[Federal Register Volume 75, Number 182 (Tuesday, September 21, 2010)]
[Proposed Rules]
[Pages 57598-57656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22141]
[[Page 57597]]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 209, 213, 214, et al.
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; Proposed Rule
Federal Register / Vol. 75 , No. 182 / Tuesday, September 21, 2010 /
Proposed Rules
[[Page 57598]]
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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.
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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), [email protected].
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
[[Page 57599]]
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:
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Severity level (explained in the Ordinary Willful
Initial Proposal and below) violations violations
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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
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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.\1\ 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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\1\ 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.
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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,
[[Page 57600]]
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.\2\ With this New Proposal,
[[Page 57601]]
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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\2\ 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.
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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 \3\ 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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\3\ ``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 \4\:
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\4\ 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)\5\
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\5\ See 49 CFR 225.19(d).
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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 Sec. 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
[[Page 57602]]
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 \6\ 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.
---------------------------------------------------------------------------
\6\ 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:
------------------------------------------------------------------------
Ordinary Willful
Severity level under new Proposal violations 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) Damaged flange or tread (build up)--
overheated--(143) (60)
Pantograph defect (locomotive)-- Coupler retainer pin/cross key
(121) missing--(57)
Side bearing clearance Rigging down or dragging--(49)
insufficient--(86)
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
[[Page 57603]]
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
[[Page 57604]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 222.45, will not
increase the likelihood of an accident or incident.
With regard to AAR's comment on Sec. 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 Sec. 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 Sec. 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 Sec. 225.13,
and FRA has revised the proposed penalty ranking for a violation of
Sec. 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 Sec. 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 Sec.
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
[[Page 57605]]
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
[[Page 57606]]
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 Sec.
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
[[Page 57607]]
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\
------------------------------------------------------------------------
Willful
Section 2 3 Violation 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 9,500 17,000
persons to supervise certain
renewals and inspect track.........
213.9 Classes of track: Operating 19,500 25,000
speed limits.......................
213.11 Restoration or renewal of 9,500 17,000
track under traffic conditions.....
213.13 Measuring track not under 13,000 20,500
load...............................
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 13,000 20,500
limitations........................
213.59 Elevation of curved track; 13,000 20,500
runoff.............................
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 9,500 17,000
nondefective ties..............
(f) Joint ties................. 9,500 17,000
(g) Track constructed without 9,500 17,000
crossties......................
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 9,500 17,000
reports........................
(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:
[[Page 57608]]
(a) CWR installation/adjustment 13,000 20,500
procedures.....................
(b) CWR fastening requirements. 13,000 20,500
(c) CWR joint installation/ 13,000 20,500
maintenance procedures.........
(d) CWR rail temperature 13,000 20,500
requirements...................
(e) CWR alinement.............. 13,000 20,500
(f) Procedures for controlling 13,000 20,500
train speed on CWR track.......
(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 9,500 17,000
crossings, generally...............
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 13,000 20,500
faces; gage........................
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, 9,500 17,000
transition devices.................
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 19,500 25,000
individuals; general qualifications
213.307 Class of track; operating 19,500 25,000
speed limits.......................
213.309 Restoration or renewal of 19,500 25,000
track under traffic conditions.....
213.311 Measuring track not under 13,000 20,500
load...............................
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 19,500 25,000
limits.............................
213.331 Track surface............... 19,500 25,000
213.333 Automated vehicle inspection 19,500 25,000
systems............................
213.335 Crossties:
(a) Material used.............. 9,500 17,000
(b) Distribution of ties....... 13,000 20,500
(c) Sufficient number of 9,500 17,000
nondefective ties, non-concrete
(d) Sufficient number of 19,500 25,000
nondefective, concrete ties....
(e) Joint ties................. 19,500 25,000
(f) Track constructed without 19,500 25,000
crossties......................
(g) Non-defective ties 19,500 25,000
surrounding defective ties.....
(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 19,500 25,000
service............................
213.341 Inspection of new rail...... 19,500 25,000
213.343 Continuous welded rail (a) 19,500 25,000
through (h)........................
213.345 Vehicle qualification 19,500 25,000
testing (a) through (b)............
(c) through (e)................ 19,500 25,000
213.347 Automotive or railroad 13,000 20,500
crossings at grade.................
213.349 Rail end mismatch........... 13,000 20,500
213.351(a) Rail joints.............. 19,500 25,000
[[Page 57609]]
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, 19,500 25,000
transition devices.................
213.355 Frog guard rails and guard 13,000 20,500
faces; gage........................
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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Bridge Worker Safety
Standards
214.103 Fall protection:
(i) Failure to provide fall $13,000 $20,500
protection.....................
(ii) Failure to use fall 19,500 25,000
protection.....................
214.105 Standards and practices:
(a) General:
(1) Fall protection used for 9,500 17,000
other purposes.............
(2) Failure to remove from 9,500 17,000
service....................
(3) Failure to protect from 9,500 17,000
deterioration..............
(4) Failure to inspect and 13,000 20,500
remove.....................
(5) Failure to train........ 13,000 20,500
(6) Failure to provide for 13,000 20,500
prompt rescue..............
(7) Failure to prevent 9,500 17,000
damage.....................
(8) Failure to use proper 9,500 17,000
connectors.................
(9) Failure to use proper 9,500 17,000
anchorages.................
(b) Fall arrest system:
(1)-(17) Failure to provide 9,500 17,000
conforming equipment.......
(c) Safety net systems:
(1) Failure to install close 9,500 17,000
to workplace...............
(2) Failure to provide fall 13,000 20,500
arrest if over 30 feet.....
(3) Failure to provide for 13,000 20,500
unobstructed fall..........
(4) Failure to test......... 9,500 17,000
(5) Failure to use proper 9,500 17,000
equipment..................
(6) Failure to prevent 13,000 20,500
contact with surface below.
(7) Failure to properly 13,000 20,500
install....................
(8) Failure to remove 13,000 20,500
defective nets.............
(9) Failure to inspect...... 13,000 20,500
(10) Failure to remove 5,500 10,000
objects....................
(11)-(13) Failure to use 9,500 17,000
conforming equipment.......
214.107 Working over water:
(a)(i) Failure to provide life 13,000 20,500
vest...........................
(ii) Failure to use life 13,000 20,500
vest.......................
(c) Failure to inspect.......... 9,500 17,000
(e)(i) Failure to provide ring 13,000 20,500
buoys..........................
[[Page 57610]]
(ii) Failure to use ring ................ 17,000
buoys......................
(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 13,000 20,500
conforming equipment...........
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 9,500 17,000
conforming equipment...........
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 9,500 17,000
equipment......................
(c) Use of defective equipment.. 9,500 17,000
(d) Failure to provide for 9,500 17,000
corrective lenses..............
Subpart C--Roadway Worker Protection
Rule
214.303 Railroad on-track safety
programs, generally:
(a) Failure of a railroad to 19,500 25,000
implement an On-track Safety
Program........................
(b) On-track Safety Program of a 9,500 17,000
railroad includes no internal
monitoring procedure...........
214.305 Compliance Dates:
Failure of a railroad to comply 9,500 17,000
by the specified dates.........
214.307 Review and approval of
individual on-track safety programs
by FRA:
(a)(i) Failure to notify FRA of 2,500 5,000
adoption of On-track Safety
Program........................
(ii) Failure to designate 2,500 5,000
primary person to contact
for program review.........
214.309 On-track safety program
documents:
(1) On-track Safety Manual not 9,500 17,000
provided to prescribed
employees......................
(2) On-track Safety Program 5,500 10,000
documents issued in fragments..
214.311 Responsibility of employers:
(b) Roadway worker required by 19,500 25,000
employer to foul a track during
an unresolved challenge........
(c) Roadway workers not provided 9,500 17,000
with written procedure to
resolve challenges of on-track
safety procedures..............
214.313 Responsibility of individual
roadway workers:
(a) Failure to follow railroad's ................ 25,000
on-track safety rules..........
(b) Roadway worker fouling a ................ 25,000
track when not necessary in the
performance of duty............
(c) Roadway worker fouling a ................ 25,000
track without ascertaining that
provision is made for on-track
safety.........................
(d) Roadway worker failing to ................ 25,000
notify employer of
determination of improper on-
track safety provisions........
214.315 Supervision and
communication:
(a) Failure of employer to 19,500 25,000
provide job briefing...........
(b) Incomplete job briefing..... 13,000 20,500
(c)(i) Failure to designate 13,000 20,500
roadway worker in charge of
roadway work group.............
(ii) Designation of more 9,500 17,000
than one roadway worker in
charge of one roadway work
group......................
(iii) Designation of non- 13,000 20,500
qualified roadway worker in
charge of roadway work
group......................
(d)(i) Failure to notify roadway 13,000 20,500
workers of on-track safety
procedures in effect...........
(ii) Incorrect information 13,000 20,500
provided to roadway workers
regarding on-track safety
procedures in effect.......
(iii) Failure to notify 13,000 20,500
roadway workers of change
in on-track safety
procedures.................
(e)(i) Failure of lone worker to 9,500 17,000
communicate with designated
employee for daily job briefing
(ii) Failure of employer to 13,000 20,500
provide means for lone
worker to receive daily job
briefing...................
214.317 On-track safety procedures,
generally:
On-track safety rules conflict 19,500 25,000
with this part.................
214.319 Working limits, generally:
(a) Nonqualified roadway worker 13,000 20,500
in charge of working limits....
(b) More than one roadway worker 13,000 20,500
in charge of working limits on
the same track segment.........
(c)(1) Working limits released 19,500 25,000
without notifying all affected
roadway workers................
(2) Working limits released 19,500 25,000
before all affected roadway
workers are otherwise
protected..................
214.321 Exclusive track occupancy:
(b) Improper transmission of 9,500 17,000
authority for exclusive track
occupancy......................
(b)(1) Failure to repeat 9,500 17,000
authority for exclusive track
occupancy to issuing employee..
(2) Failure to retain 5,500 10,000
possession of written
authority for exclusive
track occupancy............
(3) Failure to record 13,000 20,500
authority for exclusive
track occupancy when issued
(c) Limits of exclusive track 19,500 25,000
occupancy not identified by
proper physical features.......
(d)(1) Movement authorized into 19,500 25,000
limits of exclusive track
occupancy without authority of
roadway worker in charge.......
(2) Movement authorized 19,500 25,000
within limits of exclusive
track occupancy without
authority of roadway worker
in charge..................
(3) Movement within limits 19,500 25,000
of exclusive track
occupancy exceeding
restricted speed without
authority of roadway worker
in charge..................
[[Page 57611]]
214.323 Foul time:
(a) Foul time authority 19,500 25,000
overlapping movement authority
of train or equipment..........
(b) Failure to repeat foul time 9,500 17,000
authority to issuing employee..
214.325 Train coordination:
(a) Train coordination limits 13,000 20,500
established where more than one
train is authorized to operate.
(b)(1) Train coordination 9,500 17,000
established with train not
visible to roadway worker at
the time.......................
(2) Train coordination 9,500 17,000
established with moving
train......................
(3) Coordinated train moving 13,000 20,500
without authority of
roadway worker in charge...
(4) Coordinated train 13,000 20,500
releasing movement
authority while working
limits are in effect.......
214.327 Inaccessible track:
(a) Improper control of entry to 13,000 20,500
inaccessible track.............
(5) Remotely controlled 13,000 20,500
switch not properly secured
by control operator........
(b) Train or equipment moving 13,000 20,500
within inaccessible track
limits without permission of
roadway worker in charge.......
(c) Unauthorized train or 13,000 20,500
equipment located within
inaccessible track limits......
214.329 Train approach warning
provided by watchmen/lookouts:
(a) Failure to give timely 19,500 25,000
warning of approaching train...
(b)(1) Failure of watchman/ 13,000 20,500
lookout to give full attention
to detecting approach of train.
(2) Assignment of other 19,500 25,000
duties to watchman/lookout.
(c) Failure to provide proper 9,500 17,000
warning signal devices.........
(d) Failure to maintain position 13,000 20,500
to receive train approach
warning signal.................
(e) Failure to communicate 13,000 20,500
proper warning signal..........
(f)(1) Assignment of 13,000 20,500
nonqualified person as watchman/
lookout........................
(2) Nonqualified person 9,500 17,000
accepting assignment as
watchman/lookout...........
(g) Failure to properly equip a 9,500 17,000
watchman/lookout...............
214.331 Definite train location:
(a) Definite train location 13,000 20,500
established where prohibited...
(b) Failure to phase out 9,500 17,000
definite train location by
required date..................
(d)(1) Train location 13,000 20,500
information issued by
unauthorized person............
(2) Failure to include all 19,500 25,000
trains operated on train
location list..............
(5) Failure to clear track 13,000 20,500
10 minutes before earliest
departure time of train at
last station prior to work
location, or failure to
remain clear until such
train passed...............
(6) Train passing station 19,500 25,000
before time shown in train
location list..............
(7) Nonqualified person 13,000 20,500
using definite train
location to establish on-
track safety...............
214.333 Informational line-ups of
trains:
(a) Informational line-ups of 19,500 25,000
trains used for on-track safety
where prohibited...............
(b) Informational line-up 19,500 25,000
procedures inadequate to
protect roadway workers........
(c) Failure to discontinue 9,500 17,000
informational line-ups by
required date..................
214.335 On-track safety procedures
for roadway work groups:
(a) Failure to provide on-track 19,500 25,000
safety for a member of a
roadway work group.............
(b) Member of roadway work group 13,000 20,500
fouling a track without
authority of employee in charge
(c) Failure to provide train 19,500 25,000
approach warning or working
limits on adjacent track where
required.......................
214.337 On-track safety procedures
for lone workers:
(b) Failure by employer to 19,500 25,000
permit individual discretion in
use of individual train
detection......................
(c)(1) Individual train 13,000 20,500
detection used by nonqualified
employee.......................
(2) Use of individual train 19,500 25,000
detection while engaged in
heavy or distracting work..
(3) Use of individual train 19,500 25,000
detection in controlled
point or manual
interlocking...............
(4) Use of individual train 19,500 25,000
detection with insufficient
visibility.................
(5) Use of individual train 19,500 25,000
detection with interfering
noise......................
(6) Use of individual train 19,500 25,000
detection while a train is
passing....................
(d) Failure to maintain access 19,500 25,000
to place of safety clear of
live tracks....................
(e) Lone worker unable to 19,500 25,000
maintain vigilant lookout......
(f)(1) Failure to prepare 5,500 10,000
written statement of on-track
safety.........................
(2) Incomplete written 2,500 5,000
statement of on-track
safety.....................
(3) Failure to produce 2,500 5,000
written statement of on-
track safety to FRA........
214.339 Audible warning from trains:
(a) Failure to require audible 9,500 17,000
warning from trains............
(b) Failure of train to give 9,500 17,000
audible warning where required.
214.341 Roadway maintenance
machines:
(a) Failure of on-track safety 19,500 25,000
program to include provisions
for safety near roadway
maintenance machines...........
(b) Failure to provide operating 9,500 17,000
instructions...................
(1) Assignment of 13,000 20,500
nonqualified employee to
operate machine............
(2) Operator unfamiliar with 13,000 20,500
safety instructions for
machine....................
(3) Roadway worker working 13,000 20,500
with unfamiliar machine....
(c) Roadway maintenance machine 19,500 25,000
not clear of passing trains or
operation of machine component
closer than four feet to
adjacent track without
procedural instructions........
214.343 Training and qualification,
general:
(a)(1) Assignment of roadway 13,000 20,500
worker duties to employee that
is not trained or qualified....
(a)(2) Acceptance of roadway 13,000 20,500
worker assignment by employee
that is not trained or
qualified......................
(b)(1) Failure to provide 13,000 20,500
initial training...............
[[Page 57612]]
(b)(2) Failure to provide annual 9,500 17,000
training.......................
(c) Failure to provide training 13,000 20,500
to employee other than a
roadway worker on functions
related to on-track safety.....
(d)(1) Failure to maintain 9,500 17,000
records of qualifications......
(2) Incomplete records of 5,500 10,000
qualifications.............
(3) Failure to provide 2,500 5,000
records of qualifications
to FRA.....................
214.345 Training for all roadway \3\ \3\
workers............................
214.347 Training and qualification \3\ \3\
for lone workers...................
214.349 Training and qualification \3\ \3\
of watchmen/lookouts...............
214.351 Training and qualification \3\ \3\
of flagmen.........................
214.353 Training and qualification \3\ \3\
of roadway workers who provide on-
track safety for roadway work
groups.............................
214.355 Training and qualification \3\ \3\
in on-track safety for operators of
roadway maintenance machines.......
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 ................ 20,500
notify employer that the
machine or vehicle does not
comply with this subpart or has
a condition inhibiting safe
operation......................
(b) Roadway worker required to 19,500 25,000
operate machine or vehicle when
good-faith challenge not
resolved.......................
(c) Failure of employer to have 19,500 25,000
or follow written procedures to
resolve good-faith challenges..
214.505 Required environmental
control and protection systems for
new on-track roadway maintenance
machines with enclosed cabs:
(a) Failure to equip new 19,500 25,000
machines with required systems.
(b) Failure of new or existing 19,500 25,000
machines to protect employees
from exposure to air
contaminants...................
(c) Failure of employer to 9,500 17,000
maintain required list of
machines or make list available
(d) Removal of ``designated 9,500 17,000
machine'' from list before
retired or sold................
(e) Personal respiratory 19,500 25,000
protective equipment not
provided when ventilation
system fails...................
(f) Personal respiratory 19,500 25,000
protective equipment fails to
meet required standards........
(g) Other new machines with 19,500 25,000
enclosed cabs not equipped with
operable heating and
ventilation systems............
(h) Nonenclosed station not 19,500 25,000
equipped with covering, where
feasible.......................
214.507 Required safety equipment
for new on-track roadway
maintenance machines:
(a)(1)-(5) Failure to equip new 19,500 25,000
machine or provide protection
as specified in these
paragraphs.....................
(a)(6)-(7) Failure to equip new 13,000 20,500
machine with first-aid kit or
operative and charged fire
extinguisher...................
(b) Position for operator to 19,500 25,000
stand not properly equipped to
provide safe and secure
position.......................
(c) New machine not equipped 13,000 20,500
with accurate speed indicator,
as required....................
(d) As-built light weight not 13,000 20,500
conspicuously displayed on new
machine........................
214.509 Required visual illumination 13,000 20,500
and reflective devices for new on-
track roadway maintenance machines.
214.511 Required audible warning 19,500 25,000
devices for new on-track roadway
maintenance machines...............
214.513 Retrofitting of existing on-
track roadway maintenance machines;
general:
(a) Failure to provide safe and 19,500 25,000
secure position and protection
from moving parts inside cab
for each roadway worker
transported on machine.........
(b) Horn or other audible 13,000 20,500
warning device is missing,
inoperable, or has noncompliant
triggering mechanism...........
(c) Illumination device or 13,000 20,500
portable light missing,
inoperable, improperly secured,
or incapable of illuminating
track as required..............
214.515 Overhead covers for existing
on-track roadway maintenance
machines:
(a) Failure to repair, 19,500 25,000
reinstall, or maintain overhead
cover as required..............
(b) Failure to provide written 9,500 17,000
response to operator's request
within 60 days.................
214.517 Retrofitting of existing on-
track roadway maintenance machines
manufactured on or after January 1,
1991:
(a) Failure to equip machine 19,500 25,000
with change-of-direction alarm
or rearward viewing device.....
(b) Failure to equip machine 19,500 25,000
with operative heater..........
(c) Failure to display light 13,000 20,500
weight of machine as required..
(d) Failure to equip machine 19,500 25,000
with reflective material,
reflective device, or operable
brake lights...................
(e) Failure to install or 19,500 25,000
replace safety glass as
required.......................
(f) Failure to equip machine 19,500 25,000
with turntable restraint device
or warning light as required...
214.518 Safe and secure position for 19,500 25,000
riders.............................
214.519 Floors, decks, stairs, and 19,500 25,000
ladders for on-track roadway
maintenance machines...............
214.521 Flagging equipment for on- 13,000 20,500
track roadway maintenance machines
and hi-rail vehicles...............
214.523 Hi-rail vehicles:
(a) Failure to inspect hi-rail 19,500 25,000
gear annually..................
(b) Failure to maintain 9,500 17,000
inspection record or make
record available to FRA........
(c) Failure to equip new hi-rail 13,000 20,500
vehicle with alarm and light or
beacon as required.............
(d)(2) Failure of operator to 9,500 17,000
tag, date, or report
noncomplying condition.........
(d)(3) Failure to repair or 13,000 20,500
replace noncomplying alarms,
lights, or beacons as required.
214.525 Towing with on-track roadway 19,500 25,000
maintenance machines or hi-rail
vehicles...........................
214.527 On-track roadway maintenance
machines; inspection for compliance
and schedule for repairs:
(a) Failure of operator to check 9,500 17,000
on-track roadway maintenance
machine for compliance.........
(b) Failure of operator to tag, 9,500 17,000
date, or report noncomplying
condition......................
[[Page 57613]]
(c)(1)-(4) Failure to meet 13,000 20,500
requirements for operating on-
track roadway maintenance
machine with noncomplying
headlights, work lights, horn,
fire extinguisher, alarm,
warning light, or beacon.......
(c)(5) Failure to repair or 19,500 25,000
replace defective or missing
operator's seat within required
time period....................
214.529 In-service failure of 19,500 25,000
primary braking system.............
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 13,000 20,500
necessary part(s), make
repair(s), or remove on-track
roadway maintenance machine or
hi-rail vehicle from service as
required.......................
(d) Failure to maintain record 9,500 17,000
or make record available to FRA
------------------------------------------------------------------------
\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 Sec. 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\
------------------------------------------------------------------------
Willful
Section \2\ Violation Violation
------------------------------------------------------------------------
Subpart A--General
215.9 Movement for repair: ................ ................
(a), (c)....................... \1\ \1\
(b)............................ $5,500 $10,000
215.11 Designation of qualified 9,500 17,000
persons............................
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 9,500 17,000
than \13/16\''.............
(2) \13/16\'' or less....... 13,000 20,500
(b) Flange height of:
(1) 1\1/2\'' or greater but 9,500 17,000
less than \15/8\''.........
(2) \15/8\'' or more........ 13,000 20,500
(c) Rim thickness of:
(1) \11/16\'' or less but 9,500 17,000
more than \5/8\''..........
(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 5,500 10,000
less than 1\5/8\'' in
length; and \1/2\'' or more
but less than \5/8\'' in
width......................
(2) \15/8\'' or more in 9,500 17,000
length; or \5/8\'' or more
in width...................
(f) Slid flat or shelled
spot(s):
(1)(i) One spot more than 5,500 10,000
2\1/2\'', but less than
3'', in length.............
(ii) One spot 3'' or 9,500 17,000
more in length.........
(2)(i) Two adjoining spots 5,500 10,000
each of which is more than
2'' but less than 2\1/2\''
in length..................
(ii) Two adjoining spots 9,500 17,000
both of which are at
least 2'' in length, if
either spot is 2\1/2\''
or more in length......
(g) Loose on axle............... 19,500 25,000
(h) Overheated; discoloration
extending:
(1) More than 4'' but less 9,500 17,000(
than 4\1/2\''..............
(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
[[Page 57614]]
(b) Gouge in surface that is 5,500 10,000
between the wheel seats and is
more than \1/8\'' in depth.....
(c) End collar with crack or 9,500 17,000
break..........................
(d) Journal overheated......... 19,500 25,000
(e) Journal surface has: A 9,500 17,000
ridge; a depression; a
circumferential score;
corrugation; a scratch; a
continuous streak; pitting;
rust; or etching...............
215.107 Defective plain bearing box:
general:
(a)(1) No visible free oil 5,500 10,000
(2) Lubricating pad dry (no 13,000 20,500
expression of oil observed
when pad is compressed)....
(b) Box lid is missing, broken, 5,500 10,000
or open except to receive
servicing......................
(c) Contains foreign matter that 9,500 17,000
can be expected to damage the
bearing or have a detrimental
effect on the lubrication of
the journal and bearing
215.109 Defective plain bearing box:
journal lubrication system:
(a) Lubricating pad has a tear.. 5,500 10,000
(b) Lubricating pad scorched, 9,500 17,000
burned, or glazed..............
(c) Lubricating pad contains 9,500 17,000
decaying or deteriorating
fabric.........................
(d) Lubricating pad has an 9,500 17,000
exposed center core or metal
parts contacting the journal...
(e) Lubricating pad is missing 13,000 20,500
or not in contact with the
journal........................
215.111 Defective plain bearing:
(a) Missing..................... 19,500 25,000
(b) Bearing liner is loose or 9,500 17,000
has piece broken out...........
(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 9,500 17,000
position.......................
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 5,500 10,000
broken, missing or
improperly applied.....
(3) Seal is loose or 5,500 10,000
damaged, or permits leakage
of lubricant...............
(b)(1) Not inspected and tested 13,000 20,500
after derailment
(2) Not disassembled after 9,500 17,000
derailment.................
(3) Not repaired or replaced 13,000 20,500
after derailment...........
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 19,500 25,000
that is broken.................
(2)(i) Side frame or bolster 9,500 17,000
with crack of: \1/4\'' or
more, but less than 1''....
(ii) 1'' or more........ 13,000 20,500
(b) A snubbing device that is 9,500 17,000
ineffective or missing.........
(c) Side bearing(s):
(1) Assembly missing or 19,500 25,000
broken.....................
(2) In contact except by 13,000 20,500
design.....................
(3), (4) Total clearance at
one end or at diagonally
opposite sides of:
(i) More than \3/4\'' 9,500 17,000
but not more than 1''..
(ii) More than 1''...... 13,000 20,500
(d) Truck spring(s):
(1) Do not maintain travel 9,500 17,000
or load....................
(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 13,000 20,500
springs................
(e) Truck bolster-center plate 13,000 20,500
interference...................
(f) Brake beam shelf support 9,500 17,000
worn...........................
Car Bodies
215.121 Defective car body:
(a) Has less than \21/2\'' 9,500 17,000
clearance from the top of rail.
(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 9,500 17,000
than \21/2\'' in any 6'
length.....................
(c) Coupler carrier that is 9,500 17,000
broken or missing..............
(d) Car door not equipped with 19,500 25,000
operative safety hangers.......
(e)(1) Center plate not 19,500 25,000
properly secured...............
(2) Portion missing........ 9,500 17,000
(3) Broken................. 19,500 25,000
(4) Two or more cracks..... 9,500 17,000
[[Page 57615]]
(f) Broken sidesill, 9,500 17,000
crossbearer, or body bolster...
Draft System
215.123 Defective couplers:
(a) Shank bent out of alignment. 5,500 10,000
(b) Crack in highly stressed 9,500 17,000
junction area..................
(c) Coupler knuckle broken or 9,500 17,000
cracked........................
(d) Coupler knuckle pin or 9,500 17,000
thrower that is missing or
inoperative....................
(e) Coupler retainer pin lock 5,500 10,000
that is missing or broken......
(f) Coupler with following 9,500 17,000
conditions: Locklift
inoperative; no anticreep
protection; or coupler lock is
missing, inoperative, bent,
cracked, or broken.............
215.125 Defective uncoupling device. 9,500 17,000
215.127 Defective draft arrangement:
(a) Draft gear that is 9,500 17,000
inoperative....................
(b) Yoke that is broken......... 9,500 17,000
(c) End of car cushioning unit 9,500 17,000
is leaking or inoperative......
(d) Vertical coupler pin 19,500 25,000
retainer plate missing or has
missing fastener...............
(e) Draft key or draft key 19,500 25,000
retainer that is inoperative or
missing........................
(f) Follower plate that is 9,500 17,000
missing or broken..............
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 5,500 10,000
cars...............................
215.305 Stenciling of maintenance-of- 5,500 10,000
way................................
------------------------------------------------------------------------
\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 Sec. 215.13 of this part will be
treated as a violation separate and distinct from, and in addition to,
any substantive violative conditions found on the car. The
Administrator reserves the right to assess a penalty of up to $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 Sec. 215.9 will deprive the railroad of
the benefit of the movement-for-repair provision and make the railroad
and any responsible individuals liable for penalty under the
particular regulatory section(s) concerning the substantive defect(s)
present on the freight car at the time of movement. Maintenance-of-way
equipment not stenciled in accordance with Sec. 215.305 is subject
to all requirements of this part. See Sec. 215.3(c)(3).
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation 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 9,500- 17,000-
program........................ 19,500 25,000
(b) Railroad and railroad
testing officer
responsibilities:
(1) Failure to provide 13,000 20,500
instruction, examination,
or field training, or
failure to conduct tests in
accordance with program....
(2) Records................. 9,500 17,000
(c) Record of program; program 9,500- 17,000-
incomplete..................... 19,500 25,000
(d) Records of individual tests 9,500 17,000
and inspections................
(e) Failure to retain copy of or
conduct:.......................
(1)(i) Quarterly review..... 13,000 20,500
(1)(ii) and (2) Six month 13,000 20,500
review.....................
(3) Records................. 9,500 17,000
[[Page 57616]]
(f) Annual summary.............. 9,500 17,000
(h) Failure to timely or 13,000- 20,500-
appropriately amend program 19,500 25,000
after disapproval..............
217.11 Program of instruction on
operating rules:
(a)............................. 5,500- 10,000-
13,000 20,500
(b)............................. 5,500- 10,000-
13,000 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\
------------------------------------------------------------------------
Willful
Section \2\ Violation 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 9,500 17,000
locomotive.................
(2) Empty cab............... 9,500 17,000
(3)(4) Improper 9,500 17,000
communication..............
(5) Performing functions not 5,500 10,000
listed.....................
(d) Improper release............ 5,500 10,000
(f) More than three utility 5,500 10,000
employees with one crew........
218.23 Blue signal display.......... 9,500 17,000
218.24 One-person crew:
(a)(1) Equipment not coupled or 5,500 10,000
insufficiently separated.......
(a)(2) Unoccupied locomotive cab 9,500 17,000
not secured....................
(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 5,500 10,000
that signal not displayed at
switch.........................
(b) through (e)................. 9,500 17,000
218.29 Alternate methods of
protection:
(a)(1) Protection provided 5,500 10,000
except that signal not
displayed at switch............
(a)(2) through (a)(8)........... 9,500 17,000
(b)(1) Protection provided 5,500 10,000
except that signal not
displayed at switch............
(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 9,500 17,000
operations rule....................
Subpart D--Prohibition against
Tampering with Safety Devices
218.55 Tampering.................... ................ 17,000
218.57
(i) Knowingly operating or 5,500 ................
permitting operation of
disabled equipment.............
(ii) Willfully operating or ................ 10,000
permitting operation of
disabled equipment.............
218.59 Operation of disabled 5,500 10,000
equipment..........................
[[Page 57617]]
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 5,500 10,000
not be on same track
reducing view of warning
signal.....................
(3) Rolling equipment may 9,500 17,000
not pass a warning signal..
(4) Signal will be displayed 5,500 10,000
immediately and only
removed prior to departure.
218.75 Methods of protection for
camp cars on main track:
(a) Warning signals near each 5,500 10,000
switch with access.............
(b) Immediate notification of 9,500 17,000
occupation.....................
(c) Alerting affected personnel 5,500 10,000
of cars........................
(d) Manual switched lined and 9,500 17,000
locked.........................
(e) Remote switches protected... 9,500 17,000
218.77 Remotely controlled switches:
(a) Remote switch lined and 9,500 17,000
locked.........................
(b) Operator may not remove 9,500 17,000
locking device without
permission.....................
(c) Recordkeeping............... 2,500 5,000
(d) Derail and signal when 9,500 17,000
located on main track..........
218.79 Alternative methods for
protection:
(a) Other than main track:
(1) Warning signal at each 9,500 17,000
switch providing access....
(2) Switches lined and 9,500 17,000
locked.....................
(3) Derails 50 feet away 9,500 17,000
when speed is 5MPH.........
(b) Except as provided in (a) on
other than main track:
(1) Derails 150 feet away 9,500 17,000
from equipment.............
(2) Derails must be locked 9,500 17,000
in derailing position with
signal.....................
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 9,500-13,000 17,000-20,500
appropriately amend program
after disapproval..............
218.97 Good Faith Challenge
Procedures:
(a) Employee Responsibility ................ 5,000
Failure........................
(b) through (d) Failure to adopt 9,500 17,000
or implement procedures........
218.99 Shoving or Pushing Movements:
(a) Failure to implement 13,000 20,500
required operating rule........
(b) Failure to conduct job 9,500-13,000 17,000-20,500
briefing, use a qualified
employee, or establish proper
protection.....................
(c) Failure to observe equipment 9,500 17,000
direction......................
(d) Failure to properly 9,500 17,000
establish point protection
within a remote control zone...
(e) Failure to abide by 9,500 17,000
operational exception
requirements...................
218.101 Leaving Equipment in the
Clear:
(a) Failure to implement 9,500 17,000
required operating rule........
(b) Equipment left improperly 9,500 17,000
fouling........................
(c) Failure to implement 9,500 17,000
procedures for identifying
clearance points...............
218.103 Hand-operated switches,
including crossover switches:
(a) Failure to implement 9,500 17,000
required operating rule........
(b) through (d) Railroad 9,500 17,000
employee failures..............
218.105 Additional operational
requirements for hand-operated main
track switches:
(a) Failure to implement 13,000 20,500
required operating rule........
(b) and (c) Railroad and 9,500 17,000
employee failures..............
(d) Failure to properly release 13,000 20,500
authority limits...............
218.107 Additional operational
requirements for hand-operated
crossover switches:
(a) Failure to implement 9,500 17,000
required operating rule........
(b) and (c) Railroad and 9,500 17,000
employee failures..............
218.109 Hand-operated fixed derails:
(a) Failure to implement 9,500 17,000
required operating rule........
(b) and (c) Railroad and 9,500 17,000
employee failures..............
------------------------------------------------------------------------
\1\ Except as provided for in Sec. 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.
[[Page 57618]]
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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
219.3 Application: Railroad does not $13,000 $20,500
have required program
219.11 General conditions for
chemical tests:
(b)(1) Employee unlawfully 5,500 10,000
refuses to participate in
testing........................
(b)(2) Employer fails to give 13,000 20,500
priority to medical treatment..
(b)(3) Employee fails to remain 5,500 10,000
available......................
(b)(4) Employee tampers with 5,500 10,000
specimen.......................
(d) Employee unlawfully required 5,500 10,000
to execute a waiver of rights..
(e) Railroad used or authorized ................ 10,000
the use of coercion to obtain
specimens......................
(g) Failure to meet supervisory 9,500 17,000
training requirements or
program of instruction not
available or program not
complete.......................
(h) Urine or blood specimens 5,500 10,000
provided for Federal testing
were used for nonauthorized
testing........................
219.23 Railroad policies:
(a) Failure to provide written 5,500 10,000
notice of FRA test.............
(b) Failure to provide written 2,500 5,000
notice of basis for FRA test...
(c) Use of Subpart C form for 2,500 5,000
other test.....................
(d) Failure to provide 2,500 5,000
educational materials..........
(e) Educational materials fail 2,500 5,000
to explain requirements of this
part and/or include required
content........................
(f) Non-Federal provisions are 5,500 10,000
not clearly described as
independent authority..........
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 5,500 10,000
properly on requirements.......
219.104 Responsive action:
(a) Failure to remove employee 19,500 25,000
from covered service
immediately....................
(b) Failure to provide notice 5,500 10,000
for removal....................
(c) Failure to provide prompt 5,500 10,000
hearing........................
(d) Employee improperly returned 13,000 20,500
to service.....................
219.105 Railroad's duty to prevent
violations:
(a) Employee improperly 19,500 25,000
permitted to remain in covered
service........................
(b) Failure to exercise due 9,500 17,000
diligence to assure compliance
with prohibition...............
219.107 Consequences of unlawful
refusal:
(a) Failure to disqualify an 13,000 20,500
employee for nine months
following a refusal............
(e) Employee unlawfully returned 13,000 20,500
to service.....................
Subpart C--Post-Accident
Toxicological Testing
219.201 Events for which testing is
required:
(a) Failure to test after 13,000 20,500
qualifying event (each employee
not tested is a violation).....
(c)(1)(i) Failure to make good 5,500 10,000
faith determination............
(c)(1)(ii) Failure to provide 2,500 5,000
requested decision report to
FRA............................
(c)(2) Testing performed after 9,500 17,000
nonqualifying event............
219.203 Responsibilities of
railroads and employees:
(a)(1)(i) and (a)(2)(i) Failure 5,500 10,000
to properly test/exclude from
testing........................
(a)(1)(ii) and (a)(2)(ii) 5,500 10,000
Noncovered service employee
tested.........................
(b)(1) Delay in obtaining 5,500 10,000
specimens due to failure to
make every reasonable effort...
(c) Independent medical facility 5,500 10,000
not utilized...................
(d) Failure to report event or 2,500 5,000
contact FRA when intervention
required.......................
219.205 Specimen collection and
handling:
(a) Failure to observe 5,500 10,000
requirements with respect to
specimen collection, marking
and handling...................
(b) Failure to provide properly 2,500 5,000
prepared forms with specimens..
(d) Failure to promptly or 5,500 10,000
properly forward specimens.....
219.207 Fatality:
(a) Failure to test............. 13,000 20,500
(a)(1) Failure to ensure timely 2,500 5,000
collection and shipment of
required specimens.............
(b) Failure to request 5,500 10,000
assistance when necessary......
219.209 Reports of tests and
refusals:
(a)(1) Failure to provide 2,500 5,000
telephonic report..............
(b) Failure to provide written 2,500 5,000
report of refusal to test......
(c) Failure to maintain report 2,500 5,000
explaining why test not
conducted within four hours....
219.211 Analysis and follow-up:
(c) Failure of MRO to report 5,500 10,000
review of positive results to
FRA............................
Subpart D--Testing for Cause
219.300 Mandatory reasonable
suspicion testing:
(a)(1) Failure to test when 19,500 25,000
reasonable suspicion criteria
met............................
[[Page 57619]]
(a)(2) Tested when reasonable 9,500 17,000
suspicion criteria not met.....
219.301 Testing for reasonable
cause:
(a) Event did not occur during 5,500 10,000
daily tour.....................
(b)(2) Tested when accident/ 9,500 17,000
incident criteria not met......
(b)(3) Tested when operating 9,500 17,000
rules violation criteria not
met............................
219.302 Prompt specimen collection:
(a) Specimen collection not 5,500 10,000
conducted promptly.............
Subpart E--Identification of
Troubled Employees
219.401 Requirement for policies:
(b) Failure to publish and/or 5,500 10,000
implement required policy......
219.407 Alternate policies:
(c) Failure to file agreement or 5,500 10,000
other document or provide
timely notice or revocation....
Subpart F--Pre-Employment Tests
219.501 Pre-employment tests:
(a) Failure to perform pre- 13,000 20,500
employment drug test before
first time employee performs
covered service................
Subpart G--Random Testing Programs
219.601 Railroad random drug
programs:
(a)(1) Failure to file a random 13,000 20,500
program........................
(a)(2) Failure to file amendment 5,500 10,000
to program.....................
(b) Failure to meet random 9,500 17,000
testing criteria...............
(b)(1)(i) Failure to use a 9,500 17,000
neutral selection process......
(b)(2)(i)(B) Testing not spread 5,500 10,000
throughout the year............
(b)(3) Testing not distributed 5,500 10,000
throughout the day.............
(b)(4) Advance notice provided 9,500 17,000
to employee....................
(b)(6) Testing when employee not 5,500 10,000
on duty........................
219.601 A Failure to include covered 9,500 17,000
service employee in pool...........
219.602 Administrator's
determination of drug testing rate:
(f) Total number of tests below 13,000 20,500
minimum random drug testing
rate...........................
219.603 Participation in drug
testing:
Failure to document reason for 5,500 10,000
not testing selected employee..
219.607 Railroad random alcohol
programs:
(a)(1) Failure to file a random 13,000 20,500
alcohol program................
(a)(2) Failure to file amendment 5,500 10,000
to program.....................
(b) Failure to meet random 9,500 17,000
testing criteria...............
(b)(1) Failure to use a neutral 9,500 17,000
selection process..............
(b)(5) Testing when employee not 5,500 10,000
on duty........................
(b)(8) Advance notice provided 9,500 17,000
to employee....................
219.607 A Failure to include covered 9,500 17,000
service employee in pool...........
219.608 Administrator's
determination of random alcohol
testing rate:
(e) Total number of tests below 13,000 20,500
minimum random alcohol testing
rate...........................
219.609 Participation in alcohol 5,500 10,000
testing: Failure to document reason
for not testing selected employee
Subpart H--Drug and Alcohol Testing
Procedures
219.701 Standards for drug and
alcohol testing:
(a) Failure to comply with part 5,500 10,000
40 procedures in Subpart B, D,
F, or G testing................
(b) Testing not performed in a 5,500 10,000
timely manner..................
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 5,500 10,000
on time........................
(c) Failure to submit accurate 5,500 10,000
MIS report.....................
(d) Failure to include required 5,500 10,000
data...........................
Subpart J--Recordkeeping
Requirements
219.901 Retention of Alcohol Testing
Records:
(a) Failure to maintain records 5,500 10,000
required to be kept by part 40.
(b) Failure to maintain records 5,500 10,000
required to be kept for five
years..........................
(c) Failure to maintain records 5,500 10,000
required to be kept for two
years..........................
219.903 Retention of Drug Testing
Records:
(a) Failure to maintain records 5,500 10,000
required to be kept by part 40.
(b) Failure to maintain records 5,500 10,000
required to be kept for five
years..........................
(c) Failure to maintain records 5,500 10,000
required to be kept for two
years..........................
219.905 Access to facilities and
records:
(a) Failure to release records 9,500 17,000
in this subpart in accordance
with part 40...................
(b) Failure to permit access to 9,500 17,000
facilities.....................
(c) Failure to provide access to 9,500 17,000
results of railroad alcohol and
drug testing programs..........
------------------------------------------------------------------------
\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.
[[Page 57620]]
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
220.9 Requirements for trains....... $13,000 $20,500
220.11 Requirements for roadway 13,000 20,500
workers............................
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 9,500 17,000
information........................
220.25 Instruction of employees..... 9,500 17,000
220.27 Identification............... 9,500 17,000
220.29 Statement of letters and 9,500 17,000
numbers............................
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 13,000 20,500
the rules..........................
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 19,500 25,000
mandatory directives...............
------------------------------------------------------------------------
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Marking Devices
221.13 Marking device display:
(a) Device not present, not $9,500 $17,000
displayed, or not properly
illuminated....................
(d) Device too close to rail.... 2,500 5,000
221.14 Marking devices: Use of 5,500 10,000
unapproved or noncomplying device..
221.15 Marking device inspection:
(a) Failure to inspect at crew 5,500 10,000
change.........................
(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 (1) (1)
equipment..........................
------------------------------------------------------------------------
\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 Sec. 221.17 of this part are not
met, the movement constitutes a violation of Sec. 221.13 of this
part.
[[Page 57621]]
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Use of Locomotive Horns
222.21 Use of locomotive horn:
(a) Failure to sound horn at $9,500 $17,000
grade crossing.................
Failure to sound horn in proper 5,500 10,000
pattern........................
(b) Failure to sound horn at 9,500 17,000
least 15 seconds and less than
\1/4\ mile before crossing.....
Sounding the horn more than 5,500 10,000
25 seconds before the
crossing...................
Sounding the horn more than 5,500 10,000
\1/4\ mile in advance of
crossing...................
Subpart C--Exceptions to the Use of
the Locomotive Horn
Silenced Horns at Individual
Crossings
222.33 Failure to sound horn when 9,500 17,000
conditions of Sec. 222.33 are not
met................................
Silenced Horns at Groups of
Crossings--Quiet Zones
222.45 Routine sounding of the 5,500 10,000
locomotive horn at a quiet zone
crossing...........................
222.49(b) Failure to provide Grade 2,500 5,000
Crossing Inventory Form information
222.59(d) Routine sounding of the 2,500 5,000
locomotive horn at a grade crossing
equipped with wayside horn.........
------------------------------------------------------------------------
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation 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.
[[Page 57622]]
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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Application, Inspection,
and Maintenance of Retroreflective
Material
224.103 Characteristics of
retroreflective sheeting:
(a)-(d) Retroreflective sheeting $5,500 $10,000
applied does not meet the
requirements of Sec. 224.103.
224.105 Sheeting dimensions and
quantity:
(a) Failure to apply minimum 5,500 10,000
amount of retroreflective
sheeting in accordance with
Table 2........................
(b) Applying retroreflective 5,500 10,000
sheeting of wrong dimensions...
224.106 Location of retroreflective
sheeting:
(a), (b) Applying 5,500 10,000
retroreflective sheeting in
nonconforming pattern..........
224.107 Implementation schedule:
(a)(1), (b)(1) Failure to apply 5,500 10,000
retroreflective sheeting to new
freight car or locomotive
before equipment placed in
service........................
(a)(2), (b)(2), (b)(4) Failure 5,500 10,000
to apply retroreflective
sheeting to existing freight
car or locomotive in accordance
with minimum schedule of
paragraphs (a)(2), (b)(2), or
(b)(4).........................
224.109 Inspection, repair, and
replacement:
(1) Failure to perform 5,500 10,000
inspection.....................
(2) Failure to properly notify 5,500 10,000
car owner of defect............
(3) Failure to retain written 2,500 5,000
notification of defect for two
years..........................
(4) Failure to repair defect 5,500 10,000
after notification.............
------------------------------------------------------------------------
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
225.9 Telephonic reports of certain $9,500 $17,000
accidents/incidents................
225.11 Reports of accidents/ 5,500 10,000
incidents..........................
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 5,500 10,000
properly.......................
(2) Notification of employee not 2,500 5,000
involved in accident...........
225.12(c): Failure of employing 2,500 5,000
railroad to provide requested
information properly...............
225.12(d):
(1) Failure to revise report 2,500 5,000
when identity becomes known....
(2) Failure to notify after late 5,500 10,000
identification.................
225.12(f)(1): Submission of notice 2,500 5,000
if employee dies as result of the
reported accident..................
225.12(g): Willfully false accident ................ 20,500
statement by employee..............
225.13 Late reports................. 2,500 5,000
225.17(d) Alcohol or drug 9,500 17,000
involvement........................
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 9,500 17,000
Internal Control Plan..........
(2) Inaccurate reporting due to 9,500 17,000
failure to comply with the
Internal Control Plan..........
(3) Failure to comply with the 9,500 17,000
intimidation/harassment policy
in the Internal Control Plan...
[[Page 57623]]
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 Sec. 225.23
constitutes a violation of Sec. 225.11. For purposes of Sec. Sec.
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\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
227.3 Application:
(b)(4) Failure to meet the $5,500 $10,000
required conditions for foreign
railroad operations............
Subpart B--Occupational Noise
Exposure for Railroad Operating
Employees
227.103 Noise monitoring program:
(a) Failure to develop and/or 19,500 25,000
implement a noise monitoring
program........................
(b) Failure to use sampling as 5,500 10,000
required.......................
(c) Failure to integrate sound 5,500 10,000
levels and/or make noise
measurements as required.......
(d) Failure to repeat noise 5,500 10,000
monitoring where required......
(e) Failure to consider work 5,500 10,000
environments where hearing
protectors may be omitted......
(f) Failure to provide 2,500 5,000
opportunity to observe
monitoring.....................
(g) Reporting of monitoring
results:
(1) Failure to notify 5,500 10,000
monitored employee.........
(2) Failure to post results 5,500 10,000
as required................
227.105 Protection of employees:
(a) Failure to provide 19,500 25,000
appropriate protection to
exposed employee...............
(b) Failure to observe and 5,500 10,000
document sources of noise
exposure.......................
(c)-(d) Failure to protect 13,000 20,500
employee from impermissible
continuous noise...............
227.107 Hearing conservation
program:
(a) Failure to administer an HCP 19,500 25,000
(b) Failure to compute noise 9,500 17,000
exposure as required...........
227.109 Audiometric testing program:
(a) Failure to establish and/or 19,500 25,000
maintain an audiometric testing
program........................
(b) Failure to provide 5,500 10,000
audiometric test at no cost to
employee.......................
(c) Failure to have qualified 5,500 10,000
person perform audiometric test
(d) [Reserved].................. ................ ................
(e) Failure to establish 9,500 17,000
baseline audiogram as required.
(f) Failure to offer and/or 5,500 10,000
require periodic audiogram as
required.......................
(g) Failure to evaluate 5,500 10,000
audiogram as required..........
(h) Failure to comply with 5,500 10,000
follow-up procedures as
required.......................
(i) Failure to use required 5,500 10,000
method for revising baseline
audiograms.....................
227.111 Audiometric test
requirements:
(a) Failure to conduct test as 5,500 10,000
required.......................
(b) Failure to use required 5,500 10,000
equipment......................
(c) Failure to administer test 5,500 10,000
in room that meets requirements
(d) Complete failure to 13,000 20,500
calibrate......................
(1) Failure to perform daily 2,500 5,000
calibration as required....
(2) Failure to perform 2,500 5,000
annual calibration as
required...................
(3) Failure to perform 2,500 5,000
exhaustive calibration as
required...................
227.115 Hearing protectors (HP):
(a) Failure to comply with 9,500 17,000
general requirements...........
(b) Failure to make HP available 5,500 10,000
as required....................
(c) Failure to require use of HP 13,000 20,500
at action level................
(d) Failure to require use of HP 13,000 20,500
at TWA of 90 dB(A).............
227.117 Hearing protector
attenuation:
(a) Failure to evaluate 2,500 5,000
attenuation as required........
(b)-(c) Failure to attenuate to 2,500 5,000
required level.................
(d) Failure to reevaluate 2,500 5,000
attenuation....................
[[Page 57624]]
227.119 Training program:
(a) Failure to institute a 9,500 17,000
training program as required...
(b) Failure to provide training 2,500 5,000
within required time frame.....
(c) Failure of program and/or 2,500 5,000
training materials to include
required information...........
227.121 Recordkeeping:
(a) General Requirements:
(1) Failure to make record 2,500 5,000
available as required......
(3) Failure to transfer or 2,500 5,000
retain records as required.
(b)-(f) Records:
(1) Failure to maintain 2,500 5,000
record or failure to
maintain record with
required information.......
(2) Failure to retain 2,500 5,000
records for required time
period.....................
------------------------------------------------------------------------
\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\
------------------------------------------------------------------------
Willful
Section \2\ Violation 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 13,000 20,500
of inaccurate recordkeeping....
228.17 Dispatcher's record.......... 2,500 5,000
228.19 Monthly reports of excess 9,500 17,000
service............................
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:
[[Page 57625]]
Appendix B to Part 229--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
229.7 Prohibited acts: Safety $2,500-13,000 $5,000-20,500
deficiencies not governed by
specific regulations: To be
assessed on relevant facts.........
229.9 Movement of noncomplying (\1\) (\1\)
locomotives........................
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 2,500 5,000
made, improperly executed,
or not retained............
(c) Inspection not performed by 2,500 5,000
a qualified person.............
229.23 Periodic inspection General
(a)(b):
(1) Inspection overdue...... 5,500 10,000
(2) Inspection performed 5,500 10,000
improperly or at a location
where the underneath
portion cannot be safely
inspected..................
(c)(d):
(1) Form missing............ 2,500 5,000
(2) Form not properly 2,500 5,000
displayed..................
(3) Form improperly executed 2,500 5,000
(e) Replace Form FRA F 6180-49A 2,500 5,000
by April 2.....................
(f) Secondary record of the 2,500 5,000
information reported on Form
FRA F 6180.49A.................
229.25:
(a) through (e)(4) Tests: Every 5,500 10,000
periodic inspection............
(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 5,500 10,000
of main reservoirs.............
(b) Biennial hammer tests of 5,500 10,000
main reservoirs................
(c) Drilled telltale holes in 5,500 10,000
welded main reservoirs.........
(d) Biennial tests of aluminum 5,500 10,000
main reservoirs................
229.33 Out-of-use credit............ 2,500 5,000
Subpart C--Safety Requirements
General Requirements
229.41 Protection against personal 9,500 17,000
injury.............................
229.43 Exhaust and battery gases.... 9,500 17,000
229.45 General condition: To be 2,500-13,000 5,000-20,500
assessed based on relevant facts...
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 9,500 17,000
valve..........................
(2) Pneumatically actuated 9,500 17,000
control reservoir..........
(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 9,500 17,000
more but less than 3'' in
length.....................
(2) One spot 3'' or more in 13,000 20,500
length.....................
(3) Two adjoining spots each 9,500 17,000
of which is 2'' or more in
length but less than \21/
2\'' in length.............
[[Page 57626]]
(4) Two adjoining spots each 13,000 20,500
of which are at least 2''
in length, if either spot
is \21/2\'' or more in
length.....................
(b) Gouge or chip in flange of:
(1) More than \11/2\'' but 9,500 17,000
less than \15/8\'' in
length; and more than \1/
2\'' but less than \5/8\''
in width...................
(2) \15/8\'' or more in 13,000 20,500
length and \5/8\'' or more
in width...................
(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 9,500 17,000
than \13/16\''.............
(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 9,500 17,000
less than \15/8\''.........
(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 9,500 17,000
service and \3/4\'' in yard
service....................
(2) \15/16\'' or less in 13,000 20,500
road service and \11/16\''
in yard service............
(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 9,500 17,000
insulation.........................
229.83 Insulation or grounding...... 13,000 20,500
229.85 Door and cover plates marked 5,500 10,000
``Danger''.........................
229.87 Hand operated switches....... 5,500 10,000
229.89 Jumpers; cable connections:
(a) Jumpers and cable 9,500 17,000
connections; locked and guarded
(b) Condition of jumpers and 9,500 17,000
cable connections..............
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 5,500 10,000
alarms, controls, and switches.
(b) Warning notice.............. 9,500 17,000
(c) Wheel slip/slide protection. 5,500 10,000
Steam Generators
229.103 Safe working pressure; 9,500 17,000
factor of safety
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 5,500 10,000
mounted or braced..............
(2) Insecure or improper 5,500 10,000
latching device............
(b) Cab windows of lead 5,500 10,000
locomotive.....................
(c) Floors, passageways, and 5,500 10,000
compartments...................
(d) Ventilation and heating 9,500 17,000
arrangement....................
(e) Continuous barrier......... 9,500 17,000
(f) Containers for fuses and 9,500 17,000
torpedoes......................
229.121 Locomotive cab noise:
(a) Performance Standards
(1) Failure to meet sound 13,000 20,500
level......................
(2) Improper maintenance 5,500 10,000
alterations................
(3) Failure to comply with 5,500 10,000
static test protocols......
(b) Maintenance of Locomotives:
(1) Failure to maintain 5,500 10,000
excessive noise report
record or respond to report
as required................
[[Page 57627]]
(3) Failure to make good 5,500 10,000
faith effort as required...
(4) Failure to maintain 2,500 5,000
record as required.........
229.123 Pilots, snowplows, end 5,500 10,000
plates.............................
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 9,500 17,000
level test.....................
(c) Sound level test improperly 9,500 17,000
performed......................
Record of sound level test 5,500 10,000
improperly executed, or not
retained...........................
229.131 Sanders..................... 2,500 5,000
229.135 Event Recorders:
(a) Lead locomotive without in- 9,500 17,000
service event recorder.........
(b) Failure to meet equipment 9,500 17,000
requirements...................
(c) Unauthorized removal or 9,500 17,000
failure to remove from service.
(d) Improper response to out of 9,500 17,000
service event recorder.........
(e) Failure to preserve data or 9,500 17,000
unauthorized extraction of data
(g) Tampering with device or 9,500 17,000
data...........................
229.137 Sanitation, general:
(a) Sanitation compartment in 9,500 17,000
lead unit, complete failure to
provide required items.........
(1) Ventilation............. 5,500 10,000
(2) Door missing............ 5,500 10,000
(2)(i) Door doesn't close... 5,500 10,000
(2)(ii) No modesty lock..... 2,500 5,000
(3) Not equipped with toilet 9,500 17,000
in lead....................
(4) Not equipped with 5,500 10,000
washing system.............
(5) Lack of paper........... 5,500 10,000
(6) Lack of trash receptacle 5,500 10,000
(b) Exceptions:
(1)(i) Commuter service, 2,500 5,000
failure to meet conditions
of exception...............
(1)(ii) Switching service, 2,500 5,000
failure to meet conditions
of exception...............
(1)(iii) Transfer service, 2,500 5,000
failure to meet conditions
of exception...............
(1)(iv) Class III, failure 2,500 5,000
to meet conditions of
exception..................
(1)(v) Tourist, failure to 2,500 5,000
meet conditions of
exception..................
(1)(vi) Control cab 2,500 5,000
locomotive, failure to meet
conditions of exception....
(2) Noncompliant toilet..... 5,500 10,000
(c) Defective/unsanitary toilet 5,500 10,000
in lead unit...................
(1)-(5) Failure to meet 5,500 10,000
conditions of exception....
(d) Defective/unsanitary unit; 5,500 10,000
failure to meet conditions for
trailing position..............
(e) Defective/sanitary unit; 5,500 10,000
failure to meet conditions for
switching/transfer service.....
(f) Paper, washing, trash 5,500 10,000
holder; failure to equip prior
to departure...................
(g) Inadequate ventilation; 5,500 10,000
failure to repair or move prior
to departure...................
(h) Door closure/modesty lock; 2,500 5,000
failure to repair or move......
(i) Failure to retain/maintain 5,500 10,000
of equipped units..............
(j) Failure to equip new units/ 5,500 10,000
in-cab facility................
(k) Failure to provide potable 5,500 10,000
water..........................
229.139 Servicing requirements:
(a) Lead occupied unit not 5,500 10,000
sanitary.......................
(b) Components not present/ 2,500 5,000
operating......................
(c) Occupied unit in switching, 2,500 5,000
transfer service, in trailing
position not sanitary..........
(d) Defective unit used more 5,500 10,000
than ten days..................
(e) Failure to repair defective 2,500 5,000
modesty lock...................
Subpart D--Locomotive
Crashworthiness Design Requirements
229.141 Body structure, MU 9,500 17,000
locomotives........................
229.205 General requirements:
(a)(1) Wide-nose locomotive not 19,500 25,000
designed in compliance with AAR
S-580-2005.....................
(2) Wide-nose locomotive not 19,500 25,000
designed in compliance with
new approved design
standard...................
(3) Wide-nose locomotive not 19,500 25,000
designed in compliance with
alternate approved design
standard...................
(b) Monocoque or semi-monocoque 19,500 25,000
locomotive not in compliance
with design requirements.......
(c) Narrow-nose not in 19,500 25,000
compliance with design
requirements...................
229.206 Design requirements:
Locomotive fails to meet--
(1) Emergency egress 19,500 25,000
requirements...............
(2) Emergency interior 19,500 25,000
lighting requirements......
(3) Interior configuration 19,500 25,000
requirements...............
229.213 Locomotive manufacturing
information:
(a) Failure to retain required 9,500 17,000
information....................
(b) Failure to produce required 9,500 17,000
information....................
[[Page 57628]]
229.215 Retention and inspection of
designs:
(a) Failure to retain required 9,500 17,000
design records.................
(b) Failure to retain required 9,500 17,000
repair or modification records.
(c) Failure to make records 9,500 17,000
available when requested.......
229.217 Fuel tank:
(a) External fuel tank.......... 19,500 25,000
(b) Internal fuel tank.......... 19,500 25,000
------------------------------------------------------------------------
\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 locomotive that is used by a
railroad, the appropriate penalties set forth above are aggregated up
to a maximum of $25,000 per day. However, a failure to perform, with
respect to a particular locomotive, any of the inspections and tests
required under subpart B of this part will be treated as a violation
separate and distinct from, and in addition to, any substantive
violative conditions found on that locomotive. Moreover, 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
Sec. 229.9 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
locomotive at the time of movement. Failure to comply with Sec.
229.19 will result in the lapse of any affected waiver.
\2\ The penalty schedule uses section numbers from 49 CFR part 229. 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 230--[AMENDED]
34. The authority citation for part 230 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note;
and 49 CFR 1.49.
35. Appendix D to part 230 is revised to read as follows:
Appendix D to Part 230--Schedule of Civil Penalties
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
General Inspection Requirements
230.11 Repair of non-complying
conditions:
(a) Failure to repair $5,500 $10,000
noncomplying steam locomotive
prior to use in service........
(b) Failure of owner and/or 5,500 10,000
operator to approve repairs
made prior to use of steam
locomotive.....................
230.12 Movement of noncomplying (1) (1)
steam locomotive...................
230.13 Daily inspection:
(a)(b):
(1) Inspection overdue...... 9,500 17,000
(2) Inspection not performed 5,500 10,000
by qualified person........
(c) Inspection report not made, 5,500 10,000
improperly executed or not
retained.......................
230.14 Thirty-one service day
inspection:
(a):
(1) Inspection overdue...... 9,500 17,000
(2) Inspection not performed 5,500 10,000
by qualified person........
(b) Failure to notify FRA....... 5,500 10,000
(c) Inspection report not made, 5,500 10,000
improperly executed, not
properly filed.................
230.15 Ninety-two service day
inspection:
(a):
(1) Inspection overdue...... 9,500 17,000
(2) Inspection not performed 5,500 10,000
by qualified person........
(b) Inspection report not made, 5,500 10,000
improperly executed, not
properly filed.................
230.16 Annual inspection:
(a):
(1) Inspection overdue...... 9,500 17,000
(2) Inspection not performed 5,500 10,000
by qualified person........
(b) Failure to notify FRA....... 5,500 10,000
(c) Inspection report not made, 5,500 10,000
improperly executed, not
properly filed.................
230.17 One thousand four hundred
seventy-two service day inspection:
(a):
(1) Inspection overdue...... 9,500 17,000
(2) Inspection not performed 5,500 10,000
by qualified person........
(b) Inspection report not made, 5,500 10,000
improperly executed, not
properly maintained, not
properly filed.................
Recordkeeping Requirements
230.18 Service days:
(a) Service day record not 5,500 10,000
available for inspection.......
(b) Failure to file service day 5,500 10,000
report with FRA Regional
Administrator..................
(c) Failure to complete all 9,500 17,000
1,472 service day inspection
items prior to returning
retired steam locomotive to
service........................
[[Page 57629]]
230.19 Posting of forms:
(a) FRA Form No. 1:
(1) FRA Form No. 1 not 5,500 10,000
properly filled out........
(2) FRA Form No. 1 not 5,500 10,000
properly displayed.........
(b) FRA Form No. 3:
(1) FRA Form No. 3 not 5,500 10,000
properly filled out........
(2) FRA Form No. 3 not 5,500 10,000
properly displayed.........
230.20 Alteration and repair
reports:
(a) Alterations:
(1) Failure to properly file 5,500 10,000
FRA Form No. 19 with FRA
Regional Administrator.....
(2) FRA Form No. 19 not 5,500 10,000
properly filled out........
(3) FRA Form No. 19 not 5,500 10,000
properly maintained........
(b) Repairs to unstayed portions
of the boiler:
(1) FRA Form No. 19 not 5,500 10,000
properly filled out........
(2) FRA Form No. 19 not 5,500 10,000
properly maintained........
(c) Repairs to stayed portions
of the boiler:
(1) FRA Form No. 19 not 5,500 10,000
properly filled out........
(2) FRA Form No. 19 not 5,500 10,000
properly maintained........
230.21 Failure to properly document 5,500 10,000
steam locomotive number change.....
230.22 Failure to properly report 9,500 17,000
accident resulting from failure of
steam locomotive boiler or part or
appurtenance thereof...............
Subpart B--Boilers and Appurtenances
230.23 Responsibility for general
construction and safe working
pressure:
(a) Failure to properly 19,500 25,000
establish safe working pressure
for steam locomotive boiler....
(b) Placing steam locomotive in 19,500 25,000
service before safe working
pressure for boiler has been
established....................
Allowable Stress
230.24 Maximum allowable stress
values on boiler components:
(a) Use of materials not of 5,500 10,000
sufficient tensile strength....
(b) Use of a safety factor value 13,000 20,500
of less than four when using
the code of original
construction in boiler
calculations...................
230.25 Maximum allowable stresses on
stays and braces:
(a) Exceeding allowable stress 5,500 10,000
values on fire box and/or
combustion chamber.............
(b) Exceeding allowable stress 5,500 10,000
values on round, rectangular or
gusset braces..................
Inspection and Repair
230.29 Inspection and repair:
(a):
(1) Failure of owner and/or 9,500 17,000
operator to inspect and
repair any steam locomotive
boiler and/or appurtenance
under control thereof......
(2) Failure to remove steam 13,000 20,500
locomotive from service
when considered necessary
to do so...................
(b):
(1) Failure of perform 13,000 20,500
repairs in accordance with
accepted industry standards
(2) Owner and/or operator 13,000 20,500
returning steam locomotive
boiler and/or appurtenances
to service before they are
in good condition and safe
and suitable for service...
230.30 Lap-joint seam boilers, 13,000 20,500
failure to properly inspect........
230.31 Flues to be removed:
(a):
(1) Failure to remove all 9,500 17,000
flues when inspecting
boiler.....................
(2) Failure to enter boiler 9,500 17,000
and clean and inspect......
(b) Failure to remove 5,500 10,000
superheater flues when deemed
necessary to do so.............
230.32 Time and method of
inspection:
(a) Failure to perform 1,472 9,500 17,000
service day inspection when
required to do so..............
(b) Failure to properly inspect 9,500 17,000
boiler during 1,472 service day
inspection.....................
230.33 Welded repairs and
alterations:
(a) Failure to obtain permission 9,500 17,000
before welding on unstayed
portions of boiler containing
alloy or carbon steel with
carbon content over .25 percent
carbon.........................
(b) Failure to perform welding 9,500 17,000
on unstayed portions of boiler
containing carbon steel not
exceeding .25 percent carbon in
accordance with a nationally
accepted standard for boiler
repairs........................
(c):
(1) Failure to submit 9,500 17,000
written request for
approval before performing
weld buildup on wasted
areas of unstayed boiler
surfaces that exceed 100
square inches or the
smaller of 25 percent of
minimum required wall
thickness or \1/2\ inch....
(2) Repairing wasted sheets. 9,500 17,000
230.34 Riveted repairs and
alterations:
(a) Failure to obtain approval 9,500 17,000
before making riveted
alterations on unstayed
portions of the boiler; failure
to do riveting in accordance
with established railroad
practices or accepted national
standards for boiler repairs...
(b) Failure to perform riveted 9,500 17,000
repairs on unstayed boiler
portions in accordance with
established railroad practices
or accepted national standards
for boiler repairs.............
[[Page 57630]]
(c) Failure to perform riveted 5,500 10,000
repairs on stayed boiler
portions in accordance with
established railroad practices
or accepted national standards
for boiler repairs.............
Pressure Testing of Boilers
230.35 Failure to raise temperature 5,500 10,000
of steam locomotive boiler to 70
degrees F. before applying
hydrostatic pressure to the boiler.
230.36 Hydrostatic testing of
boilers:
(a) Failure to perform 9,500 17,000
hydrostatic test of boiler as
required.......................
(b) Failure to properly perform 9,500 17,000
hydrostatic test...............
(c) Failure to properly inspect 9,500 17,000
boiler after conducting
hydrostatic test above MAWP....
230.37 Failure to perform proper 5,500 10,000
steam test or inspection of boiler
after completion of repair or
alteration to boiler...............
Staybolts
230.38 Telltale holes:
(a) Failure to have telltale 5,500 10,000
holes as required in staybolts.
(b) Failure to have proper 5,500 10,000
telltale holes in reduced body
staybolts......................
(c) Failure to keep telltale 5,500 10,000
holes when so required.........
230.39 Broken staybolts:
(a) Boiler in service with 9,500 17,000
excess number of broken
staybolts......................
(b) Failure to replace staybolts 9,500 17,000
when required to do so; to
properly replace staybolts when
so required; to inspect
adjacent staybolts when
replacing broken staybolts.....
(c) Failure to count leaking, 9,500 17,000
plugged, or missing telltale
holes as broken staybolts......
(d) Closing telltale holes by 9,500 17,000
prohibited means...............
230.40 Time and method of staybolt
testing:
(a) Failure to hammer test 5,500 10,000
staybolts when so required.....
(b) Failure to properly hammer 5,500 10,000
test staybolts.................
230.41 Flexible staybolts with caps:
(a) Failure to inspect flexible 5,500 10,000
staybolts as required..........
(b) Failure to replace broken 5,500 10,000
flexible staybolts; failure to
close inner ends of telltale
holes as required..............
(c) Failure to report removal of 5,500 10,000
flexible staybolts caps and
other tests on FRA Form No. 3
when so required...............
(d) Failure to remove staybolt 5,500 10,000
caps or otherwise test when FRA
inspector or steam locomotive
owner and/or operator consider
it necessary to do so..........
Steam Gauges
230.42 Failure to have accurate 13,000 20,500
boiler steam gauge where engine
crew can conveniently read.........
230.43 Failure to have gauge siphon 5,500 10,000
of proper capacity on steam gauge
supply pipe; failure to properly
clean, maintain the steam gauge
supply pipe........................
230.44 Failure to test steam gauge 5,500 10,000
when so required...................
230.45 Failure to properly test and/ 5,500 10,000
or set steam gauge.................
230.46 Failure to attach to boiler 5,500 10,000
backhead metal badge plate showing
allowable steam pressure...........
230.47 Boiler Number:
(a) (b) (c) Failure to stamp 5,500 10,000
builder's number on boiler when
number is known................
Safety Relief Valves
230.48 Number and capacity of safety
relief valves:
(a) Failure to equip steam 13,000 20,500
locomotive boiler with proper
safety relief valves...........
(b) Failure to provide 13,000 20,500
additional safety relief valve
capacity when so required......
230.49 Setting of safety relief
valves:
(a) Safety relief valve(s) set 13,000 20,500
and/or adjusted by person not
competent to do so.............
(b) Safety relief valve(s) not 13,000 20,500
set to open at prescribed
pressure(s)....................
(c) Safety relief valve(s) not 13,000 20,500
properly set...................
(d) Set pressure of lowest 5,500 10,000
safety relief valve not
properly indicated.............
230.50 Failure to test and adjust 9,500 17,000
safety relief valves when required
to do so...........................
Water Glasses and Gauge Cocks
230.51 Failure to equip steam 5,500 10,000
locomotive boiler with at least two
properly installed water glasses...
230.52 Failure to properly equip 13,000 20,500
water glasses......................
230.53 Failure to properly clean 5,500 10,000
water glass valves and/or gauge
cocks when required to do so.......
230.54 Testing and maintenance:
(a) Failure to properly test 5,500 10,000
water glasses and/or gauge
cocks..........................
(b) Failure to properly maintain 9,500 17,000
gauge cocks, water column drain
valves, and/or water glass
valves.........................
230.55 Tubular type water and
lubricator glasses and shields:
(a) Failure to renew tubular 5,500 10,000
type water glasses as required.
(b) Failure to properly shield 5,500 10,000
tubular water glasses and/or
lubricator glasses.............
(c) Failure to properly locate 5,500 10,000
and/or maintain water glasses
and/or water glass shields.....
230.56 Failure to equip water glass 5,500 10,000
with suitable lamp.................
Injectors, Feedwater Pumps, and Flue
Plugs
230.57 Injectors and feedwater
pumps:
(a) Failure to equip steam 13,000 20,500
locomotive with proper means
for delivering water to the
boiler.........................
[[Page 57631]]
(b) Failure to properly test and/ 13,000 20,500
or maintain injectors,
feedwater pumps, boiler checks,
delivery pipes, feed water
pipes, tank hose, tank valves..
(c) Failure to properly brace 5,500 10,000
injectors, feedwater pumps, and/
or associated piping...........
230.58 Flue plugs:
(a) Plugging flue plugs when not 5,500 10,000
otherwise permitted............
(b) Improperly plugging flue 5,500 10,000
plugs, when otherwise permitted
Fusible Plugs
230.59 Failure to remove and 9,500 17,000
properly clean fusible boiler plugs
when required to do so; failure to
properly note removal..............
Washing Boilers
230.60 Time of washing:
(a) Failure to thoroughly wash 5,500 10,000
boiler when required to do so..
(b) Failure to remove washout 9,500 17,000
plugs, arch tube plugs, thermic
siphon plugs, circulator plugs,
water bar plugs when washing
locomotive boiler..............
(c) Failure to examine and/or 9,500 17,000
properly maintain washout plugs
washout plug sleeves, threaded
openings.......................
(d) Failure to clean fusible 9,500 17,000
plugs when required to do so...
230.61 Arch tubes, water bar tubes,
circulators and thermic siphons:
(a) Failure to clean, wash, 5,500 10,000
inspect arch tubes, water bar
tubes, circulators and thermic
siphons as required............
(b) Failure to renew arch tubes, 9,500 17,000
water bar tubes; failure to
repair or renew circulators,
thermic siphons when required..
(c) Failure to properly inspect 9,500 17,000
and/or replace as necessary
arch tubes, water bar tubes,
circulators....................
Steam Pipes
230.62 Failure to properly inspect 13,000 20,500
and/or repair or replace as
necessary dry pipes subject to
pressure...........................
230.63 Failure to properly inspect 9,500 17,000
smoke box, steam pipes, pressure
parts when required to do so.......
Steam Leaks
230.64 Failure to remove from 9,500 17,000
service steam locomotive boiler
leaking under lagging from
condition which may reduce safety
and/or repair the boiler before
returning to service...............
230.65 Failure to keep steam 5,500 10,000
locomotive boiler, piping,
appurtenances in repair so steam
does not obscure vision............
Subpart C--Steam Locomotives and
Tenders
230.66 Failure to properly oversee 5,500 10,000
general design, construction,
maintenance of steam locomotive(s)
and tender(s)......................
230.67 Failure to ensure all steam 13,000 20,500
locomotives and tenders are
properly inspected and repaired and/
or all defects are properly
repaired and steam locomotive and/
or tender are in good condition,
safe and suitable for service
before being returned to service...
Speed Indicators
230.68 Failure to equip steam 5,500 10,000
locomotive that operates in excess
of 20 miles per hour over the
general system with speed indicator
maintained to ensure accurate
functioning........................
Ash Pans
230.69 Failure to equip steam 5,500 10,000
locomotive with properly supported
ash pan with operating mechanism
that may be safely operated and
securely closed....................
Brake and Signal Equipment
230.70 Safe condition:
(a) Failure to perform proper 5,500 10,000
pre-departure inspection when
so required....................
(b) Failure to properly equip 5,500 10,000
steam locomotive with brake
pipe valve clearly identified
as ``Emergency Brake Valve''...
230.71 Orifice testing of air
compressors:
(a)(b):
Failure to properly test and/ 5,500 10,000
or maintain air
compressor(s) capacity.....
230.72 Testing main reservoirs:
(a) Failure to properly test 5,500 10,000
main reservoir(s) when required
(b) Impermissibly or improperly 5,500 10,000
drilling main reservoir........
(c) Impermissibly using NDE 5,500 10,000
method to measure wall
thickness of main reservoir....
(d) Failure to use appropriate 9,500 17,000
method of NDE testing of wall
thickness of welded or riveted
longitudinal lap seam main
reservoir(s); failure to
withdraw main reservoir(s) from
service when testing reveals
insufficient wall thickness....
230.73 Air gauges:
(a) Failure to equip steam 5,500 10,000
locomotive with properly
located air gauge(s) that are
no more than three psi in error
(b) Failure to test air gauge(s) 5,500 10,000
when so required...............
(c) Failure to properly test air 5,500 10,000
gauge(s).......................
230.74 Failure to properly clean and/ 5,500 10,000
or test all air brake valves,
related dirt collectors, filters
when required to do so.............
[[Page 57632]]
230.75 Failure to properly stencil 5,500 10,000
or display date of testing and
cleaning and initials of shop or
station performing work............
230.76 Piston travel:
(a) Insufficient minimum piston 5,500 10,000
travel.........................
(b) Excessive piston travel when 5,500 10,000
steam locomotive is stationary.
230.77 Foundation brake gear:
(a) Failure to properly maintain 5,500 10,000
foundation brake gear..........
(b) Foundation brake gear less 5,500 10,000
than 2.5 inches above rail.....
230.78 Leakage:
(a):
(1) Failure to test for 5,500 10,000
leakage from main reservoir
or related piping as
required...................
(2) Failure to repair 5,500 10,000
excessive leakage from main
reservoir or related piping
leakage....................
(b) Failure to test for brake 5,500 10,000
cylinder as required...........
(c):
(1) Failure to test for 5,500 10,000
leakage from steam
locomotive brake pipe as
required...................
(2) Failure to repair 5,500 10,000
excessive brake pipe
leakage....................
230.79 Train signal system:
(1) Failure to test the train 5,500 10,000
signal system or other form of
on-board communication as
required.......................
(2) Failure to repair train 5,500 10,000
signal system or other on-board
communication when not safe or
suitable for service...........
Cabs, Warning Signals, Sanders and
Lights
230.80 Cabs:
(a) Steam locomotive cab not 5,500 10,000
safe and suitable for service..
(b) Steam pipes: Construction, 5,500 10,000
attachment.....................
(c) Oil-burning steam 5,500 10,000
locomotive, cab-enclosed.......
230.81 Cab aprons:
(a) Cab apron, general 5,500 10,000
provisions.....................
(b) Cab apron, insufficient 5,500 10,000
width..........................
230.82 Fire doors:
(a) Safe and suitable for 5,500 10,000
service, general provisions....
(b) Construction and maintenance 5,500 10,000
of mechanically operated fire
doors..........................
(c) Construction and maintenance 5,500 10,000
of hand-operated fire doors....
230.83 Cylinder cocks:
(1) Failure to properly equip 5,500 10,000
with cylinder cocks............
(2) Failure to properly maintain 5,500 10,000
cylinder cocks.................
230.84 Sanders:
(1) Inoperable sanders.......... 5,500 10,000
(2) Failure to test sanders..... 5,500 10,000
230.85 Audible warning devices:
(a) General provisions.......... 5,500 10,000
(b) Sound level measurements, 5,500 10,000
Failure to properly take.......
230.86 Required illumination:
(a) General provisions.......... 5,500 10,000
(b) Dimming device, failure to 5,500 10,000
properly equip with............
(c) Multiple locomotives, 5,500 10,000
failure of lead locomotive to
display headlight..............
230.87 Cab lights: Failure to 5,500 10,000
properly equip with................
Throttles and Reversing Gear
230.88 Throttles: Failure to 5,500 10,000
properly maintain, equip...........
230.89 Reverse gear:
(a) General provisions.......... 5,500 10,000
(b) Air-operated power reverse 5,500 10,000
gear...........................
(c) Power reverse gear 5,500 10,000
reservoirs.....................
Draw Gear and Draft Systems
230.90 Draw gear and draft systems:
(a) Maintenance and testing..... 5,500 10,000
(b) Safety bars and chains, 5,500 10,000
general........................
(c) Safety bars and chains, 5,500 10,000
minimum length.................
(d) Lost motion between steam 5,500 10,000
locomotive and tender..........
(e) Spring buffers: Improper 5,500 10,000
application, compression.......
230.91 Chafing irons: Improper 5,500 10,000
application, maintenance...........
230.92 Draw gear, draft systems: 5,500 10,000
Improperly maintained, fastened....
Driving Gear
230.93 Pistons and piston rods:
(a) Failure to properly inspect, 5,500 10,000
maintain, renew................
(b) Fasteners: Failure to keep 5,500 10,000
tight, properly equip..........
230.94 Crossheads: Improperly 5,500 10,000
maintained, excess clearance.......
230.95 Guides: Failure to securely 5,500 10,000
fasten, properly maintain..........
230.96 Main, side, valve motion 5,500 10,000
rods:
[[Page 57633]]
(a) General..................... 5,500 10,000
(b) Repairs..................... 5,500 10,000
(1) Failure to make in 5,500 10,000
accordance with accepted
national standard..........
(2) Failure to submit 5,500 10,000
written request for
approval prior to welding..
(c) Bearings and bushings....... 5,500 10,000
(d) Rod side motion: Excessive 5,500 10,000
motion.........................
(e) Oil, grease cups: Failure to 5,500 10,000
securely fasten, properly equip
(f) Main rod bearings:
(1) Excessive bore.......... 5,500 10,000
(2) Excessive lost motion... 5,500 10,000
(g) Side rod bearings, excessive 5,500 10,000
bore...........................
230.97 Crank pins:
(a) General provisions.......... 5,500 10,000
(b) Maintenance: Failure to 5,500 10,000
maintain in safe, suitable
condition......................
Running Gear
230.98 Driving, trailing, engine
truck axles:
(a) Condemning defects.......... 5,500 10,000
(b) Journal diameter: Failure to 2,500 5,000
stamp on end of axle...........
230.99 Tender truck axle: 5,500 10,000
Insufficient diameter..............
230.100 Defects in tender truck
axles and journals:
(a) Tender truck axle condemning 5,500 10,000
defects........................
(b) Tender truck journal 5,500 10,000
condemning defects.............
230.101 Steam locomotive driving
journal boxes:
(a) Driving journal boxes: 5,500 10,000
Failure to properly maintain...
(b) Broken bearings: Failure to 5,500 10,000
renew..........................
(c) Loose bearings: Failure to 5,500 10,000
repair or renew................
230.102 Tender plain bearing journal 5,500 10,000
boxes: Failure to repair...........
230.103 Tender roller bearing 5,500 10,000
journal boxes: Failure to properly
maintain...........................
230.104 Driving box shoes and 5,500 10,000
wedges: Failure to properly
maintain...........................
230.105 Lateral motion:
(a) Condemning limits: Total 5,500 10,000
lateral motion in excess of....
(b) Limits exceeded, failure to 5,500 10,000
demonstrate conditions require
additional lateral motion......
(c) Interferes with other parts 5,500 10,000
of steam locomotive............
Trucks, Frames and Equalizing System
230.106 Steam locomotive frame:
(a) Failure to properly inspect 5,500 10,000
and/or maintain................
(b) Broken frames, not properly 13,000 20,500
patched or secured.............
230.107 Tender frame and body:
(a) Failure to properly maintain 5,500 10,000
(b) Height difference between 5,500 10,000
tender deck and steam
locomotive cab floor or deck
excessive......................
(c) Gangway minimum width 5,500 10,000
excessive......................
(d) Tender frame condemning 9,500 17,000
defects........................
230.108 Steam locomotive leading and
trailing trucks:
(a) Failure to properly maintain 5,500 10,000
(b) Safety chain, suitable 5,500 10,000
safety chain not provided......
(c) Insufficient truck clearance 5,500 10,000
230.109 Tender trucks:
(a):
(1) Tender truck frames..... 5,500 10,000
(2) Tender truck center 5,500 10,000
plate......................
(b) Tender truck bolsters: 9,500 17,000
Failure to properly maintain...
(c) Condemning defects, springs 5,500 10,000
and/or spring rigging..........
(d) Truck securing arrangement: 5,500 10,000
Not properly maintained........
(e) Side bearings, truck 5,500 10,000
centering devices..............
(f) Friction side bearings: Run 5,500 10,000
in contact.....................
(g):
(1) Side bearings, failure 5,500 10,000
to equip rear trucks with..
(2) Insufficient clearance 5,500 10,000
of.........................
230.110 Pilots:
(a) General provisions.......... 5,500 10,000
(b) Clearance, insufficient or 5,500 10,000
excessive......................
230.111 Spring rigging:
(a) Arrangement of springs and 5,500 10,000
equalizers.....................
(b) Spring or spring rigging 5,500 10,000
condemning defects.............
Wheels and Tires
230.112 Wheels and tires:
(a) Improperly mounted, excess 9,500 17,000
variance in axle diameter......
(b) Out of gage................. 5,500 10,000
(c) Flange distance variance, 5,500 10,000
excessive......................
[[Page 57634]]
(d) Tire thickness, insufficient 5,500 10,000
(e) Tire width, insufficient.... 5,500 10,000
230.113 Wheels and tire defects:
(1) Failure to repair........... 5,500 10,000
(2) Welding on, except as 9,500 17,000
otherwise provided for.........
(a) Cracks or breaks in..... 5,500 10,000
(b) Flat spots.............. 5,500 10,000
(c) Chipped flange.......... 5,500 10,000
(d) Broken rim.............. 5,500 10,000
(e) Shelled-out spots....... 5,500 10,000
(f) Seams................... 5,500 10,000
(g) Worn flanges, excessive 5,500 10,000
wear.......................
(h) Worn treads, excessive 5,500 10,000
wear.......................
(i) Flange height, 5,500 10,000
insufficient or excessive..
(j) Rim thickness, 5,500 10,000
insufficient...............
(k) Wheel diameter, 5,500 10,000
excessive variance.........
230.114 Wheel centers:
(a) Filling blocks and shims.... 5,500 10,000
(b) Wheel center condemning 5,500 10,000
limits, failure to repair......
(c) Wheel center repairs........ 5,500 10,000
(d) Counterbalance maintenance.. 5,500 10,000
Steam Locomotive Tanks
230.115 Feed water tanks:
(a) General provisions.......... 5,500 10,000
(b) Inspection frequency, 5,500 10,000
failure to inspect as required.
(c) Top of tender: Improperly 5,500 10,000
maintained and/or equipped.....
230.116 Oil tanks:
(1) Failure to properly 13,000 20,500
maintain.......................
(2) Failure to equip with 19,500 25,000
complying safety cut-off device
------------------------------------------------------------------------
\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. Failure to observe any condition for
movement set forth in Sec. 230.12 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 locomotive at the time of movement. Failure to comply with Sec.
230.12 will result in the lapse of any affected waiver. Generally,
when two or more violations of these regulations are discovered with
respect to a single locomotive that is used by a railroad, the
appropriate penalties set forth are aggregated up to a maximum of
$25,000 per day. However, a failure to perform, with respect to a
particular locomotive, any of the inspections and tests required under
this part, will be treated as a violation separate and distinct from,
and in addition to, any substantive violative conditions found on that
locomotive.
\2\ The penalty schedule uses section numbers from 49 CFR part 230. 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 231--[AMENDED]
36. The authority citation for part 231 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note;
and 49 CFR 1.49.
37. Appendix A to part 231 is revised to read as follows:
Appendix A to Part 231--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
110.A1 Hand brake or hand brake part $13,000 $20,500
missing............................
110.A2 Hand brake or hand brake part 13,000 20,500
broken.............................
110.A3 Hand brake or hand brake part 9,500 17,000
loose or worn......................
110.B1 Hand brake inoperative....... 13,000 20,500
110.B2 Hand brake inefficient....... 9,500 17,000
110.B3 Hand brake improperly applied 9,500 17,000
110.B4 Hand brake incorrectly 5,500 10,000
located............................
110.B5 Hand brake shaft welded or 5,500 10,000
wrong dimension....................
110.B6 Hand brake shaft not retained 5,500 10,000
in operating position..............
110.B8 Hand brake or hand brake 5,500 10,000
parts wrong design.................
114.B2 Hand brake wheel or lever has 5,500 10,000
insufficient clearance around rim
or handle..........................
114.B3 Hand brake wheel/lever 5,500 10,000
clearance insufficient to vertical
plane through inside face of
knuckle............................
120.A1 Brake step missing except by 13,000 20,500
design.............................
120.A2 Brake step or brace broken or 13,000 20,500
decayed............................
120.A3 Brake step or brace loose.... 9,500 17,000
120.B1 Brake step or brace bent..... 9,500 17,000
[[Page 57635]]
120.B2 Brake step or brace wrong 5,500 10,000
dimensions.........................
120.C1 Brake step improperly applied 5,500 10,000
120.C2 Brake step improperly located 5,500 10,000
120.C3 Brake step with less than 4'' 5,500 10,000
clearance to vertical plane through
inside face of knuckle.............
120.C4 Brake step obstructed or 9,500 17,000
otherwise unsafe...................
124.A1 Running board missing or part 13,000 20,500
missing except by design...........
124.A2 Running board broken or 13,000 20,500
decayed............................
124.A3 Running board loose presents 9,500 17,000
a tripping hazard or other unsafe
condition..........................
124.A4 Running board wrong material. 5,500 10,000
124.B1 Running board bent to the 9,500 17,000
extent that it is unsafe...........
124.B2 Running board wrong 5,500 10,000
dimensions.........................
124.B3 Running board wrong location. 5,500 10,000
124.C1 Running board improperly 5,500 10,000
applied............................
124.C2 Running board obstructed..... 9,500 17,000
126.A1 End platform missing or part 13,000 20,500
except by design...................
126.A2 End platform broken or 13,000 20,500
decayed............................
126.A3 End platform loose........... 9,500 17,000
126.B1 End platform or brace bent... 5,500 10,000
126.B2 End platform wrong dimensions 5,500 10,000
126.C1 End platform improperly 5,500 10,000
applied............................
126.C2 End platform with less than 5,500 10,000
required clearance to vertical
plane through inside knuckle.......
126.C3 End platform improperly 5,500 10,000
located............................
126.C4 End platform obstructed...... 9,500 17,000
128.A1 Platform or switching step 13,000 20,500
missing............................
128.A2 Platform or switching step 13,000 20,500
broken or decayed..................
128.A3 Platform or switching step 9,500 17,000
loose..............................
128.B1 Platform or switching step 9,500 17,000
bent...............................
128.B2 Platform or switching step 5,500 10,000
does not meet the required location
or dimensions......................
128.C1 Platform or switching step 9,500 17,000
improperly applied or repaired.....
128.C2 Platform or switching step 9,500 17,000
obstructed.........................
128.D1 Switching step back stop or 5,500 10,000
kick plate missing.................
128.D2 Switching step not 5,500 10,000
illuminated when required..........
128.D3 Non-illuminated step not 5,500 10,000
painted contrasting color..........
130.A1 Sill step or additional 13,000 20,500
tread, missing.....................
130.A2 Sill step or additional 13,000 20,500
tread, broken......................
130.A3 Sill step or additional 9,500 17,000
tread, loose.......................
130.B1 Sill step or additional 9,500 17,000
tread, bent........................
130.B2 Sill step or additional 5,500 10,000
tread, having wrong dimensions or
improperly located.................
130.B3 Sill step improperly applied. 5,500 10,000
132.A1 Side door step missing step.. 13,000 20,500
132.A2 Side door step broken........ 13,000 20,500
132.A3 Side door step loose......... 9,500 17,000
132.B1 Side door step bent.......... 9,500 17,000
132.B2 Side door step having wrong 5,500 10,000
dimensions.........................
134.A1 Ladder missing............... 13,000 20,500
134.A2 Ladder broken................ 13,000 20,500
134.A3 Ladder loose................. 9,500 17,000
134.B1 Ladder bent.................. 9,500 17,000
134.B2 Ladder having wrong 5,500 10,000
dimensions.........................
134.C1 Ladder improperly applied.... 5,500 10,000
134.C2 Ladder having insufficient 5,500 10,000
clearance or improperly located....
134.C3 Ladder wrong design.......... 5,500 10,000
134.C4 Ladder wrong material........ 5,500 10,000
134.D1 End clearance insufficient... 5,500 10,000
136.A1 Ladder tread or handholds 13,000 20,500
missing............................
136.A2 Ladder tread or handhold 13,000 20,500
broken.............................
136.A3 Ladder tread or handhold 9,500 17,000
loose except by design.............
136.B1 Ladder tread or handhold bent 9,500 17,000
to the extent that it may be unsafe
136.B2 Ladder tread or handhold 5,500 10,000
wrong dimensions...................
136.C1 Ladder tread or handhold 5,500 10,000
improperly applied.................
136.C2 Ladder tread or handhold 5,500 10,000
having wrong clearance.............
136.C3 Ladder or handhold improperly 5,500 10,000
located............................
136.C4 Ladder tread or handhold 9,500 17,000
obstructed.........................
136.C5 Ladder tread without 9,500 17,000
footguards.........................
138.A1 Hand or safety railing 13,000 20,500
missing............................
138.A2 Hand or safety railing broken 13,000 20,500
138.A3 Hand or safety railing loose 9,500 17,000
except by design...................
138.B1 Hand or safety railing bent.. 9,500 17,000
138.B2 Hand or safety railing wrong 5,500 10,000
dimensions.........................
138.C1 Hand or safety railing 5,500 10,000
improperly applied.................
138.C2 Hand or safety railing having 5,500 10,000
less than the required clearance...
[[Page 57636]]
138.C3 Hand or safety railing 5,500 10,000
improperly located.................
140.A1 Uncoupling lever missing..... 9,500 17,000
140.A2 Uncoupling lever broken or 9,500 17,000
disconnected.......................
140.B1 Uncoupling lever bent will 9,500 17,000
not safely and reasonably function
as intended........................
140.C1 Uncoupling lever bracket bent 9,500 17,000
lever will not function properly...
140.C2 Uncoupling lever bracket 9,500 17,000
broken or missing..................
140.D1 Uncoupling lever wrong 5,500 10,000
dimension..........................
140.D2 Uncoupling lever with 5,500 10,000
improper handle clearance..........
144.A1 Coupler missing.............. 13,000 20,500
144.B1 Coupler height incorrect..... 5,500 10,000
144.C1 Coupler inoperative.......... 9,500 17,000
145.A1 Kick plates missing.......... 5,500 10,000
145.A2 Kick plates broken........... 5,500 10,000
145.B1 Kick plates wrong dimensions. 5,500 10,000
145.B2 Kick plates improper 5,500 10,000
clearance..........................
145.B3 Kick plates insecure or 5,500 10,000
improperly applied.................
146.A Notice or stencil not posted 2,500 5,000
on cabooses with running boards
removed............................
146.B Safe means not provided to 2,500 5,000
clean or maintain windows of
caboose............................
231.31 Drawbars, standard height.... 9,500 17,000
------------------------------------------------------------------------
\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 unit of equipment that is used
by a railroad, the appropriate penalties set forth above are
aggregated up to a maximum of $25,000 per day. 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\ This schedule uses section numbers from FRA's Safety Appliance
Defect Code, a restatement of the CFR text in a reorganized format.
For convenience, and as an exception to FRA's general policy, penalty
citations will cite the defect code rather than the CFR. FRA reserves
the right, should litigation become necessary, to substitute in its
complaint the CFR and/or statutory citation in place of the defect
code section cited in the penalty demand letter.
PART 232--[AMENDED]
38. The authority citation for part 232 continues to read as
follows:
Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR
1.49.
39. Appendix A to part 232 is revised to read as follows:
Appendix A to Part 232--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
232.15 Movement of power brake
defects:
(a) Improper movement, general.. (\1\) (\1\)
(11) Failure to make $9,500 $17,000
determinations and provide
notification of en route
defect.....................
(b) Complete failure to tag..... 9,500 17,000
(1) Insufficient tag or 2,500 5,000
record.....................
(2), (4) Improper removal of 9,500 17,000
tag........................
(3) Failure to retain record 9,500 17,000
of tag.....................
(c) Improper loading or purging. 9,500 17,000
(e) Improper placement of 9,500 17,000
defective equipment............
232.19 Availability of records...... (\1\) (\1\)
Subpart B--General Requirements
232.103 All train brake systems:
(a)-(c), (h)-(i) Failure to 9,500 17,000
meet general design
requirements...................
(d) Failure to have proper 13,000 20,500
percentage of operative brakes
from Class I brake test........
(e) Operating with less than 85 13,000 20,500
percent operative brakes.......
(f) Improper use of car with 9,500 17,000
inoperative or ineffective.....
brakes..........................
(g) Improper display of piston 9,500 17,000
travel.........................
(m) Failure to stop train with 9,500 17,000
excess air flow or gradient....
(n) Securement of unattended ................ ................
equipment:
(1) Failure to apply 13,000 20,500
sufficient number of hand
brakes; failure to develop
or implement procedure to
verify number applied......
(2) Failure to reduce to 9,500 17,000
zero or vent brake pipe....
(3) Failure to apply hand 9,500 17,000
brakes on locomotives......
(4) Failure to adopt or 13,000 20,500
comply with procedures for
securing unattended
locomotive.................
(o) Improper adjustment of air 9,500 17,000
regulating devices.............
(p) Failure to hold supervisors 9,500 17,000
jointly responsible............
232.105 Locomotives:
(a) Air brakes not in safe and 13,000 20,500
suitable condition.............
(b) Not equipped with proper 13,000 20,500
hand or parking brake..........
[[Page 57637]]
(c)(1) Failure to inspect/ 9,500 17,000
repair hand or parking brake...
(2) Failure to properly 5,500 10,000
stencil, tag, or record....
(d) Excess leakage from 9,500 17,000
equalizing reservoir...........
(e) Improper use of feed or 9,500 17,000
regulating valve braking.......
(f) Improper use of passenger 9,500 17,000
position.......................
(g) Brakes in operative 13,000 20,500
condition......................
232.107 Air sources/cold weather
operations:
(a)(1), (2) Failure to adopt or 13,000 20,500
comply with monitoring program
for yard air sources...........
(3) Failure to maintain 9,500 17,000
records....................
(b) Failure to blow 13,000 20,500
condensation...................
(c) Use of improper chemicals.. 13,000 20,500
(d) Failure to equip or drain 13,000 20,500
yard air reservoirs............
(e) Failure to adopt or comply 13,000 20,500
cold weather operating
procedures.....................
232.109 Dynamic brakes:
(a) Failure to provide 9,500 17,000
information....................
(b) Failure to make repairs.... 9,500 17,000
(c) Failure to properly tag.... 5,500 10,000
(d) Failure to maintain record 2,500 5,000
of repair......................
(e) Improper deactivation...... 9,500 17,000
(f) Improper use of locomotive 9,500 17,000
as controlling unit............
(g) Locomotive not properly 9,500 17,000
equipped with indicator........
(h) Rebuilt locomotive not 9,500 17,000
properly equipped..............
(j) Failure to adopt or comply 13,000 20,500
with dynamic brake operating
rules..........................
(k) Failure to adopt or comply 13,000 20,500
with training on operating
procedures.....................
232.111 Train handling information:
(a) Failure to adopt and comply 13,000 20,500
with procedures................
(b) Failure to provide specific 9,500 17,000
information....................
Subpart C--Inspection and Testing
Requirements
232.203 Training requirements:
(a) Failure to develop or adopt 19,500 25,000
program........................
(b)(1)-(9) Failure to address or 9,500 17,000
comply with specific required
item or provision of program...
(c) Failure to adopt or comply 13,000 20,500
with two-way EOT program.......
(d) Failure to adopt or comply 13,000 20,500
with retaining valve program...
(e) Failure to maintain adequate 13,000 20,500
records........................
(f) Failure to adopt and comply 19,500 25,000
with periodic assessment plan..
232.205 Class I brake test--initial
terminal inspection:
(a) Complete failure to perform (\1\) 19,500 25,000
inspection.....................
(c)(1)-(4), (6)-(8) Partial 13,000 20,500
failure to perform inspection..
(c)(5) Failure to properly 9,500 17,000
adjust piston travel (per car).
(d) Failure to use carman when 5,500 10,000
required.......................
(e) Failure to provide proper 9,500 17,000
notification...................
(f) Failure to void compressed 9,500 17,000
air............................
232.207 Class IA brake tests--1,000-
mile inspection:
(a) Complete failure to perform (\1\) 13,000 20,500
inspection.....................
(b)(1)-(6) Partial failure to 9,500 17,000
perform inspection.............
(c) Failure to properly 9,500 17,000
designate location.............
(c)(1) Failure to perform at 9,500 17,000
designated location............
(c)(2) Failure to provide 9,500 17,000
notification...................
232.209 Class II brake tests--
intermediate inspection:
(a) Complete failure to perform (\1\) 13,000 20,500
inspection.....................
(b)(1)-(5), (c) Partial failure 9,500 17,000
to perform inspection..........
(c) Failure to conduct Class I (\1\) (\1\)
after Class II pick-up.........
232.211 Class III brake tests--
trainline continuity inspection:
(a) Complete failure to perform 13,000 20,500
inspection.....................
(b)(1)-(4), (c) Partial failure 9,500 17,000
to perform inspection..........
(d) Failure to restore air 9,500 17,000
pressure at rear...............
232.213 Extended haul trains:
(a)(1) Failure to properly 13,000 20,500
designate an extended haul
train..........................
(a)(2)-(3), (5)(i), (8) Failure (\1\) (\1\)
to perform inspections.........
(a)(4) Failure to remove 5,500 10,000
defective car (per car)........
(a)(5)(ii), (6) Failure to 13,000 20,500
conduct inbound inspection.....
(a)(7) Failure to maintain 5,500 10,000
record of defects (per car)....
(b) Improper movement or use of 13,000 20,500
extended haul train............
232.215 Transfer train brake tests:
(a) Failure to perform 13,000 20,500
inspection.....................
(b) Failure to perform on cars 9,500 17,000
added..........................
232.217 Train brake system tests
conducted using yard air:
(a) Failure to use suitable 9,500 17,000
device.........................
(b) Improper connection of air 13,000 20,500
test device....................
(c) Failure to properly perform (\1\) (\1\)
inspection.....................
[[Page 57638]]
(d) Failure to calibrate test 9,500 17,000
device.........................
(e) Failure to use accurate 9,500 17,000
device.........................
232.219 Double heading and helper
service:
(a) Failure to perform 9,500 17,000
inspection or inability to
control brakes.................
(b) Failure to make visual 9,500 17,000
inspection.....................
(c) Use of improper helper link 9,500 17,000
device.........................
Subpart D--Periodic Maintenance and
Testing Requirements
232.303 General requirements:
(b)-(d) Failure to conduct 9,500 17,000
inspection or test when car on
repair track...................
(e) Improper movement of 9,500 17,000
equipment for testing..........
(e)(1) Failure to properly tag 5,500 10,000
equipment for movement.........
(e)(2)-(4) Failure to retain 5,500 10,000
record or improper removal of
tag or card....................
(f) Failure to stencil or track 9,500 17,000
test information...............
232.305 Single car tests:
(a) Failure to test in accord 9,500 17,000
with required procedure........
(b)-(c) Failure to perform test 9,500 17,000
232.309 Single car air brake test
equipment and devices:
(a)-(f) Failure to properly 9,500 17,000
test or calibrate..............
Subpart E--End-of-Train Devices
232.403 Design standards for one-way
devices:
(a)-(g) Failure to meet 9,500 17,000
standards......................
232.405 Design standards for two-way ................ ................
devices:
(a)-(i) Failure to meet 9,500 17,000
standards......................
232.407 Operating requirements for
two-way devices:
(b) Failure to equip a train.... 13,000 20,500
(c) Improper purchase........... 9,500 17,000
(f)(1) Failure of device to be 13,000 20,500
armed and operable.............
(f)(2) Insufficient battery 9,500 17,000
charge.........................
(f)(3) Failure to activate the 9,500 17,000
device.........................
(g) Improper handling of en 13,000 20,500
route failure, freight or other
non-passenger..................
(h) Improper handling of en 13,000 20,500
route failure, passenger.......
232.409 Inspection and testing of
devices:
(a) Failure to have unique code. 9,500 17,000
(b) Failure to compare 9,500 17,000
quantitative values............
(c) Failure to test emergency 13,000 20,500
capability.....................
(d) Failure to properly 9,500 17,000
calibrate......................
Subpart F--Introduction of New Brake
System Technology
232.503 Process to introduce new
technology:
(b) Failure to obtain FRA 19,500 25,000
approval.......................
232.505 Pre-revenue service ................ ................
acceptance testing plan:
(a) Failure to obtain FRA 13,000 20,500
approval.......................
(b) Failure to comply with plan. 9,500 17,000
(f) Failure to test previously 13,000 20,500
used technology................
Subpart G--Electronically Controlled
Pneumatic (ECP) Braking Systems
232.603 Design, interoperability,
and configuration management
requirements:
(a) Failure to meet minimum 5,500 10,000
standards......................
(b) Using ECP brake equipment 9,500 17,000
without approval...............
(c) Failure to adopt and comply 13,000 20,500
with a proper configuration
management plan................
232.605 Training Requirements:
(a) Failure to adopt and comply (\1\) (\1\)
with a proper training,
qualification, and designation
program for employees that
perform inspection, testing or
maintenance....................
(b) Failure to amend operating 13,000 20,500
rules..........................
(c) Failure to adopt and comply 13,000 20,500
with proper training criteria
for locomotive engineers.......
232.607 Inspection and testing
requirements:
(a)(1), (b), (c)(1) Complete or (\1\) (\1\)
partial failure to perform
inspection.....................
(a)(2) Complete or partial 9,500 17,000
failure to perform pre-
departure inspection...........
(c)(1)(iv), (c)(2) Failure to 9,500 17,000
perform visual inspection on a
car added en route.............
(d) Failure to perform (\1\) (\1\)
inspection.....................
(e)(1), (2) Failure to properly 9,500 17,000
initialize the train...........
(e)(3) Failure to ensure 9,500 17,000
identical consist and system
information....................
(f)(1) Failure to apply a proper (\1\) (\1\)
brake pipe service reduction...
(f)(2) Failure to properly (\1\) (\1\)
adhere to the proper piston
travel ranges..................
(g)(1)-(4) Improperly located 13,000 20,500
and guarded cable..............
(g)(5) Condition of cable and 9,500 17,000
connections....................
232.609 Handling of defective
equipment with ECP brake systems:
(a) Failure to have proper (\1\) (\1\)
percentage of operative brakes
from Class I brake test........
(b) Failure to prevent a car 9,500 17,000
known to arrive with defective
brakes to depart location where
a Class I brake test is
required.......................
[[Page 57639]]
(c) Improper movement of a car 9,500 17,000
equipped with conventional
pneumatic brakes...............
(d) Operating with less than 85 (\1\) (\1\)
percent operative brakes.......
(f)(2)(i) Improper placement of (\1\) (\1\)
defective conventional brake
equipment......................
(f)(2)(ii) Improper placement of 9,500 17,000
defective ECP brake equipment..
(g) Improper movement of (\1\) (\1\)
defective stand-alone ECP brake
equipment in a train operating
with conventional pneumatic
brakes.........................
(h) Improper movement from (\1\) (\1\)
initial terminal of stand-alone
ECP brake equipment in a
conventional brake operated
train..........................
(i) Failure to tag equipment.... (\1\) (\1\)
(j)(1) Failure to adopt and 5,500 10,000
comply with procedures for the
movement of defective equipment
(j)(2) Failure to submit list of 9,500 17,000
ECP brake system repair
locations......................
232.611 Periodic maintenance:
(a) Failure to ensure the 9,500 17,000
proper and safe condition of
car............................
(b)-(d) Failure to perform test 9,500 17,000
232.613 End-of-train devices:
(a) Failure to meet design 9,500 17,000
standards for ECP-EOT devices..
(b) Moving with an improper or 9,500 17,000
improperly connected ECP-EOT
device.........................
------------------------------------------------------------------------
\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 unit of equipment 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. Although the penalties listed for failure to perform the
brake inspections and tests under Sec. 232.205 through Sec.
232.209 may be assessed for each train that is not properly inspected,
failure to perform any of the inspections and tests required under
those sections will be treated as a violation separate and distinct
from, and in addition to, any substantive violative conditions found
on the equipment contained in the train consist. Moreover, 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 of defective equipment set
forth in Sec. 232.15(a) 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 equipment at the time of movement.
Failure to provide any of the records or plans required by this part
pursuant to Sec. 232.19 will be considered a failure to maintain or
develop the record or plan and will make the railroad liable for
penalty under the particular regulatory section(s) concerning the
retention or creation of the document involved.
Failure to properly perform any of the inspections specifically
referenced in Sec. Sec. 232.209, 232.213, and 232.217 may be
assessed under each section of this part or this chapter, or both,
that contains the requirements for performing the referenced
inspection.
\2\ The penalty schedule uses section numbers from 49 CFR part 232. 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 233--[AMENDED]
40. The authority citation for part 233 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.
41. Appendix A to part 233 is revised to read as follows:
Appendix A to Part 233--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
233.5 Accidents resulting from $9,500 $17,000
signal failure.....................
233.7 Signal failure reports........ 5,500 10,000
233.9 Reports....................... 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 233. 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 234--[AMENDED]
42. The authority citation for part 234 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.
43. Appendix A to part 234 is revised to read as follows:
[[Page 57640]]
Appendix A to Part 234--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Reports
234.7 Accidents involving grade $9,500 $17,000
crossing signal failure............
234.9 Grade crossing signal system 5,500 10,000
failure reports....................
Subpart C--Response to Reports of
Warning System Malfunction
234.101 Employee notification rules. 5,500 10,000
234.103 Timely response to report of 13,000 20,500
malfunction........................
234.105 Activation failure:
(a) Failure to notify--train 19,500 25,000
crews..........................
Other railroads................. 19,500 25,000
(b) Failure to notify law 5,500 10,000
enforcement agency.............
(c) Failure to comply with-- 13,000 20,500
flagging requirements..........
Speed restrictions.............. 13,000 20,500
(d) Failure to activate horn or 5,500 10,000
whistle........................
234.106 Partial activation:
(a) Failure to notify--train 9,500 17,000
crews..........................
Other railroads................. 9,500 17,000
(b) Failure to notify law 5,500 10,000
enforcement agency.............
1 (c) Failure to comply with-- 9,500 17,000
flagging requirements speed
restrictions...................
(d) Failure to activate horn or 5,500 10,000
whistle........................
234.107 False activation:
(a) Failure to notify--train 13,000 20,500
crews..........................
Other railroads................. 13,000 20,500
1 (b) Failure to notify law 5,500 10,000
enforcement agency.............
(c) Failure to comply with-- 9,500 17,000
flagging requirements..........
Speed restrictions.............. 9,500 17,000
(d) Failure to activate horn or 5,500 10,000
whistle........................
234.109 Recordkeeping............... 2,500 5,000
Subpart D--Maintenance, Inspection,
and Testing
Maintenance Standards
234.201 Location of plans........... 5,500 10,000
234.203 Control circuits............ 9,500 17,000
234.205 Operating characteristics of 13,000 20,500
warning system apparatus...........
234.207 Adjustment, repair, or 13,000 20,500
replacement of component...........
234.209 Interference with normal 19,500 25,000
functioning of system..............
234.211 Locking of warning system 5,500 10,000
apparatus..........................
234.213 Grounds..................... 9,500 17,000
234.215 Standby power system........ 19,500 25,000
234.217 Flashing light units........ 5,500 10,000
234.219 Gate arm lights and light 5,500 10,000
cable..............................
234.221 Lamp voltage................ 9,500 17,000
234.223 Gate arm.................... 5,500 10,000
234.225 Activation of warning system 19,500 25,000
234.227 Train detection apparatus... 19,500 25,000
234.229 Shunting sensitivity........ 19,500 25,000
234.231 Fouling wires............... 13,000 20,500
234.233 Rail joints................. 13,000 20,500
234.235 Insulated rail joints....... 19,500 25,000
234.237 Switch equipped with circuit 5,500 10,000
controller.........................
234.239 Tagging of wires and 5,500 10,000
interference of wires or tags with
signal apparatus...................
234.241 Protection of insulated 9,500 17,000
wire; splice in underground wire...
234.243 Wire on pole line and aerial 9,500 17,000
cable..............................
234.245 Signs....................... 5,500 10,000
Inspections and Tests
234.247 Purpose of inspections and 13,000 20,500
tests; removal from service of
relay or device failing to meet
test requirements..................
234.249 Ground tests................ 13,000 20,500
234.251 Standby power............... 9,500 17,000
234.253 Flashing light units and 5,500 10,000
lamp voltage.......................
234.255 Gate arm and gate mechanism. 5,500 10,000
234.257 Warning system operation.... 13,000 20,500
234.259 Warning time................ 9,500 17,000
234.261 Highway traffic signal pre- 9,500 17,000
emption............................
234.263 Relays...................... 9,500 17,000
234.265 Timing relays and timing 9,500 17,000
devices............................
234.267 Insulation resistance tests, 9,500 17,000
wires in trunking and cables.......
234.269 Cut-out circuits............ 19,500 25,000
234.271 Insulated rail joints, bond 9,500 17,000
wires, and track connections.......
234.273 Results of tests............ 2,500 5,000
[[Page 57641]]
Requirements for Processor-Based
Systems
234.275 Processor-Based Systems..... 13,000 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 234. 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 235--[AMENDED]
44. The authority citation for part 235 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49
CFR 1.49.
45. Appendix A to part 235 is revised to read as follows:
Appendix A to Part 235--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
235.5 Changes requiring filing of $5,500 $10,000
application
------------------------------------------------------------------------
\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 235. 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 236--[AMENDED]
46. The authority citation for part 236 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note and 49
CFR 1.49.
47. Appendix A to part 236 is revised to read as follows:
Appendix A to Part 236--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
236.0 Applicability, minimum $9,500 $17,000
requirements.......................
Subpart A--Rules and Instructions--
All Systems
General
236.1 Plans, where kept............. 13,000 20,500
236.2 Grounds....................... 13,000 20,500
236.3 Locking of signal apparatus
housings:
Power interlocking machine 5,500 10,000
cabinet not secured against
unauthorized entry.............
Other violations................ 5,500 10,000
236.4 Interference with normal 19,500 25,000
functioning of device..............
236.5 Design of control circuits on 19,500 25,000
closed circuit principle...........
236.6 Hand-operated switch equipped 13,000 20,500
with switch circuit controller.....
236.7 Circuit controller operated by 13,000 20,500
switch-and-lock movement...........
236.8 Operating characteristics of 9,500 17,000
electro-magnetic, electronic, or
electrical apparatus...............
236.9 Selection of circuits through 5,500 10,000
indicating or annunciating
instruments........................
236.10 Electric locks, force drop 5,500 10,000
type; where required...............
236.11 Adjustment, repair, or 13,000 20,500
replacement of component...........
236.12 Spring switch signal 9,500 17,000
protection; where required.........
236.13 Spring switch; selection of 9,500 17,000
signal control circuits through
circuit controller.................
236.14 Spring switch signal 9,500 17,000
protection; requirements...........
236.15 Timetable instructions....... 5,500 10,000
236.16 Electric lock, main track
releasing circuit:
Electric lock releasing circuit 13,000 20,500
on main track extends into
fouling circuit where turnout
not equipped with derail at
clearance point either pipe-
connected to switch or
independently locked,
electrically...................
Other violations................ 13,000 20,500
236.17 Pipe for operating 5,500 10,000
connections, requirements..........
236.18 Software management control
plan:
(a) Failure to develop and adopt 9,500 17,000
a plan.........................
(b) Failure to fully implement 9,500 17,000
plan...........................
(c) Inadequate plan............. 9,500 17,000
[[Page 57642]]
Roadway Signals and Cab Signals
236.21 Location of roadway signals.. 13,000 20,500
236.22 Semaphore signal arm; 5,500 10,000
clearance to other objects.........
236.23 Aspects and indications...... 9,500 17,000
236.24 Spacing of roadway signals... 13,000 20,500
236.26 Buffing device, maintenance.. 13,000 20,500
Track Circuits
236.51 Track circuit requirements:
(a) Shunt fouling circuit used 13,000 20,500
where permissible speed through
turnout greater than 45 m.p.h..
(b) Track relay not in de- 19,500 25,000
energized position or device
that functions as track relay
not in its most restrictive
state when train, locomotive,
or car occupies any part of
track circuit, except fouling
section of turnout of hand-
operated main-track crossover..
Other violations................ 13,000 20,500
236.52 Relayed cut-section.......... 13,000 20,500
236.53 Track circuit feed at grade 13,000 20,500
crossing...........................
236.54 Minimum length of track 13,000 20,500
circuit............................
236.55 Dead section; maximum length. 13,000 20,500
236.56 Shunting sensitivity......... 13,000 20,500
236.57 Shunt and fouling wires:
(a) Shunt or fouling wires do 13,000 20,500
not consist of at least two
discrete conductors............
Other violations................ 9,500 17,000
236.58 Turnout, fouling section:
Rail joint in shunt fouling 13,000 20,500
section not bonded.............
Other violations................ 9,500 17,000
236.59 Insulated rail joints........ 13,000 20,500
236.60 Switch shunting circuit; use 13,000 20,500
restricted.........................
Wires and Cables
236.71 Signal wires on pole line and 13,000 20,500
aerial cable.......................
236.73 Open-wire transmission line; 9,500 17,000
clearance to other circuits........
236.74 Protection of insulated wire; 9,500 17,000
splice in underground wire.........
236.76 Tagging of wires and 5,500 10,000
interference of wires or tags with
signal apparatus...................
Inspections and Tests; All Systems
236.101 Purpose of inspection and 9,500 17,000
tests; removal from service or
relay or device failing to meet
test requirements..................
236.102 Semaphore or search-light 13,000 20,500
signal mechanism...................
236.103 Switch circuit controller or 13,000 20,500
point detector.....................
236.104 Shunt fouling circuit....... 9,500 17,000
236.105 Electric lock............... 9,500 17,000
236.106 Relays...................... 9,500 17,000
236.107 Ground tests................ 9,500 17,000
236.108 Insulation resistance tests,
wires in trunking and cables:
(c) Circuit permitted to 13,000 20,500
function on a conductor having
insulation resistance value
less than 200,000 ohms.........
Other violations................ 9,500 17,000
236.109 Time releases, timing relays 9,500 17,000
and timing devices.................
236.110 Results of tests............ 2,500 5,000
Subpart B--Automatic Block Signal
Systems
Standards
236.201 Track circuit control of 13,000 20,500
signals............................
236.202 Signal governing movements 13,000 20,500
over hand-operated switch..........
236.203 Hand-operated crossover 13,000 20,500
between main tracks; protection....
236.204 Track signaled for movements 13,000 20,500
in both directions, requirements...
236.205 Signal control circuits; 19,500 25,000
requirements.......................
236.206 Battery or power supply with 9,500 17,000
respect to relay; location.........
236.207 Electric lock on hand-
operated switch; control:
Approach or time locking of 13,000 20,500
electric lock on hand-operated
switch can be defeated by
unauthorized use of emergency
device which is not kept sealed
in the non-release position....
Other violations................ 9,500 17,000
Subpart C--Interlocking
Standards
236.301 Where signals shall be 9,500 17,000
provided...........................
236.302 Track circuits and route 13,000 17,000
locking............................
236.303 Control circuits for 13,000 20,500
signals, selection through circuit
controller operated by switch
points or by switch locking
mechanism..........................
236.304 Mechanical locking or same 13,000 20,500
protection effected by circuits....
236.305 Approach or time locking.... 13,000 20,500
236.306 Facing point lock or switch- 9,500 17,000
and-lock movement..................
236.307 Indication locking:......... 13,000 20,500
[[Page 57643]]
236.308 Mechanical or electric 13,000 20,500
locking or electric circuits;
requisites.........................
236.309 Loss of shunt protection;
where required:
Loss of shunt of five seconds or 13,000 20,500
less permits release of route
locking of power-operated
switch, movable point frog, or
derail.........................
Other violations................ 9,500 17,000
236.310 Signal governing approach to 9,500 17,000
home signal........................
236.311 Signal control circuits, 13,000 20,500
selection through track relays or
devices functioning as track relays
and through signal mechanism
contacts and time releases at
automatic interlocking.............
236.312 Movable bridge, interlocking
of signal appliances with bridge
devices:
Emergency bypass switch or 13,000 20,500
device not locked or sealed....
Other violations................ 13,000 20,500
236.314 Electric lock for hand-
operated switch or derail:
Approach or time locking of 13,000 20,500
electric lock at hand-operated
switch or derail can be
defeated by unauthorized use of
emergency device which is not
kept sealed in non-release
position.......................
Other violations................ 13,000 20,500
Rules and Instructions
236.326 Mechanical locking removed 9,500 17,000
or disarranged; requirement for
permitting train movements through
interlocking.......................
236.327 Switch, movable-point frog 13,000 20,500
or split-point derail..............
236.328 Plunger of facing-point..... 9,500 17,000
236.329 Bolt lock................... 13,000 20,500
236.330 Locking dog of switch and 9,500 17,000
lock movement......................
236.334 Point detector.............. 13,000 20,500
236.335 Dogs, stops and trunnions of 5,500 10,000
mechanical locking.................
236.336 Locking bed................. 5,500 10,000
236.337 Locking faces of mechanical 5,500 10,000
locking; fit.......................
236.338 Mechanical locking required 5,500 10,000
in accordance with locking sheet
and dog chart......................
236.339 Mechanical locking; 5,500 10,000
maintenance requirements...........
236.340 Electromechanical 5,500 10,000
interlocking machine; locking
between electrical and mechanical
levers.............................
236.341 Latch shoes, rocker links, 5,500 10,000
and quadrants......................
236.342 Switch circuit controller... 13,000 20,500
Inspection and Tests
236.376 Mechanical locking.......... 9,500 17,000
236.377 Approach locking............ 9,500 17,000
236.378 Time locking................ 9,500 17,000
236.379 Route locking............... 9,500 17,000
236.380 Indication locking.......... 9,500 17,000
236.381 Traffic locking............. 9,500 17,000
236.382 Switch obstruction test..... 13,000 20,500
236.383 Valve locks, valves, and 9,500 17,000
valve magnets......................
236.384 Cross protection............ 9,500 17,000
236.386 Restoring feature on power 9,500 17,000
switches...........................
236.387 Movable bridge locking...... 13,000 20,500
Subpart D--Traffic Control Systems
Standards
Standards
236.401 Automatic block signal
system and interlocking standards
applicable to traffic control
systems:
236.402 Signals controlled by track 19,500 25,000
circuits and control operator......
236.403 Signals at controlled point. 19,500 25,000
236.404 Signals at adjacent control 19,500 25,000
points.............................
236.405 Track signaled for movements 19,500 25,000
in both directions, change of
direction of traffic...............
236.407 Approach or time locking; 19,500 25,000
where required.....................
236.408 Route locking............... 19,500 25,000
236.410 Locking, hand-operated
switch; requirements:
(a) Hand-operated switch on main 13,000 20,500
track not electrically or
mechanically locked in normal
position where signal not
provided to govern movement to
main track, movements made at
speeds in excess of 20 m.p.h.,
or train and engine movements
may clear main track...........
Hand-operated switch on signaled 13,000 20,500
siding not electrically or
mechanically locked in normal
position where maximum
authorized speed on the siding
exceeds 30 m.p.h...............
(b) Approach or time locking of 13,000 20,500
electric lock at hand-operated
switch can be defeated by use
of emergency release device of
electric lock which is not kept
sealed in non-release position.
Other violations................ 9,500 17,000
Rules and Instructions
236.426 Interlocking rules and 2,500 5,000
instructions applicable to traffic
control systems....................
Inspection and Tests
236.476 Interlocking inspections and 2,500 5,000
tests applicable to traffic control
systems............................
Subpart E--Automatic Train Stop,
Train Control and Cab Signal Systems
Standards
Standards
236.501 Forestalling device and 9,500 17,000
speed control......................
[[Page 57644]]
236.502 Automatic brake application, 13,000 20,500
initiation by restrictive block
conditions stopping distance in
advance............................
236.503 Automatic brake application; 13,000 20,500
initiation when predetermined rate
of speed exceeded..................
236.504 Operations interconnected 9,500 17,000
with automatic block-signal system.
236.505 Proper operative relation 5,500 10,000
between parts along roadway and
parts on locomotive................
236.506 Release of brakes after 13,000 20,500
automatic application..............
236.507 Brake application; full 9,500 17,000
service............................
236.508 Interference with 9,500 17,000
application of brakes by means of
brake valve........................
236.509 Two or more locomotives 5,500 10,000
coupled............................
236.511 Cab signals controlled in 9,500 17,000
accordance with block conditions
stopping distance in advance.......
236.512 Cab signal indication when 13,000 20,500
locomotive enters blocks...........
236.513 Audible indicator........... 9,500 17,000
236.514 Interconnection of cab 5,500 10,000
signal system with roadway signal
system.............................
236.515 Visibility of cab signals... 9,500 17,000
236.516 Power supply................ 5,500 10,000
Rules and Instructions; Roadway
236.526 Roadway element not 5,500 10,000
functioning properly...............
236.527 Roadway element insulation 5,500 10,000
resistance.........................
236.528 Restrictive condition 9,500 17,000
resulting from open hand-operated
switch; requirement................
236.529 Roadway element inductor; 5,500 10,000
height and distance from rail......
236.531 Trip arm; height and 5,500 10,000
distance from rail.................
236.532 Strap iron inductor; use 5,500 10,000
restricted.........................
236.534 Entrance to equipped 9,500 17,000
territory; requirements............
Rules and Instructions; Locomotives
236.551 Power supply voltage........ 5,500 10,000
236.552 Insulation resistance....... 5,500 10,000
236.553 Seal, where required........ 5,500 10,000
236.554 Rate of pressure reduction; 9,500 17,000
equalizing reservoir or brake pipe.
236.555 Repaired or rewound receiver 2,500 5,000
coil...............................
236.556 Adjustment of relay......... 5,500 10,000
236.557 Receiver; location with 5,500 10,000
respect to rail....................
236.560 Contact element, mechanical 5,500 10,000
trip type; location with respect to
rail...............................
236.562 Minimum rail current 5,500 10,000
required...........................
236.563 Delay time.................. 9,500 17,000
236.564 Acknowledging time.......... 5,500 10,000
236.565 Provision made for 5,500 10,000
preventing operation of pneumatic
brake-applying apparatus by double-
heading clock; requirement.........
236.566 Locomotive of each train 5,500 10,000
operating in train stop, train
control or cab signal territory;
equipped...........................
236.567 Restrictions imposed when
device fails and/or is cut out en
route:
Report not made to designated 9,500 17,000
officer at next available point
of communication after
automatic train stop, train
control, or cab signal device
fails and/or is cut en route...
Trains permitted to proceed at 9,500 17,000
speed exceeding 79 m.p.h. where
automatic train stop, train
control, or cab signal device
fails and/or is cut out en
route when absolute block
established in advance of train
on which device is inoperative.
Other violations................ 5,500 10,000
236.568 Difference between speeds 5,500 10,000
authorized by roadway signal and
cab signal; action.................
Inspection and Tests; Roadway
236.576 Roadway element............. 5,500 10,000
236.577 Test, acknowledgement, and 5,500 10,000
cut-in circuits....................
Inspection and Tests; Locomotive
236.586 Daily or after trip test.... 9,500 17,000
236.587 Departure test:
(b) Test of automatic train 13,000 20,500
stop, train control, or cab
signal apparatus on locomotive
not made on departure of
locomotive from initial
terminal if equipment on
locomotive not cut out between
initial terminal and equipped
territory......................
Test of automatic train stop, 13,000 20,500
train control, or cab signal
apparatus on locomotive not
made immediately on entering
equipped territory, if
equipment on locomotive cut out
between initial terminal and
equipped territory.............
(c) Automatic train stop, train 13,000 20,500
control, or cab signal
apparatus on locomotive making
more than one trip within 24-
hour period not given departure
test within corresponding 24-
hour period....................
(d) Failure to certify, post, 2,500 5,000
or retain test results as
required.......................
Other violations................ 2,500 5,000
236.588 Periodic test............... 13,000 20,500
236.589 Relays...................... 9,500 17,000
236.590 Pneumatic apparatus:
Automatic train stop, train 9,500 17,000
control, or cab signal
apparatus not inspected and
cleaned at least once every 736
days...........................
Other violations................ 9,500 17,000
[[Page 57645]]
Subpart F--Dragging Equipment and
Slide Detectors and Other Similar
Protective Devices; Standards
Standards
236.601 Signals controlled by 13,000 20,500
devices; location..................
Subpart H--Standards for Processor-
Based Signal and Train Control
Systems
236.905 Railroad Safety Program Plan
(RSPP).............................
(a) Failure to develop and 9,500 17,000
submit RSPP when required......
(d) Failure to obtain FRA 9,500 17,000
approval for a modification to
RSPP...........................
236.907 Product Safety Plan (PSP):
(a) Failure to address required 9,500 17,000
PSP elements...................
(b) Failure to identify or 9,500 17,000
implement product configuration/
revision control measures......
(d) Failure to communicate 19,500 25,000
identified safety critical
hazard.........................
236.909 Minimum Performance
Standard:
(a) Failure to make analyses or 9,500 17,000
documentation available........
(b) Failure to determine or 13,000 20,500
demonstrate that the minimum
performance standard has been
met............................
236.913 Notification to FRA of PSPs:
(a) Failure to prepare a PSP or 9,500 17,000
PSP amendment as required......
(b) Failure to submit a PSP or 9,500 17,000
PSP amendment as required......
(c) Failure to submit an 9,500 17,000
informational filing...........
(j) Field testing without 19,500 25,000
authorization or approval......
236.915 Implementation and
operation:
(a) Operation of product without 19,500 25,000
authorization or approval......
(b) Failure to comply with PSP.. 9,500 17,000
(c) Interference with normal 19,500 25,000
functioning safety-critical
product........................
(d) Failure to determine cause 9,500 17,000
and adjust, repair or replace
without undue delay or take
appropriate action pending
repair.........................
236.917 Retention of records:
(a) Failure to maintain records 9,500 17,000
as required....................
(b)(1) Failure to report 13,000 20,500
inconsistency..................
(b)(2) Failure to take prompt 5,500 10,000
countermeasures................
(b)(3) Failure to provide final 5,500 10,000
report.........................
236.919 Operations and Maintenance 5,500 10,000
Manual.............................
236.921 Training and qualification 9,500 17,000
program, general...................
236.923 Task analysis and basic
requirements:
(a) Failure to develop an 9,500 17,000
acceptable training program....
(a)(6) Failure to train persons 9,500 17,000
as required....................
(a)(8) Failure to conduct 5,500 10,000
evaluation of training program
as required....................
(b) Failure to maintain records 2,500 5,000
as required....................
236.925 Training specific to control 9,500 17,000
office personnel...................
236.927 Training specific to 9,500 17,000
locomotive engineers and other
operating personnel................
236.929 Training specific to roadway 9,500 17,000
workers............................
Subpart I--Positive Train Control
Systems
236.1005 Positive Train Control
System Requirements:
Failure to complete PTC system 5,500 10,000
installation on track segment
where PTC is required prior to
12/31/2015.....................
Commencement of revenue service 13,000 20,500
prior to obtaining PTC System
Certification..................
Failure of the PTC system to 19,500 25,000
perform a safety-critical
function required by this
section........................
Failure to provide notice, 13,000 20,500
obtain approval, or follow a
condition for temporary
rerouting when required........
Exceeding the allowed percentage 2,500 5,000
of controlling locomotives
operating out of an initial
terminal after receiving a
failed initialization..........
236.1006 Equipping locomotives
operating in PTC territory:
Operating in PTC territory a 19,500 25,000
controlling locomotive without
a required and operative PTC
onboard apparatus..............
Failure to report as prescribed 2,500 5,000
by this section................
Non-compliant operation of 13,000 20,500
unequipped trains in PTC
territory......................
236.1007 Additional requirements for
high-speed service:
Operation of passenger trains at 9,500 17,000
a speed equal to or greater
than 60 m.p.h. on non-PTC-
equipped territory where
required.......................
Operation of freight trains at a 9,500 17,000
speed equal to or greater than
50 m.p.h. on non-PTC-equipped
territory where required.......
Failure to fully implement 9,500 17,000
incursion protection where
required.......................
236.1009 Procedural requirements:
Failure to file PTCIP when 2,500 5,000
required.......................
Failure to amend PTCIP when 2,500 5,000
required.......................
Failure to obtain Type Approval 2,500 5,000
when required..................
Failure to update NPI........... 2,500 5,000
Operation of PTC system prior to 13,000 20,500
system certification...........
236.1011 PTCIP content requirements:
Failure to install a PTC system 2,500 5,000
in accordance with subpart I
when so required...............
236.1013 PTCDP content requirements
and Type Approval:
[[Page 57646]]
Failure to maintain quality 2,500 5,000
control system.................
Inappropriate use of Type 2,500 5,000
Approval.......................
236.1015 PTCSP content requirements
and PTC System Certification:
Failure to implement PTC system 9,500 17,000
in accordance with the
associated PTCSP and resultant
system certification...........
Failure to maintain PTC system 9,500 17,000
in accordance with the
associated PTCSP and resultant
system certification...........
Failure to maintain required 2,500 5,000
supporting documentation.......
236.1017 Independent third party
Verification and Validation:
Failure to conduct independent 13,000 20,500
third party Verification and
Validation when ordered........
236.1019 Main line track exceptions:
Revenue operations conducted in 5,500 10,000
non-compliance with the
passenger terminal exception...
Revenue operations conducted in 5,500 10,000
non-compliance with the limited
operations exception...........
Failure to request modification 5,500 10,000
of the PTCIP or PTCSP when
required.......................
Revenue operations conducted in 9,500 17,000
violation of (c)(2)............
Revenue operations conducted in 9,500 17,000
violation of (c)(3)............
236.1021 Discontinuances, material
modifications, and amendments:
Failure to update PTCDP when 2,500 5,000
required.......................
Failure to update PTCSP when 2,500 5,000
required.......................
Failure to immediately adopt and 2,500 5,000
comply with approved RFA.......
Discontinuance or modification 2,500 5,000
of a PTC system without
approval when required.........
236.1023 Errors and malfunctions:
Railroad failure to provide 2,500 5,000
proper notification of PTC
system error or malfunction....
Failure to maintain PTCPVL...... 2,500 5,000
Supplier failure to provide 2,500 5,000
proper notification of
previously identified PTC
system error or malfunction....
Failure to provide timely 2,500 5,000
notification...................
Failure to provide appropriate 5,500 10,000
protective measures in the
event of PTC system failure....
236.1027 Exclusions:
Integration of primary train 9,500 17,000
control system with locomotive
electronic system without
approval.......................
236.1029 PTC system use and en route
failures:
Failure to determine cause of 5,500 10,000
PTC system component failure
without undue delay............
Failure to adjust, repair, or 5,500 10,000
replace faulty PTC system
component without undue delay..
Failure to take appropriate 5,500 10,000
action pending adjustment,
repair, or replacement of
faulty PTC system component....
Non-compliant train operation 9,500 17,000
within PTC-equipped territory
with inoperative PTC onboard
apparatus......................
Interference with the normal 9,500 17,000
functioning of safety-critical
PTC system.....................
Improper arrangement of the PTC 5,500 10,000
system onboard apparatus.......
236.1033 Communications and security
requirements:
Failure to provide cryptographic 2,500 5,000
message integrity and
authentication.................
Improper use of revoked 2,500 5,000
cryptographic key..............
Failure to protect cryptographic 2,500 5,000
keys from unauthorized
disclosure, modification, or
substitution...................
Failure to establish prioritized 2,500 5,000
service restoration and
mitigation plan for
communication services.........
236.1035 Field testing requirements:
Field testing without 5,500 10,000
authorization or approval......
236.1037 Records retention:
Failure to maintain records and 2,500 5,000
databases as required..........
Failure to report inconsistency. 5,500 10,000
Failure to take prompt 5,500 10,000
countermeasures................
Failure to provide final report. 2,500 5,000
236.1039 Operations and Maintenance
Manual:
Failure to implement and 2,500 5,000
maintain Operations and
Maintenance Manual as required.
236.1043 Task analysis and basic
requirements:
Failure to develop and maintain 5,500 10,000
an acceptable training program.
Failure to train persons as 2,500 5,000
required.......................
Failure to conduct evaluation of 2,500 5,000
training program as required...
Failure to maintain records as 2,500 5,000
required.......................
236.1045 Training specific to office
control personnel:
Failure to conduct training 2,500 5,000
unique to office control
personnel......................
236.1047 Training specific to
locomotive engineers and other
operations personnel:
Failure to conduct training 2,500 5,000
unique to locomotive engineers
and other operating personnel..
236.1049 Training specific to
roadway workers:
Failure to conduct training 2,500 5,000
unique to roadway workers......
------------------------------------------------------------------------
\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 236. 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.
[[Page 57647]]
PART 238--[AMENDED]
48. The authority citation for part 238 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303,
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; 49 CFR
1.49.
49. Appendix A to part 238 is revised to read as follows:
Appendix A to Part 238--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart A--General
238.15 Movement of power brake
defects:
(b) Improper movement from $13,000 $20,500
Class I or IA brake test.......
(c) Improper movement of en 9,500 17,000
route defect...................
(2), (3) Insufficient tag 2,500 5,000
or record..................
(4) Failure to determine 9,500 17,000
percent operative brakes...
(d) Failure to follow operating 13,000 20,500
restrictions...................
(e) Failure to follow 9,500 17,000
restrictions for inoperative
front or rear unit.............
238.17 Movement of other than power ................ ................
brake defects: \1\
(c)(4), (5) Insufficient tag or 2,500 5,000
record.........................
(d) Failure to inspect or 9,500 17,000
improper use of roller bearings
(e) Improper movement of 9,500 17,000
defective safety appliances....
238.19 Reporting and tracking
defective equipment:
(a) Failure to have reporting 19,500 25,000
or tracking system.............
(b) Failure to retain records.. 5,500 10,000
(c) Failure to make records 2,500 5,000
available......................
(d) Failure to list power brake 5,500 10,000
repair points..................
Subpart B--Safety Planning and
General Requirements
238.103 Fire protection plan/fire
safety:
(a) Failure to use proper 13,000 20,500
materials......................
(b) Improper certification..... 5,500 10,000
(c) Failure to consider fire 13,000 20,500
safety on new equipment........
(d) Failure to perform fire 13,000 20,500
safety analysis................
(e) Failure to develop, adopt 13,000 20,500
or comply with procedures......
238.105 Train electronic hardware
and software safety:
(a), (b), (c) Failure to 13,000 20,500
develop and maintain hardware
and software safety............
(d) Failure to include required 13,000 20,500
design features................
(e) Failure to comply with 9,500 17,000
hardware and software safety
program........................
238.107 Inspection, testing, and
maintenance plan:
(b) Failure to develop plan.... 13,000 20,500
(b)(1)-(5) Failure of plan to 9,500 17,000
address specific item..........
(d) Failure to conduct annual 9,500 17,000
review.........................
238.109 Training, qualification, and
designation program:
(a) Failure to develop or adopt 13,000 20,500
program........................
(b)(1)-(4) Failure of plan to 9,500 17,000
address specific item..........
(b)(5)-(12) Failure to comply 9,500 17,000
with specific required
provisions of the program......
(b)(13) Failure to maintain 5,500 10,000
adequate records...............
238.111 Pre-revenue service
acceptance testing plan:
(a) Failure to properly test 13,000 20,500
previously used equipment......
(b)(1) Failure to develop plan. 13,000 20,500
(b)(2) Failure to submit plan 9,500 17,000
to FRA.........................
(b)(3) Failure to comply with 9,500 17,000
plan...........................
(b)(4) Failure to document 5,500 10,000
results of testing.............
(b)(5) Failure to correct 9,500 17,000
safety deficiencies or impose
operating limits...............
(b)(6) Failure to maintain 5,500 10,000
records........................
(b)(7) Failure to obtain FRA 9,500 17,000
approval.......................
238.113 Emergency window exits...... 9,500 17,000
238.114 Rescue access windows....... 9,500 17,000
238.115 Emergency lighting.......... 9,500 17,000
238.117 Protection against personal 9,500 17,000
injury.............................
238.119 Rim-stamped straight-plate 9,500 17,000
wheels.............................
238.121 Emergency communication..... 9,500 17,000
238.123 Emergency roof access....... 9,500 17,000
Subpart C--Specific Requirements for
Tier I Passenger Equipment
238.203 Static end strength......... 9,500 17,000
238.205 Anti-climbing mechanism..... 9,500 17,000
238.207 Link between coupling 9,500 17,000
mechanism and car body.............
238.209 Forward end structure of 9,500 17,000
locomotives........................
238.211 Collision posts............. 9,500 17,000
238.213 Corner posts................ 9,500 17,000
238.215 Rollover strength........... 9,500 17,000
238.217 Side structure.............. 9,500 17,000
238.219 Truck-to-car-body attachment 9,500 17,000
238.221 Glazing..................... 9,500 17,000
238.223 Fuel tanks.................. 9,500 17,000
238.225 Electrical system........... 9,500 17,000
[[Page 57648]]
238.227 Suspension system........... 9,500 17,000
238.229 Safety appliances--general:
(e) Failure to properly 9,500 17,000
identify equipment (per car)...
(g) Failure to adopt or comply 9,500 17,000
with inspection plan...........
(h) Failure to use qualified 9,500 17,000
person (per car)...............
(i) Failure to properly conduct 9,500 17,000
initial or periodic inspection
(per car)......................
(j) Failure to take proper 9,500 17,000
remedial action (per car)......
(k) Failure to maintain records 5,500 10,000
(per car)......................
238.230 Safety appliances--new
equipment:
(b)(2) Failure to identify 9,500 17,000
welded appliance (per car).....
(b)(3) Failure to receive 9,500 17,000
approval for use (per car).....
(c)(2) Failure to make proper 9,500 17,000
repair (per car)...............
238.231 Brake System (a)-(g), (i)- 9,500 17,000
(n)
(h)(1), (2) Hand or parking 13,000 20,500
brake missing or inoperative...
(h)(3) Hand or parking brake 5,500 10,000
inspection or record (per car).
(h)(4) Hand or parking brake 13,000 20,500
not applied to hold equipment
unattended on grade or
prematurely released...........
238.233 Interior fittings and 9,500 17,000
surfaces...........................
238.235 Doors....................... 9,500 17,000
238.237 Automated monitoring........ 9,500 17,000
Subpart D--Inspection, Testing, and
Maintenance Requirements for Tier I
Passenger Equipment
238.303 Exterior mechanical
inspection of passenger equipment:
(a)(1) Failure to perform \1\ 9,500 17,000
mechanical inspection..........
(a)(2) Failure to inspect 9,500 17,000
secondary brake system.........
(b) Failure to perform \1\ 9,500 17,000
inspection on car added to
train..........................
(c) Failure to utilize properly 9,500 17,000
qualified personnel............
(e)(1) Products of combustion 9,500 17,000
not released outside cab.......
(e)(2) Battery not vented or 9,500 17,000
gassing excessively............
(e)(3) Coupler not in proper 9,500 17,000
condition......................
(e)(4) No device under drawbar 9,500 17,000
pins or connection pins........
(e)(5) Suspension system and 9,500 17,000
spring rigging not in proper
condition......................
(e)(6) Truck not in proper 9,500 17,000
condition......................
(e)(7) Side bearing not in 9,500 17,000
proper condition...............
(e)(8) Wheel not in proper ................ ................
condition:
(i), (iv) Flat spot(s) and ................ ................
shelled spot(s):
(A) One spot 2\1/2\'' 9,500 17,000
or more but less than
3'' in length..........
(B) One spot 3'' or 13,000 20,500
more in length.........
(C) Two adjoining spots 9,500 17,000
each of which is 2'' or
more in length but less
than 2\1/2\'' in length
(D) Two adjoining spots 13,000 20,500
each of which are at
least 2'' in length, if
either spot is 2\1/2\''
or more in length......
(ii) Gouge or chip in
flange:
(A) More than 1\1/2\'' 9,500 17,000
but less than 1\5/8\''
in length; and more
than \1/2\'' but less
than \5/8\'' in width..
(B) 1\5/8\'' or more in 13,000 20,500
length and \5/8\'' or
more in width..........
(iii) Broken rim........... 13,000 20,500
(v) Seam in tread.......... 9,500 17,000
(vi) Flange thickness of: ................ ................
(A) \7/8\'' or less but 9,500 17,000
more than..............
(B) \13/16\'' or less.. 13,000 20,500
(vii) Tread worn hollow.... 9,500 17,000
(viii) Flange height of:
(A) 1\1/2\'' or greater 9,500 17,000
but less than 1\5/8\''.
(B) 1\5/8\'' or more... 13,000 20,500
(ix) Rim thickness: ................ ................
(A) Less than 1''...... 9,500 17,000
(B) \15/16\'' or less.. 13,000 20,500
(x) Crack or break in
flange, tread, rim, plate,
or hub:
(A) Crack of less than 9,500 17,000
1''....................
(B) Crack of 1'' or 13,000 20,500
more...................
(C) Break.............. 13,000 20,500
(xi) Loose wheel........... 13,000 20,500
(xii) Welded wheel......... 13,000 20,500
(e)(10) Improper grounding or 13,000 20,500
insulation.....................
(e)(11) Jumpers or cable 9,500 17,000
connections not in proper
condition......................
(e)(12) Door or cover plate not 9,500 17,000
properly marked................
(e)(13) Buffer plate not 9,500 17,000
properly placed................
(e)(14) Diaphragm not properly 9,500 17,000
placed or aligned..............
(e)(15) Secondary braking 9,500 17,000
system not in operating mode or
contains known defect..........
(e)(16) Roller bearings:
(i) Overheated............. 13,000 20,500
(ii) Cap screw loose or 9,500 17,000
missing....................
[[Page 57649]]
(iii) Cap screw lock broken 5,500 10,000
or missing.................
(iv) Seal loose, damaged, 9,500 17,000
or leaks lubricant.........
(e)(17) Air compressor 9,500 17,000
inoperative....................
(g) Record of inspection:
(1), (4) Failure to 5,500 10,000
maintain record of
inspection.................
(2) Record contains 2,500 5,000
insufficient information...
238.305 Interior mechanical
inspection of passenger cars:
(a) Failure to perform \1\ 5,500 10,000
inspection.....................
(b) Failure to utilize properly 5,500 10,000
qualified personnel............
(c)(1) Failure to protect 9,500 17,000
against personal injury........
(c)(2) Floors not free of 9,500 17,000
condition that creates hazard..
(c)(3) Access to manual door 5,500 10,000
release not in place...........
(c)(4) Emergency equipment not 5,500 10,000
in place.......................
(c)(5) Emergency brake valve 5,500 10,000
not stenciled or marked........
(c)(6) Door or cover plates not 5,500 10,000
properly marked................
(c)(7) Safety signage not in 5,500 10,000
place or legible...............
(c)(8) Trap door unsafe or 9,500 17,000
improperly secured.............
(c)(9) Vestibule steps not 5,500 10,000
illuminated....................
(c)(10) Door does not safely 9,500 17,000
operate as intended............
(c)(11) Seat broken, loose, or 9,500 17,000
not properly attached..........
(e) Record of inspection:
(1), (4) Failure to 5,500 10,000
maintain record of
inspection.................
(2) Record contains 2,500 5,000
insufficient information...
(f) Record of inspection:
(1), (4) Failure to 5,500 10,000
maintain record of
inspection.................
(2) Record contains 2,500 5,000
insufficient information...
238.307 Periodic mechanical
inspection of passenger cars and
unpowered vehicles:
(a) Failure to perform periodic \1\ 9,500 17,000
mechanical inspection..........
(b) Failure to utilize properly 9,500 17,000
qualified personnel............
(c)(1) Seat or seat attachment 9,500 17,000
broken or loose................
(c)(2) Luggage rack broken or 9,500 17,000
loose..........................
(c)(3) Bed, bunks, or 9,500 17,000
restraints broken or loose.....
(c)(4) Emergency window exit 9,500 17,000
does not properly operate......
(c)(5) Emergency lighting not 9,500 17,000
operational....................
(c)(6) Switches not in proper 9,500 17,000
condition......................
(c)(7) Coupler not in proper 9,500 17,000
condition......................
(c)(8) Truck not equipped with 9,500 17,000
securing arrangement...........
(c)(9) Truck center casting 13,000 20,500
cracked or broken..............
(c)(10) General conditions 9,500 17,000
endangering crew, passengers...
(c)(13) Hand or parking brake 9,500 17,000
test not performed.............
(d)(1) Manual door release does 9,500 17,000
not operate as intended........
(d)(2) Hand or parking brake 9,500 17,000
inspection not performed.......
(e)(1) Failure to maintain 5,500 10,000
record of inspection...........
(i)-(iv) Record contains 2,500 5,000
insufficient information...
(f)(1) Record of inspection:
(i) Failure to maintain 5,500 10,000
record of inspection.......
(ii) Record contains 2,500 5,000
insufficient information...
238.309 Periodic brake equipment
maintenance:
(b) Failure to perform on MU 9,500 17,000
locomotive.....................
(c) Failure to perform on 9,500 17,000
conventional locomotive........
(d) Failure to perform on 9,500 17,000
passenger coaches or other
unpowered vehicle..............
(e) Failure to perform on cab 9,500 17,000
car............................
(f) Record of periodic
maintenance:
(1), (2) Failure to 5,500 10,000
maintain record or stencil.
238.311 Single car tests:
(a) Failure to test in accord 9,500 17,000
with required procedure........
(b) Failure to utilize properly 9,500 17,000
qualified personnel............
(c), (e) Failure to perform 9,500 17,000
single car test................
(f) Improper movement of car 5,500 10,000
for testing....................
(g) Failure to test after 5,500 10,000
repair or replacement of
component......................
238.313 Class I brake test:
(a) Failure to perform on \1\ 19,500 25,000
commuter or short-distance
intercity passenger train......
(b) Failure to perform on long- \1\ 19,500 25,000
distance intercity passenger
train..........................
(c) Failure to perform on cars \1\ 13,000 20,500
added to passenger train.......
(d) Failure to utilized 13,000 20,500
properly qualified personnel...
(f) Passenger train used from 13,000 20,500
Class I brake test with less
than 100% operative brakes.....
(g) Partial failure to perform 13,000 20,500
inspection on a passenger train
(3) Failure to adjust 9,500 17,000
piston travel (per car)....
(h) Failure to maintain record. 5,500 10,000
(j) Failure to perform 13,000 20,500
additional Class I brake test..
1 (j)(3) Failure to maintain 5,500 10,000
record.........................
238.315 Class IA brake test:
[[Page 57650]]
(a) Failure to perform \1\ 13,000 20,500
inspection.....................
(d) Failure to utilize properly 9,500 17,000
qualified personnel............
(e) Passenger train used from 13,000 20,500
Class IA brake test with
improper percentage of
operative brakes...............
(f) Partial failure to perform 9,500 17,000
inspection on passenger train..
238.317 Class II brake test:
(a) Failure to perform \1\ 9,500 17,000
inspection.....................
(b) Failure to utilize properly 9,500 17,000
qualified personnel............
(c) Improper use of defective 9,500 17,000
equipment from Class II brake
test...........................
238.319 Running brake test:
(a), (b) Failure to perform 5,500 10,000
test...........................
238.321 Out-of-service credit 5,500 10,000
Subpart E--Specific Requirements for
Tier II Passenger Equipment
238.403 Crash energy management..... 9,500 17,000
238.405 Longitudinal static 9,500 17,000
compressive strength...............
238.407 Anti-climbing mechanism..... 9,500 17,000
238.409 Forward end structures of
power car cabs:
(a) Center collision post...... 9,500 17,000
(b) Side collision posts....... 9,500 17,000
(c) Corner posts............... 9,500 17,000
(d) Skin....................... 9,500 17,000
238.411 Rear end structures of power
car cabs:
(a) Corner posts............... 9,500 17,000
(b) Collision posts............ 9,500 17,000
238.413 End structures of trailer 9,500 17,000
cars...............................
238.415 Rollover strength........... 9,500 17,000
238.417 Side loads.................. 9,500 17,000
238.419 Truck-to-car-body and truck 9,500 17,000
component attachment...............
238.421 Glazing:
(b) End-facing exterior glazing 9,500 17,000
(c) Alternate glazing 9,500 17,000
requirements...................
(d) Glazing securement......... 9,500 17,000
(e) Stenciling................. 5,500 10,000
238.423 Fuel tanks:
(a) External fuel tanks........ 9,500 17,000
(b) Internal fuel tanks........ 9,500 17,000
238.425 Electrical system:
(a) Circuit protection......... 9,500 17,000
(b) Main battery system........ 9,500 17,000
(c) Power dissipation resistors 9,500 17,000
(d) Electromagnetic 9,500 17,000
interference and compatibility.
238.427 Suspension system 9,500 17,000
238.429 Safety Appliances:
(a) Couplers................... 13,000 20,500
(b) Hand/parking brakes........ 13,000 20,500
(d) Handrail or handhold 9,500 17,000
missing........................
(d)(1)-(8) Handrail or 9,500 17,000
handhold improper design...
(e) Sill step missing.......... 13,000 20,500
(e)(1)-(11) Sill step 9,500 17,000
improper design............
(g) Optional safety appliances. 9,500 17,000
238.431 Brake system................ 9,500 17,000
238.433 Draft System................ 9,500 17,000
238.435 Interior fittings and 9,500 17,000
surfaces...........................
238.437 [Reserved]..................
238.439 Doors:
(a) Exterior side doors........ 9,500 17,000
(b) Manual override feature.... 9,500 17,000
(c) Notification to crew of 9,500 17,000
door status....................
(d) Emergency back-up power.... 9,500 17,000
(f) End door kick-out panel or 9,500 17,000
pop-out window.................
238.441 Emergency roof access....... 9,500 17,000
238.443 Headlights.................. 9,500 17,000
238.445 Automated monitoring........ 9,500 17,000
238.447 Train operator's controls 9,500 17,000
and power car cab layout...........
Subpart F--Inspection, Testing, and
Maintenance Requirements for Tier II
Passenger Equipment
238.503 Inspection, testing, and
maintenance requirements:
(a) Failure to develop 19,500 25,000
inspection, testing, and
maintenance program or obtain
FRA approval...................
(b) Failure to comply with 13,000 20,500
provisions of the program......
(c) Failure to ensure equipment 9,500 17,000
free of conditions which
endanger safety of crew,
passengers, or equipment.......
(d) Specific safety
inspections:
(1)(i) Failure to perform 19,500 25,000
Class I brake test or
equivalent.................
[[Page 57651]]
(1)(ii) Partial failure to 13,000 20,500
perform Class I brake test
or equivalent..............
(2)(i) Failure to perform \1\ 9,500 17,000
exterior mechanical
inspection.................
(2)(ii) Failure to perform \1\ 5,500 10,000
interior mechanical
inspection.................
(g) Failure to perform 9,500 17,000
scheduled maintenance as
required in program............
(h) Failure to comply with 13,000 20,500
training, qualification and
designation program............
(i) Failure to develop or 9,500 17,000
comply with standard procedures
for performing inspection,
tests, and maintenance.........
(j) Failure to conduct annual 13,000 20,500
review.........................
(k) Failure to establish or 13,000 20,500
utilize quality control program
Subpart G--Specific Safety Planning
Requirements for Tier II Passenger
Equipment
238.603 Safety plan:
(a) Failure to develop safety 13,000 20,500
operating plan.................
(b) Failure to develop 13,000 20,500
procurement plan...............
(1)-(7) Failure to develop 9,500 17,000
portion of plan............
(c) Failure to maintain 5,500 10,000
documentation..................
------------------------------------------------------------------------
\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 unit of passenger equipment
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. However, failure to perform, with respect to a particular
unit of passenger equipment, any of the inspections and tests required
under subparts D and F of this part will be treated as a violation
separate and distinct from, and in addition to, any substantive
violative conditions found on that unit of passenger equipment.
Moreover, 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 of defective equipment set forth in Sec. 238.17 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 unit of passenger equipment at
the time of movement. Failure to observe any condition for the
movement of passenger equipment containing defective safety
appliances, other than power brakes, set forth in Sec. 238.17(e)
will deprive the railroad of the movement-for-repair provision and
make the railroad and any responsible individuals liable for penalty
under the particular regulatory section(s) contained in part 231 of
this chapter or Sec. 238.429 concerning the substantive defective
condition. The penalties listed for failure to perform the exterior
and interior mechanical inspections and tests required under Sec.
238.303 and Sec. 238.305 may be assessed for each unit of passenger
equipment contained in a train that is not properly inspected.
Whereas, the penalties listed for failure to perform the brake
inspections and tests under Sec. 238.313 through Sec. 238.319 may
be assessed for each train that is not properly inspected.
\2\ The penalty schedule uses section numbers from 49 CFR part 238. 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 239--[AMENDED]
50. The authority citation for part 239 continues to read as
follows:
Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301,
21304, and 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(c), (g),
(m).
51 Appendix A to Part 239 is advised to read as follows:
Appendix A to part 239--Schedule of Civil Penalities \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Specific Requirements
239.101:
(a) Failure of a railroad to $19,500 $25,000
adopt\3\ a written emergency
preparedness plan..............
(a)(1) Failure of the plan to
provide for:
(i) Initial or on-board 9,500 17,000
notifications by an on-
board crewmember...........
(ii) Notification of outside 9,500 17,000
emergency responders by
control center.............
(a)(2) Failure of the plan to
provide for:
(i) Initial or periodic 9,500 17,000
training of on-board
personnel..................
(ii) Initial or periodic 9,500 17,000
training of control center
personnel..................
(iii) Completion of initial 9,500 17,000
training of all on-board
and control center
personnel by the specified
date.......................
(iv) Completion of initial 9,500 17,000
training of all newly hired
on-board and control center
personnel by the specified
date.......................
(v) Adequate procedures to 9,500 17,000
evaluate and test on-board
and control center
personnel for qualification
under the emergency
preparedness plan..........
(vi) Adequate on-board 9,500 17,000
staffing...................
(a)(3) Failure of a host 9,500 17,000
railroad involved in joint
operations to coordinate
applicable portions of the
emergency preparedness plan
with the railroad or railroads
providing or operating a
passenger train service
operation......................
(a)(4) Failure of the plan to
address:
(i) Readiness procedures for 9,500 17,000
emergencies in tunnels.....
(ii) Readiness procedures 9,500 17,000
for emergencies on an
elevated structure or in
electrified territory......
(iii) Coordination efforts 9,500 17,000
involving adjacent rail
modes of transportation....
(a)(5) Failure of the plan to ................ ................
address relationships with on-
line emergency responders by
providing for:
(i) The development and 9,500 17,000
availability of training
programs...................
[[Page 57652]]
(ii) Invitations to 9,500 17,000
emergency responders to
participate in emergency
simulations................
(iii) Distribution of 9,500 17,000
applicable portions of the
current emergency
preparedness plan..........
(a)(6) Failure of the plan to ................ ................
provide for, or the railroad to
include on board each train and
maintain and replace:
(i) Emergency equipment..... 9,500 17,000
(ii) First-aid kits......... 9,500 17,000
(iii) Emergency lighting.... 9,500 17,000
(a)(7) Failure of the plan to 9,500 17,000
provide for emergency
instructions inside each
passenger car or to include
additional safety awareness
information....................
239.103 Failure to conduct a 9,500 17,000
required full-scale simulation in
accordance with the frequency
schedule...........................
239.105 Debriefing and critique:
(a) Failure to conduct a 9,500 17,000
debriefing and critique session
after an emergency or full-
scale simulation...............
(d)(1) Failure to maintain a 5,500 10,000
record.........................
(i) Failure to include date or 2,500 5,000
location of the emergency or
simulation.....................
(ii) Failure to include date 2,500 5,000
or location of the
debriefing and critique
session....................
(iii) Failure to include 2,500 5,000
names of participants in
the debriefing and critique
session....................
(d)(2) Failure to make record 2,500 5,000
available......................
239.107 Emergency exits:
(a)(1), (a)(2): ................ ................
(i) Door not marked or 9,500 17,000
instructions not posted....
(ii) Door improperly marked 9,500 17,000
or instructions improperly
posted.....................
(b)(1) Failure to provide for 9,500 17,000
scheduled inspection,
maintenance, and repair of
emergency windows and doors....
(b)(2):
(i) Failure to test a 9,500 17,000
representative sample of
emergency windows..........
(ii) Emergency windows 5,500 10,000
tested too infrequently....
(b)(3) Failure to repair an 9,500 17,000
inoperative emergency window or
door exit......................
(c):
(i) Failure to maintain a 5,500 10,000
record.....................
(ii) Failure to make record 2,500 5,000
available..................
(d)(1) Insufficient limits or 5,500 10,000
controls on accessibility to
records........................
(d)(2) Missing terminal......... 2,500 5,000
(d)(3) Inability of railroad to 2,500 5,000
produce information in a usable
format for immediate review....
(d)(4) Failure by railroad to 2,500 5,000
designate an authorized
representative.................
(d)(5) Failure to make record 2,500 5,000
available......................
Subpart C--Review, Approval, and
Retention of Emergency Preparedness
Plans
239.201 Filing and approval:
(a):
(i) Failure of a railroad to 13,000 20,500
file a written emergency
preparedness plan..........
(ii) Failure to designate a 2,500 5,000
primary person to contact
for plan review............
(iii) Failure of a railroad 2,500 5,000
to file an amendment to its
plan.......................
(b)(1), (b)(2):
(i) Failure of a railroad to 9,500 17,000
correct a plan deficiency..
(ii) Failure to provide FRA 2,500 5,000
with a corrected copy of
the plan...................
(b)(3):
(i) Failure of a railroad to 9,500 17,000
correct an amendment
deficiency.................
(ii) Failure to file a 2,500 5,000
corrected plan amendment
with FRA...................
239.203 Retention of emergency
preparedness plan:
(1) Failure to retain a copy 9,500 17,000
of the plan or an amendment
to the plan................
(2) Failure to make record 2,500 5,000
available..................
Subpart D--Operational (Efficiency)
Tests; Inspection of Records and
Recordkeeping
239.301 Operational (efficiency)
tests:
(a) Failure to periodically 9,500 17,000
conduct operational
(efficiency) tests of its on-
board and control center
employees......................
(b)(1) Failure to maintain a 5,500 10,000
record.........................
(b)(2) Record improperly 2,500 5,000
completed......................
(c)(1) Failure to retain a copy 2,500 5,000
of the record..................
(c)(2) Failure to make record 2,500 5,000
available......................
239.303 Electronic recordkeeping:
(a) Insufficient limits or 5,500 10,000
controls on accessibility to
records........................
(b) Missing terminal............ 2,500 5,000
(c) Inability of railroad to 2,500 5,000
produce information in a usable
format for immediate review....
(d) Failure by railroad to 2,500 5,000
designate an authorized
representative.................
(e) Failure to make record 2,500 5,000
available......................
------------------------------------------------------------------------
\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 239. 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.
[[Page 57653]]
\3\ This section also requires each railroad (subject to part 239) to
comply with the adopted emergency preparedness plan. As the severity
of a violation for a railroad's failure to comply with an emergency
preparedness plan varies depending upon the provision with which the
railroad failed to comply, please see the guideline penalty for the
particular section of the regulation requiring that provision.
PART 240--[AMENDED]
52. The authority citation for part 240 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311;
28 U.S.C. 2461, note; and 49 CFR 1.49.
53. Appendix A to part 240 is revised to read as follows:
Appendix A to Part 240--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
Subpart B--Component Elements of the
Certification Process
240.101 Program failures:
(a) Failure to have program..... $19,500 $25,000
(b) Program that fails to 9,500 17,000
address a subject..............
240.103 Failure to:
(a) Follow Appendix B........... 2,500 5,000
(d) Resubmit, when directed by 2,500 5,000
FRA............................
240.104 Allowing uncertified person 13,000 20,500
to operate nontraditional
locomotives........................
240.105 Failure to have or execute 9,500 17,000
adequate procedure for selection of
supervisors........................
240.107 Classes of service:
(a) Failure to designate classes 9,500 17,000
of service.....................
240.109 Limitations on considering
prior conduct records:
(a) Failure to have procedure 9,500 17,000
for determining eligibility....
(e) Considering excluded data... 9,500 17,000
(f), (g) Failure to provide 9,500 17,000
timely review opportunity......
240.111 Furnishing motor vehicle
records:
(a) Failure to action required 2,500 5,000
to make information available..
(b) Failure to request:.........
(1) Local record............ 2,500 5,000
(2) NDR record.............. 2,500 5,000
(f) Failure to request 2,500 5,000
additional record..............
(g) Failure to notify of absence 2,500 5,000
of license.....................
(h) Failure to submit request in 2,500 5,000
timely manner..................
(i) Failure to report within 48 2,500 5,000
hours or railroad taking
certification action for not
reporting earlier than 48 hours
240.113 Furnishing prior employment
information:
(a) Failure to take action 2,500 5,000
required to make information
available......................
(b) Failure to request record... 2,500 5,000
240.115 Criteria for considering
prior motor vehicle conduct:
(b) Considering excluded data... 9,500 17,000
(c) Failure to:
(1) Consider data.......... 19,500 25,000
(3)-(4) Properly act in 5,500 10,000
response to data...........
240.117 Consideration of operational
rules compliance records:
(a) Failure to have program and 19,500 25,000
procedures.....................
(b)-(j) Failure to have adequate 9,500 17,000
program or procedure...........
240.119 Consideration of substance
abuse/rules compliance records:
(a) Failure to have program and 19,500 25,000
procedures.....................
(b)-(e) Failure to have adequate 9,500 17,000
program or procedure...........
240.121 Failure to have adequate 9,500 17,000
procedure for determining acuity...
(f) Failure of engineer to 9,500 17,000
notify.........................
240.123 Failure to have:
(b) Adequate procedures for 9,500 17,000
continuing education...........
(c) Adequate procedures for 9,500 17,000
training new engineers.........
240.125 Failure to have:
(a) Adequate procedures for 9,500 17,000
testing knowledge..............
(d) Adequate procedures for 9,500 17,000
documenting testing............
240.127 Failure to have:
(a) Adequate procedures for 9,500 17,000
evaluating skill performance...
(c) Adequate procedures for 9,500 17,000
documenting skills testing.....
240.129 Failure to have:
(a)-(b) Adequate procedures for 9,500 17,000
monitoring performance.........
Subpart C--Implementation of the
Certification Process
240.201 Schedule for implementation:
(a) Failure to select 2,500 5,000
supervisors by specified date..
(c) Failure to issue certificate 2,500 5,000
to engineer....................
(d) Allowing uncertified person 19,500 25,000
to operate.....................
(e)-(g) Certifying without 9,500 17,000
complying with subpart C.......
(h)-(i) Failure to issue 2,500 5,000
certificate to engineer........
240.203
[[Page 57654]]
(a) Designating a person as a
supervisor without determining
that
(1) Person knows and 9,500 17,000
understands this part......
(2) Person can test and 19,500 25,000
evaluate engineers.........
(3) Person has experience to 9,500 17,000
prescribe remedies.........
(b) Certifying a person without
determining that:
(1) Person meets the 19,500 25,000
eligibility criteria.......
(2) Person meets the medical 9,500 17,000
criteria...................
(3) Person has demonstrated 9,500 17,000
knowledge..................
(4) Person has demonstrated 9,500 17,000
skills.....................
(c) Certifying a person without
determining that:
(1) Person has completed 9,500 17,000
training program...........
(2) Person meets the 9,500 17,000
eligibility criteria.......
(3) Time has elapsed........ 9,500 17,000
240.205 Procedures for determining
eligibility based on prior safety
conduct:
(a) Selecting person lacking 19,500 25,000
eligibility....................
(d) Failure to have basis for 9,500 17,000
taking action..................
240.207 Ineligibility based on
medical condition:
(a) Selecting person lacking 13,000 20,500
proper acuity..................
(b) Failure to have basis for 2,500 5,000
finding of proper acuity.......
(c) Acuity examinations 2,500 5,000
performed by unauthorized
person.........................
(d) Failure to note need for 2,500 5,000
device to achieve acuity.......
(e) Failure to use device needed 2,500 5,000
for proper acuity..............
240.209 Demonstrating knowledge:
(b) Failure to properly 13,000 20,500
determine knowledge............
(c) Improper test procedure..... 9,500 17,000
(d) Failure to document test 2,500 5,000
results........................
(e) Allowing person to operate 9,500 17,000
despite test failure...........
240.211 Demonstrating skills:
(b) Failure to properly 9,500 17,000
determine knowledge............
(c) Improper test procedure..... 5,500 10,000
(d) Failure to document test 2,500 5,000
results........................
(e) Allowing person to operate 9,500 17,000
despite test failure...........
240.213 Completion of approved
training program:
(a) Failure to properly 9,500 17,000
determine......................
(b) Failure to document 5,500 10,000
successful program completion..
240.215 Supporting information:
(a), (f)-(h) Failure to have a 2,500 5,000
record.........................
(b) Failure to have complete 2,500 5,000
record.........................
(i) Falsification of record. ................ 25,000
240.217 Time limits for making
determinations:
(a), (c) Exceeding time limit... 5,500 10,000
240.219 Denial of certification:
(a) Failure to notify or provide 5,500 10,000
opportunity for comment........
(c) Failure to notify, provide 5,500 10,000
data, or untimely notification.
240.221 Identification of persons:
(a)-(c) Failure to have a record 5,500 10,000
(d) Failure to update a record.. 5,500 10,000
(e)-(f) Failure to make a record 2,500 5,000
available......................
240.223 Certificate criteria:
(a) Improper certificate........ 2,500 5,000
(b) Failure to designate those 2,500 5,000
with signatory authority.......
(d) Falsification of certificate ................ 25,000
240.225 Railroad relying on
determination of another:
(a) Failure to address in 19,500 25,000
program or failure to require
newly hired engineer to take
entire training program........
(2) Reliance on wrong class 5,500 10,000
of service.................
(3) Failure to familiarize 5,500 10,000
person with new operational
territory..................
(4) Failure to determine 5,500 10,000
knowledge..................
(5) Failure to determine 5,500 10,000
performance skills.........
240.227 Railroad relying on
requirements of a different
country:
(a) Joint operator reliance:
(1) On person not employed.. 2,500 5,000
(2) On person who fails to 2,500 5,000
meet Canadian requirements.
(b) Canadian railroad reliance:
(1) On person not employed.. 2,500 5,000
(2) On person who fails to 2,500 5,000
meet Canadian requirements.
240.229 Requirements for joint
operations territory:
(a) Allowing uncertified person 5,500 10,000
to operate.....................
(b) Certifying without making 13,000 20,500
determinations or relying on
another railroad...............
(c) Failure of
(1) Controlling railroad 19,500 25,000
certifying without
determining certification
status, knowledge, skills,
or familiarity with
physical characteristics...
[[Page 57655]]
(2) Employing railroad to 19,500 25,000
determine person's
certified and qualified
status for controlling
railroad...................
(3) Person to notify 19,500 25,000
employing railroad of lack
of qualifications..........
(d) Failure to provide qualified 5,500 10,000
person.........................
240.231 Persons qualified on
physical characteristics in other
than joint operations:
(a) Person unqualified, no 19,500 25,000
exception applies or railroad
does not adequately address in
program........................
(b) Failure to have a pilot:
(1) For engineer who has 19,500 25,000
never been qualified.......
(2) For engineer previously 9,500 17,000
qualified..................
Subpart D--Administration of the
Certification Programs
240.301 Failure to have system for 5,500 10,000
certificate replacement............
240.303 Monitoring operations:
(a) Failure to have program..... 19,500 25,000
(b) Failure to observe each 2,500 5,000
person annually................
(c) Failure to test each person 2,500 5,000
annually.......................
(d) Failure to test properly.... 2,500 5,000
240.305 Prohibited conduct:
(a) Unlawful:
(1) Passing of stop signal.. 19,500 25,000
(2) Control of speed........ 19,500 25,000
(3) Brake tests............. 19,500 25,000
(4) Occupancy of main track. 19,500 25,000
(5) Tampering or operation 19,500 25,000
with disabled safety device
(6) Supervisor, pilot, or 19,500 25,000
instructor fails to take
appropriate action.........
(b) Failure of engineer to:
(1) Carry certificate....... 2,500 5,000
(2) Display certificate when 2,500 5,000
requested..................
(c) Failure of engineer to 19,500 25,000
notify railroad of limitations
or railroad requiring engineer
to exceed limitations..........
(d) Failure of engineer to 19,500 25,000
notify railroad of denial or
revocation.....................
240.307 Revocation of certification:
(a) Failure to withdraw person 13,000 20,500
from service...................
(b) Failure to notify, provide 5,500 10,000
hearing opportunity, or
untimely procedures............
(c)-(h) Failure of railroad to 5,500 10,000
comply with hearing or waiver
procedures.....................
(j) Failure of railroad to make 5,500 10,000
record.........................
(k) Failure of railroad to 13,000 20,500
conduct reasonable inquiry or
make good faith determination..
240.309 Oversight Responsibility
Report:
(a) Failure to report or to 2,500 5,000
report on time.................
(b)-(h) Incomplete or inaccurate 5,500 10,000
report.........................
------------------------------------------------------------------------
\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 240. 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 241--[AMENDED]
54. The authority citation for part 241 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311; 28
U.S.C. 2461, note; 49 CFR 1.49.
55. Appendix B to part 241 is revised to read as follows:
Appendix B to Part 241--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
241.9:
(a) Requiring or permitting $9,500 $17,000
extraterritorial dispatching of
a railroad operation...........
(c) Failing to notify FRA about 5,500 10,000
extraterritorial dispatching of
a railroad operation in an
emergency situation............
241.11 Conducting a railroad
operation that is
extraterritorially dispatched:
(a)(1) Generally................ 9,500 17,000
(c) In an emergency situation-- 2,500 5,000
where dispatching railroad
fails to notify FRA of the
extraterritorial dispatching...
241.13 Requiring or permitting track
to be used for the conduct of a
railroad operation that is
extraterritorially dispatched:
(a)(1) Generally................ 9,500 17,000
[[Page 57656]]
(c) In an emergency situation-- 2,500 5,000
where dispatching railroad
fails to notify FRA of the
extraterritorial dispatching...
------------------------------------------------------------------------
\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 241. 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.
Issued in Washington, DC, on August 23, 2010.
Karen J. Rae,
Deputy Administrator.
[FR Doc. 2010-22141 Filed 9-20-10; 8:45 am]
BILLING CODE 4910-06-P