[Code of Federal Regulations] [Title 49, Volume 4] [Revised as of October 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR218.80] [Page 196-199] TITLE 49--TRANSPORTATION CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 218--RAILROAD OPERATING PRACTICES--Table of Contents Subpart E--Protection of Occupied Camp Cars Sec. 218.80 Movement of occupied camp cars. Occupied cars may not be humped or flat switched unless coupled to a locomotive. Appendix A to Part 218--Schedule of Civil Penalties \1\ --------------------------------------------------------------------------- \1\ Except as provided for in Sec. 218.57, a penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $22,000 for any violation where the circumstances warrant. See 49 CFR part 209, appendix A. ------------------------------------------------------------------------ Willful Section Violation violation ------------------------------------------------------------------------ Subpart B--Blue signal protection of workmen: 218.22 Utility employees: (a) Employee qualifications........... $5,000 $7,500 (b) Concurrent service................ 5,000 7,500 (c) Assignment conditions............. (1) No controlling locomotive......... 5,000 7,500 (2) Empty cab......................... 5,000 7,500 (3)(4) Improper communication......... 5,000 7,500 (5) Performing functions not listed... 2,000 4,000 (d) Improper release of utility 2,000 4,000 employee............................. (f) More than three utility employees 2,000 4,000 with one crew........................ 218.23 Blue signal display 5,000 7,500 218.24 One-person crew: (a)(1) Equipment not coupled or 2,000 4,000 insufficiently separated............. (a)(2) Unoccupied locomotive cab not 5,000 7,500 secured.............................. (b) Helper service.................... 2,000 4,000 218.25 Workmen on a main track 5,000 7,500 218.27 Workmen on track other than main track: (a) Protection provided except that 2,000 4,000 signal not displayed at switch....... (b) through (e)....................... 5,000 7,500 218.29 Alternate methods of protection: (a)(1) protection provided except that 2,000 4,000 signal not displayed at switch....... (a)(2) through (a)(8)................. 5,000 7,500 [[Page 197]] (b)(1) Protection provided except that 2,000 4,000 signal not displayed at switch....... (b)(2) through (b)(4)................. 5,000 7,500 (c) Use of derails.................... 5,000 7,500 (d) Emergency repairs................. 5,000 7,500 218.30 Remotely controlled switches: (a) and (b)........................... 5,000 7,500 (c)................................... 1,000 2,000 Subpart C--Protection of trains and locomotives: 218.35 Yard limits: (a) and (b)........................... 5,000 7,500 (c)................................... 1,000 2,000 218.37 Flag protection: (a)................................... 5,000 7,500 (b) and (c)........................... 5,000 7,500 218.39 Hump operations.................... 5,000 7,500 218.41 Noncompliance with hump operations 5,000 7,500 rule..................................... Subpart D--Prohibition against tampering with safety devices: 218.55 Tampering.......................... ........... 7,500 218.57 (i) Knowingly operating or 2,500 ........... permitting operation of disabled equipment................................ (ii) Willfully operating or ........... 5,000 permitting operation of disabled equipment............................ 218.59 Operation of disabled equipment.... 2,500 5,000 ------------------------------------------------------------------------ [53 FR 52928, Dec. 29, 1988, as amended at 54 FR 5492, Feb. 3, 1989; 58 FR 43293, Aug. 16, 1993; 60 FR 11050, Mar. 1, 1995; 63 FR 11621, Mar. 10, 1998] Appendix B to Part 218--Statement of Agency Enforcement Policy on Blue Signal Protection for Utility Employees The following examples of the application of the train or yard crew exclusion from required blue signal protection for utility employees are provided to clarify FRA's enforcement policy. In the first four examples, the utility employee is properly attached to and functioning as member of a train or yard crew and is excluded from blue signal protection, provided all the conditions specified in Sec. 218.22 are met: Example 1: A utility employee assists a train crew by adding or reducing railroad cars to or from the train. The utility employee may perform any duties which would normally be conducted by members of the train crew, i.e., setting or releasing handbrakes, coupling air hoses and other connections, prepare rail cars for coupling, and perform air brake tests. Example 2: A utility employee is assigned to assist a yard crew for the purpose of classifying and assembling railroad cars. The yard crew onboard their locomotive arrives at the location in the yard where the work is to be performed. At that time, the utility employee may attach himself to the yard crew and commence duties as a member of that yard crew. Example 3: A utility employee is assigned to inspect, test, remove and replace if necessary, a combination rear end marking device/end of train device on a through freight train. The utility employee attaches himself to the train crew after the arrival of the train and its crew at the location where this work is to be conducted. He may then perform duties as a member of that crew. Example 4: A railroad manager who properly attaches himself as a utility employee to a train or yard crew, in accordance with Sec. 218.22, may then function as a member of the train or yard crew under the exclusion provided for train and yard crews. Note: In the last four examples, any railroad employee, including regularly assigned crew members, would need blue signal protection to perform the described function. Example 5: Prior to the arrival of a through freight train, a utility employee installs an end-of-train device on one end of a block of railroad cars that are scheduled to be picked up by the freight train. Example 6: A railroad employee attaches himself to a train or yard crew while the crew is in the ready room preparing to take charge of their train. Prior to the train crew leaving the ready room and taking charge of the equipment, the employee couples air hoses and other connections between the locomotives. Example 7: A railroad employee is attached to a train crew after the train crew has taken charge of the train. It is necessary for the employee to perform a repair on a rail car, such as replacing a brake shoe, in addition to those duties normally performed by train or yard crew members. Example 8: A train or yard crew, supplemented by three utility employees, has an assigned locomotive and train. The regular crew, including the engineer, has left the train to eat lunch. The utility employees [[Page 198]] have remained with the train and are coupling air hoses between rail cars in the train. [58 FR 43293, Aug. 16, 1993] Appendix C to Part 218--Statement of Agency Enforcement Policy on Tampering The Rail Safety Improvement Act of 1988 (Pub. L. 100-342, enacted June 22, 1988) (``RSIA'') raised the maximum civil penalties available under the railroad safety laws and made individuals liable for willful violations of those laws. Section 21 of the RSIA requires that FRA adopt regulations addressing three related but distinct aspects of problems that can occur when safety devices are tampered with or disabled. It requires that FRA make it unlawful for (i) any individual to willfully tamper with or disable a device; (ii) any individual to knowingly operate or permit to be operated a train with a tampered or disabled device; and (iii) any railroad to operate such a train. Because the introduction of civil penalties against individuals brings FRA's enforcement of the rail safety laws into a new era and because the changes being introduced by this regulation are so significant, FRA believes that it is advisable to set forth the manner in which it will exercise its enforcement authority under this regulation. Safety Devices Covered by This Rule FRA has employed a functional description of what constitutes a safety device under this rule. FRA's wording effectively identifies existing equipment and is sufficiently expansive to cover equipment that may appear in the future, particularly devices associated with advanced train control systems currently undergoing research testing. FRA has been advised by portions of the regulated community that its functional definition has some potential for confusing people who read the rule without the benefit of the preamble discussions concerning the meaning of this definition. Since this rule is specifically intended to preclude misconduct by individuals, FRA wants this rule to be easily comprehended by all who read it. To achieve that clarity, FRA has decide to specify which types of equipment it considers to be within the scope of this rule and provide some examples of equipment that is not covered. In addition, FRA is ready and willing to respond in writing to any inquiry about any other devices that a party believes are treated ambiguously under this rule. This regulation applies to a variety of devices including equipment known as ``event recorders,'' ``alerters,'' ``deadman controls,'' ``automatic cab signals,'' ``cab signal whistles,'' ``automatic train stop equipment,'' and ``automatic train control equipment.'' FRA does not consider the following equipment to be covered by this rule: Radios; monitors for end-of-train devices; bells or whistles that are not connected to alerters, deadman pedals, or signal system devices; fans for controlling interior temperature of locomotive cabs; and locomotive performance monitoring devices, unless they record data such as train speed and air brake operations. Although FRA considers such devices beyond the scope of the regulation, this does not imply that FRA condones the disabling of such devices. FRA will not hesitate to include such devices at a later date should instances of tampering with these devices be discovered. FRA does not currently perceive a need to directly proscribe tampering with such devices because there is no history of these devices being subjected to tampering. Subsequent Operators of Trains With Disabled Devices Section 218.57 addresses instances in which one individual has tampered with a safety device and a second individual (a ``subsequent operator'') knowingly operates a train or permits it to be operated, notwithstanding the presence of the disabled or tampered-with unit. The most common occurrence addressed by this provision is the situation in which a train crew encounters a locomotive with a safety device that has been tampered with prior to the crew's assuming responsibility for the locomotive. FRA has structured this provision and its attendant enforcement policy to reflect the fact that instances in which one individual encounters a locomotive that someone else has tampered with are relatively infrequent occurrences. FRA's regulatory prohibition for subsequent operator conduct reflects the legal standard for individual culpability set forth in the RSIA. Under the relevant statutory standard (``knowingly operates or permits to be operated a train on which such devices have been tampered with or disabled by another person'')--now incorporated into Sec. 218.57--individuals could be held to a simple negligence standard of conduct, i.e., a standard of reasonable care under the circumstances. FRA's conclusion about the proper interpretation of the word ``knowingly'' stems from both normal canons of statutory construction and analysis of decisional law concerning the use of similar statutory constructs in the civil penalty context. It is also consistent with other Departmental interpretations of the word as used in similar contexts. (See 49 CFR 107.299, defining ``knowingly'' under the Hazardous Materials Transportation Act, 49 App. U.S.C. 1801 et seq.) Under that statutory language, the responsible members of the crew could be culpable if either (1) due to their failure to exercise reasonable care, they failed to determine [[Page 199]] that the safety device was not functioning, or (2) having ascertained that the device was not functioning, still elected to operate the train. Similarly, railroad supervisors who permit or direct that a train with a disabled device be operated after having learned that the safety device is not functioning or after having failed to use reasonable care in the performance of their duties could also be subject to sanction. However, as a matter of enforcement policy, application of a negligence standard in this particular context presently appears unwarranted. We have seen no evidence of an employee's negligent failure to detect another employee's tampering having caused a safety problem. FRA can effectively attack the known dimensions of the tampering problem by employing an enforcement policy that limits its enforcement actions to situations where individuals clearly had actual knowledge of the disabled device and intentionally operated the train notwithstanding that knowledge. Therefore, FRA will not take enforcement action against an individual under Sec. 218.57 absent a showing of such actual knowledge of the facts. Actual, subjective knowledge need not be demonstrated. It will suffice to show objectively that the alleged violator must have known the facts based on reasonable inferences drawn from the circumstances. For example, it is reasonable to infer that a person knows about something plainly in sight on the locomotive he is operating. Also, unlike the case where willfulness must be shown (see FRA's statement of policy at 49 CFR part 209, appendix A), knowledge of or reckless disregard for the law need not be shown to make out a violation of Sec. 218.57. The knowledge relevant here is knowledge of the facts constituting the violation, not knowledge of the law. Should FRA receive evidence indicating that a stricter enforcement policy is necessary to address the tampering problem, it will revise its enforcement policy to permit enforcement actions based only on a showing of the subsequent operator's negligent failure to detect the tampering, as the relevant provision of the RSIA permits it to do now. Any such change in enforcement policy will become effective only after publication of a revised version of this appendix. [54 FR 5492, Feb. 3, 1989. Redesignated and amended at 58 FR 43293, Aug. 16, 1993]