when assessing penalties for the training violations in 49 CFR 214.345 through 214.355, as the suggested penalty amounts for these sections had been left blank in previous versions of part 214's penalty schedule. FRA is hopeful these proposed minor changes updating its Schedules would provide a more accurate picture to the regulated community of FRA's actual enforcement practices.

New suggested penalty amounts have also been proposed for violations of subparts that had not been mentioned in the existing penalty schedules: 49 CFR part 218, subpart E (“Protection of Occupied Camp Cars”); 49 CFR part 228, subpart D (“Electronic Recordkeeping”); 49 CFR part 232, subpart G (“Electronically Controlled Pneumatic (ECP) Braking Systems”); and 49 CFR part 236, subpart I (“Positive Train Control Systems”) are also included. FRA is also suggesting new penalty amounts for 49 CFR part 227 (“Occupational Noise Exposure”) which was not ranked in the severity scale in the Initial Proposal because the final rule creating part 227 was published on October 27, 2006, but not effective until February 26, 2007. 71 FR 63066. In addition, FRA will also be accepting comments on the new penalties in 49 CFR part 237 that were published in a bridge safety standards final rule on July 15, 2010 and will become effective on September 13, 2010. 75 FR 41282.

Further, FRA is proposing to add language to 49 CFR part 228, appendix A, to state its proposed guideline penalty amounts for both non-willful and willful violations of the hours of service laws (49 U.S.C. chapter 211). In addition, this New Proposal would also add or change language in the portion of 49 CFR part 209, appendix A, entitled “Penalty Schedules: Assessment of Maximum Penalties,” to reflect the new minimum, ordinary maximum, and aggravated maximum civil penalties of $650, $25,000, and $100,000 respectively. Finally, FRA is also proposing to add the language “or orders” in two places within this portion of part 209, appendix A to update the language to reflect FRA's already existing policy of establishing civil penalty schedules and recommended civil penalty amounts applicable to violations of various orders issued by FRA (such as emergency orders under 49 U.S.C. 20104) when necessary to advance the agency's safety mission.

III. FRA's New Proposed Approach to Reevaluating the Schedules of Civil Penalties

The Federal Railroad Administrator is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes (49 U.S.C. chapters 201-213) regulations, and orders, including the statutory civil penalty provisions at 49 U.S.C. chapter 213. 49 CFR 1.49. FRA currently has 26 parts of regulations that contain Schedules.

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With this New Proposal,

FRA is proposing to amend each of the line-item guideline penalty amounts contained within the Schedules for each of the regulations and to add guideline penalty amounts for violations of the hours of service laws to 49 CFR part 228, appendix A (collectively, Penalty Guidelines). In reevaluating the penalty amounts in the Schedules, FRA has developed a new proposed severity scale (“New Proposed Severity Scale”) for setting the line-item penalty amounts for each violation of the safety regulations and for violations of the hours of service laws. The severity scale FRA is proposing to adopt in this New Proposal is described in the following section.

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However, as previously stated, FRA recently published a final rule on bridge safety standards on July 15, 2010. 75 FR 41282. As part of that final rule, FRA created new regulations and penalties under 49 CFR part 237, which was previously an unused part of the CFR. Therefore after the September 13, 2010 effective date for the final rule, FRA will have 27 parts of regulations that contain Schedules. In this New Proposal, FRA is also accepting comments on the new penalties contained in the final rule.

New Proposed Severity Scale for Setting Line-Item Penalty Amounts in FRA Penalty Guidelines

FRA's rail safety regulations and the rail safety statutes are intended either to prevent a railroad accident/incident or to mitigate the consequences if one were to occur. For the most severe ratings on the scale, FRA concentrated on the

degrees of likelihood

that an accident/incident

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will occur or that graver consequences of an accident/incident will occur as a result of failing to comply with the section. The following New Proposed Severity Scale is intended to reflect this focus:

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“Accident/incident” is defined at 49 CFR 225.5. Accidents/incidents are divided into three categories: highway-rail grade crossing accidents/incidents, rail equipment accidents/incidents; and accidents/incidents resulting in death, injury, or occupational illness. 49 CFR 225.19(c). A highway-rail grade crossing accident/incident is “[a]ny impact between railroad on-track equipment and an automobile, bus, truck, motorcycle, bicycle, farm vehicle, or pedestrian at a highway-rail grade crossing.” 49 CFR 225.5, read in light of 49 CFR 225.19(c). Rail equipment accidents/incidents are defined in 49 CFR 225.19(c) to include “collisions, derailments, fires, explosions, acts of God, and other events involving the operation of on-track equipment (standing or moving) * * * that result in damage to railroad property that is greater than the reporting threshold.” Currently the reporting threshold is $9,200. 74 FR 65458 (Dec. 10, 2009).

Level A-Very High Probability

—Failure of a railroad to comply with this section or subsection of the Code of Federal Regulations (“CFR”), this FRA order, or this rail safety statute

is extremely likely to result

in one or more of the following events, but does not create an imminent hazard of death or injury to individuals or cause an actual death or injury

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:

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FRA has statutory authority to assess civil penalties in the range of $650 (minimum) to $25,000 (ordinary maximum) for ordinary violations of its regulations. FRA may assess a penalty at the statutory aggravated maximum of $100,000 only “when a grossly negligent violation or a pattern of repeated violations has caused an imminent hazard of death or injury to individuals, or has caused death or injury.” A $100,000, statutory aggravated maximum penalty is the equivalent of a Level A Plus and is, therefore, off the scale. The standard of “imminent hazard” of death or injury (the standard for a civil penalty at the aggravated maximum penalty) is different from the standard of “extremely likely” to result in death or injury (the standard for Level A penalties on the severity scale). Imminent hazards are hazards that are likely to occur without delay or that actually may be occurring at the time the violation is taken. In contrast, a hazard that is extremely likely to result in a railroad accident/incident or another accident/incident causing death, injury, or occupational disease has a high probability of causing one or more of those adverse events sooner or later, but is not necessarily likely to occur without delay or contemporaneously when the violation is taken.

1. Rail equipment accident/incident

2. Other accident/incident (including death, injury, or occupational illness)

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5

See

49 CFR 225.19(d).

FRA is proposing to issue a penalty guideline for Level “A” of $19,500 for an ordinary violation and $25,000 for a willful violation of the regulation, order, or statute.

Level B—

High Probability

—Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute

is more likely than not to result

in the occurrence of:

1. Rail equipment accident/incident; or

2. Other accident/incident (including death, injury, or occupational illness).

FRA is proposing to issue a penalty guideline for Level “B” of $13,000 for an ordinary violation and $20,500 for a willful violation of the regulation, order, or statute.

For the following levels, FRA is not only addressing the likelihood that noncompliance will or could contribute to an accident or aggravated consequences if an accident occurred, but also the importance of maintaining compliance in order to prevent violations of these regulatory or statutory sections or subsections from becoming leading accident causes in the future.

Level C—

Moderate Probability

—Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute

substantially increases

the likelihood that one of the following will occur:

1. Rail equipment accident/incident; or

2. Other accident/incident (including death, injury, or occupational illness).

FRA is proposing to issue a penalty guideline for Level “C” of $9,500 for an ordinary violation and $17,000 for a willful violation of the regulation, order, or statute.

Level D—

Minor Probability

—Failure of the railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute

slightly increases

the likelihood that one of the following will occur:

1. Rail equipment accident/incident; or

2. Other accident/incident (including death, injury, or occupational illness).

FRA is proposing to issue a penalty guideline for Level “D” of $5,500 for an ordinary violation and $10,000 for a willful violation of the regulation, order, or statute.

Level E—

Minimal Probability

—Failure to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute

does not materially increase the likelihood

that a rail equipment accident/incident or other accident/incident will occur, except in special circumstances, such as if the noncompliance is willful or widespread. Nevertheless, noncompliance with any one of these provisions undercuts the effectiveness of the Federal railroad safety program, and could compromise the safety of rail operations.

Example: Violation of § 225.13—Late Reports

—Submitting a late accident/incident report to FRA does not increase the likelihood that a rail equipment accident/incident or other accident/incident will occur. Widespread noncompliance with that provision, however, could lead to inaccuracies in Federal accident databases, which in turn could delay FRA's response to emerging safety problems.

FRA is proposing to issue a penalty guideline for Level “E” of $2,500 for an ordinary violation and $5,000 for a willful violation of the regulation, order, or statute.

Like the Initially Proposed Severity Scale, the New Proposed Severity Scale shows, there are five different levels of probabilities, ranging from “A” (the most severe) to “E” (the least severe of the types of violations). In developing the rankings (“A” through “E”), FRA concentrated on the degrees of likelihood that an accident/incident will occur or that graver consequences will occur as a result of the failure to comply with the particular section or subsection of the safety regulations or with the statute. Using the New Proposed Severity Scale, FRA then assigned a ranking (from “A” to “E”) to each of the provisions of the particular rail safety regulations and to the hours of service statute, which the agency has responsibility for administering and enforcing. The resulting proposed line-item penalty amounts for violations of each of the sections or subsections of the safety regulations affected and for violations of the hours of service laws reflect FRA's determination, based on safety data and industry knowledge, of how likely the violation of a particular provision is to result in a rail equipment accident/incident or another type of accident/incident. Due to the increase in the ordinary maximum from $11,000 to $25,000 since the Initial Proposal, the new proposed civil penalty amounts have increased in most instances, but in some cases the new proposed civil penalty amount would remain the same (

e.g.,

49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA. Nonetheless, a determination by FRA that violation of a provision does not increase the likelihood that a rail equipment accident/incident or other accident will occur, however, does not mean that the provision is inconsequential to the effectiveness of

the Federal railroad safety program or to the overall safety of railroad operations.

Currently, each Schedule is in the form of a table consisting of three columns with one or more footnotes. Like the initially proposed Schedules, the new proposed Schedules would continue to be structured in this fashion and to provide guideline penalty amounts for two categories of violations: Ordinary (non-willful) and willful. Each new proposed Schedule lists the CFR section or subsection in the left-hand column, sometimes with additional designations to distinguish different types of violations (penalty codes) of the section or subsection in order to facilitate the assessment of civil penalties. The only exception continues to be 49 CFR part 231; the left-hand column of the new proposed Schedule lists the FRA defect codes

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for that part, and not the corresponding CFR sections. The reason for this continues to be the fact that the defect codes are organized by the type of safety appliance, which makes them easier to use, than the section numbers of part 231, which are organized primarily by car or locomotive type. Nevertheless, if necessary, every defect code can be traced to a specific regulatory provision in part 231 or statutory provision in 49 U.S.C. chapter 203, or both. The corresponding penalties for each violation are listed in the middle and right-hand columns: The guideline penalty amount for an ordinary violation and then the guideline penalty amount for a willful violation. The ordinary penalties apply to railroads or other respondents, except individuals, while the “willful” column applies to willful violations committed by railroads or individuals.

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Defect codes were developed by FRA in order to facilitate computerization of inspection data generated by FRA inspectors by providing a digital format for every CFR section. Defect codes are analytical tools only and are subject to change without notice.

The following chart summarizes the new proposed guideline amounts for ordinary and willful violations by severity level:

Severity level under new

Proposal

Ordinary

violations

Willful

violations

Level A

$19,500

$25,000

Level B

13,000

20,500

Level C

9,500

17,000

Level D

5,500

10,000

Level E

2,500

5,000

IV. Rankings of the Rail Safety Regulatory Provisions and the Hours of Service Laws in the New Proposal

Although the railroad industry's overall safety record has improved over the last decade, significant train accidents/incidents continue to occur. As a result, the FRA's safety program is being guided by careful analysis of accident/incident, inspection, and other safety data. FRA has also directed both its regulatory and compliance efforts toward the areas that involve the highest of safety risks, in order to reduce the number and severity of accidents/incidents caused by a failure to comply with those safety regulations. Therefore, the goal of the new proposed line-item penalty amounts for each of the Schedules and the new proposed penalty amount for violations of the hours of service statute is to reflect the different degrees of probability that a violation of a particular regulatory section or subsection, order, or statute will result in a rail equipment accident/incident or other accident/incident, in order to improve the overall safety of railroad operations.

A. Motive Power and Equipment Regulations (MP&E) (49 CFR Parts 215, 218 (Partially), 223, 224, 227, 229, 230, 231, 232, 238, and 239 (Partially))

In reevaluating the current line-item penalty amounts for each of the CFR sections or subsections found in 49 CFR parts 215, 218 (partially), 223, 224, 227, 229, 230, 231, 232, 238, and 239 (partially) of the CFR, FRA took into consideration, among other factors, the nationwide list of “Top 10” MP&E defects. The defects are listed in the table below, in descending order, according to the number of times that each defect was determined to have caused a rail equipment accident/incident, excluding highway-rail grade crossing accidents/incidents that are also classified as rail equipment accidents/incidents (“train accidents”), between January 2005 and December 2009.

Journal (roller bearing) overheated—(143)

Damaged flange or tread (build up)—(60)

Pantograph defect (locomotive)—(121)

Coupler retainer pin/cross key missing—(57)

Side bearing clearance insufficient—(86)

Rigging down or dragging—(49)

Broken rim—(80)

Other coupler/draft system defects; Worn Flange (tie)—(38)

Truck bolster stiff—(67)

Center sill broken or bent—(36)

The CFR sections or subsections that relate to these defects have received higher proposed rankings in the Schedules compared to other MP&E defects and as such now carry higher penalty amounts. For example, a violation of 49 CFR 215.103(d)(3), which involves a defective wheel rim with a crack of one inch or more, received a proposed “A” severity ranking (and a proposed guideline penalty amount of $19,500) because of the high safety risk that the defect will cause a broken rim that, in turn, causes a derailment. In addition, FRA applied the New Proposed Severity Scale in order to determine the degrees of likelihood that any type of accident/incident will occur as a result of noncompliance with the regulations.

B. Track and Workplace Safety Regulations (49 CFR Parts 213 and 214)

In recent years, most of the serious accidents/incidents (train collisions or derailments resulting in a release of hazardous materials or harm to rail passengers, rail employees, or the general public) resulted from human factor or track causes. Over the last five years, 31.9 percent of train accidents were caused by track defects. In an effort to reduce track accidents, FRA is focusing its track inspections on the areas of highest risks and encouraging inspectors to recommend enforcement action on the kinds of violations that are considered leading causes of track-caused train accidents. Therefore, in evaluating the line-item penalty amounts for all the sections or subsections, FRA took into consideration the leading causes of track-related train accidents when applying the New Proposed Severity Scale to the Track Safety Standards. For example, violations of 49 CFR 213.53 “Gage” received a new proposed “A” ranking (and new proposed penalty guideline amounts of $19,500 for an ordinary violation and $25,000 for a willful violation) because improper gage is one of the leading causes of track-related train accidents.

In ranking the sections or subsections of 49 CFR part 214 (“Railroad Workplace Safety”), FRA took into consideration not only the probability that an accident/incident could result if a violation occurred, but also the fact that

the accident/incident could result in serious injury or death. One example of the rankings for part 214 is the ranking for the second type of violation of 49 CFR 214.103, coded 214.103(ii), “Failure to use fall protection.” This violation designated 214.103(ii) received a proposed ranking of “A” (and a proposed guideline penalty of $19,500 for an ordinary violation and $25,000 for a willful violation) because the violation could result in serious injury or death, as evidenced by the several bridge worker fatalities in the past 10 years due to the failure to use fall protection.

C. Grade Crossing Signal Systems and Signal and Train Control Regulations (49 CFR Parts 233, 234, 235, and 236)

FRA applied the New Proposed Severity Scale to each of the sections in 49 CFR parts 233, 234, 235, and 236, in order to determine the appropriate proposed rankings for each of the sections or subsections of the regulations. In the area of signal and train control (S&TC), FRA followed the New Proposed Severity Scale, which concentrates on the potential for an accident/incident resulting from noncompliance. S&TC systems are vital to the safe functioning of the general railroad system because train crews and highway motorists rely on the accuracy of the information provided by these systems to make safe movements on the railway system and through highway-rail grade crossings. While there are relatively few train accidents and highway-rail grade crossing accidents/incidents associated with S&TC causes that have occurred in recent years, the consequences of an S&TC-caused accident can be catastrophic. Therefore, it is imperative that the Schedules put into effect by FRA reflect the levels of risks associated with the violation of these CFR sections or subsections, in order to prevent future S&TC-caused accidents.

D. Operating Practices Regulations (49 CFR Parts 217, 218 (Partially), 219, 220, 221, 222, 225, 228, 239 (Partially), 240, and 241) and Hours of Service Laws (49 U.S.C. Chapter 211)

Over the five years from January 2005 to December 2009, human-factor-related causes accounted for 34.2 percent of all train accidents. A review of the FRA's Office of Railroad Safety database indicated that in 2009 the top four human factor causes contributing to train accidents were improperly lined switches; employees absent on, at, or ahead of a shoving movement; failure to control during a shoving movement; and failure to comply with restricted speed or its equivalent when not in connection with a block or interlocking signal. These top causes are often involved in violations of such regulations as 49 CFR part 220 (“Railroad Communications”). A review of the top four causes for human factor train accidents between January 2005 and December 2009 showed that these causes accounted for 1,812 reportable train accidents/incidents (including 13 employee fatalities, 463 employee injuries, and over $96 million in damages). Therefore, when applying the New Proposed Severity Scale to the regulatory provision or statute, FRA considered all of this safety information in order to ensure that each new proposed line-item penalty amount reflected the likelihood that noncompliance would result in a train accident/incident, or that graver consequences would occur as a result of failing to comply with the statute or section or subsection of the regulations.

V. Response to Public Comment on the Schedules Proposed in December 2006

As previously stated, the existing Schedules are statements of agency policy, which FRA has authority to amend or replace without having to provide prior notice and opportunity for comment under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA provided members and representatives of the regulated community and the general public with an opportunity to comment on the proposed line-item penalty amounts published on December 5, 2006. FRA received six comments on the Schedules proposed in December 2006. FRA has considered the comments received and now responds to the questions and concerns raised in them.

A. Concerns Related to Respondents That Are Small Businesses

The Small Railroad Business Owners of America (“SRBOA”) commented that FRA's December 2006 proposed civil penalty policy does not adequately take into account the interests of small businesses. The commenter suggested that doubling certain civil penalties for smaller railroads is unfair, especially because most of the accidents/incidents occur on larger railroads. The commenter also asked that FRA provide additional training and assistance to smaller railroads in comprehension and application of the rail safety regulations.

In addition, the American Short Line and Regional Railroad Association (“ASLRRA”) commented that the proposed statement of agency policy ignores the effect that proposed amounts would have on small railroads. ASLRRA suggested that FRA move instead, towards a sliding scale system of civil penalties based on the class of track under 49 CFR part 213 that is involved in the violation. In the alternative, ASLRRA suggested that FRA take the time to codify a second, lower schedule of penalties for small railroads.

In response to these concerns, FRA would like to emphasize appendix C to 49 CFR part 209, where FRA has published its policy statement concerning small business entities. FRA understands that small entities in the rail industry have significantly different characteristics from larger carriers and shippers. 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. FRA inspectors provide training on the requirements of all railroad safety statutes for new and existing small businesses upon request. Also, 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. Additionally, FRA has posted all of its manuals electronically for compliance with the rail safety disciplines at

http://www.fra.dot.gov

.

FRA employs an enforcement policy that addresses the unique nature of small entities in the imposition of civil penalties and resolution of those assessments. Pursuant to appendix A to 49 CFR part 209, it is FRA's policy to consider a variety of factors in determining whether to take enforcement action against persons, including small entities, who have violated the safety laws and regulations. In general, the presence of both good faith and prompt remedial action on the part of the small entity militates against taking a civil penalty action, especially if the violation is an isolated event. Once FRA has assessed a civil penalty, FRA may adjust or compromise the initial penalty claim based on a wide variety of mitigating factors. The mitigating criteria that FRA applies are found in the railroad safety statutes at 49 U.S.C. ch. 213 and in the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (“SBREFA”); these factors include 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 impact an assessment might exact on the

entity's continued business; and evidence that the entity acted in good faith. 49 CFR part 209, appendix C.

FRA's enforcement policy with respect to small entities is flexible and comprehensive, but FRA's first priority in its compliance and enforcement activities is public and employee safety. FRA notes that an accident on a small railroad could have the same consequences as an accident on a large railroad. Therefore, small railroads are responsible for compliance with the railroad safety statutes and regulations.

Finally, the Small Railroad Business Owners' Association of America (“SRBOA”) commented that FRA's civil penalties were higher than those used by the Federal Motor Carrier Safety Administration (“FMCSA”) for enforcing commercial motor vehicle driver and trucking safety, and suggested that FRA should impose civil penalties for smaller railroads only if discussing the situation with them does not work first.

As explained above, FRA's rail safety inspectors take into account a variety of factors in determining whether to take enforcement actions. They have the option of citing the railroads for defects, which in their judgment do not merit civil penalties before citing them for violations, which do carry civil penalty recommendations. Also, FRA does not believe it is appropriate to compare FRA's rail safety penalties to FMCSA's penalties for driver and trucking safety. The safety considerations in the trucking and rail industries are very different. An accident involving a train is potentially far more catastrophic and costly than a similar accident involving a truck. For example, one railroad tank car could contain many truckloads of hazardous material, and one train could consist of many such railroad tank cars.

B. Concerns About Initially Proposed Penalty Amounts for Violations of 49 CFR Parts 222, 225, and 229

The Association of American Railroads (“AAR”) stated that, in several cases, the penalties proposed in December 2006 are disproportionate to the severity of the violation. Specifically, AAR took exception to penalties proposed for noncompliance with 49 CFR parts 222, 225, and 229.

With regard to part 222 (the train horn rule), AAR contended that a “D” level penalty for a violation of § 222.21(b) is unsubstantiated, as the sounding of a horn for more than 20 seconds will not increase the likelihood of an accident or incident.

FRA provides that the train horn rule focuses on public and community interests. To remain true to the intention of the rule, FRA must take the interests of the community into account when determining the penalty amount that a violation merits. FRA believes that it is important that sufficient warning be provided to the motorist who needs time to recognize the audible signal, understand its message, initiate a reaction, and take appropriate action when at a grade crossing.

See

71 FR 47618, Aug. 17, 2006. If the train horn is sounded more than 25 seconds before the train enters the train crossing, motorists might well begin to doubt the credibility of the train horn as an indicator of the train's immediacy to the grade crossing. As a result, motorists will be more likely to take the risk of traveling through the crossing even when the train horn is sounded.

The rule text for § 222.21(b) also provides a “good faith” exception for the required length of time that the horn is sounded. The section permits additional flexibility by stating that the engineer shall not be in violation of § 222.21(b) if the engineer sounds the horn not more than 25 seconds before the crossing, if in good faith the engineer cannot precisely estimate the arrival time of the train at the crossing. FRA has determined that the interests of avoiding an accident or incident as well as the interests of the community have been taken into account in assessing violations of § 222.21(b) as a proposed “D” level penalty with the exception of “failure to sound the horn at least 15 seconds and less than

1/4

-mile before a crossing,” which is assessed as a proposed “C” level penalty.

Additionally, AAR stated that routine sounding of the horn at a grade crossing within a quiet zone, pursuant to § 222.45, will not increase the likelihood of an accident or incident.

With regard to AAR's comment on § 222.45, although sounding the train horn in a quiet zone may not substantially increase the likelihood of an accident the first time or the first few times, trains that routinely sound their horns at quiet-zone grade crossings might cause motorists to doubt the credibility of signs marking a grade crossing as a quiet-zone grade crossing and whether a particular grade crossing is actually a quiet-zone grade crossing. Therefore, if routine violations of a quiet zone continue, motorists will begin to expect the warning of a train horn when a train is preparing to enter quiet-zone grade crossings where routine violations of the quiet zone occur. That could predictably lead to fatal accidents.

In addition, violations of § 222.45 increase the annoyance level of the communities surrounding the grade crossing. A fundamental feature of this rule was to balance driver and pedestrian safety with community noise concerns. Decreasing the civil monetary penalty would reduce the incentive to comply with the part and potentially increase noise for the surrounding communities. FRA maintains that the initial and new proposed “D” level penalty for a violation of § 222.45 sufficiently addresses the concerns that brought about the part 222 rulemaking.

See

71 FR 47614, Aug. 17, 2006.

AAR also argued that a “B” level penalty for a violation of 49 CFR 225.13 was unmerited, as a railroad's filing of a report one day late would not be more likely to cause an accident or incident.

FRA has taken into consideration AAR's comments involving FRA's regulations on accident/incident reporting, 49 CFR part 225. FRA acknowledges the merits in AAR's comments with regard to § 225.13, and FRA has revised the proposed penalty ranking for a violation of § 225.13 from a “B” to an “E.” Upon reevaluating how part 225 violations were ranked on the severity scale in the Initial Proposal, FRA has lowered many of the proposed severity scale rankings for violations of this part. For example, FRA has determined to change the ranking of a § 225.11 violation (failure to submit monthly report of accidents/incidents) from a proposed “B” to a proposed “D” level penalty. At the same time, FRA has determined that a violation of § 225.9, failure to report certain accidents or incidents, immediately via telephone to the National Response Center, would be more detrimental to railroad safety, because the failure could prevent FRA from learning about the event and deciding whether or not the agency should commence an investigation. Even delayed notification could compromise such an investigation and prevent FRA from obtaining information that could identify safety problems that could cause future accidents or incidents. FRA has, therefore, changed the penalty amount from a proposed “E” to a proposed “C” level penalty.

Finally, AAR stated that a “C” level penalty for a violation of a provision of the Locomotive Safety Standards, 49 CFR 229.137(a)(3), was uncalled for, as the lack of a toilet in the lead locomotive will not “substantially increase the likelihood of an accident or incident.”

When FRA promulgated the notice of proposed rulemaking for the locomotive cab sanitation standards, FRA determined that serious health consequences may result if railroad employees are exposed to unsanitary conditions or lack access to facilities. In fact, it is widely known that exposure to

human fecal matter or untreated sewage waste can lead to diarrheal diseases such as amebiasis, giardiasis, shigellosis, and viral diseases such as hepatitis.

See

66 FR 137, Jan. 2, 2001. FRA notes that any one of these mentioned conditions would fulfill the reporting requirements under the definition of an “occupational illness” pursuant to 49 CFR 225.19(d) and therefore be considered an accident/incident within the meaning of the initially proposed Severity Scale and the New Proposed Severity Scale. FRA also notes that an engineer who contracts one of those diseases on duty might well be unable to operate his or her train safely.

C. Concerns Related to Respondents Who Are Cited as Individuals

The Brotherhood of Locomotive Engineers and Trainmen (“BLET”) had a number of comments on civil penalties against individuals for rail safety violations. The BLET raised concern that FRA's conclusions on the data indicate a “lack of discipline by the workers.” Also, the commenter suggested that the December 2006 proposed statement of agency policy suffers from “the same infirmity as the railroad operating rules NPRM (notice of proposed rulemaking).” Overall, the BLET seemed very concerned with the effect that a larger penalty would have on an individual as opposed to a railroad.

FRA responds that civil penalties assessed against individuals pursuant to the rail safety statutes, regulations, and orders may be assessed administratively only if FRA determines that the individual's conduct was willful in nature. 49 U.S.C. 21304. “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.” 49 CFR part 209, appendix A. FRA continues to hold that the higher penalties for a willful violation serve to deter an individual from engaging in this type of egregious behavior. Further, FRA assesses rail safety civil penalties against railroads at a substantially higher frequency than against individuals. As neither the Initial Proposal nor the New Proposal addresses the issues covered in “Railroad Operating Rules: Program of Operational Tests and Inspections; Railroad Operating Practices: Handling Equipment, Switches and Fixed Derails,” FRA declines to respond in this proposal to comments regarding that rulemaking, in which a final rule was published on June 16, 2008. 73 FR 33888.

D. Concerns About Effects on FRA's Confidential Close Call Reporting Project

The BLET also provided comments exhibiting a concern as to how the proposed penalty schedule in the Initial Proposal would impact FRA's Confidential Close Call Reporting Pilot Project (“Close Call Project”). The Close Call Project involves encouraging employees from its participating railroads to report “close call” incidents voluntarily and anonymously. A “close call” is an event in which a death, a personal injury, or property damage is narrowly averted. Thus, a “close call” presents an opportunity to improve safety practices in a situation or incident that has potential for more serious consequences by allowing the people involved to report the event in detail without fear of adverse consequences, thereby providing FRA with vital data about precursors to accidents or incidents that FRA might otherwise not receive. The information collected from the Close Call Project provides an opportunity to identify and correct weaknesses in a railroad's safety system before an accident/incident or other unsafe event occurs. The system can also be used to monitor changes in safety over time and to uncover hidden unsafe conditions that were previously unreported.

FRA does not agree with BLET's comment that the Initial Proposal would nullify the incentive for voluntary submission of information in this pilot program. The employees participating in the Close Call Project are protected from carrier discipline, decertification, and FRA enforcement action in the same manner regardless of whether the civil penalties are increased. Before a Close Call Project may be initiated, the employing railroad and the employees' union representatives sign a memorandum of understanding (“MOU”) that specifies each party's rights and responsibilities. Revising the Schedules would not impact any MOU that has been implemented, and would not affect any MOU that is to be implemented in the future, as they would not expand FRA's enforcement authority.

E. Concerns About Proposed Monetary Increases in the Civil Penalty Amounts

Commenters measured the change between the current penalties and the initially proposed penalties in nominal terms. That is, commenters calculated the price change between the initially proposed penalties and the current penalties without first adjusting the current penalty amounts for inflation. Inflation erodes the purchasing power of money over time. As previously stated in this New Proposal, the enforcement and deterrent effects of the current penalties have decreased over time as they had not been increased line by line to account for the effects of inflation. A better, “apples-to-apples” comparison would be to compare the proposed penalties to the inflation-adjusted, or real, current penalties. Adjusting for inflation allows comparison of the penalties using dollars with the same purchasing power.

Given that inflation-adjusted, current penalties serve as the proper baseline for measuring change, it is significant that many of the current penalties have not changed in nominal terms for many years.

As previously stated, in undertaking this effort to revise the Schedules comprehensively after many years, FRA is focusing on areas that pose greater safety risks, and maintaining enforcement in other regulatory areas per its authority to set penalty guidelines within the minimum, ordinary maximum, and aggravated maximum statutory penalties. With the New Proposal, some of the proposed penalty amounts if adopted by FRA will indeed show large increases, even after adjusting for inflation.

7

However, as previously stated, some newly proposed penalty amounts for violations would remain unchanged (

e.g.,

49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)). Again, the penalty amounts in the New Proposal reflect the

reanalyzed risk basis for the penalty amounts and the new ordinary maximum statutory penalty. FRA believes that these new proposed Schedules will maintain and increase the effect of the civil monetary penalties, fostering a higher overall level of safety.

7

For example, BLET stated that the penalty for 49 CFR 214.103(ii) (“Failure to use fall protection”) would increase 340 percent. Expressing the original penalty amounts in 2006 dollars (for consistency with the first proposed penalty schedules that were published on December 5, 2006), the increase would actually have been 204 percent; however, with the proposed penalties in this notice, the increase in real dollars would be 559 percent. Similarly, for 49 CFR 218.22(c)(5) (“Utility employees: Assignment conditions: Performing functions not listed”), BLET found an 87.5 percent increase. Measured in 2006 dollars, the difference between the current penalties and the originally-proposed revised penalties would have been 15 percent, and with the proposed penalties in this notice, the real difference would be about 46 percent. For 49 CFR 219.11(b)(1) (“General conditions for chemical tests: Employee unlawfully refuses to participate in testing”), BLET calculated a 120 percent increase, the change in real dollars from the original proposal would have been 41 percent. With the proposed penalties in this New Proposal, the increase would be about 22 percent (Upon reevaluating the severity scale rankings in the Initial Proposal, FRA lowered the severity scale ranking for violations of § 219.11(b)(1) from a proposed “A” to a proposed “D” level penalty.) In each of these examples, the rules concern areas of significant risk. Consequentially, FRA has determined that higher proposed penalties are necessary and justified.

List of Subjects

49 CFR Part 209

Administrative practice and procedure, Hazardous materials transportation, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 213

Bridges, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 214

Bridges, Occupational safety and health, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 215

Freight, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 217

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 218

Occupational safety and health, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 219

Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad safety, Reporting and recordkeeping requirements, Safety, Transportation.

49 CFR Part 220

Penalties, Radio, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 221

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 222

Administrative practice and procedure, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 223

Glass and glass products, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 224

Penalties, Railroad locomotive safety, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 225

Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 227

Locomotives, Noise control, Occupational safety and health, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 228

Administrative practice and procedures, Buildings and facilities, Hazardous materials transportation, Noise control, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 229

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 230

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 231

Penalties, Railroad safety.

49 CFR Part 232

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 233

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 234

Highway safety, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 235

Administrative practice and procedure, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 236

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 238

Fire prevention, Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 239

Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 240

Administrative practice and procedure, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 241

Communications, Penalties, Railroad safety, Reporting and recordkeeping requirements.

In consideration of the foregoing, FRA proposes to amend parts 209, 213, 214, 215, 217, 218, 219, 220, 221, 222, 223, 224, 225, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 238, 239, 240, and 241 of subtitle B, chapter II of title 49 of the Code of Federal Regulations to read as follows:

PART 209—[AMENDED]

1. The authority citation for part 209 continues to read as follows:

Authority:

49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.

2. Appendix A to part 209 is revised to read as follows:

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

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 or orders. 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,” the penalty was raised to a maximum of $20,000 per violation.

The Rail Safety Enforcement and Review Act (RSERA), enacted in 1992, 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 and orders. RSERA also increased the minimum civil monetary penalty from $250 to $500 for all of FRA's regulatory provisions and orders. 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 (Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996) (Inflation Act) required that agencies adjust by regulation each minimum and 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 minimum and maximum civil monetary penalties have been adjusted.

In 2008, the Rail Safety Improvement Act of 2008 (RSIA of 2008) was enacted raising

FRA's civil monetary ordinary and aggravated maximum penalties to $25,000 and $100,000 respectively. FRA amended the civil penalty provisions in its regulations so as to make $25,000 the ordinary maximum penalty per violation and $100,000 the aggravated maximum penalty per violation, as authorized by the RSIA of 2008, in a final rule published on December 30, 2008 in the

Federal Register

. 73 FR 79700. The December 30, 2008 final rule also adjusted the minimum civil penalty from $550 to $650 pursuant to Inflation Act requirements.

Id.

A correcting amendment to the civil penalty provisions in 49 CFR part 232 was published on April 6, 2009. 74 FR 15388.

FRA's traditional practice has been to issue penalty schedules assigning to each particular regulation or order 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 or order, the schedule shows two amounts within the $650 to $25,000 range in separate columns, the first for ordinary violations, the second for willful violations (whether committed by railroads or individuals). In one instance—part 231—the schedule refers to sections of the relevant FRA defect code rather than to sections of the CFR text. Of course, the defect code, which is simply a reorganized version of the CFR text used by FRA to facilitate computerization of inspection data, is substantively identical to the CFR text.

Accordingly, under each of the schedules (ordinarily in a footnote), and regardless of the fact that a lesser amount might be shown in both columns of the schedule, FRA reserves the right to assess the statutory maximum penalty of up to $100,000 per violation where a grossly negligent violation has created an imminent hazard of death or injury. This authority to assess a penalty for a single violation above $25,000 and up to $100,000 is used only in very exceptional cases to penalize egregious behavior. FRA indicates in the penalty demand letter when it uses the higher penalty amount instead of the penalty amount listed in the schedule.

PART 213—[AMENDED]

3. The authority citation for part 213 continues to read as follows:

Authority:

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

4. Appendix B to part 213 is revised to read as follows:

Appendix B to Part 213—Schedule of Civil Penalties

1

Section

2 3

Violation

Willful

violation

Subpart A—General

213.4(a) Excepted track

2

$9,500

$17,000

213.4(b) Excepted track

2

13,000

20,500

213.4(c) Excepted track

2

13,000

20,500

213.4(d) Excepted track

2

13,000

20,500

213.4(e):

(1) Excepted track

13,000

20,500

(2) Excepted track

13,000

20,500

(3) Excepted track

13,000

20,500

(4) Excepted track

13,000

20,500

213.4(f) Excepted track

5,500

10,000

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

9,500

17,000

213.9 Classes of track: Operating speed limits

19,500

25,000

213.11 Restoration or renewal of track under traffic conditions

9,500

17,000

213.13 Measuring track not under load

13,000

20,500

Subpart B—Roadbed

213.33 Drainage

13,000

20,500

213.37 Vegetation

9,500

17,000

Subpart C—Track Geometry

213.53 Gage

19,500

25,000

213.55 Alignment

13,000

20,500

213.57 Curves; elevation and speed limitations

13,000

20,500

213.59 Elevation of curved track; runoff

13,000

20,500

213.63 Track surface

13,000

20,500

Subpart D—Track Structure

213.103 Ballast; general

9,500

17,000

213.109 Crossties:

(a) Material used

5,500

10,000

(b) Distribution of ties

13,000

20,500

(d) Sufficient number of nondefective ties

9,500

17,000

(f) Joint ties

9,500

17,000

(g) Track constructed without crossties

9,500

17,000

213.110 Gage restraint measurement systems:

(a) through (b) Notification

9,500

17,000

(c) Design requirements

13,000

20,500

(g) through (i) Exception reports

9,500

17,000

(j) Data integrity

13,000

20,500

(k) Training

9,500

17,000

(l) Remedial actions

19,500

25,000

(m) PTLF

13,000

20,500

(n) Recordkeeping

9,500

17,000

(o) Inspection frequency

19,500

25,000

213.113 Defective rails

19,500

25,000

213.115 Rail end mismatch

9,500

17,000

213.118(a) CWR plan in effect

13,000

20,500

213.118(b) CWR plan filed with FRA

13,000

20,500

213.119 Continuous welded rail:

(a) CWR installation/adjustment procedures

13,000

20,500

(b) CWR fastening requirements

13,000

20,500

(c) CWR joint installation/maintenance procedures

13,000

20,500

(d) CWR rail temperature requirements

13,000

20,500

(e) CWR alinement

13,000

20,500

(f) Procedures for controlling train speed on CWR track

13,000

20,500

(g) CWR track inspections

13,000

20,500

(h) CWR joint bar inspections

13,000

20,500

(i) CWR training

13,000

20,500

(j) CWR records

9,500

17,000

(k) CWR manual at job site

9,500

17,000

213.121(a) Rail joints

13,000

20,500

213.121(b) Rail joints

13,000

20,500

213.121(c) Rail joints

19,500

25,000

213.121(d) Rail joints

13,000

20,500

213.121(e) Rail joints

13,000

20,500

213.121(f) Rail joints

13,000

20,500

213.121(g) Rail joints

13,000

20,500

213.121(h) Rail joints

13,000

20,500

213.122 Torch cut rail

13,000

20,500

213.123 Tie plates

9,500

17,000

213.127 Rail fastenings

13,000

20,500

213.133 Turnouts and track crossings, generally

9,500

17,000

213.135 Switches:

(a) through (g)

13,000

20,500

(h) chipped or worn points

13,000

20,500

213.137 Frogs

13,000

20,500

213.139 Spring rail frogs

13,000

20,500

213.141 Self-guarded frogs

9,500

17,000

213.143 Frog guard rails and guard faces; gage

13,000

20,500

Subpart E—Track Appliances and Track-Related Devices

213.205 Derails

9,500

17,000

Subpart F—Inspection

213.233 Track inspections

9,500

17,000

213.235 Switches, crossings, transition devices

9,500

17,000

213.237 Inspection of rail

13,000

20,500

213.239 Special inspections

9,500

17,000

213.241 Inspection records

9,500

17,000

Subpart G—Train Operations at Track Classes 6 and Higher

213.305 Designation of qualified individuals; general qualifications

19,500

25,000

213.307 Class of track; operating speed limits

19,500

25,000

213.309 Restoration or renewal of track under traffic conditions

19,500

25,000

213.311 Measuring track not under load

13,000

20,500

213.319 Drainage

9,500

17,000

213.321 Vegetation

9,500

17,000

213.323 Track gage

19,500

25,000

213.327 Alignment

19,500

25,000

213.329 Curves, elevation and speed limits

19,500

25,000

213.331 Track surface

19,500

25,000

213.333 Automated vehicle inspection systems

19,500

25,000

213.335 Crossties:

(a) Material used

9,500

17,000

(b) Distribution of ties

13,000

20,500

(c) Sufficient number of nondefective ties, non-concrete

9,500

17,000

(d) Sufficient number of nondefective, concrete ties

19,500

25,000

(e) Joint ties

19,500

25,000

(f) Track constructed without crossties

19,500

25,000

(g) Non-defective ties surrounding defective ties

19,500

25,000

(h) Tie plates

19,500

25,000

(i) Tie plates

19,500

25,000

213.337 Defective rails

19,500

25,000

213.339 Inspection of rail in service

19,500

25,000

213.341 Inspection of new rail

19,500

25,000

213.343 Continuous welded rail (a) through (h)

19,500

25,000

213.345 Vehicle qualification testing (a) through (b)

19,500

25,000

(c) through (e)

19,500

25,000

213.347 Automotive or railroad crossings at grade

13,000

20,500

213.349 Rail end mismatch

13,000

20,500

213.351(a) Rail joints

19,500

25,000

213.351(b) Rail joints

19,500

25,000

213.351(c) Rail joints

19,500

25,000

213.351(d) Rail joints

19,500

25,000

213.351(e) Rail joints

13,000

20,500

213.351(f) Rail joints

19,500

25,000

213.351(g) Rail joints

19,500

25,000

213.352 Torch cut rails

9,500

17,000

213.353 Turnouts, crossovers, transition devices

19,500

25,000

213.355 Frog guard rails and guard faces; gage

13,000

20,500

213.357 Derails

9,500

17,000

213.359 Track stiffness

19,500

25,000

213.361 Right of way

9,500

17,000

213.365 Visual inspections

19,500

25,000

213.367 Special inspections

19,500

25,000

213.369 Inspections records

9,500

17,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

In addition to assessment of penalties for each instance of noncompliance with the requirements identified by this footnote, track segments designated as excepted track that are or become ineligible for such designation by virtue of noncompliance with any of the requirements to which this footnote applies are subject to all other requirements of part 213 until such noncompliance is remedied.

3

The penalty schedule uses section numbers from 49 CFR part 213. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 214—[AMENDED]

5. The authority citation for part 214 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

6. Appendix A to part 214 is revised to read as follows:

Appendix A to Part 214—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Bridge Worker Safety Standards

214.103 Fall protection:

(i) Failure to provide fall protection

$13,000

$20,500

(ii) Failure to use fall protection

19,500

25,000

214.105 Standards and practices:

(a) General:

(1) Fall protection used for other purposes

9,500

17,000

(2) Failure to remove from service

9,500

17,000

(3) Failure to protect from deterioration

9,500

17,000

(4) Failure to inspect and remove

13,000

20,500

(5) Failure to train

13,000

20,500

(6) Failure to provide for prompt rescue

13,000

20,500

(7) Failure to prevent damage

9,500

17,000

(8) Failure to use proper connectors

9,500

17,000

(9) Failure to use proper anchorages

9,500

17,000

(b) Fall arrest system:

(1)-(17) Failure to provide conforming equipment

9,500

17,000

(c) Safety net systems:

(1) Failure to install close to workplace

9,500

17,000

(2) Failure to provide fall arrest if over 30 feet

13,000

20,500

(3) Failure to provide for unobstructed fall

13,000

20,500

(4) Failure to test

9,500

17,000

(5) Failure to use proper equipment

9,500

17,000

(6) Failure to prevent contact with surface below

13,000

20,500

(7) Failure to properly install

13,000

20,500

(8) Failure to remove defective nets

13,000

20,500

(9) Failure to inspect

13,000

20,500

(10) Failure to remove objects

5,500

10,000

(11)-(13) Failure to use conforming equipment

9,500

17,000

214.107 Working over water:

(a)(i) Failure to provide life vest

13,000

20,500

(ii) Failure to use life vest

13,000

20,500

(c) Failure to inspect

9,500

17,000

(e)(i) Failure to provide ring buoys

13,000

20,500

(ii) Failure to use ring buoys

17,000

(f)(i) Failure to provide skiff

9,500

17,000

(ii) Failure to use skiff

17,000

214.109 Scaffolding:

(a)-(f) Failure to provide conforming equipment

13,000

20,500

214.113 Head protection:

(a)(i) Failure to provide

13,000

20,500

(ii) Failure to use

13,000

20,500

(b) or (c) Failure to provide conforming equipment

9,500

17,000

214.115 Foot protection:

(a)(i) Failure to require use of

9,500

17,000

(ii) Failure to use

9,500

17,000

214.117 Eye and face protection:

(a)(i) Failure to provide

9,500

17,000

(ii) Failure to use

5,500

10,000

(b) Failure to use conforming equipment

9,500

17,000

(c) Use of defective equipment

9,500

17,000

(d) Failure to provide for corrective lenses

9,500

17,000

Subpart C—Roadway Worker Protection Rule

214.303 Railroad on-track safety programs, generally:

(a) Failure of a railroad to implement an On-track Safety Program

19,500

25,000

(b) On-track Safety Program of a railroad includes no internal monitoring procedure

9,500

17,000

214.305 Compliance Dates:

Failure of a railroad to comply by the specified dates

9,500

17,000

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

(a)(i) Failure to notify FRA of adoption of On-track Safety Program

2,500

5,000

(ii) Failure to designate primary person to contact for program review

2,500

5,000

214.309 On-track safety program documents:

(1) On-track Safety Manual not provided to prescribed employees

9,500

17,000

(2) On-track Safety Program documents issued in fragments

5,500

10,000

214.311 Responsibility of employers:

(b) Roadway worker required by employer to foul a track during an unresolved challenge

19,500

25,000

(c) Roadway workers not provided with written procedure to resolve challenges of on-track safety procedures

9,500

17,000

214.313 Responsibility of individual roadway workers:

(a) Failure to follow railroad's on-track safety rules

25,000

(b) Roadway worker fouling a track when not necessary in the performance of duty

25,000

(c) Roadway worker fouling a track without ascertaining that provision is made for on-track safety

25,000

(d) Roadway worker failing to notify employer of determination of improper on-track safety provisions

25,000

214.315 Supervision and communication:

(a) Failure of employer to provide job briefing

19,500

25,000

(b) Incomplete job briefing

13,000

20,500

(c)(i) Failure to designate roadway worker in charge of roadway work group

13,000

20,500

(ii) Designation of more than one roadway worker in charge of one roadway work group

9,500

17,000

(iii) Designation of non-qualified roadway worker in charge of roadway work group

13,000

20,500

(d)(i) Failure to notify roadway workers of on-track safety procedures in effect

13,000

20,500

(ii) Incorrect information provided to roadway workers regarding on-track safety procedures in effect

13,000

20,500

(iii) Failure to notify roadway workers of change in on-track safety procedures

13,000

20,500

(e)(i) Failure of lone worker to communicate with designated employee for daily job briefing

9,500

17,000

(ii) Failure of employer to provide means for lone worker to receive daily job briefing

13,000

20,500

214.317 On-track safety procedures, generally:

On-track safety rules conflict with this part

19,500

25,000

214.319 Working limits, generally:

(a) Nonqualified roadway worker in charge of working limits

13,000

20,500

(b) More than one roadway worker in charge of working limits on the same track segment

13,000

20,500

(c)(1) Working limits released without notifying all affected roadway workers

19,500

25,000

(2) Working limits released before all affected roadway workers are otherwise protected

19,500

25,000

214.321 Exclusive track occupancy:

(b) Improper transmission of authority for exclusive track occupancy

9,500

17,000

(b)(1) Failure to repeat authority for exclusive track occupancy to issuing employee

9,500

17,000

(2) Failure to retain possession of written authority for exclusive track occupancy

5,500

10,000

(3) Failure to record authority for exclusive track occupancy when issued

13,000

20,500

(c) Limits of exclusive track occupancy not identified by proper physical features

19,500

25,000

(d)(1) Movement authorized into limits of exclusive track occupancy without authority of roadway worker in charge

19,500

25,000

(2) Movement authorized within limits of exclusive track occupancy without authority of roadway worker in charge

19,500

25,000

(3) Movement within limits of exclusive track occupancy exceeding restricted speed without authority of roadway worker in charge

19,500

25,000

214.323 Foul time:

(a) Foul time authority overlapping movement authority of train or equipment

19,500

25,000

(b) Failure to repeat foul time authority to issuing employee

9,500

17,000

214.325 Train coordination:

(a) Train coordination limits established where more than one train is authorized to operate

13,000

20,500

(b)(1) Train coordination established with train not visible to roadway worker at the time

9,500

17,000

(2) Train coordination established with moving train

9,500

17,000

(3) Coordinated train moving without authority of roadway worker in charge

13,000

20,500

(4) Coordinated train releasing movement authority while working limits are in effect

13,000

20,500

214.327 Inaccessible track:

(a) Improper control of entry to inaccessible track

13,000

20,500

(5) Remotely controlled switch not properly secured by control operator

13,000

20,500

(b) Train or equipment moving within inaccessible track limits without permission of roadway worker in charge

13,000

20,500

(c) Unauthorized train or equipment located within inaccessible track limits

13,000

20,500

214.329 Train approach warning provided by watchmen/lookouts:

(a) Failure to give timely warning of approaching train

19,500

25,000

(b)(1) Failure of watchman/lookout to give full attention to detecting approach of train

13,000

20,500

(2) Assignment of other duties to watchman/lookout

19,500

25,000

(c) Failure to provide proper warning signal devices

9,500

17,000

(d) Failure to maintain position to receive train approach warning signal

13,000

20,500

(e) Failure to communicate proper warning signal

13,000

20,500

(f)(1) Assignment of nonqualified person as watchman/lookout

13,000

20,500

(2) Nonqualified person accepting assignment as watchman/lookout

9,500

17,000

(g) Failure to properly equip a watchman/lookout

9,500

17,000

214.331 Definite train location:

(a) Definite train location established where prohibited

13,000

20,500

(b) Failure to phase out definite train location by required date

9,500

17,000

(d)(1) Train location information issued by unauthorized person

13,000

20,500

(2) Failure to include all trains operated on train location list

19,500

25,000

(5) Failure to clear track 10 minutes before earliest departure time of train at last station prior to work location, or failure to remain clear until such train passed

13,000

20,500

(6) Train passing station before time shown in train location list

19,500

25,000

(7) Nonqualified person using definite train location to establish on-track safety

13,000

20,500

214.333 Informational line-ups of trains:

(a) Informational line-ups of trains used for on-track safety where prohibited

19,500

25,000

(b) Informational line-up procedures inadequate to protect roadway workers

19,500

25,000

(c) Failure to discontinue informational line-ups by required date

9,500

17,000

214.335 On-track safety procedures for roadway work groups:

(a) Failure to provide on-track safety for a member of a roadway work group

19,500

25,000

(b) Member of roadway work group fouling a track without authority of employee in charge

13,000

20,500

(c) Failure to provide train approach warning or working limits on adjacent track where required

19,500

25,000

214.337 On-track safety procedures for lone workers:

(b) Failure by employer to permit individual discretion in use of individual train detection

19,500

25,000

(c)(1) Individual train detection used by nonqualified employee

13,000

20,500

(2) Use of individual train detection while engaged in heavy or distracting work

19,500

25,000

(3) Use of individual train detection in controlled point or manual interlocking

19,500

25,000

(4) Use of individual train detection with insufficient visibility

19,500

25,000

(5) Use of individual train detection with interfering noise

19,500

25,000

(6) Use of individual train detection while a train is passing

19,500

25,000

(d) Failure to maintain access to place of safety clear of live tracks

19,500

25,000

(e) Lone worker unable to maintain vigilant lookout

19,500

25,000

(f)(1) Failure to prepare written statement of on-track safety

5,500

10,000

(2) Incomplete written statement of on-track safety

2,500

5,000

(3) Failure to produce written statement of on-track safety to FRA

2,500

5,000

214.339 Audible warning from trains:

(a) Failure to require audible warning from trains

9,500

17,000

(b) Failure of train to give audible warning where required

9,500

17,000

214.341 Roadway maintenance machines:

(a) Failure of on-track safety program to include provisions for safety near roadway maintenance machines

19,500

25,000

(b) Failure to provide operating instructions

9,500

17,000

(1) Assignment of nonqualified employee to operate machine

13,000

20,500

(2) Operator unfamiliar with safety instructions for machine

13,000

20,500

(3) Roadway worker working with unfamiliar machine

13,000

20,500

(c) Roadway maintenance machine not clear of passing trains or operation of machine component closer than four feet to adjacent track without procedural instructions

19,500

25,000

214.343 Training and qualification, general:

(a)(1) Assignment of roadway worker duties to employee that is not trained or qualified

13,000

20,500

(a)(2) Acceptance of roadway worker assignment by employee that is not trained or qualified

13,000

20,500

(b)(1) Failure to provide initial training

13,000

20,500

(b)(2) Failure to provide annual training

9,500

17,000

(c) Failure to provide training to employee other than a roadway worker on functions related to on-track safety

13,000

20,500

(d)(1) Failure to maintain records of qualifications

9,500

17,000

(2) Incomplete records of qualifications

5,500

10,000

(3) Failure to provide records of qualifications to FRA

2,500

5,000

214.345 Training for all roadway workers

3

3

214.347 Training and qualification for lone workers

3

3

214.349 Training and qualification of watchmen/lookouts

3

3

214.351 Training and qualification of flagmen

3

3

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

3

3

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

3

3

Subpart D—On-Track Roadway Maintenance Machines and Hi-Rail Vehicles

214.503 Good-faith challenges; procedures for notification and resolution:

(a) Failure of employee to notify employer that the machine or vehicle does not comply with this subpart or has a condition inhibiting safe operation

20,500

(b) Roadway worker required to operate machine or vehicle when good-faith challenge not resolved

19,500

25,000

(c) Failure of employer to have or follow written procedures to resolve good-faith challenges

19,500

25,000

214.505 Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs:

(a) Failure to equip new machines with required systems

19,500

25,000

(b) Failure of new or existing machines to protect employees from exposure to air contaminants

19,500

25,000

(c) Failure of employer to maintain required list of machines or make list available

9,500

17,000

(d) Removal of “designated machine” from list before retired or sold

9,500

17,000

(e) Personal respiratory protective equipment not provided when ventilation system fails

19,500

25,000

(f) Personal respiratory protective equipment fails to meet required standards

19,500

25,000

(g) Other new machines with enclosed cabs not equipped with operable heating and ventilation systems

19,500

25,000

(h) Nonenclosed station not equipped with covering, where feasible

19,500

25,000

214.507 Required safety equipment for new on-track roadway maintenance machines:

(a)(1)-(5) Failure to equip new machine or provide protection as specified in these paragraphs

19,500

25,000

(a)(6)-(7) Failure to equip new machine with first-aid kit or operative and charged fire extinguisher

13,000

20,500

(b) Position for operator to stand not properly equipped to provide safe and secure position

19,500

25,000

(c) New machine not equipped with accurate speed indicator, as required

13,000

20,500

(d) As-built light weight not conspicuously displayed on new machine

13,000

20,500

214.509 Required visual illumination and reflective devices for new on-track roadway maintenance machines

13,000

20,500

214.511 Required audible warning devices for new on-track roadway maintenance machines

19,500

25,000

214.513 Retrofitting of existing on-track roadway maintenance machines; general:

(a) Failure to provide safe and secure position and protection from moving parts inside cab for each roadway worker transported on machine

19,500

25,000

(b) Horn or other audible warning device is missing, inoperable, or has noncompliant triggering mechanism

13,000

20,500

(c) Illumination device or portable light missing, inoperable, improperly secured, or incapable of illuminating track as required

13,000

20,500

214.515 Overhead covers for existing on-track roadway maintenance machines:

(a) Failure to repair, reinstall, or maintain overhead cover as required

19,500

25,000

(b) Failure to provide written response to operator's request within 60 days

9,500

17,000

214.517 Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991:

(a) Failure to equip machine with change-of-direction alarm or rearward viewing device

19,500

25,000

(b) Failure to equip machine with operative heater

19,500

25,000

(c) Failure to display light weight of machine as required

13,000

20,500

(d) Failure to equip machine with reflective material, reflective device, or operable brake lights

19,500

25,000

(e) Failure to install or replace safety glass as required

19,500

25,000

(f) Failure to equip machine with turntable restraint device or warning light as required

19,500

25,000

214.518 Safe and secure position for riders

19,500

25,000

214.519 Floors, decks, stairs, and ladders for on-track roadway maintenance machines

19,500

25,000

214.521 Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles

13,000

20,500

214.523 Hi-rail vehicles:

(a) Failure to inspect hi-rail gear annually

19,500

25,000

(b) Failure to maintain inspection record or make record available to FRA

9,500

17,000

(c) Failure to equip new hi-rail vehicle with alarm and light or beacon as required

13,000

20,500

(d)(2) Failure of operator to tag, date, or report noncomplying condition

9,500

17,000

(d)(3) Failure to repair or replace noncomplying alarms, lights, or beacons as required

13,000

20,500

214.525 Towing with on-track roadway maintenance machines or hi-rail vehicles

19,500

25,000

214.527 On-track roadway maintenance machines; inspection for compliance and schedule for repairs:

(a) Failure of operator to check on-track roadway maintenance machine for compliance

9,500

17,000

(b) Failure of operator to tag, date, or report noncomplying condition

9,500

17,000

(c)(1)-(4) Failure to meet requirements for operating on-track roadway maintenance machine with noncomplying headlights, work lights, horn, fire extinguisher, alarm, warning light, or beacon

13,000

20,500

(c)(5) Failure to repair or replace defective or missing operator's seat within required time period

19,500

25,000

214.529 In-service failure of primary braking system

19,500

25,000

214.531 Schedule of repairs; general

13,000

20,500

214.533 Schedule of repairs subject to availability of parts:

(a)-(c) Failure to order necessary part(s), make repair(s), or remove on-track roadway maintenance machine or hi-rail vehicle from service as required

13,000

20,500

(d) Failure to maintain record or make record available to FRA

9,500

17,000

1

A penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 214. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

3

See

§ 214.343 (Training and qualification, general).

PART 215—[AMENDED]

7. The authority citation for part 215 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

8. Appendix B to part 215 is revised to read as follows:

Appendix B to Part 215—Schedule of Civil Penalties

1

Section

2

Violation

Willful

Violation

Subpart A—General

215.9 Movement for repair:

(a), (c)

1

1

(b)

$5,500

$10,000

215.11 Designation of qualified persons

9,500

17,000

215.13 Pre-departure inspection

9,500

17,000

Subpart B—Freight Car Components

Suspension System

215.103 Defective wheel:

(a) Flange thickness of:

(1)

7/8

″ or less but more than

13/16

″

9,500

17,000

(2)

13/16

″ or less

13,000

20,500

(b) Flange height of:

(1) 1

1/2

″ or greater but less than

15/8

″

9,500

17,000

(2)

15/8

″ or more

13,000

20,500

(c) Rim thickness of:

(1)

11/16

″ or less but more than

5/8

″

9,500

17,000

(2)

5/8

″ or less

13,000

20,500

(d) Wheel rim, flange plate hub width:

(1) Crack of less than 1″

9,500

17,000

(2) Crack of 1″ or more

13,000

20,500

(3) Break

19,500

25,000

(e) Chip or gouge in flange of:

(1) 1

1/2

″ or more but less than 1

5/8

″ in length; and

1/2

″ or more but less than

5/8

″ in width

5,500

10,000

(2)

15/8

″ or more in length; or

5/8

″ or more in width

9,500

17,000

(f) Slid flat or shelled spot(s):

(1)(i) One spot more than 2

1/2

″, but less than 3″, in length

5,500

10,000

(ii) One spot 3″ or more in length

9,500

17,000

(2)(i) Two adjoining spots each of which is more than 2″ but less than 2

1/2

″ in length

5,500

10,000

(ii) Two adjoining spots both of which are at least 2″ in length, if either spot is 2

1/2

″ or more in length

9,500

17,000

(g) Loose on axle

19,500

25,000

(h) Overheated; discoloration extending:

(1) More than 4″ but less than 4

1/2

″

9,500

17,000(

(2) 4

1/2

″ or more

13,000

20,500

(i) Welded

13,000

20,500

215.105 Defective axle:

(a)(1) Crack of 1″ or less

9,500

17,000

(2) Crack of more than 1″

13,000

20,500

(3) Break

19,500

25,000

(b) Gouge in surface that is between the wheel seats and is more than

1/8

″ in depth

5,500

10,000

(c) End collar with crack or break

9,500

17,000

(d) Journal overheated

19,500

25,000

(e) Journal surface has: A ridge; a depression; a circumferential score; corrugation; a scratch; a continuous streak; pitting; rust; or etching

9,500

17,000

215.107 Defective plain bearing box: general:

(a)(1) No visible free oil

5,500

10,000

(2) Lubricating pad dry (no expression of oil observed when pad is compressed)

13,000

20,500

(b) Box lid is missing, broken, or open except to receive servicing

5,500

10,000

(c) Contains foreign matter that can be expected to damage the bearing or have a detrimental effect on the lubrication of the journal and bearing

9,500

17,000

215.109 Defective plain bearing box: journal lubrication system:

(a) Lubricating pad has a tear

5,500

10,000

(b) Lubricating pad scorched, burned, or glazed

9,500

17,000

(c) Lubricating pad contains decaying or deteriorating fabric

9,500

17,000

(d) Lubricating pad has an exposed center core or metal parts contacting the journal

9,500

17,000

(e) Lubricating pad is missing or not in contact with the journal

13,000

20,500

215.111 Defective plain bearing:

(a) Missing

19,500

25,000

(b) Bearing liner is loose or has piece broken out

9,500

17,000

(c) Overheated

19,500

25,000

215.113 Defective plain bearing wedge:

(a) Missing

19,500

25,000

(b) Cracked

9,500

17,000

(c) Broken

13,000

20,500

(d) Not located in its design position

9,500

17,000

215.115 Defective roller bearing:

(a)(1) Overheated

19,500

25,000

(2)(i) Cap screw(s) loose

13,000

20,500

(ii) Cap screw lock broken, missing or improperly applied

5,500

10,000

(3) Seal is loose or damaged, or permits leakage of lubricant

5,500

10,000

(b)(1) Not inspected and tested after derailment

13,000

20,500

(2) Not disassembled after derailment

9,500

17,000

(3) Not repaired or replaced after derailment

13,000

20,500

215.117 Defective roller bearing adapter:

(a) Cracked or broken

9,500

17,000

(b) Not in its design position

13,000

20,500

(c) Worn on the crown

9,500

17,000

215.119 Defective freight car truck:

(a)(1) A side frame or bolster that is broken

19,500

25,000

(2)(i) Side frame or bolster with crack of:

1/4

″ or more, but less than 1″

9,500

17,000

(ii) 1″ or more

13,000

20,500

(b) A snubbing device that is ineffective or missing

9,500

17,000

(c) Side bearing(s):

(1) Assembly missing or broken

19,500

25,000

(2) In contact except by design

13,000

20,500

(3), (4) Total clearance at one end or at diagonally opposite sides of:

(i) More than

3/4

″ but not more than 1″

9,500

17,000

(ii) More than 1″

13,000

20,500

(d) Truck spring(s):

(1) Do not maintain travel or load

9,500

17,000

(2) Compressed solid

9,500

17,000

(3) Outer truck springs broken or missing:

(i) Two outer springs

9,500

17,000

(ii) Three or more outer springs

13,000

20,500

(e) Truck bolster-center plate interference

13,000

20,500

(f) Brake beam shelf support worn

9,500

17,000

Car Bodies

215.121 Defective car body:

(a) Has less than

21/2

″ clearance from the top of rail

9,500

17,000

(b) Car center sill is:

(1) Broken

19,500

25,000

(2) Cracked more than 6″

9,500

17,000

(3) Bent or buckled more than

21/2

″ in any 6′ length

9,500

17,000

(c) Coupler carrier that is broken or missing

9,500

17,000

(d) Car door not equipped with operative safety hangers

19,500

25,000

(e)(1) Center plate not properly secured

19,500

25,000

(2) Portion missing

9,500

17,000

(3) Broken

19,500

25,000

(4) Two or more cracks

9,500

17,000

(f) Broken sidesill, crossbearer, or body bolster

9,500

17,000

Draft System

215.123 Defective couplers:

(a) Shank bent out of alignment

5,500

10,000

(b) Crack in highly stressed junction area

9,500

17,000

(c) Coupler knuckle broken or cracked

9,500

17,000

(d) Coupler knuckle pin or thrower that is missing or inoperative

9,500

17,000

(e) Coupler retainer pin lock that is missing or broken

5,500

10,000

(f) Coupler with following conditions: Locklift inoperative; no anticreep protection; or coupler lock is missing, inoperative, bent, cracked, or broken

9,500

17,000

215.125 Defective uncoupling device

9,500

17,000

215.127 Defective draft arrangement:

(a) Draft gear that is inoperative

9,500

17,000

(b) Yoke that is broken

9,500

17,000

(c) End of car cushioning unit is leaking or inoperative

9,500

17,000

(d) Vertical coupler pin retainer plate missing or has missing fastener

19,500

25,000

(e) Draft key or draft key retainer that is inoperative or missing

19,500

25,000

(f) Follower plate that is missing or broken

9,500

17,000

215.129 Defective cushioning device

9,500

17,000

Subpart C—Restricted Equipment

215.203 Restricted cars

9,500

17,000

Subpart D—Stenciling

215.301 General

5,500

10,000

215.303 Stenciling of restricted cars

5,500

10,000

215.305 Stenciling of maintenance-of-way

5,500

10,000

1

A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single freight car that is placed or continued in service by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. A failure to perform, with respect to a particular freight car, the predeparture inspection required by § 215.13 of this part will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on the car. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A. Failure to observe any condition for movement set forth in paragraphs (a) and (c) of § 215.9 will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the freight car at the time of movement. Maintenance-of-way equipment not stenciled in accordance with § 215.305 is subject to all requirements of this part.

See

§ 215.3(c)(3).

2

The penalty schedule uses section numbers from 49 CFR part 215. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 217—[AMENDED]

9. The authority citation for part 217 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

10. Appendix A to part 217 is revised to read as follows:

Appendix A to Part 217—Schedule Of Civil Penalties

1

Section

2

Violation

Willful

Violation

Subpart A—General

217.7 Operating Rules:

(a)

$5,500

$10,000

(b)

5,500

10,000

(c)

5,500

10,000

217.9 Operational tests and inspections:

(a) Failure to implement a program

9,500-

19,500

17,000-

25,000

(b) Railroad and railroad testing officer responsibilities:

(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in accordance with program

13,000

20,500

(2) Records

9,500

17,000

(c) Record of program; program incomplete

9,500-

19,500

17,000-

25,000

(d) Records of individual tests and inspections

9,500

17,000

(e) Failure to retain copy of or conduct:

(1)(i) Quarterly review

13,000

20,500

(1)(ii) and (2) Six month review

13,000

20,500

(3) Records

9,500

17,000

(f) Annual summary

9,500

17,000

(h) Failure to timely or appropriately amend program after disapproval

13,000-

19,500

20,500-

25,000

217.11 Program of instruction on operating rules:

(a)

5,500-

13,000

10,000-

20,500

(b)

5,500-

13,000

10,000-

20,500

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 217. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 218—[AMENDED]

11. The authority citation for part 218 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

12. Appendix A to part 218 is revised to read as follows:

Appendix A to Part 218—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Blue Signal Protection of Workmen

218.22 Utility employees:

(a) Employee qualifications

$5,500

$10,000

(b) Concurrent service

9,500

17,000

(c) Assignment conditions:

(1) No controlling locomotive

9,500

17,000

(2) Empty cab

9,500

17,000

(3)(4) Improper communication

9,500

17,000

(5) Performing functions not listed

5,500

10,000

(d) Improper release

5,500

10,000

(f) More than three utility employees with one crew

5,500

10,000

218.23 Blue signal display

9,500

17,000

218.24 One-person crew:

(a)(1) Equipment not coupled or insufficiently separated

5,500

10,000

(a)(2) Unoccupied locomotive cab not secured

9,500

17,000

(b) Helper service

5,500

10,000

218.25 Workmen on a main track

9,500

17,000

218.27 Workmen on track other than main track:

(a) Protection provided except that signal not displayed at switch

5,500

10,000

(b) through (e)

9,500

17,000

218.29 Alternate methods of protection:

(a)(1) Protection provided except that signal not displayed at switch

5,500

10,000

(a)(2) through (a)(8)

9,500

17,000

(b)(1) Protection provided except that signal not displayed at switch

5,500

10,000

(b)(2) through (b)(4)

9,500

17,000

(c) Use of derails

9,500

17,000

(d) Emergency repairs

9,500

17,000

218.30 Remotely controlled switches:

(a) and (b)

9,500

17,000

(c)

2,500

5,000

Subpart C—Protection of Trains and Locomotives

218.35 Yard limits:

(a) and (b)

9,500

17,000

(c)

2,500

5,000

218.37 Flag protection:

(a)

9,500

17,000

(b) and (c)

9,500

17,000

218.39 Hump operations

9,500

17,000

218.41 Noncompliance with hump operations rule

9,500

17,000

Subpart D—Prohibition against Tampering with Safety Devices

218.55 Tampering

17,000

218.57

(i) Knowingly operating or permitting operation of disabled equipment

5,500

(ii) Willfully operating or permitting operation of disabled equipment

10,000

218.59 Operation of disabled equipment

5,500

10,000

Subpart E—Protection of Occupied Camp Cars

218.71 Warning Signal Display:

(a) Warning signals

5,500

10,000

(1) Cars may not be moved

9,500

17,000

(2) Rolling equipment may not be on same track reducing view of warning signal

5,500

10,000

(3) Rolling equipment may not pass a warning signal

9,500

17,000

(4) Signal will be displayed immediately and only removed prior to departure

5,500

10,000

218.75 Methods of protection for camp cars on main track:

(a) Warning signals near each switch with access

5,500

10,000

(b) Immediate notification of occupation

9,500

17,000

(c) Alerting affected personnel of cars

5,500

10,000

(d) Manual switched lined and locked

9,500

17,000

(e) Remote switches protected

9,500

17,000

218.77 Remotely controlled switches:

(a) Remote switch lined and locked

9,500

17,000

(b) Operator may not remove locking device without permission

9,500

17,000

(c) Recordkeeping

2,500

5,000

(d) Derail and signal when located on main track

9,500

17,000

218.79 Alternative methods for protection:

(a) Other than main track:

(1) Warning signal at each switch providing access

9,500

17,000

(2) Switches lined and locked

9,500

17,000

(3) Derails 50 feet away when speed is 5MPH

9,500

17,000

(b) Except as provided in (a) on other than main track:

(1) Derails 150 feet away from equipment

9,500

17,000

(2) Derails must be locked in derailing position with signal

9,500

17,000

Subpart F—Handling Equipment, Switches and Derails

218.95 Instruction, Training and Examination:

(a) Program

9,500-13,000

17,000-20,500

(b) Records

9,500

17,000

(c) Failure to timely or appropriately amend program after disapproval

9,500-13,000

17,000-20,500

218.97 Good Faith Challenge Procedures:

(a) Employee Responsibility Failure

5,000

(b) through (d) Failure to adopt or implement procedures

9,500

17,000

218.99 Shoving or Pushing Movements:

(a) Failure to implement required operating rule

13,000

20,500

(b) Failure to conduct job briefing, use a qualified employee, or establish proper protection

9,500-13,000

17,000-20,500

(c) Failure to observe equipment direction

9,500

17,000

(d) Failure to properly establish point protection within a remote control zone

9,500

17,000

(e) Failure to abide by operational exception requirements

9,500

17,000

218.101 Leaving Equipment in the Clear:

(a) Failure to implement required operating rule

9,500

17,000

(b) Equipment left improperly fouling

9,500

17,000

(c) Failure to implement procedures for identifying clearance points

9,500

17,000

218.103 Hand-operated switches, including crossover switches:

(a) Failure to implement required operating rule

9,500

17,000

(b) through (d) Railroad employee failures

9,500

17,000

218.105 Additional operational requirements for hand-operated main track switches:

(a) Failure to implement required operating rule

13,000

20,500

(b) and (c) Railroad and employee failures

9,500

17,000

(d) Failure to properly release authority limits

13,000

20,500

218.107 Additional operational requirements for hand-operated crossover switches:

(a) Failure to implement required operating rule

9,500

17,000

(b) and (c) Railroad and employee failures

9,500

17,000

218.109 Hand-operated fixed derails:

(a) Failure to implement required operating rule

9,500

17,000

(b) and (c) Railroad and employee failures

9,500

17,000

1

Except as provided for in § 218.57, a penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where the circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 218. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 219—[AMENDED]

13. The authority citation for part 219 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(m).

14. Appendix A to part 219 is revised to read as follows:

Appendix A to Part 219—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart A—General

219.3 Application: Railroad does not have required program

$13,000

$20,500

219.11 General conditions for chemical tests:

(b)(1) Employee unlawfully refuses to participate in testing

5,500

10,000

(b)(2) Employer fails to give priority to medical treatment

13,000

20,500

(b)(3) Employee fails to remain available

5,500

10,000

(b)(4) Employee tampers with specimen

5,500

10,000

(d) Employee unlawfully required to execute a waiver of rights

5,500

10,000

(e) Railroad used or authorized the use of coercion to obtain specimens

10,000

(g) Failure to meet supervisory training requirements or program of instruction not available or program not complete

9,500

17,000

(h) Urine or blood specimens provided for Federal testing were used for nonauthorized testing

5,500

10,000

219.23 Railroad policies:

(a) Failure to provide written notice of FRA test

5,500

10,000

(b) Failure to provide written notice of basis for FRA test

2,500

5,000

(c) Use of Subpart C form for other test

2,500

5,000

(d) Failure to provide educational materials

2,500

5,000

(e) Educational materials fail to explain requirements of this part and/or include required content

2,500

5,000

(f) Non-Federal provisions are not clearly described as independent authority

5,500

10,000

Subpart B—Prohibitions

219.101 Alcohol and drug use prohibited:

Employee violates prohibition(s)

19,500

25,000

219.103 Prescribed and over-the-counter drugs:

(a) Failure to train employee properly on requirements

5,500

10,000

219.104 Responsive action:

(a) Failure to remove employee from covered service immediately

19,500

25,000

(b) Failure to provide notice for removal

5,500

10,000

(c) Failure to provide prompt hearing

5,500

10,000

(d) Employee improperly returned to service

13,000

20,500

219.105 Railroad's duty to prevent violations:

(a) Employee improperly permitted to remain in covered service

19,500

25,000

(b) Failure to exercise due diligence to assure compliance with prohibition

9,500

17,000

219.107 Consequences of unlawful refusal:

(a) Failure to disqualify an employee for nine months following a refusal

13,000

20,500

(e) Employee unlawfully returned to service

13,000

20,500

Subpart C—Post-Accident Toxicological Testing

219.201 Events for which testing is required:

(a) Failure to test after qualifying event (each employee not tested is a violation)

13,000

20,500

(c)(1)(i) Failure to make good faith determination

5,500

10,000

(c)(1)(ii) Failure to provide requested decision report to FRA

2,500

5,000

(c)(2) Testing performed after nonqualifying event

9,500

17,000

219.203 Responsibilities of railroads and employees:

(a)(1)(i) and (a)(2)(i) Failure to properly test/exclude from testing

5,500

10,000

(a)(1)(ii) and (a)(2)(ii) Noncovered service employee tested

5,500

10,000

(b)(1) Delay in obtaining specimens due to failure to make every reasonable effort

5,500

10,000

(c) Independent medical facility not utilized

5,500

10,000

(d) Failure to report event or contact FRA when intervention required

2,500

5,000

219.205 Specimen collection and handling:

(a) Failure to observe requirements with respect to specimen collection, marking and handling

5,500

10,000

(b) Failure to provide properly prepared forms with specimens

2,500

5,000

(d) Failure to promptly or properly forward specimens

5,500

10,000

219.207 Fatality:

(a) Failure to test

13,000

20,500

(a)(1) Failure to ensure timely collection and shipment of required specimens

2,500

5,000

(b) Failure to request assistance when necessary

5,500

10,000

219.209 Reports of tests and refusals:

(a)(1) Failure to provide telephonic report

2,500

5,000

(b) Failure to provide written report of refusal to test

2,500

5,000

(c) Failure to maintain report explaining why test not conducted within four hours

2,500

5,000

219.211 Analysis and follow-up:

(c) Failure of MRO to report review of positive results to FRA

5,500

10,000

Subpart D—Testing for Cause

219.300 Mandatory reasonable suspicion testing:

(a)(1) Failure to test when reasonable suspicion criteria met

19,500

25,000

(a)(2) Tested when reasonable suspicion criteria not met

9,500

17,000

219.301 Testing for reasonable cause:

(a) Event did not occur during daily tour

5,500

10,000

(b)(2) Tested when accident/incident criteria not met

9,500

17,000

(b)(3) Tested when operating rules violation criteria not met

9,500

17,000

219.302 Prompt specimen collection:

(a) Specimen collection not conducted promptly

5,500

10,000

Subpart E—Identification of Troubled Employees

219.401 Requirement for policies:

(b) Failure to publish and/or implement required policy

5,500

10,000

219.407 Alternate policies:

(c) Failure to file agreement or other document or provide timely notice or revocation

5,500

10,000

Subpart F—Pre-Employment Tests

219.501 Pre-employment tests:

(a) Failure to perform pre-employment drug test before first time employee performs covered service

13,000

20,500

Subpart G—Random Testing Programs

219.601 Railroad random drug programs:

(a)(1) Failure to file a random program

13,000

20,500

(a)(2) Failure to file amendment to program

5,500

10,000

(b) Failure to meet random testing criteria

9,500

17,000

(b)(1)(i) Failure to use a neutral selection process

9,500

17,000

(b)(2)(i)(B) Testing not spread throughout the year

5,500

10,000

(b)(3) Testing not distributed throughout the day

5,500

10,000

(b)(4) Advance notice provided to employee

9,500

17,000

(b)(6) Testing when employee not on duty

5,500

10,000

219.601 A Failure to include covered service employee in pool

9,500

17,000

219.602 Administrator's determination of drug testing rate:

(f) Total number of tests below minimum random drug testing rate

13,000

20,500

219.603 Participation in drug testing:

Failure to document reason for not testing selected employee

5,500

10,000

219.607 Railroad random alcohol programs:

(a)(1) Failure to file a random alcohol program

13,000

20,500

(a)(2) Failure to file amendment to program

5,500

10,000

(b) Failure to meet random testing criteria

9,500

17,000

(b)(1) Failure to use a neutral selection process

9,500

17,000

(b)(5) Testing when employee not on duty

5,500

10,000

(b)(8) Advance notice provided to employee

9,500

17,000

219.607 A Failure to include covered service employee in pool

9,500

17,000

219.608 Administrator's determination of random alcohol testing rate:

(e) Total number of tests below minimum random alcohol testing rate

13,000

20,500

219.609 Participation in alcohol testing: Failure to document reason for not testing selected employee

5,500

10,000

Subpart H—Drug and Alcohol Testing Procedures

219.701 Standards for drug and alcohol testing:

(a) Failure to comply with part 40 procedures in Subpart B, D, F, or G testing

5,500

10,000

(b) Testing not performed in a timely manner

5,500

10,000

Subpart I—Annual Report

219.800 Reporting alcohol and drug misuse prevention program results in a management information system:

(a) Failure to submit MIS report on time

5,500

10,000

(c) Failure to submit accurate MIS report

5,500

10,000

(d) Failure to include required data

5,500

10,000

Subpart J—Recordkeeping Requirements

219.901 Retention of Alcohol Testing Records:

(a) Failure to maintain records required to be kept by part 40

5,500

10,000

(b) Failure to maintain records required to be kept for five years

5,500

10,000

(c) Failure to maintain records required to be kept for two years

5,500

10,000

219.903 Retention of Drug Testing Records:

(a) Failure to maintain records required to be kept by part 40

5,500

10,000

(b) Failure to maintain records required to be kept for five years

5,500

10,000

(c) Failure to maintain records required to be kept for two years

5,500

10,000

219.905 Access to facilities and records:

(a) Failure to release records in this subpart in accordance with part 40

9,500

17,000

(b) Failure to permit access to facilities

9,500

17,000

(c) Failure to provide access to results of railroad alcohol and drug testing programs

9,500

17,000

1

A penalty may be assessed against an individual only for a willful violation. The FRA Administrator reserves the right to assess a penalty of up to $100,000 for any violation, including ones not listed in this penalty schedule, where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 219. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 220—[AMENDED]

15. The authority citation for part 220 continues to read as follows:

Authority:

49 U.S.C. 20102-20103, 20107, 21301-21302, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

16. Appendix C to part 220 is revised to read as follows:

Appendix C to Part 220—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart A—General

220.9 Requirements for trains

$13,000

$20,500

220.11 Requirements for roadway workers

13,000

20,500

Subpart B—Radio and Wireless Communication Procedures

220.21 Railroad operating rules; radio communications:

(a)

9,500

17,000

(b)

9,500

17,000

220.23 Publication of radio information

9,500

17,000

220.25 Instruction of employees

9,500

17,000

220.27 Identification

9,500

17,000

220.29 Statement of letters and numbers

9,500

17,000

220.31 Initiating a transmission

5,500

10,000

220.33 Receiving a transmission

9,500

17,000

220.35 Ending a transmission

9,500

17,000

220.37 Voice test

13,000

20,500

220.38 Failed equipment

2,500

5,000

220.39 Continuous monitoring

9,500

17,000

220.41 [Reserved]

220.43 Communication consistent with the rules

13,000

20,500

220.45 Complete communications

13,000

20,500

220.47 Emergencies

19,500

25,000

220.49 Switching, backing or pushing

19,500

25,000

220.51 Signal indications

13,000

20,500

220.61 Radio transmission of mandatory directives

19,500

25,000

1

A penalty may be assessed against and only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 220. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 221—[AMENDED]

17. The authority citation for part 221 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

18. Appendix C to part 221 is revised to read as follows:

Appendix C to Part 221—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Marking Devices

221.13 Marking device display:

(a) Device not present, not displayed, or not properly illuminated

$9,500

$17,000

(d) Device too close to rail

2,500

5,000

221.14 Marking devices: Use of unapproved or noncomplying device

5,500

10,000

221.15 Marking device inspection:

(a) Failure to inspect at crew change

5,500

10,000

(b), (c) Improper inspection

5,500

10,000

221.16 Inspection procedure:

(a) Failure to obtain protection

9,500

17,000

(b) Improper protection

5,500

10,000

221.17 Movement of defective equipment

(1)

(1)

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A. Where the conditions for movement of defective equipment set forth in § 221.17 of this part are not met, the movement constitutes a violation of § 221.13 of this part.

2

The penalty schedule uses section numbers from 49 CFR part 221. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 222—[AMENDED]

19. The authority citation for part 222 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107, 20153, 21301, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

20. Appendix H to part 222 is revised to read as follows:

Appendix H to Part 222—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Use of Locomotive Horns

222.21 Use of locomotive horn:

(a) Failure to sound horn at grade crossing

$9,500

$17,000

Failure to sound horn in proper pattern

5,500

10,000

(b) Failure to sound horn at least 15 seconds and less than

1/4

mile before crossing

9,500

17,000

Sounding the horn more than 25 seconds before the crossing

5,500

10,000

Sounding the horn more than

1/4

mile in advance of crossing

5,500

10,000

Subpart C—Exceptions to the Use of the Locomotive Horn

Silenced Horns at Individual Crossings

222.33 Failure to sound horn when conditions of § 222.33 are not met

9,500

17,000

Silenced Horns at Groups of Crossings—Quiet Zones

222.45 Routine sounding of the locomotive horn at a quiet zone crossing

5,500

10,000

222.49(b) Failure to provide Grade Crossing Inventory Form information

2,500

5,000

222.59(d) Routine sounding of the locomotive horn at a grade crossing equipped with wayside horn

2,500

5,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 222. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 223—[AMENDED]

21. The authority citation for part 223 continues to read as follows:

Authority:

49 U.S.C. 20102-03, 20133, 20701-20702, 21301-02, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

22. Appendix B to part 223 is revised to read as follows:

Appendix B to Part 223—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Specific Requirements

223.9 New or rebuilt equipment:

(a) Locomotives

$5,500

$10,000

(b) Cabooses

5,500

10,000

(c) Passenger cars

5,500

10,000

223.11(c) Existing locomotives

5,500

10,000

(d) Repair of window

2,500

5,000

223.13(c) Existing cabooses

5,500

10,000

(d) Repair of window

2,500

5,000

223.15(c) Existing passenger cars

5,500

10,000

(d) Repair of window

2,500

5,000

223.17 Identification of units

2,500

5,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 223. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 224—[AMENDED]

23. The authority citation for part 224 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107, 20148 and 21301; 28 U.S.C. 2461; and 49 CFR 1.49.

24. Appendix A to part 224 is revised to read as follows:

Appendix A to Part 224—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Application, Inspection, and Maintenance of Retroreflective Material

224.103 Characteristics of retroreflective sheeting:

(a)-(d) Retroreflective sheeting applied does not meet the requirements of § 224.103

$5,500

$10,000

224.105 Sheeting dimensions and quantity:

(a) Failure to apply minimum amount of retroreflective sheeting in accordance with Table 2

5,500

10,000

(b) Applying retroreflective sheeting of wrong dimensions

5,500

10,000

224.106 Location of retroreflective sheeting:

(a), (b) Applying retroreflective sheeting in nonconforming pattern

5,500

10,000

224.107 Implementation schedule:

(a)(1), (b)(1) Failure to apply retroreflective sheeting to new freight car or locomotive before equipment placed in service

5,500

10,000

(a)(2), (b)(2), (b)(4) Failure to apply retroreflective sheeting to existing freight car or locomotive in accordance with minimum schedule of paragraphs (a)(2), (b)(2), or (b)(4)

5,500

10,000

224.109 Inspection, repair, and replacement:

(1) Failure to perform inspection

5,500

10,000

(2) Failure to properly notify car owner of defect

5,500

10,000

(3) Failure to retain written notification of defect for two years

2,500

5,000

(4) Failure to repair defect after notification

5,500

10,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 224. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 225—[AMENDED]

25. The authority citation for part 225 continues to read as follows:

Authority:

49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

26. Appendix A to part 225 is revised to read as follows:

Appendix A to Part 225—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

225.9 Telephonic reports of certain accidents/incidents

$9,500

$17,000

225.11 Reports of accidents/incidents

5,500

10,000

225.12(a): Failure to file Railroad Employee Human Factor Attachment properly:

(1) Employee identified

2,500

5,000

(2) No employee identified

2,500

5,000

225.12(b):

(1) Failure to notify employee properly

5,500

10,000

(2) Notification of employee not involved in accident

2,500

5,000

225.12(c): Failure of employing railroad to provide requested information properly

2,500

5,000

225.12(d):

(1) Failure to revise report when identity becomes known

2,500

5,000

(2) Failure to notify after late identification

5,500

10,000

225.12(f)(1): Submission of notice if employee dies as result of the reported accident

2,500

5,000

225.12(g): Willfully false accident statement by employee

20,500

225.13 Late reports

2,500

5,000

225.17(d) Alcohol or drug involvement

9,500

17,000

225.23 Joint operations

(1)

(1)

225.25 Recordkeeping

5,500

10,000

225.27 Retention of records

2,500

5,000

225.33:

(1) Failure to adopt the Internal Control Plan

9,500

17,000

(2) Inaccurate reporting due to failure to comply with the Internal Control Plan

9,500

17,000

(3) Failure to comply with the intimidation/harassment policy in the Internal Control Plan

9,500

17,000

225.35 Access to records and reports

5,500

10,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A. A failure to comply with § 225.23 constitutes a violation of § 225.11. For purposes of §§ 225.25 and 225.27 of this part, each of the following constitutes a single act of noncompliance: (1) A missing or incomplete log entry for a particular employee's injury or illness; or (2) a missing or incomplete log record for a particular rail equipment accident or incident. Each day a violation continues is a separate offense.

2

The penalty schedule uses section numbers from 49 CFR part 225. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 227—[AMENDED]

27. The authority citation for part 227 continues to read as follows:

Authority:

49 U.S.C. 20103, 20103 (note), 20701-20702; and 49 CFR 1.49.

28. Appendix G to part 227 is revised to read as follows:

Appendix G to Part 227—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart A—General

227.3 Application:

(b)(4) Failure to meet the required conditions for foreign railroad operations

$5,500

$10,000

Subpart B—Occupational Noise Exposure for Railroad Operating Employees

227.103 Noise monitoring program:

(a) Failure to develop and/or implement a noise monitoring program

19,500

25,000

(b) Failure to use sampling as required

5,500

10,000

(c) Failure to integrate sound levels and/or make noise measurements as required

5,500

10,000

(d) Failure to repeat noise monitoring where required

5,500

10,000

(e) Failure to consider work environments where hearing protectors may be omitted

5,500

10,000

(f) Failure to provide opportunity to observe monitoring

2,500

5,000

(g) Reporting of monitoring results:

(1) Failure to notify monitored employee

5,500

10,000

(2) Failure to post results as required

5,500

10,000

227.105 Protection of employees:

(a) Failure to provide appropriate protection to exposed employee

19,500

25,000

(b) Failure to observe and document sources of noise exposure

5,500

10,000

(c)-(d) Failure to protect employee from impermissible continuous noise

13,000

20,500

227.107 Hearing conservation program:

(a) Failure to administer an HCP

19,500

25,000

(b) Failure to compute noise exposure as required

9,500

17,000

227.109 Audiometric testing program:

(a) Failure to establish and/or maintain an audiometric testing program

19,500

25,000

(b) Failure to provide audiometric test at no cost to employee

5,500

10,000

(c) Failure to have qualified person perform audiometric test

5,500

10,000

(d) [Reserved]

(e) Failure to establish baseline audiogram as required

9,500

17,000

(f) Failure to offer and/or require periodic audiogram as required

5,500

10,000

(g) Failure to evaluate audiogram as required

5,500

10,000

(h) Failure to comply with follow-up procedures as required

5,500

10,000

(i) Failure to use required method for revising baseline audiograms

5,500

10,000

227.111 Audiometric test requirements:

(a) Failure to conduct test as required

5,500

10,000

(b) Failure to use required equipment

5,500

10,000

(c) Failure to administer test in room that meets requirements

5,500

10,000

(d) Complete failure to calibrate

13,000

20,500

(1) Failure to perform daily calibration as required

2,500

5,000

(2) Failure to perform annual calibration as required

2,500

5,000

(3) Failure to perform exhaustive calibration as required

2,500

5,000

227.115 Hearing protectors (HP):

(a) Failure to comply with general requirements

9,500

17,000

(b) Failure to make HP available as required

5,500

10,000

(c) Failure to require use of HP at action level

13,000

20,500

(d) Failure to require use of HP at TWA of 90 dB(A)

13,000

20,500

227.117 Hearing protector attenuation:

(a) Failure to evaluate attenuation as required

2,500

5,000

(b)-(c) Failure to attenuate to required level

2,500

5,000

(d) Failure to reevaluate attenuation

2,500

5,000

227.119 Training program:

(a) Failure to institute a training program as required

9,500

17,000

(b) Failure to provide training within required time frame

2,500

5,000

(c) Failure of program and/or training materials to include required information

2,500

5,000

227.121 Recordkeeping:

(a) General Requirements:

(1) Failure to make record available as required

2,500

5,000

(3) Failure to transfer or retain records as required

2,500

5,000

(b)-(f) Records:

(1) Failure to maintain record or failure to maintain record with required information

2,500

5,000

(2) Failure to retain records for required time period

2,500

5,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 227. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 228—[AMENDED]

29. The authority citation for part 228 continues to read as follows:

Authority:

49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. A, Pub. L. 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49; and 49 U.S.C. 103.

30. In appendix A to part 228, the ninth paragraph below the heading “General Provisions”, entitled “

Penalty”

is revised to read as follows:

Appendix A to Part 228—Requirements of the Hours of Service Act: Statement of Agency Policy and Interpretation

General Provisions

Penalty.

* * * Effective October 9, 2007, the ordinary maximum penalty of $11,000 was raised to $16,000 as required under law. Effective March 2, 2009, the minimum penalty, ordinary maximum penalty and aggravated maximum penalty were raised again. The minimum penalty was increased from $550 to $650 pursuant to the law's requirement. Meanwhile, the ordinary maximum penalty was increased from $16,000 to $25,000 and the aggravated maximum was increased from $27,000 to $100,000 in accordance with the authority provided under the Rail Safety Improvement Act of 2008. FRA's guideline civil penalty amounts for violations of the substantive hours of service statute are $9,500 for an ordinary violation of the hours of service statute and $17,000 for a willful violation of the hours of service statute. The Administrator reserves the right to assess a penalty of up to $100,000 for a violation where circumstances warrant.

See

49 CFR part 209, appendix A.

31. Appendix B to part 228 is revised to read as follows:

Appendix B to Part 228—Schedule of Civil Penalties

1

Section

2

Violation

Willful

violation

Subpart B—Records and Reporting

228.9 Railroad records

$5,500

$10,000

228.11 Hours of duty records

2,500

5,000

Error on record reflect pattern of inaccurate recordkeeping

13,000

20,500

228.17 Dispatcher's record

2,500

5,000

228.19 Monthly reports of excess service

9,500

17,000

Subpart D—Electronic Recordkeeping

228.203 Program components

9,500

17,000

228.205 Access to electronic records

9,500

17.000

228.207 Training

5,500

10,000

1

A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant.

See

49 CFR part 209, appendix A.

2

The penalty schedule uses section numbers from 49 CFR part 228. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

PART 229—[AMENDED]

32. The authority citation for part 229 continues to read as follows:

Authority:

49 U.S.C. 20102-20103, 20107, 20133, 20137-20138, 20143, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49(c), (m).

33. Appendix B to part 229 is revised to read as follows:

Appendix B to Part 229—Schedule of Civil Penalties

1

Section

2

Violation

Willful violation

Subpart A—General

229.7 Prohibited acts: Safety deficiencies not governed by specific regulations: To be assessed on relevant facts

$2,500-13,000

$5,000-20,500

229.9 Movement of noncomplying locomotives

(

1

)

(

1

)

229.11 Locomotive identification

2,500

5,000

229.13 Control of locomotives

9,500

17,000

229.17 Accident reports

15,500

10,000

219.19 Prior waivers

(

1

)

(

1

)

Subpart B—Inspection and Tests

229.21 Daily inspection:

(a)(b):

(1) Inspection overdue

5,500

10,000

(2) Inspection report not made, improperly executed, or not retained

2,500

5,000

(c) Inspection not performed by a qualified person

2,500

5,000

229.23 Periodic inspection General

(a)(b):

(1) Inspection overdue

5,500

10,000

(2) Inspection performed improperly or at a location where the underneath portion cannot be safely inspected

5,500

10,000

(c)(d):

(1) Form missing

2,500

5,000

(2) Form not properly displayed

2,500

5,000

(3) Form improperly executed

2,500

5,000

(e) Replace Form FRA F 6180-49A by April 2

2,500

5,000

(f) Secondary record of the information reported on Form FRA F 6180.49A

2,500

5,000

229.25:

(a) through (e)(4) Tests: Every periodic inspection

5,500

10,000

(e)(5) Ineffective maintenance

13,000

20,500

229.27 Annual tests

5,500

10,000

229.29 Biennial tests

5,500

10,000

229.31:

(a) Biennial hydrostatic tests of main reservoirs

5,500

10,000

(b) Biennial hammer tests of main reservoirs

5,500

10,000

(c) Drilled telltale holes in welded main reservoirs

5,500

10,000

(d) Biennial tests of aluminum main reservoirs

5,500

10,000

229.33 Out-of-use credit

2,500

5,000

Subpart C—Safety Requirements

General Requirements

229.41 Protection against personal injury

9,500

17,000

229.43 Exhaust and battery gases

9,500

17,000

229.45 General condition: To be assessed based on relevant facts

2,500-13,000

5,000-20,500

Brake System

229.46 Brakes: General

9,500

17,000

229.47 Emergency brake valve

9,500

17,000

229.49 Main reservoir system:

(a)(1) Main reservoir safety valve

9,500

17,000

(2) Pneumatically actuated control reservoir

9,500

17,000

(b)(c) Main reservoir governors

9,500

17,000

229.51 Aluminum main reservoirs

9,500

17,000

229.53 Brake gauges

9,500

17,000

229.55 Piston travel

9,500

17,000

229.57 Foundation brake gear

9,500

17,000

229.59 Leakage

9,500

17,000

Draft System

229.61 Draft system

5,500

10,000

Suspension System

229.63 Lateral motion

5,500

10,000

229.64 Plain bearing

5,500

10,000

229.65 Spring rigging

5,500

10,000

229.67 Trucks

9,500

17,000

229.69 Side bearings

9,500

17,000

229.71 Clearance above top of rail

2,500

5,000

229.73 Wheel sets

9,500

17,000

229.75 Wheel and tire defects:

(a), (d) Slid flat or shelled spot(s):

(1) One spot

21/2

″ or more but less than 3″ in length

9,500

17,000

(2) One spot 3″ or more in length

13,000

20,500

(3) Two adjoining spots each of which is 2″ or more in length but less than

21/2

″ in length

9,500

17,000

(4) Two adjoining spots each of which are at least 2″ in length, if either spot is

21/2

″ or more in length

13,000

20,500

(b) Gouge or chip in flange of:

(1) More than

11/2

″ but less than

15/8

″ in length; and more than

1/2

″ but less than

5/8

″ in width

9,500

17,000

(2)

15/8

″ or more in length and

5/8

″ or more in width

13,000

20,500

(c) Broken rim

19,500

25,000

(e) Seam in tread

9,500

17,000

(f) Flange thickness of:

(1)

7/8

″ or less but more than

13/16

″

9,500

17,000

(2)

13/16

″ or less

13,000

20,500

(g) Tread worn hollow

9,500

17,000

(h) Flange height of:

(1)

11/2

″ or greater but less than

15/8

″

9,500

17,000

(2)

15/8

″ or more

13,000

20,500

(i) Tire thickness

9,500

17,000

(j) Rim thickness:

(1) Less than 1″ in road service and

3/4

″ in yard service

9,500

17,000

(2)

15/16

″ or less in road service and

11/16

″ in yard service

13,000

20,500

(k):

(1) Crack of less than 1″

9,500

17,000

(2) Crack of 1″ or more

13,000

20,500

(3) Break

19,500

25,000

(l) Loose wheel or tire

19,500

25,000

(m) Welded wheel or tire

9,500

17,000

Electrical System

229.77 Current collectors

5,500

10,000

229.79 Third rail shoes and beams

5,500

10,000

229.81 Emergency pole; shoe insulation

9,500

17,000

229.83 Insulation or grounding

13,000

20,500

229.85 Door and cover plates marked “Danger”

5,500

10,000

229.87 Hand operated switches

5,500

10,000

229.89 Jumpers; cable connections:

(a) Jumpers and cable connections; locked and guarded

9,500

17,000

(b) Condition of jumpers and cable connections

9,500

17,000

229.91 Motors and generators

9,500

17,000

Internal Combustion Equipment

229.93 Safety cut-off device

9,500

17,000

229.95 Venting

9,500

17,000

229.97 Grounding fuel tanks

9,500

17,000

229.99 Safety hangers

9,500

17,000

229.101 Engines:

(a) Temperature and pressure alarms, controls, and switches

5,500

10,000

(b) Warning notice

9,500

17,000

(c) Wheel slip/slide protection

5,500

10,000

Steam Generators

229.103 Safe working pressure; factor of safety

9,500

17,000

229.105 Steam generator number

2,500

5,000

229.107 Pressure gauge

9,500

17,000

229.109 Safety valves

9,500

17,000

229.111 Water-flow indicator

9,500

17,000

229.113 Warning notice

9,500

17,000

Cabs and Cab Equipment

229.115 Slip/slide alarms

9,500

17,000

229.117 Speed indicators

9,500

17,000

229.119 Cabs, floors, and passageways:

(a)(1) Cab set not securely mounted or braced

5,500

10,000

(2) Insecure or improper latching device

5,500

10,000

(b) Cab windows of lead locomotive

5,500

10,000

(c) Floors, passageways, and compartments

5,500

10,000

(d) Ventilation and heating arrangement

9,500

17,000

(e) Continuous barrier

9,500

17,000

(f) Containers for fuses and torpedoes

9,500

17,000

229.121 Locomotive cab noise:

(a) Performance Standards

(1) Failure to meet sound level

13,000

20,500

(2) Improper maintenance alterations

5,500

10,000

(3) Failure to comply with static test protocols

5,500

10,000

(b) Maintenance of Locomotives:

(1) Failure to maintain excessive noise report record or respond to report as required

5,500

10,000

(3) Failure to make good faith effort as required

5,500

10,000

(4) Failure to maintain record as required

2,500

5,000

229.123 Pilots, snowplows, end plates

5,500

10,000

229.125:

(a) Headlights

9,500

17,000

(d) Auxiliary lights

9,500

17,000

229.127 Cab lights

5,500

10,000

229.129 Locomotive horn:

(a) Prescribed sound levels

9,500

17,000

Arrangement of horn

9,500

17,000

(b) Failure to perform sound level test

9,500

17

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