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Proposed Rule

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

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AGENCY:

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

ACTION:

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

SUMMARY:

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

DATES:

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

ADDRESSES:

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

  • Fax: 202-493-2251.
  • Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
  • Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.
  • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided.

Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov at any time or to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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FOR FURTHER INFORMATION CONTACT:

Edward Pritchard, Director, Office of Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6247), edward.pritchard @dot.gov; or Brian Roberts, Trial Attorney, Office of the Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 (telephone 202-493-6052), brian.roberts@dot.gov.

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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 Start Printed Page 57599charged with enforcement responsibility administratively adjust the penalties. Currently FRA's minimum penalty is $650, the ordinary maximum is $25,000 and the aggravated maximum is $100,000 (for when a “grossly negligent violation or pattern of repeated violations has caused an imminent hazard or death or injury to individuals, or has caused death or injury”).

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

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

A. Initial Proposal

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

Severity level (explained in the Initial Proposal and below)Ordinary violationsWillful violations
Level A$8,500$11,000
Level B6,5009,000
Level C5,0007,500
Level D3,0004,500
Level E1,5002,500

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

Subsequently, in 2007, pursuant to the requirements of the Inflation Act, FRA recalculated the ordinary maximum penalty and raised it from $11,000 to $16,000. 71 FR 51194, Sept. 6, 2007. Then, on October 16, 2008, the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Div. A) (“RSIA”) was enacted; Section 302 of the RSIA increased the ordinary and aggravated maximum penalty amounts to $25,000 and $100,000, respectively. In a final rule published on December 30, 2008, FRA adjusted its minimum penalty from $550 to $650 pursuant to Inflation Act requirements. 73 FR 79698. In that rule FRA also evaluated whether it needed to increase the ordinary and aggravated maximum penalties pursuant to the Inflation Act; however, the enactment of the RSIA statutorily changed the ordinary and aggravated maximum penalties to $25,000 and $100,000, respectively, and therefore rendered any inflationary adjustments to either figure unnecessary. Instead, FRA adopted $25,000 as the ordinary maximum and $100,000 as the aggravated maximum required by the RSIA. (See also correcting amendment to the Schedule for 49 CFR part 232. 74 FR 15387, April 6, 2009.)

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

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

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, Start Printed Page 57600ordinary 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, Start Printed Page 57601FRA 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.

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:

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] :

1. Rail equipment accident/incident

2. Other accident/incident (including death, injury, or occupational illness)[5]

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

Level B— High Probability—Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute is more likely than not to result in the occurrence of:

1. Rail equipment accident/incident; or

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

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

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

Level C— Moderate Probability—Failure of railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute substantially increases the likelihood that one of the following will occur:

1. Rail equipment accident/incident; or

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

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

Level D— Minor Probability—Failure of the railroad to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute slightly increases the likelihood that one of the following will occur:

1. Rail equipment accident/incident; or

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

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

Level E— Minimal Probability—Failure to comply with this section or subsection of the CFR, this FRA order, or this rail safety statute does not materially increase the likelihood that a rail equipment accident/incident or other accident/incident will occur, except in special circumstances, such as if the noncompliance is willful or widespread. Nevertheless, noncompliance with any one of these provisions undercuts the effectiveness of the Federal railroad safety program, and could compromise the safety of rail operations.

Example: Violation of § 225.13—Late Reports—Submitting a late accident/incident report to FRA does not increase the likelihood that a rail equipment accident/incident or other accident/incident will occur. Widespread noncompliance with that provision, however, could lead to inaccuracies in Federal accident databases, which in turn could delay FRA's response to emerging safety problems.

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

Like the Initially Proposed Severity Scale, the New Proposed Severity Scale shows, there are five different levels of probabilities, ranging from “A” (the most severe) to “E” (the least severe of the types of violations). In developing the rankings (“A” through “E”), FRA concentrated on the degrees of likelihood that an accident/incident will occur or that graver consequences will occur as a result of the failure to comply with the particular section or subsection of the safety regulations or with the statute. Using the New Proposed Severity Scale, FRA then assigned a ranking (from “A” to “E”) to each of the provisions of the particular rail safety regulations and to the hours of service statute, which the agency has responsibility for administering and enforcing. The resulting proposed line-item penalty amounts for violations of each of the sections or subsections of the safety regulations affected and for violations of the hours of service laws reflect FRA's determination, based on safety data and industry knowledge, of how likely the violation of a particular provision is to result in a rail equipment accident/incident or another type of accident/incident. Due to the increase in the ordinary maximum from $11,000 to $25,000 since the Initial Proposal, the new proposed civil penalty amounts have increased in most instances, but in some cases the new proposed civil penalty amount would remain the same (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and 239.301(c)(1)) if adopted by FRA. Nonetheless, a determination by FRA that violation of a provision does not increase the likelihood that a rail equipment accident/incident or other accident will occur, however, does not mean that the provision is inconsequential to the effectiveness of Start Printed Page 57602the 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.

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

Severity level under new ProposalOrdinary violationsWillful violations
Level A$19,500$25,000
Level B13,00020,500
Level C9,50017,000
Level D5,50010,000
Level E2,5005,000

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

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

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

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

Journal (roller bearing) overheated—(143)Damaged flange or tread (build up)—(60)
Pantograph defect (locomotive)—(121)Coupler retainer pin/cross key missing—(57)
Side bearing clearance insufficient—(86)Rigging down or dragging—(49)
Broken rim—(80)Other coupler/draft system defects; Worn Flange (tie)—(38)
Truck bolster stiff—(67)Center sill broken or bent—(36)

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

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

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

In ranking the sections or subsections of 49 CFR part 214 (“Railroad Workplace Safety”), FRA took into consideration not only the probability that an accident/incident could result if a violation occurred, but also the fact that Start Printed Page 57603the 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 Start Printed Page 57604entity's continued business; and evidence that the entity acted in good faith. 49 CFR part 209, appendix C.

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

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

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

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

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

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

FRA provides that the train horn rule focuses on public and community interests. To remain true to the intention of the rule, FRA must take the interests of the community into account when determining the penalty amount that a violation merits. FRA believes that it is important that sufficient warning be provided to the motorist who needs time to recognize the audible signal, understand its message, initiate a reaction, and take appropriate action when at a grade crossing. See 71 FR 47618, Aug. 17, 2006. If the train horn is sounded more than 25 seconds before the train enters the train crossing, motorists might well begin to doubt the credibility of the train horn as an indicator of the train's immediacy to the grade crossing. As a result, motorists will be more likely to take the risk of traveling through the crossing even when the train horn is sounded.

The rule text for § 222.21(b) also provides a “good faith” exception for the required length of time that the horn is sounded. The section permits additional flexibility by stating that the engineer shall not be in violation of § 222.21(b) if the engineer sounds the horn not more than 25 seconds before the crossing, if in good faith the engineer cannot precisely estimate the arrival time of the train at the crossing. FRA has determined that the interests of avoiding an accident or incident as well as the interests of the community have been taken into account in assessing violations of § 222.21(b) as a proposed “D” level penalty with the exception of “failure to sound the horn at least 15 seconds and less than 1/4-mile before a crossing,” which is assessed as a proposed “C” level penalty.

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

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

In addition, violations of § 222.45 increase the annoyance level of the communities surrounding the grade crossing. A fundamental feature of this rule was to balance driver and pedestrian safety with community noise concerns. Decreasing the civil monetary penalty would reduce the incentive to comply with the part and potentially increase noise for the surrounding communities. FRA maintains that the initial and new proposed “D” level penalty for a violation of § 222.45 sufficiently addresses the concerns that brought about the part 222 rulemaking. See 71 FR 47614, Aug. 17, 2006.

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

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

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

When FRA promulgated the notice of proposed rulemaking for the locomotive cab sanitation standards, FRA determined that serious health consequences may result if railroad employees are exposed to unsanitary conditions or lack access to facilities. In fact, it is widely known that exposure to Start Printed Page 57605human 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 Start Printed Page 57606reanalyzed 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.

Start List of Subjects

List of Subjects

End List of Subjects

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:

Start Part

PART 209—[AMENDED]

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

Start Authority

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

End Authority

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 Start Printed Page 57607FRA'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.

End Part Start Part

PART 213—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix B to Part 213—Schedule of Civil Penalties 1

Section2 3ViolationWillful violation
Subpart A—General
213.4(a) Excepted track 2$9,500$17,000
213.4(b) Excepted track 213,00020,500
213.4(c) Excepted track  213,00020,500
213.4(d) Excepted track 213,00020,500
213.4(e):
(1) Excepted track13,00020,500
(2) Excepted track13,00020,500
(3) Excepted track13,00020,500
(4) Excepted track13,00020,500
213.4(f) Excepted track5,50010,000
213.7 Designation of qualified persons to supervise certain renewals and inspect track9,50017,000
213.9 Classes of track: Operating speed limits19,50025,000
213.11 Restoration or renewal of track under traffic conditions9,50017,000
213.13 Measuring track not under load13,00020,500
Subpart B—Roadbed
213.33 Drainage13,00020,500
213.37 Vegetation9,50017,000
Subpart C—Track Geometry
213.53 Gage19,50025,000
213.55 Alignment13,00020,500
213.57 Curves; elevation and speed limitations13,00020,500
213.59 Elevation of curved track; runoff13,00020,500
213.63 Track surface13,00020,500
Subpart D—Track Structure
213.103 Ballast; general9,50017,000
213.109 Crossties:
(a) Material used5,50010,000
(b) Distribution of ties13,00020,500
(d) Sufficient number of nondefective ties9,50017,000
(f) Joint ties9,50017,000
(g) Track constructed without crossties9,50017,000
213.110 Gage restraint measurement systems:
(a) through (b) Notification9,50017,000
(c) Design requirements13,00020,500
(g) through (i) Exception reports9,50017,000
(j) Data integrity13,00020,500
(k) Training9,50017,000
(l) Remedial actions19,50025,000
(m) PTLF13,00020,500
(n) Recordkeeping9,50017,000
(o) Inspection frequency19,50025,000
213.113 Defective rails19,50025,000
213.115 Rail end mismatch9,50017,000
213.118(a) CWR plan in effect13,00020,500
213.118(b) CWR plan filed with FRA13,00020,500
213.119 Continuous welded rail:
Start Printed Page 57608
(a) CWR installation/adjustment procedures13,00020,500
(b) CWR fastening requirements13,00020,500
(c) CWR joint installation/maintenance procedures13,00020,500
(d) CWR rail temperature requirements13,00020,500
(e) CWR alinement13,00020,500
(f) Procedures for controlling train speed on CWR track13,00020,500
(g) CWR track inspections13,00020,500
(h) CWR joint bar inspections13,00020,500
(i) CWR training13,00020,500
(j) CWR records9,50017,000
(k) CWR manual at job site9,50017,000
213.121(a) Rail joints13,00020,500
213.121(b) Rail joints13,00020,500
213.121(c) Rail joints19,50025,000
213.121(d) Rail joints13,00020,500
213.121(e) Rail joints13,00020,500
213.121(f) Rail joints13,00020,500
213.121(g) Rail joints13,00020,500
213.121(h) Rail joints13,00020,500
213.122 Torch cut rail13,00020,500
213.123 Tie plates9,50017,000
213.127 Rail fastenings13,00020,500
213.133 Turnouts and track crossings, generally9,50017,000
213.135 Switches:
(a) through (g)13,00020,500
(h) chipped or worn points13,00020,500
213.137 Frogs13,00020,500
213.139 Spring rail frogs13,00020,500
213.141 Self-guarded frogs9,50017,000
213.143 Frog guard rails and guard faces; gage13,00020,500
Subpart E—Track Appliances and Track-Related Devices
213.205 Derails9,50017,000
Subpart F—Inspection
213.233 Track inspections9,50017,000
213.235 Switches, crossings, transition devices9,50017,000
213.237 Inspection of rail13,00020,500
213.239 Special inspections9,50017,000
213.241 Inspection records9,50017,000
Subpart G—Train Operations at Track Classes 6 and Higher
213.305 Designation of qualified individuals; general qualifications19,50025,000
213.307 Class of track; operating speed limits19,50025,000
213.309 Restoration or renewal of track under traffic conditions19,50025,000
213.311 Measuring track not under load13,00020,500
213.319 Drainage9,50017,000
213.321 Vegetation9,50017,000
213.323 Track gage19,50025,000
213.327 Alignment19,50025,000
213.329 Curves, elevation and speed limits19,50025,000
213.331 Track surface19,50025,000
213.333 Automated vehicle inspection systems19,50025,000
213.335 Crossties:
(a) Material used9,50017,000
(b) Distribution of ties13,00020,500
(c) Sufficient number of nondefective ties, non-concrete9,50017,000
(d) Sufficient number of nondefective, concrete ties19,50025,000
(e) Joint ties19,50025,000
(f) Track constructed without crossties19,50025,000
(g) Non-defective ties surrounding defective ties19,50025,000
(h) Tie plates19,50025,000
(i) Tie plates19,50025,000
213.337 Defective rails19,50025,000
213.339 Inspection of rail in service19,50025,000
213.341 Inspection of new rail19,50025,000
213.343 Continuous welded rail (a) through (h)19,50025,000
213.345 Vehicle qualification testing (a) through (b)19,50025,000
(c) through (e)19,50025,000
213.347 Automotive or railroad crossings at grade13,00020,500
213.349 Rail end mismatch13,00020,500
213.351(a) Rail joints19,50025,000
Start Printed Page 57609
213.351(b) Rail joints19,50025,000
213.351(c) Rail joints19,50025,000
213.351(d) Rail joints19,50025,000
213.351(e) Rail joints13,00020,500
213.351(f) Rail joints19,50025,000
213.351(g) Rail joints19,50025,000
213.352 Torch cut rails9,50017,000
213.353 Turnouts, crossovers, transition devices19,50025,000
213.355 Frog guard rails and guard faces; gage13,00020,500
213.357 Derails9,50017,000
213.359 Track stiffness19,50025,000
213.361 Right of way9,50017,000
213.365 Visual inspections19,50025,000
213.367 Special inspections19,50025,000
213.369 Inspections records9,50017,000
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.
End Part Start Part

PART 214—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix A to Part 214—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Bridge Worker Safety Standards
214.103 Fall protection:
(i) Failure to provide fall protection$13,000$20,500
(ii) Failure to use fall protection19,50025,000
214.105 Standards and practices:
(a) General:
(1) Fall protection used for other purposes9,50017,000
(2) Failure to remove from service9,50017,000
(3) Failure to protect from deterioration9,50017,000
(4) Failure to inspect and remove13,00020,500
(5) Failure to train13,00020,500
(6) Failure to provide for prompt rescue13,00020,500
(7) Failure to prevent damage9,50017,000
(8) Failure to use proper connectors9,50017,000
(9) Failure to use proper anchorages9,50017,000
(b) Fall arrest system:
(1)-(17) Failure to provide conforming equipment9,50017,000
(c) Safety net systems:
(1) Failure to install close to workplace9,50017,000
(2) Failure to provide fall arrest if over 30 feet13,00020,500
(3) Failure to provide for unobstructed fall13,00020,500
(4) Failure to test9,50017,000
(5) Failure to use proper equipment9,50017,000
(6) Failure to prevent contact with surface below13,00020,500
(7) Failure to properly install13,00020,500
(8) Failure to remove defective nets13,00020,500
(9) Failure to inspect13,00020,500
(10) Failure to remove objects5,50010,000
(11)-(13) Failure to use conforming equipment9,50017,000
214.107 Working over water:
(a)(i) Failure to provide life vest13,00020,500
(ii) Failure to use life vest13,00020,500
(c) Failure to inspect9,50017,000
(e)(i) Failure to provide ring buoys13,00020,500
Start Printed Page 57610
(ii) Failure to use ring buoys17,000
(f)(i) Failure to provide skiff9,50017,000
(ii) Failure to use skiff17,000
214.109 Scaffolding:
(a)-(f) Failure to provide conforming equipment13,00020,500
214.113 Head protection:
(a)(i) Failure to provide13,00020,500
(ii) Failure to use13,00020,500
(b) or (c) Failure to provide conforming equipment9,50017,000
214.115 Foot protection:
(a)(i) Failure to require use of9,50017,000
(ii) Failure to use9,50017,000
214.117 Eye and face protection:
(a)(i) Failure to provide9,50017,000
(ii) Failure to use5,50010,000
(b) Failure to use conforming equipment9,50017,000
(c) Use of defective equipment9,50017,000
(d) Failure to provide for corrective lenses9,50017,000
Subpart C—Roadway Worker Protection Rule
214.303 Railroad on-track safety programs, generally:
(a) Failure of a railroad to implement an On-track Safety Program19,50025,000
(b) On-track Safety Program of a railroad includes no internal monitoring procedure9,50017,000
214.305 Compliance Dates:
Failure of a railroad to comply by the specified dates9,50017,000
214.307 Review and approval of individual on-track safety programs by FRA:
(a)(i) Failure to notify FRA of adoption of On-track Safety Program2,5005,000
(ii) Failure to designate primary person to contact for program review2,5005,000
214.309 On-track safety program documents:
(1) On-track Safety Manual not provided to prescribed employees9,50017,000
(2) On-track Safety Program documents issued in fragments5,50010,000
214.311 Responsibility of employers:
(b) Roadway worker required by employer to foul a track during an unresolved challenge19,50025,000
(c) Roadway workers not provided with written procedure to resolve challenges of on-track safety procedures9,50017,000
214.313 Responsibility of individual roadway workers:
(a) Failure to follow railroad's on-track safety rules25,000
(b) Roadway worker fouling a track when not necessary in the performance of duty25,000
(c) Roadway worker fouling a track without ascertaining that provision is made for on-track safety25,000
(d) Roadway worker failing to notify employer of determination of improper on-track safety provisions25,000
214.315 Supervision and communication:
(a) Failure of employer to provide job briefing19,50025,000
(b) Incomplete job briefing13,00020,500
(c)(i) Failure to designate roadway worker in charge of roadway work group13,00020,500
(ii) Designation of more than one roadway worker in charge of one roadway work group9,50017,000
(iii) Designation of non-qualified roadway worker in charge of roadway work group13,00020,500
(d)(i) Failure to notify roadway workers of on-track safety procedures in effect13,00020,500
(ii) Incorrect information provided to roadway workers regarding on-track safety procedures in effect13,00020,500
(iii) Failure to notify roadway workers of change in on-track safety procedures13,00020,500
(e)(i) Failure of lone worker to communicate with designated employee for daily job briefing9,50017,000
(ii) Failure of employer to provide means for lone worker to receive daily job briefing13,00020,500
214.317 On-track safety procedures, generally:
On-track safety rules conflict with this part19,50025,000
214.319 Working limits, generally:
(a) Nonqualified roadway worker in charge of working limits13,00020,500
(b) More than one roadway worker in charge of working limits on the same track segment13,00020,500
(c)(1) Working limits released without notifying all affected roadway workers19,50025,000
(2) Working limits released before all affected roadway workers are otherwise protected19,50025,000
214.321 Exclusive track occupancy:
(b) Improper transmission of authority for exclusive track occupancy9,50017,000
(b)(1) Failure to repeat authority for exclusive track occupancy to issuing employee9,50017,000
(2) Failure to retain possession of written authority for exclusive track occupancy5,50010,000
(3) Failure to record authority for exclusive track occupancy when issued13,00020,500
(c) Limits of exclusive track occupancy not identified by proper physical features19,50025,000
(d)(1) Movement authorized into limits of exclusive track occupancy without authority of roadway worker in charge19,50025,000
(2) Movement authorized within limits of exclusive track occupancy without authority of roadway worker in charge19,50025,000
(3) Movement within limits of exclusive track occupancy exceeding restricted speed without authority of roadway worker in charge19,50025,000
Start Printed Page 57611
214.323 Foul time:
(a) Foul time authority overlapping movement authority of train or equipment19,50025,000
(b) Failure to repeat foul time authority to issuing employee9,50017,000
214.325 Train coordination:
(a) Train coordination limits established where more than one train is authorized to operate13,00020,500
(b)(1) Train coordination established with train not visible to roadway worker at the time9,50017,000
(2) Train coordination established with moving train9,50017,000
(3) Coordinated train moving without authority of roadway worker in charge13,00020,500
(4) Coordinated train releasing movement authority while working limits are in effect13,00020,500
214.327 Inaccessible track:
(a) Improper control of entry to inaccessible track13,00020,500
(5) Remotely controlled switch not properly secured by control operator13,00020,500
(b) Train or equipment moving within inaccessible track limits without permission of roadway worker in charge13,00020,500
(c) Unauthorized train or equipment located within inaccessible track limits13,00020,500
214.329 Train approach warning provided by watchmen/lookouts:
(a) Failure to give timely warning of approaching train19,50025,000
(b)(1) Failure of watchman/lookout to give full attention to detecting approach of train13,00020,500
(2) Assignment of other duties to watchman/lookout19,50025,000
(c) Failure to provide proper warning signal devices9,50017,000
(d) Failure to maintain position to receive train approach warning signal13,00020,500
(e) Failure to communicate proper warning signal13,00020,500
(f)(1) Assignment of nonqualified person as watchman/lookout13,00020,500
(2) Nonqualified person accepting assignment as watchman/lookout9,50017,000
(g) Failure to properly equip a watchman/lookout9,50017,000
214.331 Definite train location:
(a) Definite train location established where prohibited13,00020,500
(b) Failure to phase out definite train location by required date9,50017,000
(d)(1) Train location information issued by unauthorized person13,00020,500
(2) Failure to include all trains operated on train location list19,50025,000
(5) Failure to clear track 10 minutes before earliest departure time of train at last station prior to work location, or failure to remain clear until such train passed13,00020,500
(6) Train passing station before time shown in train location list19,50025,000
(7) Nonqualified person using definite train location to establish on-track safety13,00020,500
214.333 Informational line-ups of trains:
(a) Informational line-ups of trains used for on-track safety where prohibited19,50025,000
(b) Informational line-up procedures inadequate to protect roadway workers19,50025,000
(c) Failure to discontinue informational line-ups by required date9,50017,000
214.335 On-track safety procedures for roadway work groups:
(a) Failure to provide on-track safety for a member of a roadway work group19,50025,000
(b) Member of roadway work group fouling a track without authority of employee in charge13,00020,500
(c) Failure to provide train approach warning or working limits on adjacent track where required19,50025,000
214.337 On-track safety procedures for lone workers:
(b) Failure by employer to permit individual discretion in use of individual train detection19,50025,000
(c)(1) Individual train detection used by nonqualified employee13,00020,500
(2) Use of individual train detection while engaged in heavy or distracting work19,50025,000
(3) Use of individual train detection in controlled point or manual interlocking19,50025,000
(4) Use of individual train detection with insufficient visibility19,50025,000
(5) Use of individual train detection with interfering noise19,50025,000
(6) Use of individual train detection while a train is passing19,50025,000
(d) Failure to maintain access to place of safety clear of live tracks19,50025,000
(e) Lone worker unable to maintain vigilant lookout19,50025,000
(f)(1) Failure to prepare written statement of on-track safety5,50010,000
(2) Incomplete written statement of on-track safety2,5005,000
(3) Failure to produce written statement of on-track safety to FRA2,5005,000
214.339 Audible warning from trains:
(a) Failure to require audible warning from trains9,50017,000
(b) Failure of train to give audible warning where required9,50017,000
214.341 Roadway maintenance machines:
(a) Failure of on-track safety program to include provisions for safety near roadway maintenance machines19,50025,000
(b) Failure to provide operating instructions9,50017,000
(1) Assignment of nonqualified employee to operate machine13,00020,500
(2) Operator unfamiliar with safety instructions for machine13,00020,500
(3) Roadway worker working with unfamiliar machine13,00020,500
(c) Roadway maintenance machine not clear of passing trains or operation of machine component closer than four feet to adjacent track without procedural instructions19,50025,000
214.343 Training and qualification, general:
(a)(1) Assignment of roadway worker duties to employee that is not trained or qualified13,00020,500
(a)(2) Acceptance of roadway worker assignment by employee that is not trained or qualified13,00020,500
(b)(1) Failure to provide initial training13,00020,500
Start Printed Page 57612
(b)(2) Failure to provide annual training9,50017,000
(c) Failure to provide training to employee other than a roadway worker on functions related to on-track safety13,00020,500
(d)(1) Failure to maintain records of qualifications9,50017,000
(2) Incomplete records of qualifications5,50010,000
(3) Failure to provide records of qualifications to FRA2,5005,000
214.345 Training for all roadway workers33
214.347 Training and qualification for lone workers33
214.349 Training and qualification of watchmen/lookouts33
214.351 Training and qualification of flagmen33
214.353 Training and qualification of roadway workers who provide on-track safety for roadway work groups33
214.355 Training and qualification in on-track safety for operators of roadway maintenance machines33
Subpart D—On-Track Roadway Maintenance Machines and Hi-Rail Vehicles
214.503 Good-faith challenges; procedures for notification and resolution:
(a) Failure of employee to notify employer that the machine or vehicle does not comply with this subpart or has a condition inhibiting safe operation20,500
(b) Roadway worker required to operate machine or vehicle when good-faith challenge not resolved19,50025,000
(c) Failure of employer to have or follow written procedures to resolve good-faith challenges19,50025,000
214.505 Required environmental control and protection systems for new on-track roadway maintenance machines with enclosed cabs:
(a) Failure to equip new machines with required systems19,50025,000
(b) Failure of new or existing machines to protect employees from exposure to air contaminants19,50025,000
(c) Failure of employer to maintain required list of machines or make list available9,50017,000
(d) Removal of “designated machine” from list before retired or sold9,50017,000
(e) Personal respiratory protective equipment not provided when ventilation system fails19,50025,000
(f) Personal respiratory protective equipment fails to meet required standards19,50025,000
(g) Other new machines with enclosed cabs not equipped with operable heating and ventilation systems19,50025,000
(h) Nonenclosed station not equipped with covering, where feasible19,50025,000
214.507 Required safety equipment for new on-track roadway maintenance machines:
(a)(1)-(5) Failure to equip new machine or provide protection as specified in these paragraphs19,50025,000
(a)(6)-(7) Failure to equip new machine with first-aid kit or operative and charged fire extinguisher13,00020,500
(b) Position for operator to stand not properly equipped to provide safe and secure position19,50025,000
(c) New machine not equipped with accurate speed indicator, as required13,00020,500
(d) As-built light weight not conspicuously displayed on new machine13,00020,500
214.509 Required visual illumination and reflective devices for new on-track roadway maintenance machines13,00020,500
214.511 Required audible warning devices for new on-track roadway maintenance machines19,50025,000
214.513 Retrofitting of existing on-track roadway maintenance machines; general:
(a) Failure to provide safe and secure position and protection from moving parts inside cab for each roadway worker transported on machine19,50025,000
(b) Horn or other audible warning device is missing, inoperable, or has noncompliant triggering mechanism13,00020,500
(c) Illumination device or portable light missing, inoperable, improperly secured, or incapable of illuminating track as required13,00020,500
214.515 Overhead covers for existing on-track roadway maintenance machines:
(a) Failure to repair, reinstall, or maintain overhead cover as required19,50025,000
(b) Failure to provide written response to operator's request within 60 days9,50017,000
214.517 Retrofitting of existing on-track roadway maintenance machines manufactured on or after January 1, 1991:
(a) Failure to equip machine with change-of-direction alarm or rearward viewing device19,50025,000
(b) Failure to equip machine with operative heater19,50025,000
(c) Failure to display light weight of machine as required13,00020,500
(d) Failure to equip machine with reflective material, reflective device, or operable brake lights19,50025,000
(e) Failure to install or replace safety glass as required19,50025,000
(f) Failure to equip machine with turntable restraint device or warning light as required19,50025,000
214.518 Safe and secure position for riders19,50025,000
214.519 Floors, decks, stairs, and ladders for on-track roadway maintenance machines19,50025,000
214.521 Flagging equipment for on-track roadway maintenance machines and hi-rail vehicles13,00020,500
214.523 Hi-rail vehicles:
(a) Failure to inspect hi-rail gear annually19,50025,000
(b) Failure to maintain inspection record or make record available to FRA9,50017,000
(c) Failure to equip new hi-rail vehicle with alarm and light or beacon as required13,00020,500
(d)(2) Failure of operator to tag, date, or report noncomplying condition9,50017,000
(d)(3) Failure to repair or replace noncomplying alarms, lights, or beacons as required13,00020,500
214.525 Towing with on-track roadway maintenance machines or hi-rail vehicles19,50025,000
214.527 On-track roadway maintenance machines; inspection for compliance and schedule for repairs:
(a) Failure of operator to check on-track roadway maintenance machine for compliance9,50017,000
(b) Failure of operator to tag, date, or report noncomplying condition9,50017,000
Start Printed Page 57613
(c)(1)-(4) Failure to meet requirements for operating on-track roadway maintenance machine with noncomplying headlights, work lights, horn, fire extinguisher, alarm, warning light, or beacon13,00020,500
(c)(5) Failure to repair or replace defective or missing operator's seat within required time period19,50025,000
214.529 In-service failure of primary braking system19,50025,000
214.531 Schedule of repairs; general13,00020,500
214.533 Schedule of repairs subject to availability of parts:
(a)-(c) Failure to order necessary part(s), make repair(s), or remove on-track roadway maintenance machine or hi-rail vehicle from service as required13,00020,500
(d) Failure to maintain record or make record available to FRA9,50017,000
1 A penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 214. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
3See § 214.343 (Training and qualification, general).
End Part Start Part

PART 215—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix B to Part 215—Schedule of Civil Penalties 1

Section 2ViolationWillful Violation
Subpart A—General
215.9 Movement for repair:
(a), (c)11
(b)$5,500$10,000
215.11 Designation of qualified persons9,50017,000
215.13 Pre-departure inspection9,50017,000
Subpart B—Freight Car Components
Suspension System
215.103 Defective wheel:
(a) Flange thickness of:
(1) 7/8″ or less but more than 13/16″9,50017,000
(2) 13/16″ or less13,00020,500
(b) Flange height of:
(1) 11/2″ or greater but less than 15/8″9,50017,000
(2) 15/8″ or more13,00020,500
(c) Rim thickness of:
(1) 11/16″ or less but more than 5/8″9,50017,000
(2) 5/8″ or less13,00020,500
(d) Wheel rim, flange plate hub width:
(1) Crack of less than 1″9,50017,000
(2) Crack of 1″ or more13,00020,500
(3) Break19,50025,000
(e) Chip or gouge in flange of:
(1) 11/2″ or more but less than 15/8″ in length; and 1/2″ or more but less than 5/8″ in width5,50010,000
(2) 15/8″ or more in length; or 5/8″ or more in width9,50017,000
(f) Slid flat or shelled spot(s):
(1)(i) One spot more than 21/2″, but less than 3″, in length5,50010,000
(ii) One spot 3″ or more in length9,50017,000
(2)(i) Two adjoining spots each of which is more than 2″ but less than 21/2″ in length5,50010,000
(ii) Two adjoining spots both of which are at least 2″ in length, if either spot is 21/2″ or more in length9,50017,000
(g) Loose on axle19,50025,000
(h) Overheated; discoloration extending:
(1) More than 4″ but less than 41/2″9,50017,000(
(2) 41/2″ or more13,00020,500
(i) Welded13,00020,500
215.105 Defective axle:
(a)(1) Crack of 1″ or less9,50017,000
(2) Crack of more than 1″13,00020,500
(3) Break19,50025,000
Start Printed Page 57614
(b) Gouge in surface that is between the wheel seats and is more than 1/8″ in depth5,50010,000
(c) End collar with crack or break9,50017,000
(d) Journal overheated19,50025,000
(e) Journal surface has: A ridge; a depression; a circumferential score; corrugation; a scratch; a continuous streak; pitting; rust; or etching9,50017,000
215.107 Defective plain bearing box: general:
(a)(1) No visible free oil5,50010,000
(2) Lubricating pad dry (no expression of oil observed when pad is compressed)13,00020,500
(b) Box lid is missing, broken, or open except to receive servicing5,50010,000
(c) Contains foreign matter that can be expected to damage the bearing or have a detrimental effect on the lubrication of the journal and bearing9,50017,000
215.109 Defective plain bearing box: journal lubrication system:
(a) Lubricating pad has a tear5,50010,000
(b) Lubricating pad scorched, burned, or glazed9,50017,000
(c) Lubricating pad contains decaying or deteriorating fabric9,50017,000
(d) Lubricating pad has an exposed center core or metal parts contacting the journal9,50017,000
(e) Lubricating pad is missing or not in contact with the journal13,00020,500
215.111 Defective plain bearing:
(a) Missing19,50025,000
(b) Bearing liner is loose or has piece broken out9,50017,000
(c) Overheated19,50025,000
215.113 Defective plain bearing wedge:
(a) Missing19,50025,000
(b) Cracked9,50017,000
(c) Broken13,00020,500
(d) Not located in its design position9,50017,000
215.115 Defective roller bearing:
(a)(1) Overheated19,50025,000
(2)(i) Cap screw(s) loose13,00020,500
(ii) Cap screw lock broken, missing or improperly applied5,50010,000
(3) Seal is loose or damaged, or permits leakage of lubricant5,50010,000
(b)(1) Not inspected and tested after derailment13,00020,500
(2) Not disassembled after derailment9,50017,000
(3) Not repaired or replaced after derailment13,00020,500
215.117 Defective roller bearing adapter:
(a) Cracked or broken9,50017,000
(b) Not in its design position13,00020,500
(c) Worn on the crown9,50017,000
215.119 Defective freight car truck:
(a)(1) A side frame or bolster that is broken19,50025,000
(2)(i) Side frame or bolster with crack of: 1/4″ or more, but less than 1″9,50017,000
(ii) 1″ or more13,00020,500
(b) A snubbing device that is ineffective or missing9,50017,000
(c) Side bearing(s):
(1) Assembly missing or broken19,50025,000
(2) In contact except by design13,00020,500
(3), (4) Total clearance at one end or at diagonally opposite sides of:
(i) More than 3/4″ but not more than 1″9,50017,000
(ii) More than 1″13,00020,500
(d) Truck spring(s):
(1) Do not maintain travel or load9,50017,000
(2) Compressed solid9,50017,000
(3) Outer truck springs broken or missing:
(i) Two outer springs9,50017,000
(ii) Three or more outer springs13,00020,500
(e) Truck bolster-center plate interference13,00020,500
(f) Brake beam shelf support worn9,50017,000
Car Bodies
215.121 Defective car body:
(a) Has less than 21/2″ clearance from the top of rail9,50017,000
(b) Car center sill is:
(1) Broken19,50025,000
(2) Cracked more than 6″9,50017,000
(3) Bent or buckled more than 21/2″ in any 6′ length9,50017,000
(c) Coupler carrier that is broken or missing9,50017,000
(d) Car door not equipped with operative safety hangers19,50025,000
(e)(1) Center plate not properly secured19,50025,000
(2) Portion missing9,50017,000
(3) Broken19,50025,000
(4) Two or more cracks9,50017,000
Start Printed Page 57615
(f) Broken sidesill, crossbearer, or body bolster9,50017,000
Draft System
215.123 Defective couplers:
(a) Shank bent out of alignment5,50010,000
(b) Crack in highly stressed junction area9,50017,000
(c) Coupler knuckle broken or cracked9,50017,000
(d) Coupler knuckle pin or thrower that is missing or inoperative9,50017,000
(e) Coupler retainer pin lock that is missing or broken5,50010,000
(f) Coupler with following conditions: Locklift inoperative; no anticreep protection; or coupler lock is missing, inoperative, bent, cracked, or broken9,50017,000
215.125 Defective uncoupling device9,50017,000
215.127 Defective draft arrangement:
(a) Draft gear that is inoperative9,50017,000
(b) Yoke that is broken9,50017,000
(c) End of car cushioning unit is leaking or inoperative9,50017,000
(d) Vertical coupler pin retainer plate missing or has missing fastener19,50025,000
(e) Draft key or draft key retainer that is inoperative or missing19,50025,000
(f) Follower plate that is missing or broken9,50017,000
215.129 Defective cushioning device9,50017,000
Subpart C—Restricted Equipment
215.203 Restricted cars9,50017,000
Subpart D—Stenciling
215.301 General5,50010,000
215.303 Stenciling of restricted cars5,50010,000
215.305 Stenciling of maintenance-of-way5,50010,000
1 A penalty may be assessed against an individual only for a willful violation. Generally, when two or more violations of these regulations are discovered with respect to a single freight car that is placed or continued in service by a railroad, the appropriate penalties set forth above are aggregated up to a maximum of $25,000 per day. A failure to perform, with respect to a particular freight car, the predeparture inspection required by § 215.13 of this part will be treated as a violation separate and distinct from, and in addition to, any substantive violative conditions found on the car. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. Failure to observe any condition for movement set forth in paragraphs (a) and (c) of § 215.9 will deprive the railroad of the benefit of the movement-for-repair provision and make the railroad and any responsible individuals liable for penalty under the particular regulatory section(s) concerning the substantive defect(s) present on the freight car at the time of movement. Maintenance-of-way equipment not stenciled in accordance with § 215.305 is subject to all requirements of this part. See § 215.3(c)(3).
2 The penalty schedule uses section numbers from 49 CFR part 215. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 217—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix A to Part 217—Schedule Of Civil Penalties1

Section 2ViolationWillful Violation
Subpart A—General
217.7 Operating Rules:
(a)$5,500$10,000
(b)5,50010,000
(c)5,50010,000
217.9 Operational tests and inspections:
(a) Failure to implement a program9,500- 19,50017,000- 25,000
(b) Railroad and railroad testing officer responsibilities:
(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in accordance with program13,00020,500
(2) Records9,50017,000
(c) Record of program; program incomplete9,500- 19,50017,000- 25,000
(d) Records of individual tests and inspections9,50017,000
(e) Failure to retain copy of or conduct:
(1)(i) Quarterly review13,00020,500
(1)(ii) and (2) Six month review13,00020,500
(3) Records9,50017,000
Start Printed Page 57616
(f) Annual summary9,50017,000
(h) Failure to timely or appropriately amend program after disapproval13,000- 19,50020,500- 25,000
217.11 Program of instruction on operating rules:
(a)5,500- 13,00010,000- 20,500
(b)5,500- 13,00010,000- 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.
End Part Start Part

PART 218—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix A to Part 218—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Blue Signal Protection of Workmen
218.22 Utility employees:
(a) Employee qualifications$5,500$10,000
(b) Concurrent service9,50017,000
(c) Assignment conditions:
(1) No controlling locomotive9,50017,000
(2) Empty cab9,50017,000
(3)(4) Improper communication9,50017,000
(5) Performing functions not listed5,50010,000
(d) Improper release5,50010,000
(f) More than three utility employees with one crew5,50010,000
218.23 Blue signal display9,50017,000
218.24 One-person crew:
(a)(1) Equipment not coupled or insufficiently separated5,50010,000
(a)(2) Unoccupied locomotive cab not secured9,50017,000
(b) Helper service5,50010,000
218.25 Workmen on a main track9,50017,000
218.27 Workmen on track other than main track:
(a) Protection provided except that signal not displayed at switch5,50010,000
(b) through (e)9,50017,000
218.29 Alternate methods of protection:
(a)(1) Protection provided except that signal not displayed at switch5,50010,000
(a)(2) through (a)(8)9,50017,000
(b)(1) Protection provided except that signal not displayed at switch5,50010,000
(b)(2) through (b)(4)9,50017,000
(c) Use of derails9,50017,000
(d) Emergency repairs9,50017,000
218.30 Remotely controlled switches:
(a) and (b)9,50017,000
(c)2,5005,000
Subpart C—Protection of Trains and Locomotives
218.35 Yard limits:
(a) and (b)9,50017,000
(c)2,5005,000
218.37 Flag protection:
(a)9,50017,000
(b) and (c)9,50017,000
218.39 Hump operations9,50017,000
218.41 Noncompliance with hump operations rule9,50017,000
Subpart D—Prohibition against Tampering with Safety Devices
218.55 Tampering17,000
218.57 
(i) Knowingly operating or permitting operation of disabled equipment5,500
(ii) Willfully operating or permitting operation of disabled equipment10,000
218.59 Operation of disabled equipment5,50010,000
Start Printed Page 57617
Subpart E—Protection of Occupied Camp Cars
218.71 Warning Signal Display:
(a) Warning signals5,50010,000
(1) Cars may not be moved9,50017,000
(2) Rolling equipment may not be on same track reducing view of warning signal5,50010,000
(3) Rolling equipment may not pass a warning signal9,50017,000
(4) Signal will be displayed immediately and only removed prior to departure5,50010,000
218.75 Methods of protection for camp cars on main track:
(a) Warning signals near each switch with access5,50010,000
(b) Immediate notification of occupation9,50017,000
(c) Alerting affected personnel of cars5,50010,000
(d) Manual switched lined and locked9,50017,000
(e) Remote switches protected9,50017,000
218.77 Remotely controlled switches:
(a) Remote switch lined and locked9,50017,000
(b) Operator may not remove locking device without permission9,50017,000
(c) Recordkeeping2,5005,000
(d) Derail and signal when located on main track9,50017,000
218.79 Alternative methods for protection:
(a) Other than main track:
(1) Warning signal at each switch providing access9,50017,000
(2) Switches lined and locked9,50017,000
(3) Derails 50 feet away when speed is 5MPH9,50017,000
(b) Except as provided in (a) on other than main track:
(1) Derails 150 feet away from equipment9,50017,000
(2) Derails must be locked in derailing position with signal9,50017,000
Subpart F—Handling Equipment, Switches and Derails
218.95 Instruction, Training and Examination:
(a) Program9,500-13,00017,000-20,500
(b) Records9,50017,000
(c) Failure to timely or appropriately amend program after disapproval9,500-13,00017,000-20,500
218.97 Good Faith Challenge Procedures:
(a) Employee Responsibility Failure5,000
(b) through (d) Failure to adopt or implement procedures9,50017,000
218.99 Shoving or Pushing Movements:
(a) Failure to implement required operating rule13,00020,500
(b) Failure to conduct job briefing, use a qualified employee, or establish proper protection9,500-13,00017,000-20,500
(c) Failure to observe equipment direction9,50017,000
(d) Failure to properly establish point protection within a remote control zone9,50017,000
(e) Failure to abide by operational exception requirements9,50017,000
218.101 Leaving Equipment in the Clear:
(a) Failure to implement required operating rule9,50017,000
(b) Equipment left improperly fouling9,50017,000
(c) Failure to implement procedures for identifying clearance points9,50017,000
218.103 Hand-operated switches, including crossover switches:
(a) Failure to implement required operating rule9,50017,000
(b) through (d) Railroad employee failures9,50017,000
218.105 Additional operational requirements for hand-operated main track switches:
(a) Failure to implement required operating rule13,00020,500
(b) and (c) Railroad and employee failures9,50017,000
(d) Failure to properly release authority limits13,00020,500
218.107 Additional operational requirements for hand-operated crossover switches:
(a) Failure to implement required operating rule9,50017,000
(b) and (c) Railroad and employee failures9,50017,000
218.109 Hand-operated fixed derails:
(a) Failure to implement required operating rule9,50017,000
(b) and (c) Railroad and employee failures9,50017,000
1 Except as provided for in § 218.57, a penalty may be assessed against an individual only for a willful violation. In addition, there are certain sections of the penalty schedule for which no penalty is listed in the ordinary violation column. These sections may only be cited as willful violations. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where the circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 218. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part Start Printed Page 57618

PART 219—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix A to Part 219—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
219.3 Application: Railroad does not have required program$13,000$20,500
219.11 General conditions for chemical tests:
(b)(1) Employee unlawfully refuses to participate in testing5,50010,000
(b)(2) Employer fails to give priority to medical treatment13,00020,500
(b)(3) Employee fails to remain available5,50010,000
(b)(4) Employee tampers with specimen5,50010,000
(d) Employee unlawfully required to execute a waiver of rights5,50010,000
(e) Railroad used or authorized the use of coercion to obtain specimens10,000
(g) Failure to meet supervisory training requirements or program of instruction not available or program not complete9,50017,000
(h) Urine or blood specimens provided for Federal testing were used for nonauthorized testing5,50010,000
219.23 Railroad policies:
(a) Failure to provide written notice of FRA test5,50010,000
(b) Failure to provide written notice of basis for FRA test2,5005,000
(c) Use of Subpart C form for other test2,5005,000
(d) Failure to provide educational materials2,5005,000
(e) Educational materials fail to explain requirements of this part and/or include required content2,5005,000
(f) Non-Federal provisions are not clearly described as independent authority5,50010,000
Subpart B—Prohibitions
219.101 Alcohol and drug use prohibited:
Employee violates prohibition(s)19,50025,000
219.103 Prescribed and over-the-counter drugs:
(a) Failure to train employee properly on requirements5,50010,000
219.104 Responsive action:
(a) Failure to remove employee from covered service immediately19,50025,000
(b) Failure to provide notice for removal5,50010,000
(c) Failure to provide prompt hearing5,50010,000
(d) Employee improperly returned to service13,00020,500
219.105 Railroad's duty to prevent violations:
(a) Employee improperly permitted to remain in covered service19,50025,000
(b) Failure to exercise due diligence to assure compliance with prohibition9,50017,000
219.107 Consequences of unlawful refusal:
(a) Failure to disqualify an employee for nine months following a refusal13,00020,500
(e) Employee unlawfully returned to service13,00020,500
Subpart C—Post-Accident Toxicological Testing
219.201 Events for which testing is required:
(a) Failure to test after qualifying event (each employee not tested is a violation)13,00020,500
(c)(1)(i) Failure to make good faith determination5,50010,000
(c)(1)(ii) Failure to provide requested decision report to FRA2,5005,000
(c)(2) Testing performed after nonqualifying event9,50017,000
219.203 Responsibilities of railroads and employees:
(a)(1)(i) and (a)(2)(i) Failure to properly test/exclude from testing5,50010,000
(a)(1)(ii) and (a)(2)(ii) Noncovered service employee tested5,50010,000
(b)(1) Delay in obtaining specimens due to failure to make every reasonable effort5,50010,000
(c) Independent medical facility not utilized5,50010,000
(d) Failure to report event or contact FRA when intervention required2,5005,000
219.205 Specimen collection and handling:
(a) Failure to observe requirements with respect to specimen collection, marking and handling5,50010,000
(b) Failure to provide properly prepared forms with specimens2,5005,000
(d) Failure to promptly or properly forward specimens5,50010,000
219.207 Fatality:
(a) Failure to test13,00020,500
(a)(1) Failure to ensure timely collection and shipment of required specimens2,5005,000
(b) Failure to request assistance when necessary5,50010,000
219.209 Reports of tests and refusals:
(a)(1) Failure to provide telephonic report2,5005,000
(b) Failure to provide written report of refusal to test2,5005,000
(c) Failure to maintain report explaining why test not conducted within four hours2,5005,000
219.211 Analysis and follow-up:
(c) Failure of MRO to report review of positive results to FRA5,50010,000
Subpart D—Testing for Cause
219.300 Mandatory reasonable suspicion testing:
(a)(1) Failure to test when reasonable suspicion criteria met19,50025,000
Start Printed Page 57619
(a)(2) Tested when reasonable suspicion criteria not met9,50017,000
219.301 Testing for reasonable cause:
(a) Event did not occur during daily tour5,50010,000
(b)(2) Tested when accident/incident criteria not met9,50017,000
(b)(3) Tested when operating rules violation criteria not met9,50017,000
219.302 Prompt specimen collection:
(a) Specimen collection not conducted promptly5,50010,000
Subpart E—Identification of Troubled Employees
219.401 Requirement for policies:
(b) Failure to publish and/or implement required policy5,50010,000
219.407 Alternate policies:
(c) Failure to file agreement or other document or provide timely notice or revocation5,50010,000
Subpart F—Pre-Employment Tests
219.501 Pre-employment tests:
(a) Failure to perform pre-employment drug test before first time employee performs covered service13,00020,500
Subpart G—Random Testing Programs
219.601 Railroad random drug programs:
(a)(1) Failure to file a random program13,00020,500
(a)(2) Failure to file amendment to program5,50010,000
(b) Failure to meet random testing criteria9,50017,000
(b)(1)(i) Failure to use a neutral selection process9,50017,000
(b)(2)(i)(B) Testing not spread throughout the year5,50010,000
(b)(3) Testing not distributed throughout the day5,50010,000
(b)(4) Advance notice provided to employee9,50017,000
(b)(6) Testing when employee not on duty5,50010,000
219.601 A Failure to include covered service employee in pool9,50017,000
219.602 Administrator's determination of drug testing rate:
(f) Total number of tests below minimum random drug testing rate13,00020,500
219.603 Participation in drug testing:
Failure to document reason for not testing selected employee5,50010,000
219.607 Railroad random alcohol programs:
(a)(1) Failure to file a random alcohol program13,00020,500
(a)(2) Failure to file amendment to program5,50010,000
(b) Failure to meet random testing criteria9,50017,000
(b)(1) Failure to use a neutral selection process9,50017,000
(b)(5) Testing when employee not on duty5,50010,000
(b)(8) Advance notice provided to employee9,50017,000
219.607 A Failure to include covered service employee in pool9,50017,000
219.608 Administrator's determination of random alcohol testing rate:
(e) Total number of tests below minimum random alcohol testing rate13,00020,500
219.609 Participation in alcohol testing: Failure to document reason for not testing selected employee5,50010,000
Subpart H—Drug and Alcohol Testing Procedures
219.701 Standards for drug and alcohol testing:
(a) Failure to comply with part 40 procedures in Subpart B, D, F, or G testing5,50010,000
(b) Testing not performed in a timely manner5,50010,000
Subpart I—Annual Report
219.800 Reporting alcohol and drug misuse prevention program results in a management information system:
(a) Failure to submit MIS report on time5,50010,000
(c) Failure to submit accurate MIS report5,50010,000
(d) Failure to include required data5,50010,000
Subpart J—Recordkeeping Requirements
219.901 Retention of Alcohol Testing Records:
(a) Failure to maintain records required to be kept by part 405,50010,000
(b) Failure to maintain records required to be kept for five years5,50010,000
(c) Failure to maintain records required to be kept for two years5,50010,000
219.903 Retention of Drug Testing Records:
(a) Failure to maintain records required to be kept by part 405,50010,000
(b) Failure to maintain records required to be kept for five years5,50010,000
(c) Failure to maintain records required to be kept for two years5,50010,000
219.905 Access to facilities and records:
(a) Failure to release records in this subpart in accordance with part 409,50017,000
(b) Failure to permit access to facilities9,50017,000
(c) Failure to provide access to results of railroad alcohol and drug testing programs9,50017,000
1 A penalty may be assessed against an individual only for a willful violation. The FRA Administrator reserves the right to assess a penalty of up to $100,000 for any violation, including ones not listed in this penalty schedule, where circumstances warrant. See 49 CFR part 209, appendix A.Start Printed 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.
End Part Start Part

PART 220—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix C to Part 220—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
220.9 Requirements for trains$13,000$20,500
220.11 Requirements for roadway workers13,00020,500
Subpart B—Radio and Wireless Communication Procedures
220.21 Railroad operating rules; radio communications:
(a)9,50017,000
(b)9,50017,000
220.23 Publication of radio information9,50017,000
220.25 Instruction of employees9,50017,000
220.27 Identification9,50017,000
220.29 Statement of letters and numbers9,50017,000
220.31 Initiating a transmission5,50010,000
220.33 Receiving a transmission9,50017,000
220.35 Ending a transmission9,50017,000
220.37 Voice test13,00020,500
220.38 Failed equipment2,5005,000
220.39 Continuous monitoring9,50017,000
220.41 [Reserved]
220.43 Communication consistent with the rules13,00020,500
220.45 Complete communications13,00020,500
220.47 Emergencies19,50025,000
220.49 Switching, backing or pushing19,50025,000
220.51 Signal indications13,00020,500
220.61 Radio transmission of mandatory directives19,50025,000
1 A penalty may be assessed against and only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 220. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 221—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix C to Part 221—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Marking Devices
221.13 Marking device display:
(a) Device not present, not displayed, or not properly illuminated$9,500$17,000
(d) Device too close to rail2,5005,000
221.14 Marking devices: Use of unapproved or noncomplying device5,50010,000
221.15 Marking device inspection:
(a) Failure to inspect at crew change5,50010,000
(b), (c) Improper inspection5,50010,000
221.16 Inspection procedure:
(a) Failure to obtain protection9,50017,000
(b) Improper protection5,50010,000
221.17 Movement of defective equipment(1)(1)
1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. Where the conditions for movement of defective equipment set forth in § 221.17 of this part are not met, the movement constitutes a violation of § 221.13 of this part.Start Printed 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.
End Part Start Part

PART 222—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix H to Part 222—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Use of Locomotive Horns
222.21 Use of locomotive horn:
(a) Failure to sound horn at grade crossing$9,500$17,000
Failure to sound horn in proper pattern5,50010,000
(b) Failure to sound horn at least 15 seconds and less than 1/4 mile before crossing9,50017,000
Sounding the horn more than 25 seconds before the crossing5,50010,000
Sounding the horn more than 1/4 mile in advance of crossing5,50010,000
Subpart C—Exceptions to the Use of the Locomotive Horn
Silenced Horns at Individual Crossings
222.33 Failure to sound horn when conditions of § 222.33 are not met9,50017,000
Silenced Horns at Groups of Crossings—Quiet Zones
222.45 Routine sounding of the locomotive horn at a quiet zone crossing5,50010,000
222.49(b) Failure to provide Grade Crossing Inventory Form information2,5005,000
222.59(d) Routine sounding of the locomotive horn at a grade crossing equipped with wayside horn2,5005,000
1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 222. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 223—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix B to Part 223—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Specific Requirements
223.9 New or rebuilt equipment:
(a) Locomotives$5,500$10,000
(b) Cabooses5,50010,000
(c) Passenger cars5,50010,000
223.11(c) Existing locomotives5,50010,000
(d) Repair of window2,5005,000
223.13(c) Existing cabooses5,50010,000
(d) Repair of window2,5005,000
223.15(c) Existing passenger cars5,50010,000
(d) Repair of window2,5005,000
223.17 Identification of units2,5005,000
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.
End Part Start Part Start Printed Page 57622

PART 224—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix A to Part 224—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Application, Inspection, and Maintenance of Retroreflective Material
224.103 Characteristics of retroreflective sheeting:
(a)-(d) Retroreflective sheeting applied does not meet the requirements of § 224.103$5,500$10,000
224.105 Sheeting dimensions and quantity:
(a) Failure to apply minimum amount of retroreflective sheeting in accordance with Table 25,50010,000
(b) Applying retroreflective sheeting of wrong dimensions5,50010,000
224.106 Location of retroreflective sheeting:
(a), (b) Applying retroreflective sheeting in nonconforming pattern5,50010,000
224.107 Implementation schedule:
(a)(1), (b)(1) Failure to apply retroreflective sheeting to new freight car or locomotive before equipment placed in service5,50010,000
(a)(2), (b)(2), (b)(4) Failure to apply retroreflective sheeting to existing freight car or locomotive in accordance with minimum schedule of paragraphs (a)(2), (b)(2), or (b)(4)5,50010,000
224.109 Inspection, repair, and replacement:
(1) Failure to perform inspection5,50010,000
(2) Failure to properly notify car owner of defect5,50010,000
(3) Failure to retain written notification of defect for two years2,5005,000
(4) Failure to repair defect after notification5,50010,000
1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 224. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 225—[AMENDED]

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

Start Authority

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.

End Authority

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

Appendix A to Part 225—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
225.9 Telephonic reports of certain accidents/incidents$9,500$17,000
225.11 Reports of accidents/incidents5,50010,000
225.12(a): Failure to file Railroad Employee Human Factor Attachment properly:
(1) Employee identified2,5005,000
(2) No employee identified2,5005,000
225.12(b):
(1) Failure to notify employee properly5,50010,000
(2) Notification of employee not involved in accident2,5005,000
225.12(c): Failure of employing railroad to provide requested information properly2,5005,000
225.12(d):
(1) Failure to revise report when identity becomes known2,5005,000
(2) Failure to notify after late identification5,50010,000
225.12(f)(1): Submission of notice if employee dies as result of the reported accident2,5005,000
225.12(g): Willfully false accident statement by employee20,500
225.13 Late reports2,5005,000
225.17(d) Alcohol or drug involvement9,50017,000
225.23 Joint operations(1)(1)
225.25 Recordkeeping5,50010,000
225.27 Retention of records2,5005,000
225.33:
(1) Failure to adopt the Internal Control Plan9,50017,000
(2) Inaccurate reporting due to failure to comply with the Internal Control Plan9,50017,000
(3) Failure to comply with the intimidation/harassment policy in the Internal Control Plan9,50017,000
Start Printed Page 57623
225.35 Access to records and reports5,50010,000
1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. A failure to comply with § 225.23 constitutes a violation of § 225.11. For purposes of §§ 225.25 and 225.27 of this part, each of the following constitutes a single act of noncompliance: (1) A missing or incomplete log entry for a particular employee's injury or illness; or (2) a missing or incomplete log record for a particular rail equipment accident or incident. Each day a violation continues is a separate offense.
2 The penalty schedule uses section numbers from 49 CFR part 225. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 227—[AMENDED]

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

Start Authority

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

End Authority

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

Appendix G to Part 227—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
227.3 Application:
(b)(4) Failure to meet the required conditions for foreign railroad operations$5,500$10,000
Subpart B—Occupational Noise Exposure for Railroad Operating Employees
227.103 Noise monitoring program:
(a) Failure to develop and/or implement a noise monitoring program19,50025,000
(b) Failure to use sampling as required5,50010,000
(c) Failure to integrate sound levels and/or make noise measurements as required5,50010,000
(d) Failure to repeat noise monitoring where required5,50010,000
(e) Failure to consider work environments where hearing protectors may be omitted5,50010,000
(f) Failure to provide opportunity to observe monitoring2,5005,000
(g) Reporting of monitoring results:
(1) Failure to notify monitored employee5,50010,000
(2) Failure to post results as required5,50010,000
227.105 Protection of employees:
(a) Failure to provide appropriate protection to exposed employee19,50025,000
(b) Failure to observe and document sources of noise exposure5,50010,000
(c)-(d) Failure to protect employee from impermissible continuous noise13,00020,500
227.107 Hearing conservation program:
(a) Failure to administer an HCP19,50025,000
(b) Failure to compute noise exposure as required9,50017,000
227.109 Audiometric testing program:
(a) Failure to establish and/or maintain an audiometric testing program19,50025,000
(b) Failure to provide audiometric test at no cost to employee5,50010,000
(c) Failure to have qualified person perform audiometric test5,50010,000
(d) [Reserved]
(e) Failure to establish baseline audiogram as required9,50017,000
(f) Failure to offer and/or require periodic audiogram as required5,50010,000
(g) Failure to evaluate audiogram as required5,50010,000
(h) Failure to comply with follow-up procedures as required5,50010,000
(i) Failure to use required method for revising baseline audiograms5,50010,000
227.111 Audiometric test requirements:
(a) Failure to conduct test as required5,50010,000
(b) Failure to use required equipment5,50010,000
(c) Failure to administer test in room that meets requirements5,50010,000
(d) Complete failure to calibrate13,00020,500
(1) Failure to perform daily calibration as required2,5005,000
(2) Failure to perform annual calibration as required2,5005,000
(3) Failure to perform exhaustive calibration as required2,5005,000
227.115 Hearing protectors (HP):
(a) Failure to comply with general requirements9,50017,000
(b) Failure to make HP available as required5,50010,000
(c) Failure to require use of HP at action level13,00020,500
(d) Failure to require use of HP at TWA of 90 dB(A)13,00020,500
227.117 Hearing protector attenuation:
(a) Failure to evaluate attenuation as required2,5005,000
(b)-(c) Failure to attenuate to required level2,5005,000
(d) Failure to reevaluate attenuation2,5005,000
Start Printed Page 57624
227.119 Training program:
(a) Failure to institute a training program as required9,50017,000
(b) Failure to provide training within required time frame2,5005,000
(c) Failure of program and/or training materials to include required information2,5005,000
227.121 Recordkeeping:
(a) General Requirements:
(1) Failure to make record available as required2,5005,000
(3) Failure to transfer or retain records as required2,5005,000
(b)-(f) Records:
(1) Failure to maintain record or failure to maintain record with required information2,5005,000
(2) Failure to retain records for required time period2,5005,000
1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.
2 The penalty schedule uses section numbers from 49 CFR part 227. If more than one item is listed as a type of violation of a given section, each item is also designated by a “penalty code,” which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.
End Part Start Part

PART 228—[AMENDED]

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

Start Authority

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:

End Authority

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

* * * * *

General Provisions

* * * * *

Penalty. * * * Effective October 9, 2007, the ordinary maximum penalty of $11,000 was raised to $16,000 as required under law. Effective March 2, 2009, the minimum penalty, ordinary maximum penalty and aggravated maximum penalty were raised again. The minimum penalty was increased from $550 to $650 pursuant to the law's requirement. Meanwhile, the ordinary maximum penalty was increased from $16,000 to $25,000 and the aggravated maximum was increased from $27,000 to $100,000 in accordance with the authority provided under the Rail Safety Improvement Act of 2008. FRA's guideline civil penalty amounts for violations of the substantive hours of service statute are $9,500 for an ordinary violation of the hours of service statute and $17,000 for a willful violation of the hours of service statute. The Administrator reserves the right to assess a penalty of up to $100,000 for a violation where circumstances warrant. See 49 CFR part 209, appendix A.

* * * * *

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

Appendix B to Part 228—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Records and Reporting
228.9 Railroad records$5,500$10,000
228.11 Hours of duty records2,5005,000
Error on record reflect pattern of inaccurate recordkeeping13,00020,500
228.17 Dispatcher's record2,5005,000
228.19 Monthly reports of excess service9,50017,000
Subpart D—Electronic Recordkeeping
228.203 Program components9,50017,000
228.205 Access to electronic records9,50017.000
228.207 Training5,50010,000
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.
End Part Start Part

PART 229—[AMENDED]

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

Start Authority

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).

End Authority

33. Appendix B to part 229 is revised to read as follows:Start Printed Page 57625

Appendix B to Part 229—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
229.7 Prohibited acts: Safety deficiencies not governed by specific regulations: To be assessed on relevant facts$2,500-13,000$5,000-20,500
229.9 Movement of noncomplying locomotives(1)(1)
229.11 Locomotive identification2,5005,000
229.13 Control of locomotives9,50017,000
229.17 Accident reports15,50010,000
219.19 Prior waivers(1)(1)
Subpart B—Inspection and Tests
229.21 Daily inspection:
(a)(b):
(1) Inspection overdue5,50010,000
(2) Inspection report not made, improperly executed, or not retained2,5005,000
(c) Inspection not performed by a qualified person2,5005,000
229.23 Periodic inspection General
(a)(b):
(1) Inspection overdue5,50010,000
(2) Inspection performed improperly or at a location where the underneath portion cannot be safely inspected5,50010,000
(c)(d):
(1) Form missing2,5005,000
(2) Form not properly displayed2,5005,000
(3) Form improperly executed2,5005,000
(e) Replace Form FRA F 6180-49A by April 22,5005,000
(f) Secondary record of the information reported on Form FRA F 6180.49A2,5005,000
229.25:
(a) through (e)(4) Tests: Every periodic inspection5,50010,000
(e)(5) Ineffective maintenance13,00020,500
229.27 Annual tests5,50010,000
229.29 Biennial tests5,50010,000
229.31:
(a) Biennial hydrostatic tests of main reservoirs5,50010,000
(b) Biennial hammer tests of main reservoirs5,50010,000
(c) Drilled telltale holes in welded main reservoirs5,50010,000
(d) Biennial tests of aluminum main reservoirs5,50010,000
229.33 Out-of-use credit2,5005,000
Subpart C—Safety Requirements
General Requirements
229.41 Protection against personal injury9,50017,000
229.43 Exhaust and battery gases9,50017,000
229.45 General condition: To be assessed based on relevant facts2,500-13,0005,000-20,500
Brake System
229.46 Brakes: General9,50017,000
229.47 Emergency brake valve9,50017,000
229.49 Main reservoir system:
(a)(1) Main reservoir safety valve9,50017,000
(2) Pneumatically actuated control reservoir9,50017,000
(b)(c) Main reservoir governors9,50017,000
229.51 Aluminum main reservoirs9,50017,000
229.53 Brake gauges9,50017,000
229.55 Piston travel9,50017,000
229.57 Foundation brake gear9,50017,000
229.59 Leakage9,50017,000
Draft System
229.61 Draft system5,50010,000
Suspension System
229.63 Lateral motion5,50010,000
229.64 Plain bearing5,50010,000
229.65 Spring rigging5,50010,000
229.67 Trucks9,50017,000
229.69 Side bearings9,50017,000
229.71 Clearance above top of rail2,5005,000
229.73 Wheel sets9,50017,000
229.75 Wheel and tire defects:
(a), (d) Slid flat or shelled spot(s):
(1) One spot 21/2″ or more but less than 3″ in length9,50017,000
(2) One spot 3″ or more in length13,00020,500
(3) Two adjoining spots each of which is 2″ or more in length but less than 21/2″ in length9,50017,000
Start Printed Page 57626
(4) Two adjoining spots each of which are at least 2″ in length, if either spot is 21/2″ or more in length13,00020,500
(b) Gouge or chip in flange of:
(1) More than 11/2″ but less than 15/8″ in length; and more than 1/2″ but less than 5/8″ in width9,50017,000
(2) 15/8″ or more in length and 5/8″ or more in width13,00020,500
(c) Broken rim19,50025,000
(e) Seam in tread9,50017,000
(f) Flange thickness of:
(1) 7/8″ or less but more than 13/16″9,50017,000
(2) 13/16″ or less13,00020,500
(g) Tread worn hollow9,50017,000
(h) Flange height of:
(1) 11/2″ or greater but less than 15/8″9,50017,000
(2) 15/8″ or more13,00020,500
(i) Tire thickness9,50017,000
(j) Rim thickness:
(1) Less than 1″ in road service and 3/4″ in yard service9,50017,000
(2) 15/16″ or less in road service and 11/16″ in yard service13,00020,500
(k):
(1) Crack of less than 1″9,50017,000
(2) Crack of 1″ or more13,00020,500
(3) Break19,50025,000
(l) Loose wheel or tire19,50025,000
(m) Welded wheel or tire9,50017,000
Electrical System
229.77 Current collectors5,50010,000
229.79 Third rail shoes and beams5,50010,000
229.81 Emergency pole; shoe insulation9,50017,000
229.83 Insulation or grounding13,00020,500
229.85 Door and cover plates marked “Danger”5,50010,000
229.87 Hand operated switches5,50010,000
229.89 Jumpers; cable connections:
(a) Jumpers and cable connections; locked and guarded9,50017,000
(b) Condition of jumpers and cable connections9,50017,000
229.91 Motors and generators9,50017,000
Internal Combustion Equipment
229.93 Safety cut-off device9,50017,000
229.95 Venting9,50017,000
229.97 Grounding fuel tanks9,50017,000
229.99 Safety hangers9,50017,000
229.101 Engines:
(a) Temperature and pressure alarms, controls, and switches5,50010,000
(b) Warning notice9,50017,000
(c) Wheel slip/slide protection5,50010,000
Steam Generators
229.103 Safe working pressure; factor of safety9,50017,000
229.105 Steam generator number2,5005,000
229.107 Pressure gauge9,50017,000
229.109 Safety valves9,50017,000
229.111 Water-flow indicator9,50017,000
229.113 Warning notice9,50017,000
Cabs and Cab Equipment
229.115 Slip/slide alarms9,50017,000
229.117 Speed indicators9,50017,000
229.119 Cabs, floors, and passageways:
(a)(1) Cab set not securely mounted or braced5,50010,000
(2) Insecure or improper latching device5,50010,000
(b) Cab windows of lead locomotive5,50010,000
(c) Floors, passageways, and compartments5,50010,000
(d) Ventilation and heating arrangement9,50017,000
(e) Continuous barrier9,50017,000
(f) Containers for fuses and torpedoes9,50017,000
229.121 Locomotive cab noise:
(a) Performance Standards
(1) Failure to meet sound level13,00020,500
(2) Improper maintenance alterations5,50010,000
(3) Failure to comply with static test protocols5,50010,000
(b) Maintenance of Locomotives:
(1) Failure to maintain excessive noise report record or respond to report as required5,50010,000
Start Printed Page 57627
(3) Failure to make good faith effort as required5,50010,000
(4) Failure to maintain record as required2,5005,000
229.123 Pilots, snowplows, end plates5,50010,000
229.125:
(a) Headlights9,50017,000
(d) Auxiliary lights9,50017,000
229.127 Cab lights5,50010,000
229.129 Locomotive horn:
(a) Prescribed sound levels9,50017,000
Arrangement of horn9,50017,000
(b) Failure to perform sound level test9,50017,000
(c) Sound level test improperly performed9,50017,000
Record of sound level test improperly executed, or not retained5,50010,000
229.131 Sanders2,5005,000
229.135 Event Recorders:
(a) Lead locomotive without in-service event recorder9,50017,000
(b) Failure to meet equipment requirements9,50017,000
(c) Unauthorized removal or failure to remove from service9,50017,000
(d) Improper response to out of service event recorder9,50017,000
(e) Failure to preserve data or unauthorized extraction of data9,50017,000
(g) Tampering with device or data9,50017,000
229.137 Sanitation, general:
(a) Sanitation compartment in lead unit, complete failure to provide required items9,50017,000
(1) Ventilation5,50010,000
(2) Door missing5,50010,000
(2)(i) Door doesn't close5,50010,000
(2)(ii) No modesty lock2,5005,000
(3) Not equipped with toilet in lead9,50017,000
(4) Not equipped with washing system5,50010,000
(5) Lack of paper5,50010,000
(6) Lack of trash receptacle5,50010,000
(b) Exceptions:
(1)(i) Commuter service, failure to meet conditions of exception2,5005,000
(1)(ii) Switching service, failure to meet conditions of exception2,5005,000
(1)(iii) Transfer service, failure to meet conditions of exception2,5005,000
(1)(iv) Class III, failure to meet conditions of exception2,5005,000
(1)(v) Tourist, failure to meet conditions of exception2,5005,000
(1)(vi) Control cab locomotive, failure to meet conditions of exception2,5005,000
(2) Noncompliant toilet5,50010,000
(c) Defective/unsanitary toilet in lead unit5,50010,000
(1)-(5) Failure to meet conditions of exception5,50010,000
(d) Defective/unsanitary unit; failure to meet conditions for trailing position5,50010,000
(e) Defective/sanitary unit; failure to meet conditions for switching/transfer service5,50010,000
(f) Paper, washing, trash holder; failure to equip prior to departure5,50010,000
(g) Inadequate ventilation; failure to repair or move prior to departure5,50010,000
(h) Door closure/modesty lock; failure to repair or move2,5005,000
(i) Failure to retain/maintain of equipped units5,50010,000
(j) Failure to equip new units/in-cab facility5,50010,000
(k) Failure to provide potable water5,50010,000
229.139 Servicing requirements:
(a) Lead occupied unit not sanitary5,50010,000
(b) Components not present/operating2,5005,000
(c) Occupied unit in switching, transfer service, in trailing position not sanitary2,5005,000
(d) Defective unit used more than ten days5,50010,000
(e) Failure to repair defective modesty lock2,5005,000
Subpart D—Locomotive Crashworthiness Design Requirements
229.141 Body structure, MU locomotives9,50017,000
229.205 General requirements:
(a)(1) Wide-nose locomotive not designed in compliance with AAR S-580-200519,50025,000
(2) Wide-nose locomotive not designed in compliance with new approved design standard19,50025,000
(3) Wide-nose locomotive not designed in compliance with alternate approved design standard19,50025,000
(b) Monocoque or semi-monocoque locomotive not in compliance with design requirements19,50025,000
(c) Narrow-nose not in compliance with design requirements19,50025,000
229.206 Design requirements:
Locomotive fails to meet—
(1) Emergency egress requirements19,50025,000
(2) Emergency interior lighting requirements19,50025,000
(3) Interior configuration requirements19,50025,000
229.213 Locomotive manufacturing information:
(a) Failure to retain required information9,50017,000
(b) Failure to produce required information9,50017,000
Start Printed Page 57628
229.215 Retention and inspection of designs:
(a) Failure to retain required design records9,50017,000
(b) Failure to retain required repair or modification records9,50017,000
(c) Failure to make records available when requested9,50017,000
229.217 Fuel tank:
(a) External fuel tank19,50025,000
(b) Internal fuel tank19,50025,000
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 § 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 § 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.
End Part Start Part

PART 230—[AMENDED]

34. The authority citation for part 230 continues to read as follows:

Start Authority

Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; and 49 CFR 1.49.

End Authority

35. Appendix D to part 230 is revised to read as follows:

Appendix D to Part 230—Schedule of Civil Penalties

Section 2ViolationWillful violation
Subpart A—General
General Inspection Requirements
230.11 Repair of non-complying conditions:
(a) Failure to repair noncomplying steam locomotive prior to use in service$5,500$10,000
(b) Failure of owner and/or operator to approve repairs made prior to use of steam locomotive5,50010,000
230.12 Movement of noncomplying steam locomotive(1)(1)
230.13 Daily inspection:
(a)(b):
(1) Inspection overdue9,50017,000
(2) Inspection not performed by qualified person5,50010,000
(c) Inspection report not made, improperly executed or not retained5,50010,000
230.14 Thirty-one service day inspection:
(a):
(1) Inspection overdue9,50017,000
(2) Inspection not performed by qualified person5,50010,000
(b) Failure to notify FRA5,50010,000
(c) Inspection report not made, improperly executed, not properly filed5,50010,000
230.15 Ninety-two service day inspection:
(a):
(1) Inspection overdue9,50017,000
(2) Inspection not performed by qualified person5,50010,000
(b) Inspection report not made, improperly executed, not properly filed5,50010,000
230.16 Annual inspection:
(a):
(1) Inspection overdue9,50017,000
(2) Inspection not performed by qualified person5,50010,000
(b) Failure to notify FRA5,50010,000
(c) Inspection report not made, improperly executed, not properly filed5,50010,000
230.17 One thousand four hundred seventy-two service day inspection:
(a):
(1) Inspection overdue9,50017,000
(2) Inspection not performed by qualified person5,50010,000
(b) Inspection report not made, improperly executed, not properly maintained, not properly filed5,50010,000
Recordkeeping Requirements
230.18 Service days:
(a) Service day record not available for inspection5,50010,000
(b) Failure to file service day report with FRA Regional Administrator5,50010,000
(c) Failure to complete all 1,472 service day inspection items prior to returning retired steam locomotive to service9,50017,000
Start Printed Page 57629
230.19 Posting of forms:
(a) FRA Form No. 1:
(1) FRA Form No. 1 not properly filled out5,50010,000
(2) FRA Form No. 1 not properly displayed5,50010,000
(b) FRA Form No. 3:
(1) FRA Form No. 3 not properly filled out5,50010,000
(2) FRA Form No. 3 not properly displayed5,50010,000
230.20 Alteration and repair reports:
(a) Alterations:
(1) Failure to properly file FRA Form No. 19 with FRA Regional Administrator5,50010,000
(2) FRA Form No. 19 not properly filled out5,50010,000
(3) FRA Form No. 19 not properly maintained5,50010,000
(b) Repairs to unstayed portions of the boiler:
(1) FRA Form No. 19 not properly filled out5,50010,000
(2) FRA Form No. 19 not properly maintained5,50010,000
(c) Repairs to stayed portions of the boiler:
(1) FRA Form No. 19 not properly filled out5,50010,000
(2) FRA Form No. 19 not properly maintained5,50010,000
230.21 Failure to properly document steam locomotive number change5,50010,000
230.22 Failure to properly report accident resulting from failure of steam locomotive boiler or part or appurtenance thereof9,50017,000
Subpart B—Boilers and Appurtenances
230.23 Responsibility for general construction and safe working pressure:
(a) Failure to properly establish safe working pressure for steam locomotive boiler19,50025,000
(b) Placing steam locomotive in service before safe working pressure for boiler has been established19,50025,000
Allowable Stress
230.24 Maximum allowable stress values on boiler components:
(a) Use of materials not of sufficient tensile strength5,50010,000
(b) Use of a safety factor value of less than four when using the code of original construction in boiler calculations13,00020,500
230.25 Maximum allowable stresses on stays and braces:
(a) Exceeding allowable stress values on fire box and/or combustion chamber5,50010,000
(b) Exceeding allowable stress values on round, rectangular or gusset braces5,50010,000
Inspection and Repair
230.29 Inspection and repair:
(a):
(1) Failure of owner and/or operator to inspect and repair any steam locomotive boiler and/or appurtenance under control thereof9,50017,000
(2) Failure to remove steam locomotive from service when considered necessary to do so13,00020,500
(b):
(1) Failure of perform repairs in accordance with accepted industry standards13,00020,500
(2) Owner and/or operator returning steam locomotive boiler and/or appurtenances to service before they are in good condition and safe and suitable for service13,00020,500
230.30 Lap-joint seam boilers, failure to properly inspect13,00020,500
230.31 Flues to be removed:
(a):
(1) Failure to remove all flues when inspecting boiler9,50017,000
(2) Failure to enter boiler and clean and inspect9,50017,000
(b) Failure to remove superheater flues when deemed necessary to do so5,50010,000
230.32 Time and method of inspection:
(a) Failure to perform 1,472 service day inspection when required to do so9,50017,000
(b) Failure to properly inspect boiler during 1,472 service day inspection9,50017,000
230.33 Welded repairs and alterations:
(a) Failure to obtain permission before welding on unstayed portions of boiler containing alloy or carbon steel with carbon content over .25 percent carbon9,50017,000
(b) Failure to perform welding on unstayed portions of boiler containing carbon steel not exceeding .25 percent carbon in accordance with a nationally accepted standard for boiler repairs9,50017,000
(c):
(1) Failure to submit 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 inch9,50017,000
(2) Repairing wasted sheets9,50017,000
230.34 Riveted repairs and alterations:
(a) Failure to obtain approval 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 repairs9,50017,000
(b) Failure to perform riveted repairs on unstayed boiler portions in accordance with established railroad practices or accepted national standards for boiler repairs9,50017,000
Start Printed Page 57630
(c) Failure to perform riveted repairs on stayed boiler portions in accordance with established railroad practices or accepted national standards for boiler repairs5,50010,000
Pressure Testing of Boilers
230.35 Failure to raise temperature of steam locomotive boiler to 70 degrees F. before applying hydrostatic pressure to the boiler5,50010,000
230.36 Hydrostatic testing of boilers:
(a) Failure to perform hydrostatic test of boiler as required9,50017,000
(b) Failure to properly perform hydrostatic test9,50017,000
(c) Failure to properly inspect boiler after conducting hydrostatic test above MAWP9,50017,000
230.37 Failure to perform proper steam test or inspection of boiler after completion of repair or alteration to boiler5,50010,000
Staybolts
230.38 Telltale holes:
(a) Failure to have telltale holes as required in staybolts5,50010,000
(b) Failure to have proper telltale holes in reduced body staybolts5,50010,000
(c) Failure to keep telltale holes when so required5,50010,000
230.39 Broken staybolts:
(a) Boiler in service with excess number of broken staybolts9,50017,000
(b) Failure to replace staybolts when required to do so; to properly replace staybolts when so required; to inspect adjacent staybolts when replacing broken staybolts9,50017,000
(c) Failure to count leaking, plugged, or missing telltale holes as broken staybolts9,50017,000
(d) Closing telltale holes by prohibited means9,50017,000
230.40 Time and method of staybolt testing:
(a) Failure to hammer test staybolts when so required5,50010,000
(b) Failure to properly hammer test staybolts5,50010,000
230.41 Flexible staybolts with caps:
(a) Failure to inspect flexible staybolts as required5,50010,000
(b) Failure to replace broken flexible staybolts; failure to close inner ends of telltale holes as required5,50010,000
(c) Failure to report removal of flexible staybolts caps and other tests on FRA Form No. 3 when so required5,50010,000
(d) Failure to remove staybolt caps or otherwise test when FRA inspector or steam locomotive owner and/or operator consider it necessary to do so5,50010,000
Steam Gauges
230.42 Failure to have accurate boiler steam gauge where engine crew can conveniently read13,00020,500
230.43 Failure to have gauge siphon of proper capacity on steam gauge supply pipe; failure to properly clean, maintain the steam gauge supply pipe5,50010,000
230.44 Failure to test steam gauge when so required5,50010,000
230.45 Failure to properly test and/or set steam gauge5,50010,000
230.46 Failure to attach to boiler backhead metal badge plate showing allowable steam pressure5,50010,000
230.47 Boiler Number:
(a) (b) (c) Failure to stamp builder's number on boiler when number is known5,50010,000
Safety Relief Valves
230.48 Number and capacity of safety relief valves:
(a) Failure to equip steam locomotive boiler with proper safety relief valves13,00020,500
(b) Failure to provide additional safety relief valve capacity when so required13,00020,500
230.49 Setting of safety relief valves:
(a) Safety relief valve(s) set and/or adjusted by person not competent to do so13,00020,500
(b) Safety relief valve(s) not set to open at prescribed pressure(s)13,00020,500
(c) Safety relief valve(s) not properly set13,00020,500
(d) Set pressure of lowest safety relief valve not properly indicated5,50010,000
230.50 Failure to test and adjust safety relief valves when required to do so9,50017,000
Water Glasses and Gauge Cocks
230.51 Failure to equip steam locomotive boiler with at least two properly installed water glasses5,50010,000
230.52 Failure to properly equip water glasses13,00020,500
230.53 Failure to properly clean water glass valves and/or gauge cocks when required to do so5,50010,000
230.54 Testing and maintenance:
(a) Failure to properly test water glasses and/or gauge cocks5,50010,000
(b) Failure to properly maintain gauge cocks, water column drain valves, and/or water glass valves9,50017,000
230.55 Tubular type water and lubricator glasses and shields:
(a) Failure to renew tubular type water glasses as required5,50010,000
(b) Failure to properly shield tubular water glasses and/or lubricator glasses5,50010,000
(c) Failure to properly locate and/or maintain water glasses and/or water glass shields5,50010,000
230.56 Failure to equip water glass with suitable lamp5,50010,000
Injectors, Feedwater Pumps, and Flue Plugs
230.57 Injectors and feedwater pumps:
(a) Failure to equip steam locomotive with proper means for delivering water to the boiler13,00020,500
Start Printed Page 57631
(b) Failure to properly test and/or maintain injectors, feedwater pumps, boiler checks, delivery pipes, feed water pipes, tank hose, tank valves13,00020,500
(c) Failure to properly brace injectors, feedwater pumps, and/or associated piping5,50010,000
230.58 Flue plugs:
(a) Plugging flue plugs when not otherwise permitted5,50010,000
(b) Improperly plugging flue plugs, when otherwise permitted5,50010,000
Fusible Plugs
230.59 Failure to remove and properly clean fusible boiler plugs when required to do so; failure to properly note removal9,50017,000
Washing Boilers
230.60 Time of washing:
(a) Failure to thoroughly wash boiler when required to do so5,50010,000
(b) Failure to remove washout plugs, arch tube plugs, thermic siphon plugs, circulator plugs, water bar plugs when washing locomotive boiler9,50017,000
(c) Failure to examine and/or properly maintain washout plugs washout plug sleeves, threaded openings9,50017,000
(d) Failure to clean fusible plugs when required to do so9,50017,000
230.61 Arch tubes, water bar tubes, circulators and thermic siphons:
(a) Failure to clean, wash, inspect arch tubes, water bar tubes, circulators and thermic siphons as required5,50010,000
(b) Failure to renew arch tubes, water bar tubes; failure to repair or renew circulators, thermic siphons when required9,50017,000
(c) Failure to properly inspect and/or replace as necessary arch tubes, water bar tubes, circulators9,50017,000
Steam Pipes
230.62 Failure to properly inspect and/or repair or replace as necessary dry pipes subject to pressure13,00020,500
230.63 Failure to properly inspect smoke box, steam pipes, pressure parts when required to do so9,50017,000
Steam Leaks
230.64 Failure to remove from service steam locomotive boiler leaking under lagging from condition which may reduce safety and/or repair the boiler before returning to service9,50017,000
230.65 Failure to keep steam locomotive boiler, piping, appurtenances in repair so steam does not obscure vision5,50010,000
Subpart C—Steam Locomotives and Tenders
230.66 Failure to properly oversee general design, construction, maintenance of steam locomotive(s) and tender(s)5,50010,000
230.67 Failure to ensure all steam 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 service13,00020,500
Speed Indicators
230.68 Failure to equip steam locomotive that operates in excess of 20 miles per hour over the general system with speed indicator maintained to ensure accurate functioning5,50010,000
Ash Pans
230.69 Failure to equip steam locomotive with properly supported ash pan with operating mechanism that may be safely operated and securely closed5,50010,000
Brake and Signal Equipment
230.70 Safe condition:
(a) Failure to perform proper pre-departure inspection when so required5,50010,000
(b) Failure to properly equip steam locomotive with brake pipe valve clearly identified as “Emergency Brake Valve”5,50010,000
230.71 Orifice testing of air compressors:
(a)(b):
Failure to properly test and/or maintain air compressor(s) capacity5,50010,000
230.72 Testing main reservoirs:
(a) Failure to properly test main reservoir(s) when required5,50010,000
(b) Impermissibly or improperly drilling main reservoir5,50010,000
(c) Impermissibly using NDE method to measure wall thickness of main reservoir5,50010,000
(d) Failure to use appropriate 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 thickness9,50017,000
230.73 Air gauges:
(a) Failure to equip steam locomotive with properly located air gauge(s) that are no more than three psi in error5,50010,000
(b) Failure to test air gauge(s) when so required5,50010,000
(c) Failure to properly test air gauge(s)5,50010,000
230.74 Failure to properly clean and/or test all air brake valves, related dirt collectors, filters when required to do so5,50010,000
Start Printed Page 57632
230.75 Failure to properly stencil or display date of testing and cleaning and initials of shop or station performing work5,50010,000
230.76 Piston travel:
(a) Insufficient minimum piston travel5,50010,000
(b) Excessive piston travel when steam locomotive is stationary5,50010,000
230.77 Foundation brake gear:
(a) Failure to properly maintain foundation brake gear5,50010,000
(b) Foundation brake gear less than 2.5 inches above rail5,50010,000
230.78 Leakage:
(a):
(1) Failure to test for leakage from main reservoir or related piping as required5,50010,000
(2) Failure to repair excessive leakage from main reservoir or related piping leakage5,50010,000
(b) Failure to test for brake cylinder as required5,50010,000
(c):
(1) Failure to test for leakage from steam locomotive brake pipe as required5,50010,000
(2) Failure to repair excessive brake pipe leakage5,50010,000
230.79 Train signal system:
(1) Failure to test the train signal system or other form of on-board communication as required5,50010,000
(2) Failure to repair train signal system or other on-board communication when not safe or suitable for service5,50010,000
Cabs, Warning Signals, Sanders and Lights
230.80 Cabs:
(a) Steam locomotive cab not safe and suitable for service5,50010,000
(b) Steam pipes: Construction, attachment5,50010,000
(c) Oil-burning steam locomotive, cab-enclosed5,50010,000
230.81 Cab aprons:
(a) Cab apron, general provisions5,50010,000
(b) Cab apron, insufficient width5,50010,000
230.82 Fire doors:
(a) Safe and suitable for service, general provisions5,50010,000
(b) Construction and maintenance of mechanically operated fire doors5,50010,000
(c) Construction and maintenance of hand-operated fire doors5,50010,000
230.83 Cylinder cocks:
(1) Failure to properly equip with cylinder cocks5,50010,000
(2) Failure to properly maintain cylinder cocks5,50010,000
230.84 Sanders:
(1) Inoperable sanders5,50010,000
(2) Failure to test sanders5,50010,000
230.85 Audible warning devices:
(a) General provisions5,50010,000
(b) Sound level measurements, Failure to properly take5,50010,000
230.86 Required illumination:
(a) General provisions5,50010,000
(b) Dimming device, failure to properly equip with5,50010,000
(c) Multiple locomotives, failure of lead locomotive to display headlight5,50010,000
230.87 Cab lights: Failure to properly equip with5,50010,000
Throttles and Reversing Gear
230.88 Throttles: Failure to properly maintain, equip5,50010,000
230.89 Reverse gear:
(a) General provisions5,50010,000
(b) Air-operated power reverse gear5,50010,000
(c) Power reverse gear reservoirs5,50010,000
Draw Gear and Draft Systems
230.90 Draw gear and draft systems:
(a) Maintenance and testing5,50010,000
(b) Safety bars and chains, general5,50010,000
(c) Safety bars and chains, minimum length5,50010,000
(d) Lost motion between steam locomotive and tender5,50010,000
(e) Spring buffers: Improper application, compression5,50010,000
230.91 Chafing irons: Improper application, maintenance5,50010,000
230.92 Draw gear, draft systems: Improperly maintained, fastened5,50010,000
Driving Gear
230.93 Pistons and piston rods:
(a) Failure to properly inspect, maintain, renew5,50010,000
(b) Fasteners: Failure to keep tight, properly equip5,50010,000
230.94 Crossheads: Improperly maintained, excess clearance5,50010,000
230.95 Guides: Failure to securely fasten, properly maintain5,50010,000
230.96 Main, side, valve motion rods:5,50010,000
Start Printed Page 57633
(a) General5,50010,000
(b) Repairs5,50010,000
(1) Failure to make in accordance with accepted national standard5,50010,000
(2) Failure to submit written request for approval prior to welding5,50010,000
(c) Bearings and bushings5,50010,000
(d) Rod side motion: Excessive motion5,50010,000
(e) Oil, grease cups: Failure to securely fasten, properly equip5,50010,000
(f) Main rod bearings:
(1) Excessive bore5,50010,000
(2) Excessive lost motion5,50010,000
(g) Side rod bearings, excessive bore5,50010,000
230.97 Crank pins:
(a) General provisions5,50010,000
(b) Maintenance: Failure to maintain in safe, suitable condition5,50010,000
Running Gear
230.98 Driving, trailing, engine truck axles:
(a) Condemning defects5,50010,000
(b) Journal diameter: Failure to stamp on end of axle2,5005,000
230.99 Tender truck axle: Insufficient diameter5,50010,000
230.100 Defects in tender truck axles and journals:
(a) Tender truck axle condemning defects5,50010,000
(b) Tender truck journal condemning defects5,50010,000
230.101 Steam locomotive driving journal boxes:
(a) Driving journal boxes: Failure to properly maintain5,50010,000
(b) Broken bearings: Failure to renew5,50010,000
(c) Loose bearings: Failure to repair or renew5,50010,000
230.102 Tender plain bearing journal boxes: Failure to repair5,50010,000
230.103 Tender roller bearing journal boxes: Failure to properly maintain5,50010,000
230.104 Driving box shoes and wedges: Failure to properly maintain5,50010,000
230.105 Lateral motion:
(a) Condemning limits: Total lateral motion in excess of5,50010,000
(b) Limits exceeded, failure to demonstrate conditions require additional lateral motion5,50010,000
(c) Interferes with other parts of steam locomotive5,50010,000
Trucks, Frames and Equalizing System
230.106 Steam locomotive frame:
(a) Failure to properly inspect and/or maintain5,50010,000
(b) Broken frames, not properly patched or secured13,00020,500
230.107 Tender frame and body:
(a) Failure to properly maintain5,50010,000
(b) Height difference between tender deck and steam locomotive cab floor or deck excessive5,50010,000
(c) Gangway minimum width excessive5,50010,000
(d) Tender frame condemning defects9,50017,000
230.108 Steam locomotive leading and trailing trucks:
(a) Failure to properly maintain5,50010,000
(b) Safety chain, suitable safety chain not provided5,50010,000
(c) Insufficient truck clearance5,50010,000
230.109 Tender trucks:
(a):
(1) Tender truck frames5,50010,000
(2) Tender truck center plate5,50010,000
(b) Tender truck bolsters: Failure to properly maintain9,50017,000
(c) Condemning defects, springs and/or spring rigging5,50010,000
(d) Truck securing arrangement: Not properly maintained5,50010,000
(e) Side bearings, truck centering devices5,50010,000
(f) Friction side bearings: Run in contact5,50010,000
(g):
(1) Side bearings, failure to equip rear trucks with5,50010,000
(2) Insufficient clearance of5,50010,000
230.110 Pilots:
(a) General provisions5,50010,000
(b) Clearance, insufficient or excessive5,50010,000
230.111 Spring rigging:
(a) Arrangement of springs and equalizers5,50010,000
(b) Spring or spring rigging condemning defects5,50010,000
Wheels and Tires
230.112 Wheels and tires:
(a) Improperly mounted, excess variance in axle diameter9,50017,000
(b) Out of gage5,50010,000
(c) Flange distance variance, excessive5,50010,000
Start Printed Page 57634
(d) Tire thickness, insufficient5,50010,000
(e) Tire width, insufficient5,50010,000
230.113 Wheels and tire defects:
(1) Failure to repair5,50010,000
(2) Welding on, except as otherwise provided for9,50017,000
(a) Cracks or breaks in5,50010,000
(b) Flat spots5,50010,000
(c) Chipped flange5,50010,000
(d) Broken rim5,50010,000
(e) Shelled-out spots5,50010,000
(f) Seams5,50010,000
(g) Worn flanges, excessive wear5,50010,000
(h) Worn treads, excessive wear5,50010,000
(i) Flange height, insufficient or excessive5,50010,000
(j) Rim thickness, insufficient5,50010,000
(k) Wheel diameter, excessive variance5,50010,000
230.114 Wheel centers:
(a) Filling blocks and shims5,50010,000
(b) Wheel center condemning limits, failure to repair5,50010,000
(c) Wheel center repairs5,50010,000
(d) Counterbalance maintenance5,50010,000
Steam Locomotive Tanks
230.115 Feed water tanks:
(a) General provisions5,50010,000
(b) Inspection frequency, failure to inspect as required5,50010,000
(c) Top of tender: Improperly maintained and/or equipped5,50010,000
230.116 Oil tanks:
(1) Failure to properly maintain13,00020,500
(2) Failure to equip with complying safety cut-off device19,50025,000
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. Failure to observe any condition for movement set forth in § 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 § 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.
End Part Start Part

PART 231—[AMENDED]

36. The authority citation for part 231 continues to read as follows:

Start Authority

Authority: 49 U.S.C. 20103, 20107, 20702; 28 U.S.C. 2461, note; and 49 CFR 1.49.

End Authority

37. Appendix A to part 231 is revised to read as follows:

Appendix A to Part 231—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
110.A1 Hand brake or hand brake part missing$13,000$20,500
110.A2 Hand brake or hand brake part broken13,00020,500
110.A3 Hand brake or hand brake part loose or worn9,50017,000
110.B1 Hand brake inoperative13,00020,500
110.B2 Hand brake inefficient9,50017,000
110.B3 Hand brake improperly applied9,50017,000
110.B4 Hand brake incorrectly located5,50010,000
110.B5 Hand brake shaft welded or wrong dimension5,50010,000
110.B6 Hand brake shaft not retained in operating position5,50010,000
110.B8 Hand brake or hand brake parts wrong design5,50010,000
114.B2 Hand brake wheel or lever has insufficient clearance around rim or handle5,50010,000
114.B3 Hand brake wheel/lever clearance insufficient to vertical plane through inside face of knuckle5,50010,000
120.A1 Brake step missing except by design13,00020,500
120.A2 Brake step or brace broken or decayed13,00020,500
120.A3 Brake step or brace loose9,50017,000
120.B1 Brake step or brace bent9,50017,000
Start Printed Page 57635
120.B2 Brake step or brace wrong dimensions5,50010,000
120.C1 Brake step improperly applied5,50010,000
120.C2 Brake step improperly located5,50010,000
120.C3 Brake step with less than 4″ clearance to vertical plane through inside face of knuckle5,50010,000
120.C4 Brake step obstructed or otherwise unsafe9,50017,000
124.A1 Running board missing or part missing except by design13,00020,500
124.A2 Running board broken or decayed13,00020,500
124.A3 Running board loose presents a tripping hazard or other unsafe condition9,50017,000
124.A4 Running board wrong material5,50010,000
124.B1 Running board bent to the extent that it is unsafe9,50017,000
124.B2 Running board wrong dimensions5,50010,000
124.B3 Running board wrong location5,50010,000
124.C1 Running board improperly applied5,50010,000
124.C2 Running board obstructed9,50017,000
126.A1 End platform missing or part except by design13,00020,500
126.A2 End platform broken or decayed13,00020,500
126.A3 End platform loose9,50017,000
126.B1 End platform or brace bent5,50010,000
126.B2 End platform wrong dimensions5,50010,000
126.C1 End platform improperly applied5,50010,000
126.C2 End platform with less than required clearance to vertical plane through inside knuckle5,50010,000
126.C3 End platform improperly located5,50010,000
126.C4 End platform obstructed9,50017,000
128.A1 Platform or switching step missing13,00020,500
128.A2 Platform or switching step broken or decayed13,00020,500
128.A3 Platform or switching step loose9,50017,000
128.B1 Platform or switching step bent9,50017,000
128.B2 Platform or switching step does not meet the required location or dimensions5,50010,000
128.C1 Platform or switching step improperly applied or repaired9,50017,000
128.C2 Platform or switching step obstructed9,50017,000
128.D1 Switching step back stop or kick plate missing5,50010,000
128.D2 Switching step not illuminated when required5,50010,000
128.D3 Non-illuminated step not painted contrasting color5,50010,000
130.A1 Sill step or additional tread, missing13,00020,500
130.A2 Sill step or additional tread, broken13,00020,500
130.A3 Sill step or additional tread, loose9,50017,000
130.B1 Sill step or additional tread, bent9,50017,000
130.B2 Sill step or additional tread, having wrong dimensions or improperly located5,50010,000
130.B3 Sill step improperly applied5,50010,000
132.A1 Side door step missing step13,00020,500
132.A2 Side door step broken13,00020,500
132.A3 Side door step loose9,50017,000
132.B1 Side door step bent9,50017,000
132.B2 Side door step having wrong dimensions5,50010,000
134.A1 Ladder missing13,00020,500
134.A2 Ladder broken13,00020,500
134.A3 Ladder loose9,50017,000
134.B1 Ladder bent9,50017,000
134.B2 Ladder having wrong dimensions5,50010,000
134.C1 Ladder improperly applied5,50010,000
134.C2 Ladder having insufficient clearance or improperly located5,50010,000
134.C3 Ladder wrong design5,50010,000
134.C4 Ladder wrong material5,50010,000
134.D1 End clearance insufficient5,50010,000
136.A1 Ladder tread or handholds missing13,00020,500
136.A2 Ladder tread or handhold broken13,00020,500
136.A3 Ladder tread or handhold loose except by design9,50017,000
136.B1 Ladder tread or handhold bent to the extent that it may be unsafe9,50017,000
136.B2 Ladder tread or handhold wrong dimensions5,50010,000
136.C1 Ladder tread or handhold improperly applied5,50010,000
136.C2 Ladder tread or handhold having wrong clearance5,50010,000
136.C3 Ladder or handhold improperly located5,50010,000
136.C4 Ladder tread or handhold obstructed9,50017,000
136.C5 Ladder tread without footguards9,50017,000
138.A1 Hand or safety railing missing13,00020,500
138.A2 Hand or safety railing broken13,00020,500
138.A3 Hand or safety railing loose except by design9,50017,000
138.B1 Hand or safety railing bent9,50017,000
138.B2 Hand or safety railing wrong dimensions5,50010,000
138.C1 Hand or safety railing improperly applied5,50010,000
138.C2 Hand or safety railing having less than the required clearance5,50010,000
Start Printed Page 57636
138.C3 Hand or safety railing improperly located5,50010,000
140.A1 Uncoupling lever missing9,50017,000
140.A2 Uncoupling lever broken or disconnected9,50017,000
140.B1 Uncoupling lever bent will not safely and reasonably function as intended9,50017,000
140.C1 Uncoupling lever bracket bent lever will not function properly9,50017,000
140.C2 Uncoupling lever bracket broken or missing9,50017,000
140.D1 Uncoupling lever wrong dimension5,50010,000
140.D2 Uncoupling lever with improper handle clearance5,50010,000
144.A1 Coupler missing13,00020,500
144.B1 Coupler height incorrect5,50010,000
144.C1 Coupler inoperative9,50017,000
145.A1 Kick plates missing5,50010,000
145.A2 Kick plates broken5,50010,000
145.B1 Kick plates wrong dimensions5,50010,000
145.B2 Kick plates improper clearance5,50010,000
145.B3 Kick plates insecure or improperly applied5,50010,000
146.A Notice or stencil not posted on cabooses with running boards removed2,5005,000
146.B Safe means not provided to clean or maintain windows of caboose2,5005,000
231.31 Drawbars, standard height9,50017,000
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.
End Part Start Part

PART 232—[AMENDED]

38. The authority citation for part 232 continues to read as follows:

Start Authority

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.

End Authority

39. Appendix A to part 232 is revised to read as follows:

Appendix A to Part 232—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
232.15 Movement of power brake defects:
(a) Improper movement, general(1)(1)
(11) Failure to make determinations and provide notification of en route defect$9,500$17,000
(b) Complete failure to tag9,50017,000
(1) Insufficient tag or record2,5005,000
(2), (4) Improper removal of tag9,50017,000
(3) Failure to retain record of tag9,50017,000
(c) Improper loading or purging9,50017,000
(e) Improper placement of defective equipment9,50017,000
232.19 Availability of records(1)(1)
Subpart B—General Requirements
232.103 All train brake systems:
(a)-(c), (h)-(i) Failure to meet general design requirements9,50017,000
(d) Failure to have proper percentage of operative brakes from Class I brake test13,00020,500
(e) Operating with less than 85 percent operative brakes13,00020,500
(f) Improper use of car with inoperative or ineffective brakes9,50017,000
(g) Improper display of piston travel9,50017,000
(m) Failure to stop train with excess air flow or gradient9,50017,000
(n) Securement of unattended equipment:
(1) Failure to apply sufficient number of hand brakes; failure to develop or implement procedure to verify number applied13,00020,500
(2) Failure to reduce to zero or vent brake pipe9,50017,000
(3) Failure to apply hand brakes on locomotives9,50017,000
(4) Failure to adopt or comply with procedures for securing unattended locomotive13,00020,500
(o) Improper adjustment of air regulating devices9,50017,000
(p) Failure to hold supervisors jointly responsible9,50017,000
232.105 Locomotives:
(a) Air brakes not in safe and suitable condition13,00020,500
(b) Not equipped with proper hand or parking brake13,00020,500
Start Printed Page 57637
(c)(1) Failure to inspect/repair hand or parking brake9,50017,000
(2) Failure to properly stencil, tag, or record5,50010,000
(d) Excess leakage from equalizing reservoir9,50017,000
(e) Improper use of feed or regulating valve braking9,50017,000
(f) Improper use of passenger position9,50017,000
(g) Brakes in operative condition13,00020,500
232.107 Air sources/cold weather operations:
(a)(1), (2) Failure to adopt or comply with monitoring program for yard air sources13,00020,500
(3) Failure to maintain records9,50017,000
(b) Failure to blow condensation13,00020,500
(c) Use of improper chemicals13,00020,500
(d) Failure to equip or drain yard air reservoirs13,00020,500
(e) Failure to adopt or comply cold weather operating procedures13,00020,500
232.109 Dynamic brakes:
(a) Failure to provide information9,50017,000
(b) Failure to make repairs9,50017,000
(c) Failure to properly tag5,50010,000
(d) Failure to maintain record of repair2,5005,000
(e) Improper deactivation9,50017,000
(f) Improper use of locomotive as controlling unit9,50017,000
(g) Locomotive not properly equipped with indicator9,50017,000
(h) Rebuilt locomotive not properly equipped9,50017,000
(j) Failure to adopt or comply with dynamic brake operating rules13,00020,500
(k) Failure to adopt or comply with training on operating procedures13,00020,500
232.111 Train handling information:
(a) Failure to adopt and comply with procedures13,00020,500
(b) Failure to provide specific information9,50017,000
Subpart C—Inspection and Testing Requirements
232.203 Training requirements:
(a) Failure to develop or adopt program19,50025,000
(b)(1)-(9) Failure to address or comply with specific required item or provision of program9,50017,000
(c) Failure to adopt or comply with two-way EOT program13,00020,500
(d) Failure to adopt or comply with retaining valve program13,00020,500
(e) Failure to maintain adequate records13,00020,500
(f) Failure to adopt and comply with periodic assessment plan19,50025,000
232.205 Class I brake test—initial terminal inspection:
(a) Complete failure to perform inspection(1) 19,50025,000
(c)(1)-(4), (6)-(8) Partial failure to perform inspection13,00020,500
(c)(5) Failure to properly adjust piston travel (per car)9,50017,000
(d) Failure to use carman when required5,50010,000
(e) Failure to provide proper notification9,50017,000
(f) Failure to void compressed air9,50017,000
232.207 Class IA brake tests—1,000-mile inspection:
(a) Complete failure to perform inspection(1) 13,00020,500
(b)(1)-(6) Partial failure to perform inspection9,50017,000
(c) Failure to properly designate location9,50017,000
(c)(1) Failure to perform at designated location9,50017,000
(c)(2) Failure to provide notification9,50017,000
232.209 Class II brake tests—intermediate inspection:
(a) Complete failure to perform inspection(1) 13,00020,500
(b)(1)-(5), (c) Partial failure to perform inspection9,50017,000
(c) Failure to conduct Class I after Class II pick-up(1)(1)
232.211 Class III brake tests—trainline continuity inspection:
(a) Complete failure to perform inspection13,00020,500
(b)(1)-(4), (c) Partial failure to perform inspection9,50017,000
(d) Failure to restore air pressure at rear9,50017,000
232.213 Extended haul trains:
(a)(1) Failure to properly designate an extended haul train13,00020,500
(a)(2)-(3), (5)(i), (8) Failure to perform inspections(1)(1)
(a)(4) Failure to remove defective car (per car)5,50010,000
(a)(5)(ii), (6) Failure to conduct inbound inspection13,00020,500
(a)(7) Failure to maintain record of defects (per car)5,50010,000
(b) Improper movement or use of extended haul train13,00020,500
232.215 Transfer train brake tests:
(a) Failure to perform inspection13,00020,500
(b) Failure to perform on cars added9,50017,000
232.217 Train brake system tests conducted using yard air:
(a) Failure to use suitable device9,50017,000
(b) Improper connection of air test device13,00020,500
(c) Failure to properly perform inspection(1)(1)
Start Printed Page 57638
(d) Failure to calibrate test device9,50017,000
(e) Failure to use accurate device9,50017,000
232.219 Double heading and helper service:
(a) Failure to perform inspection or inability to control brakes9,50017,000
(b) Failure to make visual inspection9,50017,000
(c) Use of improper helper link device9,50017,000
Subpart D—Periodic Maintenance and Testing Requirements
232.303  General requirements:
(b)-(d) Failure to conduct inspection or test when car on repair track9,50017,000
(e) Improper movement of equipment for testing9,50017,000
(e)(1) Failure to properly tag equipment for movement5,50010,000
(e)(2)-(4) Failure to retain record or improper removal of tag or card5,50010,000
(f) Failure to stencil or track test information9,50017,000
232.305 Single car tests:
(a) Failure to test in accord with required procedure9,50017,000
(b)-(c) Failure to perform test9,50017,000
232.309 Single car air brake test equipment and devices:
(a)-(f) Failure to properly test or calibrate9,50017,000
Subpart E—End-of-Train Devices
232.403 Design standards for one-way devices:
(a)-(g) Failure to meet standards9,50017,000
232.405 Design standards for two-way devices:
(a)-(i) Failure to meet standards9,50017,000
232.407 Operating requirements for two-way devices:
(b) Failure to equip a train13,00020,500
(c) Improper purchase9,50017,000
(f)(1) Failure of device to be armed and operable13,00020,500
(f)(2) Insufficient battery charge9,50017,000
(f)(3) Failure to activate the device9,50017,000
(g) Improper handling of en route failure, freight or other non-passenger13,00020,500
(h) Improper handling of en route failure, passenger13,00020,500
232.409 Inspection and testing of devices:
(a) Failure to have unique code9,50017,000
(b) Failure to compare quantitative values9,50017,000
(c) Failure to test emergency capability13,00020,500
(d) Failure to properly calibrate9,50017,000
Subpart F—Introduction of New Brake System Technology
232.503 Process to introduce new technology:
(b) Failure to obtain FRA approval19,50025,000
232.505 Pre-revenue service acceptance testing plan:
(a) Failure to obtain FRA approval13,00020,500
(b) Failure to comply with plan9,50017,000
(f) Failure to test previously used technology13,00020,500
Subpart G—Electronically Controlled Pneumatic (ECP) Braking Systems
232.603 Design, interoperability, and configuration management requirements:
(a) Failure to meet minimum standards5,50010,000
(b) Using ECP brake equipment without approval9,50017,000
(c) Failure to adopt and comply with a proper configuration management plan13,00020,500
232.605 Training Requirements:
(a) Failure to adopt and comply with a proper training, qualification, and designation program for employees that perform inspection, testing or maintenance(1)(1)
(b) Failure to amend operating rules13,00020,500
(c) Failure to adopt and comply with proper training criteria for locomotive engineers13,00020,500
232.607 Inspection and testing requirements:
(a)(1), (b), (c)(1) Complete or partial failure to perform inspection(1)(1)
(a)(2) Complete or partial failure to perform pre-departure inspection9,50017,000
(c)(1)(iv), (c)(2) Failure to perform visual inspection on a car added en route9,50017,000
(d) Failure to perform inspection(1)(1)
(e)(1), (2) Failure to properly initialize the train9,50017,000
(e)(3) Failure to ensure identical consist and system information9,50017,000
(f)(1) Failure to apply a proper brake pipe service reduction(1)(1)
(f)(2) Failure to properly adhere to the proper piston travel ranges(1)(1)
(g)(1)-(4) Improperly located and guarded cable13,00020,500
(g)(5) Condition of cable and connections9,50017,000
232.609 Handling of defective equipment with ECP brake systems:
(a) Failure to have proper percentage of operative brakes from Class I brake test(1)(1)
(b) Failure to prevent a car known to arrive with defective brakes to depart location where a Class I brake test is required9,50017,000
Start Printed Page 57639
(c) Improper movement of a car equipped with conventional pneumatic brakes9,50017,000
(d) Operating with less than 85 percent operative brakes(1)(1)
(f)(2)(i) Improper placement of defective conventional brake equipment(1)(1)
(f)(2)(ii) Improper placement of defective ECP brake equipment9,50017,000
(g) Improper movement of defective stand-alone ECP brake equipment in a train operating with conventional pneumatic brakes(1)(1)
(h) Improper movement from initial terminal of stand-alone ECP brake equipment in a conventional brake operated train(1)(1)
(i) Failure to tag equipment(1)(1)
(j)(1) Failure to adopt and comply with procedures for the movement of defective equipment5,50010,000
(j)(2) Failure to submit list of ECP brake system repair locations9,50017,000
232.611 Periodic maintenance:
(a) Failure to ensure the proper and safe condition of car9,50017,000
(b)-(d) Failure to perform test9,50017,000
232.613 End-of-train devices:
(a) Failure to meet design standards for ECP-EOT devices9,50017,000
(b) Moving with an improper or improperly connected ECP-EOT device9,50017,000
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 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 § 232.205 through § 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 § 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 § 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 §§ 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.
End Part Start Part

PART 233—[AMENDED]

40. The authority citation for part 233 continues to read as follows:

Start Authority

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

End Authority

41. Appendix A to part 233 is revised to read as follows:

Appendix A to Part 233—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
233.5 Accidents resulting from signal failure$9,500$17,000
233.7 Signal failure reports5,50010,000
233.9 Reports2,5005,000
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.
End Part Start Part

PART 234—[AMENDED]

42. The authority citation for part 234 continues to read as follows:

Start Authority

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

End Authority

43. Appendix A to part 234 is revised to read as follows:Start Printed Page 57640

Appendix A to Part 234—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart B—Reports
234.7 Accidents involving grade crossing signal failure$9,500$17,000
234.9 Grade crossing signal system failure reports5,50010,000
Subpart C—Response to Reports of Warning System Malfunction
234.101 Employee notification rules5,50010,000
234.103 Timely response to report of malfunction13,00020,500
234.105 Activation failure:
(a) Failure to notify—train crews19,50025,000
Other railroads19,50025,000
(b) Failure to notify law enforcement agency5,50010,000
(c) Failure to comply with—flagging requirements13,00020,500
Speed restrictions13,00020,500
(d) Failure to activate horn or whistle5,50010,000
234.106 Partial activation:
(a) Failure to notify—train crews9,50017,000
Other railroads9,50017,000
(b) Failure to notify law enforcement agency5,50010,000
(c) Failure to comply with—flagging requirements speed restrictions9,50017,000
(d) Failure to activate horn or whistle5,50010,000
234.107 False activation:
(a) Failure to notify—train crews13,00020,500
Other railroads13,00020,500
(b) Failure to notify law enforcement agency5,50010,000
(c) Failure to comply with—flagging requirements9,50017,000
Speed restrictions9,50017,000
(d) Failure to activate horn or whistle5,50010,000
234.109 Recordkeeping2,5005,000
Subpart D—Maintenance, Inspection, and Testing
Maintenance Standards
234.201 Location of plans5,50010,000
234.203 Control circuits9,50017,000
234.205 Operating characteristics of warning system apparatus13,00020,500
234.207 Adjustment, repair, or replacement of component13,00020,500
234.209 Interference with normal functioning of system19,50025,000
234.211 Locking of warning system apparatus5,50010,000
234.213 Grounds9,50017,000
234.215 Standby power system19,50025,000
234.217 Flashing light units5,50010,000
234.219 Gate arm lights and light cable5,50010,000
234.221 Lamp voltage9,50017,000
234.223 Gate arm5,50010,000
234.225 Activation of warning system19,50025,000
234.227 Train detection apparatus19,50025,000
234.229 Shunting sensitivity19,50025,000
234.231 Fouling wires13,00020,500
234.233 Rail joints13,00020,500
234.235 Insulated rail joints19,50025,000
234.237 Switch equipped with circuit controller5,50010,000
234.239 Tagging of wires and interference of wires or tags with signal apparatus5,50010,000
234.241 Protection of insulated wire; splice in underground wire9,50017,000
234.243 Wire on pole line and aerial cable9,50017,000
234.245 Signs5,50010,000
Inspections and Tests
234.247 Purpose of inspections and tests; removal from service of relay or device failing to meet test requirements13,00020,500
234.249 Ground tests13,00020,500
234.251 Standby power9,50017,000
234.253 Flashing light units and lamp voltage5,50010,000
234.255 Gate arm and gate mechanism5,50010,000
234.257 Warning system operation13,00020,500
234.259 Warning time9,50017,000
234.261 Highway traffic signal pre-emption9,50017,000
234.263 Relays9,50017,000
234.265 Timing relays and timing devices9,50017,000
234.267 Insulation resistance tests, wires in trunking and cables9,50017,000
234.269 Cut-out circuits19,50025,000
234.271 Insulated rail joints, bond wires, and track connections9,50017,000
234.273 Results of tests2,5005,000
Start Printed Page 57641
Requirements for Processor-Based Systems
234.275 Processor-Based Systems13,00020,500
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.
End Part Start Part

PART 235—[AMENDED]

44. The authority citation for part 235 continues to read as follows:

Start Authority

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

End Authority

45. Appendix A to part 235 is revised to read as follows:

Appendix A to Part 235—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
235.5 Changes requiring filing of application$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 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.
End Part Start Part

PART 236—[AMENDED]

46. The authority citation for part 236 continues to read as follows:

Start Authority

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

End Authority

47. Appendix A to part 236 is revised to read as follows:

Appendix A to Part 236—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
236.0 Applicability, minimum requirements$9,500$17,000
Subpart A—Rules and Instructions—All Systems
General
236.1 Plans, where kept13,00020,500
236.2 Grounds13,00020,500
236.3 Locking of signal apparatus housings:
Power interlocking machine cabinet not secured against unauthorized entry5,50010,000
Other violations5,50010,000
236.4 Interference with normal functioning of device19,50025,000
236.5 Design of control circuits on closed circuit principle19,50025,000
236.6 Hand-operated switch equipped with switch circuit controller13,00020,500
236.7 Circuit controller operated by switch-and-lock movement13,00020,500
236.8 Operating characteristics of electro-magnetic, electronic, or electrical apparatus9,50017,000
236.9 Selection of circuits through indicating or annunciating instruments5,50010,000
236.10 Electric locks, force drop type; where required5,50010,000
236.11 Adjustment, repair, or replacement of component13,00020,500
236.12 Spring switch signal protection; where required9,50017,000
236.13 Spring switch; selection of signal control circuits through circuit controller9,50017,000
236.14 Spring switch signal protection; requirements9,50017,000
236.15 Timetable instructions5,50010,000
236.16 Electric lock, main track releasing circuit:
Electric lock releasing circuit on main track extends into fouling circuit where turnout not equipped with derail at clearance point either pipe-connected to switch or independently locked, electrically13,00020,500
Other violations13,00020,500
236.17 Pipe for operating connections, requirements5,50010,000
236.18 Software management control plan:
(a) Failure to develop and adopt a plan9,50017,000
(b) Failure to fully implement plan9,50017,000
(c) Inadequate plan9,50017,000
Start Printed Page 57642
Roadway Signals and Cab Signals
236.21 Location of roadway signals13,00020,500
236.22 Semaphore signal arm; clearance to other objects5,50010,000
236.23 Aspects and indications9,50017,000
236.24 Spacing of roadway signals13,00020,500
236.26 Buffing device, maintenance13,00020,500
Track Circuits
236.51 Track circuit requirements:
(a) Shunt fouling circuit used where permissible speed through turnout greater than 45 m.p.h13,00020,500
(b) Track relay not in de-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 crossover19,50025,000
Other violations13,00020,500
236.52 Relayed cut-section13,00020,500
236.53 Track circuit feed at grade crossing13,00020,500
236.54 Minimum length of track circuit13,00020,500
236.55 Dead section; maximum length13,00020,500
236.56 Shunting sensitivity13,00020,500
236.57 Shunt and fouling wires:
(a) Shunt or fouling wires do not consist of at least two discrete conductors13,00020,500
Other violations9,50017,000
236.58 Turnout, fouling section:
Rail joint in shunt fouling section not bonded13,00020,500
Other violations9,50017,000
236.59 Insulated rail joints13,00020,500
236.60 Switch shunting circuit; use restricted13,00020,500
Wires and Cables
236.71 Signal wires on pole line and aerial cable13,00020,500
236.73 Open-wire transmission line; clearance to other circuits9,50017,000
236.74 Protection of insulated wire; splice in underground wire9,50017,000
236.76 Tagging of wires and interference of wires or tags with signal apparatus5,50010,000
Inspections and Tests; All Systems
236.101 Purpose of inspection and tests; removal from service or relay or device failing to meet test requirements9,50017,000
236.102 Semaphore or search-light signal mechanism13,00020,500
236.103 Switch circuit controller or point detector13,00020,500
236.104 Shunt fouling circuit9,50017,000
236.105 Electric lock9,50017,000
236.106 Relays9,50017,000
236.107 Ground tests9,50017,000
236.108 Insulation resistance tests, wires in trunking and cables:
(c) Circuit permitted to function on a conductor having insulation resistance value less than 200,000 ohms13,00020,500
Other violations9,50017,000
236.109 Time releases, timing relays and timing devices9,50017,000
236.110 Results of tests2,5005,000
Subpart B—Automatic Block Signal Systems
Standards
236.201 Track circuit control of signals13,00020,500
236.202 Signal governing movements over hand-operated switch13,00020,500
236.203 Hand-operated crossover between main tracks; protection13,00020,500
236.204 Track signaled for movements in both directions, requirements13,00020,500
236.205 Signal control circuits; requirements19,50025,000
236.206 Battery or power supply with respect to relay; location9,50017,000
236.207 Electric lock on hand-operated switch; control:
Approach or time locking of electric lock on hand-operated switch can be defeated by unauthorized use of emergency device which is not kept sealed in the non-release position13,00020,500
Other violations9,50017,000
Subpart C—Interlocking
Standards
236.301 Where signals shall be provided9,50017,000
236.302 Track circuits and route locking13,00017,000
236.303 Control circuits for signals, selection through circuit controller operated by switch points or by switch locking mechanism13,00020,500
236.304 Mechanical locking or same protection effected by circuits13,00020,500
236.305 Approach or time locking13,00020,500
236.306 Facing point lock or switch-and-lock movement9,50017,000
236.307 Indication locking:13,00020,500
Start Printed Page 57643
236.308 Mechanical or electric locking or electric circuits; requisites13,00020,500
236.309 Loss of shunt protection; where required:
Loss of shunt of five seconds or less permits release of route locking of power-operated switch, movable point frog, or derail13,00020,500
Other violations9,50017,000
236.310 Signal governing approach to home signal9,50017,000
236.311 Signal control circuits, selection through track relays or devices functioning as track relays and through signal mechanism contacts and time releases at automatic interlocking13,00020,500
236.312 Movable bridge, interlocking of signal appliances with bridge devices:
Emergency bypass switch or device not locked or sealed13,00020,500
Other violations13,00020,500
236.314 Electric lock for hand-operated switch or derail:
Approach or time locking of 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 position13,00020,500
Other violations13,00020,500
Rules and Instructions
236.326 Mechanical locking removed or disarranged; requirement for permitting train movements through interlocking9,50017,000
236.327 Switch, movable-point frog or split-point derail13,00020,500
236.328 Plunger of facing-point9,50017,000
236.329 Bolt lock13,00020,500
236.330 Locking dog of switch and lock movement9,50017,000
236.334 Point detector13,00020,500
236.335 Dogs, stops and trunnions of mechanical locking5,50010,000
236.336 Locking bed5,50010,000
236.337 Locking faces of mechanical locking; fit5,50010,000
236.338 Mechanical locking required in accordance with locking sheet and dog chart5,50010,000
236.339 Mechanical locking; maintenance requirements5,50010,000
236.340 Electromechanical interlocking machine; locking between electrical and mechanical levers5,50010,000
236.341 Latch shoes, rocker links, and quadrants5,50010,000
236.342 Switch circuit controller13,00020,500
Inspection and Tests
236.376 Mechanical locking9,50017,000
236.377 Approach locking9,50017,000
236.378 Time locking9,50017,000
236.379 Route locking9,50017,000
236.380 Indication locking9,50017,000
236.381 Traffic locking9,50017,000
236.382 Switch obstruction test13,00020,500
236.383 Valve locks, valves, and valve magnets9,50017,000
236.384 Cross protection9,50017,000
236.386 Restoring feature on power switches9,50017,000
236.387 Movable bridge locking13,00020,500
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 circuits and control operator19,50025,000
236.403 Signals at controlled point19,50025,000
236.404 Signals at adjacent control points19,50025,000
236.405 Track signaled for movements in both directions, change of direction of traffic19,50025,000
236.407 Approach or time locking; where required19,50025,000
236.408 Route locking19,50025,000
236.410 Locking, hand-operated switch; requirements:
(a) Hand-operated switch on main 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 track13,00020,500
Hand-operated switch on signaled siding not electrically or mechanically locked in normal position where maximum authorized speed on the siding exceeds 30 m.p.h13,00020,500
(b) Approach or time locking of 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 position13,00020,500
Other violations9,50017,000
Rules and Instructions
236.426 Interlocking rules and instructions applicable to traffic control systems2,5005,000
Inspection and Tests
236.476 Interlocking inspections and tests applicable to traffic control systems2,5005,000
Subpart E—Automatic Train Stop, Train Control and Cab Signal Systems Standards
Standards
236.501 Forestalling device and speed control9,50017,000
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236.502 Automatic brake application, initiation by restrictive block conditions stopping distance in advance13,00020,500
236.503 Automatic brake application; initiation when predetermined rate of speed exceeded13,00020,500
236.504 Operations interconnected with automatic block-signal system9,50017,000
236.505 Proper operative relation between parts along roadway and parts on locomotive5,50010,000
236.506 Release of brakes after automatic application13,00020,500
236.507 Brake application; full service9,50017,000
236.508 Interference with application of brakes by means of brake valve9,50017,000
236.509 Two or more locomotives coupled5,50010,000
236.511 Cab signals controlled in accordance with block conditions stopping distance in advance9,50017,000
236.512 Cab signal indication when locomotive enters blocks13,00020,500
236.513 Audible indicator9,50017,000
236.514 Interconnection of cab signal system with roadway signal system5,50010,000
236.515 Visibility of cab signals9,50017,000
236.516 Power supply5,50010,000
Rules and Instructions; Roadway
236.526 Roadway element not functioning properly5,50010,000
236.527 Roadway element insulation resistance5,50010,000
236.528 Restrictive condition resulting from open hand-operated switch; requirement9,50017,000
236.529 Roadway element inductor; height and distance from rail5,50010,000
236.531 Trip arm; height and distance from rail5,50010,000
236.532 Strap iron inductor; use restricted5,50010,000
236.534 Entrance to equipped territory; requirements9,50017,000
Rules and Instructions; Locomotives
236.551 Power supply voltage5,50010,000
236.552 Insulation resistance5,50010,000
236.553 Seal, where required5,50010,000
236.554 Rate of pressure reduction; equalizing reservoir or brake pipe9,50017,000
236.555 Repaired or rewound receiver coil2,5005,000
236.556 Adjustment of relay5,50010,000
236.557 Receiver; location with respect to rail5,50010,000
236.560 Contact element, mechanical trip type; location with respect to rail5,50010,000
236.562 Minimum rail current required5,50010,000
236.563 Delay time9,50017,000
236.564 Acknowledging time5,50010,000
236.565 Provision made for preventing operation of pneumatic brake-applying apparatus by double-heading clock; requirement5,50010,000
236.566 Locomotive of each train operating in train stop, train control or cab signal territory; equipped5,50010,000
236.567 Restrictions imposed when device fails and/or is cut out en route:
Report not made to designated officer at next available point of communication after automatic train stop, train control, or cab signal device fails and/or is cut en route9,50017,000
Trains permitted to proceed at 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 inoperative9,50017,000
Other violations5,50010,000
236.568 Difference between speeds authorized by roadway signal and cab signal; action5,50010,000
Inspection and Tests; Roadway
236.576 Roadway element5,50010,000
236.577 Test, acknowledgement, and cut-in circuits5,50010,000
Inspection and Tests; Locomotive
236.586 Daily or after trip test9,50017,000
236.587 Departure test:
(b) Test of automatic train 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 territory13,00020,500
Test of automatic train stop, 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 territory13,00020,500
(c) Automatic train stop, train control, or cab signal apparatus on locomotive making more than one trip within 24-hour period not given departure test within corresponding 24-hour period13,00020,500
(d) Failure to certify, post, or retain test results as required2,5005,000
Other violations2,5005,000
236.588 Periodic test13,00020,500
236.589 Relays9,50017,000
236.590 Pneumatic apparatus:
Automatic train stop, train control, or cab signal apparatus not inspected and cleaned at least once every 736 days9,50017,000
Other violations9,50017,000
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Subpart F—Dragging Equipment and Slide Detectors and Other Similar Protective Devices; Standards
Standards
236.601 Signals controlled by devices; location13,00020,500
Subpart H—Standards for Processor-Based Signal and Train Control Systems
236.905 Railroad Safety Program Plan (RSPP)
(a) Failure to develop and submit RSPP when required9,50017,000
(d) Failure to obtain FRA approval for a modification to RSPP9,50017,000
236.907 Product Safety Plan (PSP):
(a) Failure to address required PSP elements9,50017,000
(b) Failure to identify or implement product configuration/revision control measures9,50017,000
(d) Failure to communicate identified safety critical hazard19,50025,000
236.909 Minimum Performance Standard:
(a) Failure to make analyses or documentation available9,50017,000
(b) Failure to determine or demonstrate that the minimum performance standard has been met13,00020,500
236.913 Notification to FRA of PSPs:
(a) Failure to prepare a PSP or PSP amendment as required9,50017,000
(b) Failure to submit a PSP or PSP amendment as required9,50017,000
(c) Failure to submit an informational filing9,50017,000
(j) Field testing without authorization or approval19,50025,000
236.915 Implementation and operation:
(a) Operation of product without authorization or approval19,50025,000
(b) Failure to comply with PSP9,50017,000
(c) Interference with normal functioning safety-critical product19,50025,000
(d) Failure to determine cause and adjust, repair or replace without undue delay or take appropriate action pending repair9,50017,000
236.917 Retention of records:
(a) Failure to maintain records as required9,50017,000
(b)(1) Failure to report inconsistency13,00020,500
(b)(2) Failure to take prompt countermeasures5,50010,000
(b)(3) Failure to provide final report5,50010,000
236.919 Operations and Maintenance Manual5,50010,000
236.921 Training and qualification program, general9,50017,000
236.923 Task analysis and basic requirements:
(a) Failure to develop an acceptable training program9,50017,000
(a)(6) Failure to train persons as required9,50017,000
(a)(8) Failure to conduct evaluation of training program as required5,50010,000
(b) Failure to maintain records as required2,5005,000
236.925 Training specific to control office personnel9,50017,000
236.927 Training specific to locomotive engineers and other operating personnel9,50017,000
236.929 Training specific to roadway workers9,50017,000
Subpart I—Positive Train Control Systems
236.1005 Positive Train Control System Requirements:
Failure to complete PTC system installation on track segment where PTC is required prior to 12/31/20155,50010,000
Commencement of revenue service prior to obtaining PTC System Certification13,00020,500
Failure of the PTC system to perform a safety-critical function required by this section19,50025,000
Failure to provide notice, obtain approval, or follow a condition for temporary rerouting when required13,00020,500
Exceeding the allowed percentage of controlling locomotives operating out of an initial terminal after receiving a failed initialization2,5005,000
236.1006 Equipping locomotives operating in PTC territory:
Operating in PTC territory a controlling locomotive without a required and operative PTC onboard apparatus19,50025,000
Failure to report as prescribed by this section2,5005,000
Non-compliant operation of unequipped trains in PTC territory13,00020,500
236.1007 Additional requirements for high-speed service:
Operation of passenger trains at a speed equal to or greater than 60 m.p.h. on non-PTC-equipped territory where required9,50017,000
Operation of freight trains at a speed equal to or greater than 50 m.p.h. on non-PTC-equipped territory where required9,50017,000
Failure to fully implement incursion protection where required9,50017,000
236.1009 Procedural requirements:
Failure to file PTCIP when required2,5005,000
Failure to amend PTCIP when required2,5005,000
Failure to obtain Type Approval when required2,5005,000
Failure to update NPI2,5005,000
Operation of PTC system prior to system certification13,00020,500
236.1011 PTCIP content requirements:
Failure to install a PTC system in accordance with subpart I when so required2,5005,000
236.1013 PTCDP content requirements and Type Approval:
Start Printed Page 57646
Failure to maintain quality control system2,5005,000
Inappropriate use of Type Approval2,5005,000
236.1015 PTCSP content requirements and PTC System Certification:
Failure to implement PTC system in accordance with the associated PTCSP and resultant system certification9,50017,000
Failure to maintain PTC system in accordance with the associated PTCSP and resultant system certification9,50017,000
Failure to maintain required supporting documentation2,5005,000
236.1017 Independent third party Verification and Validation:
Failure to conduct independent third party Verification and Validation when ordered13,00020,500
236.1019  Main line track exceptions:
Revenue operations conducted in non-compliance with the passenger terminal exception5,50010,000
Revenue operations conducted in non-compliance with the limited operations exception5,50010,000
Failure to request modification of the PTCIP or PTCSP when required5,50010,000
Revenue operations conducted in violation of (c)(2)9,50017,000
Revenue operations conducted in violation of (c)(3)9,50017,000
236.1021 Discontinuances, material modifications, and amendments:
Failure to update PTCDP when required2,5005,000
Failure to update PTCSP when required2,5005,000
Failure to immediately adopt and comply with approved RFA2,5005,000
Discontinuance or modification of a PTC system without approval when required2,5005,000
236.1023 Errors and malfunctions:
Railroad failure to provide proper notification of PTC system error or malfunction2,5005,000
Failure to maintain PTCPVL2,5005,000
Supplier failure to provide proper notification of previously identified PTC system error or malfunction2,5005,000
Failure to provide timely notification2,5005,000
Failure to provide appropriate protective measures in the event of PTC system failure5,50010,000
236.1027 Exclusions:
Integration of primary train control system with locomotive electronic system without approval9,50017,000
236.1029 PTC system use and en route failures:
Failure to determine cause of PTC system component failure without undue delay5,50010,000
Failure to adjust, repair, or replace faulty PTC system component without undue delay5,50010,000
Failure to take appropriate action pending adjustment, repair, or replacement of faulty PTC system component5,50010,000
Non-compliant train operation within PTC-equipped territory with inoperative PTC onboard apparatus9,50017,000
Interference with the normal functioning of safety-critical PTC system9,50017,000
Improper arrangement of the PTC system onboard apparatus5,50010,000
236.1033 Communications and security requirements:
Failure to provide cryptographic message integrity and authentication2,5005,000
Improper use of revoked cryptographic key2,5005,000
Failure to protect cryptographic keys from unauthorized disclosure, modification, or substitution2,5005,000
Failure to establish prioritized service restoration and mitigation plan for communication services2,5005,000
236.1035 Field testing requirements:
Field testing without authorization or approval5,50010,000
236.1037 Records retention:
Failure to maintain records and databases as required2,5005,000
Failure to report inconsistency5,50010,000
Failure to take prompt countermeasures5,50010,000
Failure to provide final report2,5005,000
236.1039 Operations and Maintenance Manual:
Failure to implement and maintain Operations and Maintenance Manual as required2,5005,000
236.1043 Task analysis and basic requirements:
Failure to develop and maintain an acceptable training program5,50010,000
Failure to train persons as required2,5005,000
Failure to conduct evaluation of training program as required2,5005,000
Failure to maintain records as required2,5005,000
236.1045 Training specific to office control personnel:
Failure to conduct training unique to office control personnel2,5005,000
236.1047 Training specific to locomotive engineers and other operations personnel:
Failure to conduct training unique to locomotive engineers and other operating personnel2,5005,000
236.1049 Training specific to roadway workers:
Failure to conduct training unique to roadway workers2,5005,000
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 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.
End Part Start Part Start Printed Page 57647

PART 238—[AMENDED]

48. The authority citation for part 238 continues to read as follows:

Start Authority

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:

End Authority

Appendix A to Part 238—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
Subpart A—General
238.15 Movement of power brake defects:
(b) Improper movement from Class I or IA brake test$13,000$20,500
(c) Improper movement of en route defect9,50017,000
(2), (3) Insufficient tag or record2,5005,000
(4) Failure to determine percent operative brakes9,50017,000
(d) Failure to follow operating restrictions13,00020,500
(e) Failure to follow restrictions for inoperative front or rear unit9,50017,000
238.17 Movement of other than power brake defects: 1
(c)(4), (5) Insufficient tag or record2,5005,000
(d) Failure to inspect or improper use of roller bearings9,50017,000
(e) Improper movement of defective safety appliances9,50017,000
238.19 Reporting and tracking defective equipment:
(a) Failure to have reporting or tracking system19,50025,000
(b) Failure to retain records5,50010,000
(c) Failure to make records available2,5005,000
(d) Failure to list power brake repair points5,50010,000
Subpart B—Safety Planning and General Requirements
238.103 Fire protection plan/fire safety:
(a) Failure to use proper materials13,00020,500
(b) Improper certification5,50010,000
(c) Failure to consider fire safety on new equipment13,00020,500
(d) Failure to perform fire safety analysis13,00020,500
(e) Failure to develop, adopt or comply with procedures13,00020,500
238.105 Train electronic hardware and software safety:
(a), (b), (c) Failure to develop and maintain hardware and software safety13,00020,500
(d) Failure to include required design features13,00020,500
(e) Failure to comply with hardware and software safety program9,50017,000
238.107 Inspection, testing, and maintenance plan:
(b) Failure to develop plan13,00020,500
(b)(1)-(5) Failure of plan to address specific item9,50017,000
(d) Failure to conduct annual review9,50017,000
238.109 Training, qualification, and designation program:
(a) Failure to develop or adopt program13,00020,500
(b)(1)-(4) Failure of plan to address specific item9,50017,000
(b)(5)-(12) Failure to comply with specific required provisions of the program9,50017,000
(b)(13) Failure to maintain adequate records5,50010,000
238.111 Pre-revenue service acceptance testing plan:
(a) Failure to properly test previously used equipment13,00020,500
(b)(1) Failure to develop plan13,00020,500
(b)(2) Failure to submit plan to FRA9,50017,000
(b)(3) Failure to comply with plan9,50017,000
(b)(4) Failure to document results of testing5,50010,000
(b)(5) Failure to correct safety deficiencies or impose operating limits9,50017,000
(b)(6) Failure to maintain records5,50010,000
(b)(7) Failure to obtain FRA approval9,50017,000
238.113 Emergency window exits9,50017,000
238.114 Rescue access windows9,50017,000
238.115 Emergency lighting9,50017,000
238.117 Protection against personal injury9,50017,000
238.119 Rim-stamped straight-plate wheels9,50017,000
238.121 Emergency communication9,50017,000
238.123 Emergency roof access9,50017,000
Subpart C—Specific Requirements for Tier I Passenger Equipment
238.203 Static end strength9,50017,000
238.205 Anti-climbing mechanism9,50017,000
238.207 Link between coupling mechanism and car body9,50017,000
238.209 Forward end structure of locomotives9,50017,000
238.211 Collision posts9,50017,000
238.213 Corner posts9,50017,000
238.215 Rollover strength9,50017,000
238.217 Side structure9,50017,000
238.219 Truck-to-car-body attachment9,50017,000
238.221 Glazing9,50017,000
238.223 Fuel tanks9,50017,000
238.225 Electrical system9,50017,000
Start Printed Page 57648
238.227 Suspension system9,50017,000
238.229 Safety appliances—general:
(e) Failure to properly identify equipment (per car)9,50017,000
(g) Failure to adopt or comply with inspection plan9,50017,000
(h) Failure to use qualified person (per car)9,50017,000
(i) Failure to properly conduct initial or periodic inspection (per car)9,50017,000
(j) Failure to take proper remedial action (per car)9,50017,000
(k) Failure to maintain records (per car)5,50010,000
238.230 Safety appliances—new equipment:
(b)(2) Failure to identify welded appliance (per car)9,50017,000
(b)(3) Failure to receive approval for use (per car)9,50017,000
(c)(2) Failure to make proper repair (per car)9,50017,000
238.231 Brake System (a)-(g), (i)-(n)9,50017,000
(h)(1), (2) Hand or parking brake missing or inoperative13,00020,500
(h)(3) Hand or parking brake inspection or record (per car)5,50010,000
(h)(4) Hand or parking brake not applied to hold equipment unattended on grade or prematurely released13,00020,500
238.233 Interior fittings and surfaces9,50017,000
238.235 Doors9,50017,000
238.237 Automated monitoring9,50017,000
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 mechanical inspection1 9,50017,000
(a)(2) Failure to inspect secondary brake system9,50017,000
(b) Failure to perform inspection on car added to train1 9,50017,000
(c) Failure to utilize properly qualified personnel9,50017,000
(e)(1) Products of combustion not released outside cab9,50017,000
(e)(2) Battery not vented or gassing excessively9,50017,000
(e)(3) Coupler not in proper condition9,50017,000
(e)(4) No device under drawbar pins or connection pins9,50017,000
(e)(5) Suspension system and spring rigging not in proper condition9,50017,000
(e)(6) Truck not in proper condition9,50017,000
(e)(7) Side bearing not in proper condition9,50017,000
(e)(8) Wheel not in proper condition:
(i), (iv) Flat spot(s) and shelled spot(s):
(A) One spot 21/2″ or more but less than 3″ in length9,50017,000
(B) One spot 3″ or more in length13,00020,500
(C) Two adjoining spots each of which is 2″ or more in length but less than 21/2″ in length9,50017,000
(D) Two adjoining spots each of which are at least 2″ in length, if either spot is 21/2″ or more in length13,00020,500
(ii) Gouge or chip in flange:
(A) More than 11/2″ but less than 15/8″ in length; and more than 1/2″ but less than 5/8″ in width9,50017,000
(B) 15/8″ or more in length and 5/8″ or more in width13,00020,500
(iii) Broken rim13,00020,500
(v) Seam in tread9,50017,000
(vi) Flange thickness of:
(A) 7/8″ or less but more than9,50017,000
(B) 13/16″ or less13,00020,500
(vii) Tread worn hollow9,50017,000
(viii) Flange height of:
(A) 11/2″ or greater but less than 15/8″9,50017,000
(B) 15/8″ or more13,00020,500
(ix) Rim thickness:
(A) Less than 1″9,50017,000
(B) 15/16″ or less13,00020,500
(x) Crack or break in flange, tread, rim, plate, or hub:
(A) Crack of less than 1″9,50017,000
(B) Crack of 1″ or more13,00020,500
(C) Break13,00020,500
(xi) Loose wheel13,00020,500
(xii) Welded wheel13,00020,500
(e)(10) Improper grounding or insulation13,00020,500
(e)(11) Jumpers or cable connections not in proper condition9,50017,000
(e)(12) Door or cover plate not properly marked9,50017,000
(e)(13) Buffer plate not properly placed9,50017,000
(e)(14) Diaphragm not properly placed or aligned9,50017,000
(e)(15) Secondary braking system not in operating mode or contains known defect9,50017,000
(e)(16) Roller bearings:
(i) Overheated13,00020,500
(ii) Cap screw loose or missing9,50017,000
Start Printed Page 57649
(iii) Cap screw lock broken or missing5,50010,000
(iv) Seal loose, damaged, or leaks lubricant9,50017,000
(e)(17) Air compressor inoperative9,50017,000
(g) Record of inspection:
(1), (4) Failure to maintain record of inspection5,50010,000
(2) Record contains insufficient information2,5005,000
238.305 Interior mechanical inspection of passenger cars:
(a) Failure to perform inspection1 5,50010,000
(b) Failure to utilize properly qualified personnel5,50010,000
(c)(1) Failure to protect against personal injury9,50017,000
(c)(2) Floors not free of condition that creates hazard9,50017,000
(c)(3) Access to manual door release not in place5,50010,000
(c)(4) Emergency equipment not in place5,50010,000
(c)(5) Emergency brake valve not stenciled or marked5,50010,000
(c)(6) Door or cover plates not properly marked5,50010,000
(c)(7) Safety signage not in place or legible5,50010,000
(c)(8) Trap door unsafe or improperly secured9,50017,000
(c)(9) Vestibule steps not illuminated5,50010,000
(c)(10) Door does not safely operate as intended9,50017,000
(c)(11) Seat broken, loose, or not properly attached9,50017,000
(e) Record of inspection:
(1), (4) Failure to maintain record of inspection5,50010,000
(2) Record contains insufficient information2,5005,000
(f) Record of inspection:
(1), (4) Failure to maintain record of inspection5,50010,000
(2) Record contains insufficient information2,5005,000
238.307 Periodic mechanical inspection of passenger cars and unpowered vehicles:
(a) Failure to perform periodic mechanical inspection1 9,50017,000
(b) Failure to utilize properly qualified personnel9,50017,000
(c)(1) Seat or seat attachment broken or loose9,50017,000
(c)(2) Luggage rack broken or loose9,50017,000
(c)(3) Bed, bunks, or restraints broken or loose9,50017,000
(c)(4) Emergency window exit does not properly operate9,50017,000
(c)(5) Emergency lighting not operational9,50017,000
(c)(6) Switches not in proper condition9,50017,000
(c)(7) Coupler not in proper condition9,50017,000
(c)(8) Truck not equipped with securing arrangement9,50017,000
(c)(9) Truck center casting cracked or broken13,00020,500
(c)(10) General conditions endangering crew, passengers9,50017,000
(c)(13) Hand or parking brake test not performed9,50017,000
(d)(1) Manual door release does not operate as intended9,50017,000
(d)(2) Hand or parking brake inspection not performed9,50017,000
(e)(1) Failure to maintain record of inspection5,50010,000
(i)-(iv) Record contains insufficient information2,5005,000
(f)(1) Record of inspection:
(i) Failure to maintain record of inspection5,50010,000
(ii) Record contains insufficient information2,5005,000
238.309 Periodic brake equipment maintenance:
(b) Failure to perform on MU locomotive9,50017,000
(c) Failure to perform on conventional locomotive9,50017,000
(d) Failure to perform on passenger coaches or other unpowered vehicle9,50017,000
(e) Failure to perform on cab car9,50017,000
(f) Record of periodic maintenance:
(1), (2) Failure to maintain record or stencil5,50010,000
238.311 Single car tests:
(a) Failure to test in accord with required procedure9,50017,000
(b) Failure to utilize properly qualified personnel9,50017,000
(c), (e) Failure to perform single car test9,50017,000
(f) Improper movement of car for testing5,50010,000
(g) Failure to test after repair or replacement of component5,50010,000
238.313 Class I brake test:
(a) Failure to perform on commuter or short-distance intercity passenger train1 19,50025,000
(b) Failure to perform on long-distance intercity passenger train1 19,50025,000
(c) Failure to perform on cars added to passenger train1 13,00020,500
(d) Failure to utilized properly qualified personnel13,00020,500
(f) Passenger train used from Class I brake test with less than 100% operative brakes13,00020,500
(g) Partial failure to perform inspection on a passenger train13,00020,500
(3) Failure to adjust piston travel (per car)9,50017,000
(h) Failure to maintain record5,50010,000
(j) Failure to perform additional Class I brake test13,00020,500
(j)(3) Failure to maintain record5,50010,000
238.315 Class IA brake test:
Start Printed Page 57650
(a) Failure to perform inspection1 13,00020,500
(d) Failure to utilize properly qualified personnel9,50017,000
(e) Passenger train used from Class IA brake test with improper percentage of operative brakes13,00020,500
(f) Partial failure to perform inspection on passenger train9,50017,000
238.317 Class II brake test:
(a) Failure to perform inspection1 9,50017,000
(b) Failure to utilize properly qualified personnel9,50017,000
(c) Improper use of defective equipment from Class II brake test9,50017,000
238.319 Running brake test:
(a), (b) Failure to perform test5,50010,000
238.321 Out-of-service credit5,50010,000
Subpart E—Specific Requirements for Tier II Passenger Equipment
238.403 Crash energy management9,50017,000
238.405 Longitudinal static compressive strength9,50017,000
238.407 Anti-climbing mechanism9,50017,000
238.409 Forward end structures of power car cabs:
(a) Center collision post9,50017,000
(b) Side collision posts9,50017,000
(c) Corner posts9,50017,000
(d) Skin9,50017,000
238.411 Rear end structures of power car cabs:
(a) Corner posts9,50017,000
(b) Collision posts9,50017,000
238.413 End structures of trailer cars9,50017,000
238.415 Rollover strength9,50017,000
238.417 Side loads9,50017,000
238.419 Truck-to-car-body and truck component attachment9,50017,000
238.421 Glazing:
(b) End-facing exterior glazing9,50017,000
(c) Alternate glazing requirements9,50017,000
(d) Glazing securement9,50017,000
(e) Stenciling5,50010,000
238.423 Fuel tanks:
(a) External fuel tanks9,50017,000
(b) Internal fuel tanks9,50017,000
238.425 Electrical system:
(a) Circuit protection9,50017,000
(b) Main battery system9,50017,000
(c) Power dissipation resistors9,50017,000
(d) Electromagnetic interference and compatibility9,50017,000
238.427 Suspension system9,50017,000
238.429 Safety Appliances:
(a) Couplers13,00020,500
(b) Hand/parking brakes13,00020,500
(d) Handrail or handhold missing9,50017,000
(d)(1)-(8) Handrail or handhold improper design9,50017,000
(e) Sill step missing13,00020,500
(e)(1)-(11) Sill step improper design9,50017,000
(g) Optional safety appliances9,50017,000
238.431 Brake system9,50017,000
238.433 Draft System9,50017,000
238.435 Interior fittings and surfaces9,50017,000
238.437 [Reserved]
238.439 Doors:
(a) Exterior side doors9,50017,000
(b) Manual override feature9,50017,000
(c) Notification to crew of door status9,50017,000
(d) Emergency back-up power9,50017,000
(f) End door kick-out panel or pop-out window9,50017,000
238.441 Emergency roof access9,50017,000
238.443 Headlights9,50017,000
238.445 Automated monitoring9,50017,000
238.447 Train operator's controls and power car cab layout9,50017,000
Subpart F—Inspection, Testing, and Maintenance Requirements for Tier II Passenger Equipment
238.503 Inspection, testing, and maintenance requirements:
(a) Failure to develop inspection, testing, and maintenance program or obtain FRA approval19,50025,000
(b) Failure to comply with provisions of the program13,00020,500
(c) Failure to ensure equipment free of conditions which endanger safety of crew, passengers, or equipment9,50017,000
(d) Specific safety inspections:
(1)(i) Failure to perform Class I brake test or equivalent19,50025,000
Start Printed Page 57651
(1)(ii) Partial failure to perform Class I brake test or equivalent13,00020,500
(2)(i) Failure to perform exterior mechanical inspection1 9,50017,000
(2)(ii) Failure to perform interior mechanical inspection1 5,50010,000
(g) Failure to perform scheduled maintenance as required in program9,50017,000
(h) Failure to comply with training, qualification and designation program13,00020,500
(i) Failure to develop or comply with standard procedures for performing inspection, tests, and maintenance9,50017,000
(j) Failure to conduct annual review13,00020,500
(k) Failure to establish or utilize quality control program13,00020,500
Subpart G—Specific Safety Planning Requirements for Tier II Passenger Equipment
238.603 Safety plan:
(a) Failure to develop safety operating plan13,00020,500
(b) Failure to develop procurement plan13,00020,500
(1)-(7) Failure to develop portion of plan9,50017,000
(c) Failure to maintain documentation5,50010,000
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 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 § 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 § 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 § 238.429 concerning the substantive defective condition. The penalties listed for failure to perform the exterior and interior mechanical inspections and tests required under § 238.303 and § 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 § 238.313 through § 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.
End Part Start Part

PART 239—[AMENDED]

50. The authority citation for part 239 continues to read as follows:

Start Authority

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:

End Authority

Appendix A to part 239—Schedule of Civil Penalities 1

Section2ViolationWillful violation
Subpart B—Specific Requirements
239.101:
(a) Failure of a railroad to adopt3 a written emergency preparedness plan$19,500$25,000
(a)(1) Failure of the plan to provide for:
(i) Initial or on-board notifications by an on-board crewmember9,50017,000
(ii) Notification of outside emergency responders by control center9,50017,000
(a)(2) Failure of the plan to provide for:
(i) Initial or periodic training of on-board personnel9,50017,000
(ii) Initial or periodic training of control center personnel9,50017,000
(iii) Completion of initial training of all on-board and control center personnel by the specified date9,50017,000
(iv) Completion of initial training of all newly hired on-board and control center personnel by the specified date9,50017,000
(v) Adequate procedures to evaluate and test on-board and control center personnel for qualification under the emergency preparedness plan9,50017,000
(vi) Adequate on-board staffing9,50017,000
(a)(3) Failure of a host 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 operation9,50017,000
(a)(4) Failure of the plan to address:
(i) Readiness procedures for emergencies in tunnels9,50017,000
(ii) Readiness procedures for emergencies on an elevated structure or in electrified territory9,50017,000
(iii) Coordination efforts involving adjacent rail modes of transportation9,50017,000
(a)(5) Failure of the plan to address relationships with on-line emergency responders by providing for:
(i) The development and availability of training programs9,50017,000
Start Printed Page 57652
(ii) Invitations to emergency responders to participate in emergency simulations9,50017,000
(iii) Distribution of applicable portions of the current emergency preparedness plan9,50017,000
(a)(6) Failure of the plan to provide for, or the railroad to include on board each train and maintain and replace:
(i) Emergency equipment9,50017,000
(ii) First-aid kits9,50017,000
(iii) Emergency lighting9,50017,000
(a)(7) Failure of the plan to provide for emergency instructions inside each passenger car or to include additional safety awareness information9,50017,000
239.103 Failure to conduct a required full-scale simulation in accordance with the frequency schedule9,50017,000
239.105 Debriefing and critique:
(a) Failure to conduct a debriefing and critique session after an emergency or full-scale simulation9,50017,000
(d)(1) Failure to maintain a record5,50010,000
(i) Failure to include date or location of the emergency or simulation2,5005,000
(ii) Failure to include date or location of the debriefing and critique session2,5005,000
(iii) Failure to include names of participants in the debriefing and critique session2,5005,000
(d)(2) Failure to make record available2,5005,000
239.107 Emergency exits:
(a)(1), (a)(2):
(i) Door not marked or instructions not posted9,50017,000
(ii) Door improperly marked or instructions improperly posted9,50017,000
(b)(1) Failure to provide for scheduled inspection, maintenance, and repair of emergency windows and doors9,50017,000
(b)(2):
(i) Failure to test a representative sample of emergency windows9,50017,000
(ii) Emergency windows tested too infrequently5,50010,000
(b)(3) Failure to repair an inoperative emergency window or door exit9,50017,000
(c):
(i) Failure to maintain a record5,50010,000
(ii) Failure to make record available2,5005,000
(d)(1) Insufficient limits or controls on accessibility to records5,50010,000
(d)(2) Missing terminal2,5005,000
(d)(3) Inability of railroad to produce information in a usable format for immediate review2,5005,000
(d)(4) Failure by railroad to designate an authorized representative2,5005,000
(d)(5) Failure to make record available2,5005,000
Subpart C—Review, Approval, and Retention of Emergency Preparedness Plans
239.201 Filing and approval:
(a):
(i) Failure of a railroad to file a written emergency preparedness plan13,00020,500
(ii) Failure to designate a primary person to contact for plan review2,5005,000
(iii) Failure of a railroad to file an amendment to its plan2,5005,000
(b)(1), (b)(2):
(i) Failure of a railroad to correct a plan deficiency9,50017,000
(ii) Failure to provide FRA with a corrected copy of the plan2,5005,000
(b)(3):
(i) Failure of a railroad to correct an amendment deficiency9,50017,000
(ii) Failure to file a corrected plan amendment with FRA2,5005,000
239.203 Retention of emergency preparedness plan:
(1) Failure to retain a copy of the plan or an amendment to the plan9,50017,000
(2) Failure to make record available2,5005,000
Subpart D—Operational (Efficiency) Tests; Inspection of Records and Recordkeeping
239.301 Operational (efficiency) tests:
(a) Failure to periodically conduct operational (efficiency) tests of its on-board and control center employees9,50017,000
(b)(1) Failure to maintain a record5,50010,000
(b)(2) Record improperly completed2,5005,000
(c)(1) Failure to retain a copy of the record2,5005,000
(c)(2) Failure to make record available2,5005,000
239.303 Electronic recordkeeping:
(a) Insufficient limits or controls on accessibility to records5,50010,000
(b) Missing terminal2,5005,000
(c) Inability of railroad to produce information in a usable format for immediate review2,5005,000
(d) Failure by railroad to designate an authorized representative2,5005,000
(e) Failure to make record available2,5005,000
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 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.Start Printed 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.
End Part Start Part

PART 240—[AMENDED]

52. The authority citation for part 240 continues to read as follows:

Start Authority

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:

End Authority

Appendix A to Part 240—Schedule of Civil Penalties 1

Section 2ViolationWillful 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 address a subject9,50017,000
240.103 Failure to:
(a) Follow Appendix B2,5005,000
(d) Resubmit, when directed by FRA2,5005,000
240.104 Allowing uncertified person to operate nontraditional locomotives13,00020,500
240.105 Failure to have or execute adequate procedure for selection of supervisors9,50017,000
240.107 Classes of service:
(a) Failure to designate classes of service9,50017,000
240.109 Limitations on considering prior conduct records:
(a) Failure to have procedure for determining eligibility9,50017,000
(e) Considering excluded data9,50017,000
(f), (g) Failure to provide timely review opportunity9,50017,000
240.111 Furnishing motor vehicle records:
(a) Failure to action required to make information available2,5005,000
(b) Failure to request:
(1) Local record2,5005,000
(2) NDR record2,5005,000
(f) Failure to request additional record2,5005,000
(g) Failure to notify of absence of license2,5005,000
(h) Failure to submit request in timely manner2,5005,000
(i) Failure to report within 48 hours or railroad taking certification action for not reporting earlier than 48 hours2,5005,000
240.113 Furnishing prior employment information:
(a) Failure to take action required to make information available2,5005,000
(b) Failure to request record2,5005,000
240.115 Criteria for considering prior motor vehicle conduct:
(b) Considering excluded data9,50017,000
(c) Failure to:
(1) Consider data19,50025,000
(3)-(4) Properly act in response to data5,50010,000
240.117 Consideration of operational rules compliance records:
(a) Failure to have program and procedures19,50025,000
(b)-(j) Failure to have adequate program or procedure9,50017,000
240.119 Consideration of substance abuse/rules compliance records:
(a) Failure to have program and procedures19,50025,000
(b)-(e) Failure to have adequate program or procedure9,50017,000
240.121 Failure to have adequate procedure for determining acuity9,50017,000
(f) Failure of engineer to notify9,50017,000
240.123 Failure to have:
(b) Adequate procedures for continuing education9,50017,000
(c) Adequate procedures for training new engineers9,50017,000
240.125 Failure to have:
(a) Adequate procedures for testing knowledge9,50017,000
(d) Adequate procedures for documenting testing9,50017,000
240.127 Failure to have:
(a) Adequate procedures for evaluating skill performance9,50017,000
(c) Adequate procedures for documenting skills testing9,50017,000
240.129 Failure to have:
(a)-(b) Adequate procedures for monitoring performance9,50017,000
Subpart C—Implementation of the Certification Process
240.201 Schedule for implementation:
(a) Failure to select supervisors by specified date2,5005,000
(c) Failure to issue certificate to engineer2,5005,000
(d) Allowing uncertified person to operate19,50025,000
(e)-(g) Certifying without complying with subpart C9,50017,000
(h)-(i) Failure to issue certificate to engineer2,5005,000
240.203
Start Printed Page 57654
(a) Designating a person as a supervisor without determining that
(1) Person knows and understands this part9,50017,000
(2) Person can test and evaluate engineers19,50025,000
(3) Person has experience to prescribe remedies9,50017,000
(b) Certifying a person without determining that:
(1) Person meets the eligibility criteria19,50025,000
(2) Person meets the medical criteria9,50017,000
(3) Person has demonstrated knowledge9,50017,000
(4) Person has demonstrated skills9,50017,000
(c) Certifying a person without determining that:
(1) Person has completed training program9,50017,000
(2) Person meets the eligibility criteria9,50017,000
(3) Time has elapsed9,50017,000
240.205 Procedures for determining eligibility based on prior safety conduct:
(a) Selecting person lacking eligibility19,50025,000
(d) Failure to have basis for taking action9,50017,000
240.207 Ineligibility based on medical condition:
(a) Selecting person lacking proper acuity13,00020,500
(b) Failure to have basis for finding of proper acuity2,5005,000
(c) Acuity examinations performed by unauthorized person2,5005,000
(d) Failure to note need for device to achieve acuity2,5005,000
(e) Failure to use device needed for proper acuity2,5005,000
240.209 Demonstrating knowledge:
(b) Failure to properly determine knowledge13,00020,500
(c) Improper test procedure9,50017,000
(d) Failure to document test results2,5005,000
(e) Allowing person to operate despite test failure9,50017,000
240.211 Demonstrating skills:
(b) Failure to properly determine knowledge9,50017,000
(c) Improper test procedure5,50010,000
(d) Failure to document test results2,5005,000
(e) Allowing person to operate despite test failure9,50017,000
240.213 Completion of approved training program:
(a) Failure to properly determine9,50017,000
(b) Failure to document successful program completion5,50010,000
240.215 Supporting information:
(a), (f)-(h) Failure to have a record2,5005,000
(b) Failure to have complete record2,5005,000
(i) Falsification of record25,000
240.217 Time limits for making determinations:
(a), (c) Exceeding time limit5,50010,000
240.219 Denial of certification:
(a) Failure to notify or provide opportunity for comment5,50010,000
(c) Failure to notify, provide data, or untimely notification5,50010,000
240.221 Identification of persons:
(a)-(c) Failure to have a record5,50010,000
(d) Failure to update a record5,50010,000
(e)-(f) Failure to make a record available2,5005,000
240.223 Certificate criteria:
(a) Improper certificate2,5005,000
(b) Failure to designate those with signatory authority2,5005,000
(d) Falsification of certificate25,000
240.225 Railroad relying on determination of another:
(a) Failure to address in program or failure to require newly hired engineer to take entire training program19,50025,000
(2) Reliance on wrong class of service5,50010,000
(3) Failure to familiarize person with new operational territory5,50010,000
(4) Failure to determine knowledge5,50010,000
(5) Failure to determine performance skills5,50010,000
240.227 Railroad relying on requirements of a different country:
(a) Joint operator reliance:
(1) On person not employed2,5005,000
(2) On person who fails to meet Canadian requirements2,5005,000
(b) Canadian railroad reliance:
(1) On person not employed2,5005,000
(2) On person who fails to meet Canadian requirements2,5005,000
240.229 Requirements for joint operations territory:
(a) Allowing uncertified person to operate5,50010,000
(b) Certifying without making determinations or relying on another railroad13,00020,500
(c) Failure of
(1) Controlling railroad certifying without determining certification status, knowledge, skills, or familiarity with physical characteristics19,50025,000
Start Printed Page 57655
(2) Employing railroad to determine person's certified and qualified status for controlling railroad19,50025,000
(3) Person to notify employing railroad of lack of qualifications19,50025,000
(d) Failure to provide qualified person5,50010,000
240.231 Persons qualified on physical characteristics in other than joint operations:
(a) Person unqualified, no exception applies or railroad does not adequately address in program19,50025,000
(b) Failure to have a pilot:
(1) For engineer who has never been qualified19,50025,000
(2) For engineer previously qualified9,50017,000
Subpart D—Administration of the Certification Programs
240.301 Failure to have system for certificate replacement5,50010,000
240.303 Monitoring operations:
(a) Failure to have program19,50025,000
(b) Failure to observe each person annually2,5005,000
(c) Failure to test each person annually2,5005,000
(d) Failure to test properly2,5005,000
240.305 Prohibited conduct:
(a) Unlawful:
(1) Passing of stop signal19,50025,000
(2) Control of speed19,50025,000
(3) Brake tests19,50025,000
(4) Occupancy of main track19,50025,000
(5) Tampering or operation with disabled safety device19,50025,000
(6) Supervisor, pilot, or instructor fails to take appropriate action19,50025,000
(b) Failure of engineer to:
(1) Carry certificate2,5005,000
(2) Display certificate when requested2,5005,000
(c) Failure of engineer to notify railroad of limitations or railroad requiring engineer to exceed limitations19,50025,000
(d) Failure of engineer to notify railroad of denial or revocation19,50025,000
240.307 Revocation of certification:
(a) Failure to withdraw person from service13,00020,500
(b) Failure to notify, provide hearing opportunity, or untimely procedures5,50010,000
(c)-(h) Failure of railroad to comply with hearing or waiver procedures5,50010,000
(j) Failure of railroad to make record5,50010,000
(k) Failure of railroad to conduct reasonable inquiry or make good faith determination13,00020,500
240.309 Oversight Responsibility Report:
(a) Failure to report or to report on time2,5005,000
(b)-(h) Incomplete or inaccurate report5,50010,000
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 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.
End Part Start Part

PART 241—[AMENDED]

54. The authority citation for part 241 continues to read as follows:

Start Authority

Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49.

End Authority

55. Appendix B to part 241 is revised to read as follows:

Appendix B to Part 241—Schedule of Civil Penalties 1

Section 2ViolationWillful violation
241.9:
(a) Requiring or permitting extraterritorial dispatching of a railroad operation$9,500$17,000
(c) Failing to notify FRA about extraterritorial dispatching of a railroad operation in an emergency situation5,50010,000
241.11 Conducting a railroad operation that is extraterritorially dispatched:
(a)(1) Generally9,50017,000
(c) In an emergency situation—where dispatching railroad fails to notify FRA of the extraterritorial dispatching2,5005,000
241.13 Requiring or permitting track to be used for the conduct of a railroad operation that is extraterritorially dispatched:
(a)(1) Generally9,50017,000
Start Printed Page 57656
(c) In an emergency situation—where dispatching railroad fails to notify FRA of the extraterritorial dispatching2,5005,000
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 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.
Start Signature

Issued in Washington, DC, on August 23, 2010.

Karen J. Rae,

Deputy Administrator.

End Signature End Part End Supplemental Information

Footnotes

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.

Back to Citation

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.

Back to Citation

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).

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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.

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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.

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

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[FR Doc. 2010-22141 Filed 9-20-10; 8:45 am]

BILLING CODE 4910-06-P