[Federal Register: September 21, 2010 (Volume 75, Number 182)]
[Proposed Rules]
[Page 57597-57656]
[DOCID:fr21se10-22]

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Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Parts 209, 213, 214, et al.

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

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

[Docket No. FRA-2006-25274, Notice No. 2]
RIN 2130-ZA00

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

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

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

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

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

ADDRESSES: Comments: Comments related to this Docket No. FRA 2006-
25274, Notice No. 2, may be submitted by any of the following methods:
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.
Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal information
provided.
    Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Edward Pritchard, Director, Office of
Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200
New Jersey Avenue, SE., Washington, DC 20590 (telephone<PHONE_NUMBER>),
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<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. General Background
II. Proceedings to Date, Provision of Opportunity for Comment,
Comparison of Initial and New Proposals
    A. Initial Proposal
    B. Subsequent Changes in the Minimum and Ordinary Maximum Civil
Penalties
    C. Provision of Opportunity for Comment, With Comparison of the
Initial and New Proposals
III. FRA's New Proposed Approach to Reevaluating the Schedules of
Civil Penalties
IV. Rankings of the Rail Safety Regulatory Provisions and the Hours
of Service Laws in the New Proposal
    A. Motive Power and Equipment Regulations (MP&E) (49 CFR Parts
215, 218 (Partially), 223, 224, 227, 229, 230, 231, 232, 238, and
239 (Partially))
    B. Track and Workplace Safety Regulations (49 CFR Parts 213 and
214)
    C. Grade Crossing Signal Systems and Signal and Train Control
Regulations (49 CFR Parts 233, 234, 235, and 236)
    D. Operating Practices Regulations (49 CFR Parts 217, 218
(Partially), 219, 220, 221, 222, 225, 228, 239 (Partially), 240, and
241) and the Hours of Service Laws (49 U.S.C. Chapter 211)
V. Response to Public Comment on the Schedules Proposed in December
2006
    A. Concerns Related to Respondents That Are Small Businesses
    B. Concerns About Initially Proposed Penalty Amounts for
Violations of 49 CFR Parts 222, 225, and 229
    C. Concerns Related to Respondents Who Are Cited as Individuals
    D. Concerns About Effects on FRA's Confidential Close Call
Reporting Project
    E. Concerns About Proposed Monetary Increases in the Civil
Penalty Amounts

I. General Background

    FRA last published comprehensive, line-by-line final revisions to
the Schedules of its safety regulations on December 29, 1988. 53 FR
52918. The revisions reflected the higher maximum penalty amounts made
available by the enactment of the Rail Safety Improvement Act of 1988
(Pub. L. 100-342). With the exception of the penalties relating to the
hours of service laws (49 U.S.C. chapter 211), the Rail Safety
Improvement Act of 1988 raised the maximum penalty for any ordinary
violation from $2,500 to $10,000 (``the ordinary maximum'') and to
$20,000 for a grossly negligent violation or a pattern of repeated
violations that has created an imminent hazard of death or injury or
caused death or injury (``the aggravated maximum''). Therefore, FRA
published amendments to the Schedules in order to ``give effect to the
full range of civil penalties * * * permitted to be assessed for
violation of specific regulations.'' 53 FR 52918. These amendments
revised not only the maximum civil penalty amount for any violation,
but also the individual line-item penalties for specific sections or
subsections of the regulations.
    The Rail Safety Enforcement and Review Act (``RSERA'') (Pub. L.
102-365), which was enacted September 3, 1992, increased the maximum
penalty for a violation of the hours of service laws, from $1,000 to
$10,000 and in some cases to $20,000, making these penalty amounts
uniform with those of FRA's other regulatory provisions. RSERA also
increased the minimum penalty from $250 to $500 for all of FRA's
regulatory provisions.
    Since the publication of the Schedules in 1988, FRA has
periodically adjusted its minimum and its ordinary or aggravated
maximum penalty to conform to the mandates of the Federal Civil
Penalties Inflation Adjustment Act of 1990. 28 U.S.C. 2461 note, as
amended (``Inflation Act''). The Inflation Act requires that an agency
adjust by regulation each maximum penalty, or range of minimum and
maximum penalties, within that agency's jurisdiction periodically to
reflect inflation. In the Inflation Act, Congress found a way to
counter the effect that inflation has had on the penalties by having
the agencies

charged with enforcement responsibility administratively adjust the
penalties. Currently FRA's minimum penalty is $650, the ordinary
maximum is $25,000 and the aggravated maximum is $100,000 (for when a
``grossly negligent violation or pattern of repeated violations has
caused an imminent hazard or death or injury to individuals, or has
caused death or injury'').
    The Inflation Act requires only that the minimum, the ordinary
maximum, and the aggravated maximum civil penalty for a violation be
adjusted, not that the guideline penalty amounts for a specific type of
violation (e.g., a section of a particular regulation) be adjusted. As
a result, FRA has not adjusted the line-item guideline penalties found
in the Schedules in conjunction with its adjustments of the minimum,
maximum and aggravated maximum civil penalties. FRA's practice has been
to issue Schedules assigning to each section or subsection of the
regulations specific dollar amounts for initial penalty assessments.
These Schedules (and all line-item penalty amounts found within them)
are statements of agency policy that specify the penalty that FRA will
ordinarily assess for the violation of a particular section or
subsection of a safety regulation, and are published to inform members
of the regulated community of the amount that they are likely to be
assessed for a given violation within the range of $650 to $25,000. The
Schedules are ``meant to provide guidance as to FRA's policy in
predictable situations, not to bind FRA from using the full range of
penalty authority where extraordinary circumstances warrant.'' 49 CFR
part 209, appendix A. Thus, regardless of the amounts shown in the
Schedules, FRA continues to reserve the right to assess, within the
range established by the rail safety statutes (49 U.S.C. chapter 213)
or by regulation pursuant to the Inflation Act, an amount other than
that listed in the Schedules based on the circumstances of the alleged
violation. 73 FR 79698, Dec. 30, 2008.

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

A. Initial Proposal

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

------------------------------------------------------------------------
  Severity level (explained in the        Ordinary           Willful
     Initial Proposal and below)         violations        violations
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Level A.............................            $8,500           $11,000
Level B.............................             6,500             9,000
Level C.............................             5,000             7,500
Level D.............................             3,000             4,500
Level E.............................             1,500             2,500
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B. Subsequent Changes in the Minimum and Ordinary Maximum Civil
Penalties

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

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

    Given the large statutorily mandated increase in the ordinary
maximum civil penalty from $11,000 to $25,000 after publication of the
Initial Proposal, FRA is offering the public an opportunity to review
and comment on the new higher civil penalty amounts assessed for
violations on each severity scale level in the New Proposal.\1\ In the
New Proposal, FRA is issuing another set of proposed Schedules and
seeking comments from the general public. Comments on the new proposed
Schedules will be useful to the agency's decision making process.
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    \1\ For example, the severity scale in this New Proposal has
five levels like the severity scale proposed in the Initial
Proposal. However, the severity scale in the New Proposal differs
from the severity scale in the Initial Proposal in several ways.
First, FRA has adding the word ``materially'' to the description of
what constitutes a Level E violation in the New Proposal. Therefore,
Level E violations in the New Proposal are violations that do not
materially increase the likelihood that a rail equipment accident/
incident or other accident/incident will occur. This is a
clarification from the previous definition for Level E violations in
the Initial Proposal where Level E violations were defined as
violations that did not increase the likelihood that a rail
equipment accident/incident or other accident/incident would occur.
This definition did not make sense because failure to follow any FRA
safety regulation would have some direct or indirect impact on
railroad safety and thereby increase, even infinitesimally, the
likelihood of an accident or incident. As a result, the word
``materially'' was added to the criteria for a Level E violation in
the severity scale in this New Proposal. Second, FRA has provided
more transparency and referenced the regulatory language found in 49
CFR 225.19(d) to explain what FRA means when it says ``Other
accident/incident'' in Levels A-D in the severity scale in the New
Proposal. Third, FRA has clarified in the New Proposal that civil
monetary penalties associated with violations of FRA Orders or
railroad safety statutes will be assessed according to severity
scale criteria. Finally, as stated below, FRA has modified its
approach for establishing civil penalties in the severity scale in
this New Proposal. FRA is taking a graduated approach to assessing
civil penalties for ordinary (non-willful) violations while
increasing the civil penalty amounts in steady increments for
willful violations.
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    FRA has also slightly modified the severity scale in the New
Proposal from the severity scale in the Initial Proposal. In the New
Proposal, FRA has used a targeted enforcement approach for establishing
the civil penalties for ordinary (non-willful) violations of railroad
safety regulations. As part of the targeted enforcement approach,

ordinary violations occurring at the middle and lower levels of the
severity scale are assessed smaller civil penalties in relation to the
ordinary maximum while the highest penalty amounts are assessed for
ordinary Level A violations where serious injuries, deaths, or other
railroad accidents or incidents are most likely to occur. FRA did not
take a targeted enforcement approach for establishing the civil penalty
amounts for willful violations in the New Proposal. Instead, the civil
penalty amounts for willful violations increase up the severity scale
in steady dollar amounts, not in graduated percentage increases like
the civil penalties for ordinary violations.
    Higher penalty amounts for violations of Federal railroad safety
laws and regulations are necessary because many of FRA's civil
penalties have not been changed in real terms for many years. As a
result, inflation has somewhat eroded the deterrent effects of most of
FRA's civil penalties because the amounts have not been increased to
account for the effects of inflation. While many of the penalty amounts
in the New Proposal would represent large increases in penalty amounts
even after adjusting for inflation, some penalty amounts for violations
would remain unchanged (e.g., 49 CFR 219.205(b), 222.49(b), 229.71, and
239.301(c)(1)) if adopted by FRA because of the uniform rating of FRA's
existing penalties on the severity scale. The new penalty amounts in
this New Proposal will maintain the deterrent effects of FRA's rail
safety penalties, aiding the success of FRA's mission to make the
United States rail system safer.
    FRA has also reexamined how it had ranked individual rail safety
violations on the severity scale in the Initial Proposal. Upon second
review of the severity scale rankings, FRA is proposing to move certain
regulatory provisions to higher or lower levels on the severity scale
in order to refine the agency's application of the severity scale to
the various violations. For example, FRA is proposing to raise the
severity scale ranking of 49 CFR 219.3 (``Application: Railroad does
not have required program''), in this New Proposal from a ``C'' level
penalty to a ``B'' level penalty. This change is necessary because the
failure of a railroad covered by 49 CFR part 219 to have an alcohol and
drug testing program is more likely than not to cause a rail equipment
accident/incident or other accident/incident involving death, injury,
or occupational illness rather than just substantially increase the
likelihood that one of these events could occur. Conversely, in this
New Proposal, FRA would lower the severity scale ranking of 49 CFR
225.35 (``Access to records and reports''), from an ``A'' level penalty
to a ``D'' level penalty. This proposed change in severity scale level
reflects FRA's judgment that denying its inspectors access to records
and reports required by 49 CFR part 225 is not extremely likely to lead
to a railroad accident/incident or other accident/injury including
death, injury, or occupational illness, but could slightly increase the
likelihood of one of the above mentioned occurrences if FRA is not
provided access to accident reporting records and reports. FRA expects
that these proposed changes to the severity scale rankings of some of
its violations in the Initial Proposal better refine the agency's
application of the Severity Scale to the various violations.
    In addition, FRA is proposing minor changes to its Schedules in
this New Proposal to correct errors and omissions and to reflect more
accurately FRA's current enforcement practices. Such errors include
obvious spelling or typographical errors that were caught during the
review process. Omissions corrected include line-item penalties for any
existing section or subsection that had been inadvertently omitted from
an existing Schedule, such as 49 CFR 213.110. Other proposed minor
revisions to the Schedules include, but are not limited to, adding or
deleting a suggested penalty for a violation (e.g., 49 CFR 213.109(c),
214.343(a)(2), 220.38, and 240.201(b)), rewording a line-item
description for a violation (e.g., 49 CFR 219.23(f) and 233.9),
renumbering violation subsections (e.g., 49 CFR 214.343(b)(1), 236.587,
236.905(d), and 236.913(j)), and adding or revising footnotes to the
Schedules (e.g., 49 CFR parts 214, 232, and 239). For example, FRA is
proposing to add a footnote 3 to the Schedule for 49 CFR part 214 to
clarify that FRA will consult the suggested penalty amounts under 49
CFR 214.343 (``Training and qualification, general:'') when assessing
penalties for the training violations in 49 CFR 214.345 through
214.355, as the suggested penalty amounts for these sections had been
left blank in previous versions of part 214's penalty schedule. FRA is
hopeful these proposed minor changes updating its Schedules would
provide a more accurate picture to the regulated community of FRA's
actual enforcement practices.
    New suggested penalty amounts have also been proposed for
violations of subparts that had not been mentioned in the existing
penalty schedules: 49 CFR part 218, subpart E (``Protection of Occupied
Camp Cars''); 49 CFR part 228, subpart D (``Electronic
Recordkeeping''); 49 CFR part 232, subpart G (``Electronically
Controlled Pneumatic (ECP) Braking Systems''); and 49 CFR part 236,
subpart I (``Positive Train Control Systems'') are also included. FRA
is also suggesting new penalty amounts for 49 CFR part 227
(``Occupational Noise Exposure'') which was not ranked in the severity
scale in the Initial Proposal because the final rule creating part 227
was published on October 27, 2006, but not effective until February 26,
2007. 71 FR 63066. In addition, FRA will also be accepting comments on
the new penalties in 49 CFR part 237 that were published in a bridge
safety standards final rule on July 15, 2010 and will become effective
on September 13, 2010. 75 FR 41282.
    Further, FRA is proposing to add language to 49 CFR part 228,
appendix A, to state its proposed guideline penalty amounts for both
non-willful and willful violations of the hours of service laws (49
U.S.C. chapter 211). In addition, this New Proposal would also add or
change language in the portion of 49 CFR part 209, appendix A, entitled
``Penalty Schedules: Assessment of Maximum Penalties,'' to reflect the
new minimum, ordinary maximum, and aggravated maximum civil penalties
of $650, $25,000, and $100,000 respectively. Finally, FRA is also
proposing to add the language ``or orders'' in two places within this
portion of part 209, appendix A to update the language to reflect FRA's
already existing policy of establishing civil penalty schedules and
recommended civil penalty amounts applicable to violations of various
orders issued by FRA (such as emergency orders under 49 U.S.C. 20104)
when necessary to advance the agency's safety mission.

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

    The Federal Railroad Administrator is authorized as the delegate of
the Secretary of Transportation to enforce the Federal railroad safety
statutes (49 U.S.C. chapters 201-213) regulations, and orders,
including the statutory civil penalty provisions at 49 U.S.C. chapter
213. 49 CFR 1.49. FRA currently has 26 parts of regulations that
contain Schedules.\2\ With this New Proposal,

FRA is proposing to amend each of the line-item guideline penalty
amounts contained within the Schedules for each of the regulations and
to add guideline penalty amounts for violations of the hours of service
laws to 49 CFR part 228, appendix A (collectively, Penalty Guidelines).
In reevaluating the penalty amounts in the Schedules, FRA has developed
a new proposed severity scale (``New Proposed Severity Scale'') for
setting the line-item penalty amounts for each violation of the safety
regulations and for violations of the hours of service laws. The
severity scale FRA is proposing to adopt in this New Proposal is
described in the following section.
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    \2\ However, as previously stated, FRA recently published a
final rule on bridge safety standards on July 15, 2010. 75 FR 41282.
As part of that final rule, FRA created new regulations and
penalties under 49 CFR part 237, which was previously an unused part
of the CFR. Therefore after the September 13, 2010 effective date
for the final rule, FRA will have 27 parts of regulations that
contain Schedules. In this New Proposal, FRA is also accepting
comments on the new penalties contained in the final rule.
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New Proposed Severity Scale for Setting Line-Item Penalty Amounts in
FRA Penalty Guidelines

    FRA's rail safety regulations and the rail safety statutes are
intended either to prevent a railroad accident/incident or to mitigate
the consequences if one were to occur. For the most severe ratings on
the scale, FRA concentrated on the degrees of likelihood that an
accident/incident \3\ will occur or that graver consequences of an
accident/incident will occur as a result of failing to comply with the
section. The following New Proposed Severity Scale is intended to
reflect this focus:
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    \3\ ``Accident/incident'' is defined at 49 CFR 225.5. Accidents/
incidents are divided into three categories: highway-rail grade
crossing accidents/incidents, rail equipment accidents/incidents;
and accidents/incidents resulting in death, injury, or occupational
illness. 49 CFR 225.19(c). A highway-rail grade crossing accident/
incident is ``[a]ny impact between railroad on-track equipment and
an automobile, bus, truck, motorcycle, bicycle, farm vehicle, or
pedestrian at a highway-rail grade crossing.'' 49 CFR 225.5, read in
light of 49 CFR 225.19(c). Rail equipment accidents/incidents are
defined in 49 CFR 225.19(c) to include ``collisions, derailments,
fires, explosions, acts of God, and other events involving the
operation of on-track equipment (standing or moving) * * * that
result in damage to railroad property that is greater than the
reporting threshold.'' Currently the reporting threshold is $9,200.
74 FR 65458 (Dec. 10, 2009).

    Level A-Very High Probability--Failure of a railroad to comply
with this section or subsection of the Code of Federal Regulations
(``CFR''), this FRA order, or this rail safety statute is extremely
likely to result in one or more of the following events, but does
not create an imminent hazard of death or injury to individuals or
cause an actual death or injury \4\:
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    \4\ FRA has statutory authority to assess civil penalties in the
range of $650 (minimum) to $25,000 (ordinary maximum) for ordinary
violations of its regulations. FRA may assess a penalty at the
statutory aggravated maximum of $100,000 only ``when a grossly
negligent violation or a pattern of repeated violations has caused
an imminent hazard of death or injury to individuals, or has caused
death or injury.'' A $100,000, statutory aggravated maximum penalty
is the equivalent of a Level A Plus and is, therefore, off the
scale. The standard of ``imminent hazard'' of death or injury (the
standard for a civil penalty at the aggravated maximum penalty) is
different from the standard of ``extremely likely'' to result in
death or injury (the standard for Level A penalties on the severity
scale). Imminent hazards are hazards that are likely to occur
without delay or that actually may be occurring at the time the
violation is taken. In contrast, a hazard that is extremely likely
to result in a railroad accident/incident or another accident/
incident causing death, injury, or occupational disease has a high
probability of causing one or more of those adverse events sooner or
later, but is not necessarily likely to occur without delay or
contemporaneously when the violation is taken.

1. Rail equipment accident/incident
2. Other accident/incident (including death, injury, or occupational
illness)\5\
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    \5\ See 49 CFR 225.19(d).
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FRA is proposing to issue a penalty guideline for Level ``A'' of
$19,500 for an ordinary violation and $25,000 for a willful
violation of the regulation, order, or statute.

    Level B--High Probability--Failure of railroad to comply with
this section or subsection of the CFR, this FRA order, or this rail
safety statute is more likely than not to result in the occurrence
of:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``B'' of
$13,000 for an ordinary violation and $20,500 for a willful
violation of the regulation, order, or statute.

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

    Level C--Moderate Probability--Failure of railroad to comply
with this section or subsection of the CFR, this FRA order, or this
rail safety statute substantially increases the likelihood that one
of the following will occur:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``C'' of
$9,500 for an ordinary violation and $17,000 for a willful violation
of the regulation, order, or statute.
    Level D--Minor Probability--Failure of the railroad to comply
with this section or subsection of the CFR, this FRA order, or this
rail safety statute slightly increases the likelihood that one of
the following will occur:
    1. Rail equipment accident/incident; or
    2. Other accident/incident (including death, injury, or
occupational illness).
    FRA is proposing to issue a penalty guideline for Level ``D'' of
$5,500 for an ordinary violation and $10,000 for a willful violation
of the regulation, order, or statute.
    Level E--Minimal Probability--Failure to comply with this
section or subsection of the CFR, this FRA order, or this rail
safety statute does not materially increase the likelihood that a
rail equipment accident/incident or other accident/incident will
occur, except in special circumstances, such as if the noncompliance
is willful or widespread. Nevertheless, noncompliance with any one
of these provisions undercuts the effectiveness of the Federal
railroad safety program, and could compromise the safety of rail
operations.
    Example: Violation of Sec.  225.13--Late Reports--Submitting a
late accident/incident report to FRA does not increase the
likelihood that a rail equipment accident/incident or other
accident/incident will occur. Widespread noncompliance with that
provision, however, could lead to inaccuracies in Federal accident
databases, which in turn could delay FRA's response to emerging
safety problems.
    FRA is proposing to issue a penalty guideline for Level ``E'' of
$2,500 for an ordinary violation and $5,000 for a willful violation
of the regulation, order, or statute.

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

the Federal railroad safety program or to the overall safety of
railroad operations.
    Currently, each Schedule is in the form of a table consisting of
three columns with one or more footnotes. Like the initially proposed
Schedules, the new proposed Schedules would continue to be structured
in this fashion and to provide guideline penalty amounts for two
categories of violations: Ordinary (non-willful) and willful. Each new
proposed Schedule lists the CFR section or subsection in the left-hand
column, sometimes with additional designations to distinguish different
types of violations (penalty codes) of the section or subsection in
order to facilitate the assessment of civil penalties. The only
exception continues to be 49 CFR part 231; the left-hand column of the
new proposed Schedule lists the FRA defect codes \6\ for that part, and
not the corresponding CFR sections. The reason for this continues to be
the fact that the defect codes are organized by the type of safety
appliance, which makes them easier to use, than the section numbers of
part 231, which are organized primarily by car or locomotive type.
Nevertheless, if necessary, every defect code can be traced to a
specific regulatory provision in part 231 or statutory provision in 49
U.S.C. chapter 203, or both. The corresponding penalties for each
violation are listed in the middle and right-hand columns: The
guideline penalty amount for an ordinary violation and then the
guideline penalty amount for a willful violation. The ordinary
penalties apply to railroads or other respondents, except individuals,
while the ``willful'' column applies to willful violations committed by
railroads or individuals.
---------------------------------------------------------------------------

    \6\ Defect codes were developed by FRA in order to facilitate
computerization of inspection data generated by FRA inspectors by
providing a digital format for every CFR section. Defect codes are
analytical tools only and are subject to change without notice.
---------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                  Ordinary     Willful
      Severity level under new  Proposal         violations   violations
------------------------------------------------------------------------
Level A.......................................      $19,500      $25,000
Level B.......................................       13,000       20,500
Level C.......................................        9,500       17,000
Level D.......................................        5,500       10,000
Level E.......................................        2,500        5,000
------------------------------------------------------------------------

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

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

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

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

------------------------------------------------------------------------

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

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

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

    In recent years, most of the serious accidents/incidents (train
collisions or derailments resulting in a release of hazardous materials
or harm to rail passengers, rail employees, or the general public)
resulted from human factor or track causes. Over the last five years,
31.9 percent of train accidents were caused by track defects. In an
effort to reduce track accidents, FRA is focusing its track inspections
on the areas of highest risks and encouraging inspectors to recommend
enforcement action on the kinds of violations that are considered
leading causes of track-caused train accidents. Therefore, in
evaluating the line-item penalty amounts for all the sections or
subsections, FRA took into consideration the leading causes of track-
related train accidents when applying the New Proposed Severity Scale
to the Track Safety Standards. For example, violations of 49 CFR 213.53
``Gage'' received a new proposed ``A'' ranking (and new proposed
penalty guideline amounts of $19,500 for an ordinary violation and
$25,000 for a willful violation) because improper gage is one of the
leading causes of track-related train accidents.
    In ranking the sections or subsections of 49 CFR part 214
(``Railroad Workplace Safety''), FRA took into consideration not only
the probability that an accident/incident could result if a violation
occurred, but also the fact that

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

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

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

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

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

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

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

A. Concerns Related to Respondents That Are Small Businesses

    The Small Railroad Business Owners of America (``SRBOA'') commented
that FRA's December 2006 proposed civil penalty policy does not
adequately take into account the interests of small businesses. The
commenter suggested that doubling certain civil penalties for smaller
railroads is unfair, especially because most of the accidents/incidents
occur on larger railroads. The commenter also asked that FRA provide
additional training and assistance to smaller railroads in
comprehension and application of the rail safety regulations.
    In addition, the American Short Line and Regional Railroad
Association (``ASLRRA'') commented that the proposed statement of
agency policy ignores the effect that proposed amounts would have on
small railroads. ASLRRA suggested that FRA move instead, towards a
sliding scale system of civil penalties based on the class of track
under 49 CFR part 213 that is involved in the violation. In the
alternative, ASLRRA suggested that FRA take the time to codify a
second, lower schedule of penalties for small railroads.
    In response to these concerns, FRA would like to emphasize appendix
C to 49 CFR part 209, where FRA has published its policy statement
concerning small business entities. FRA understands that small entities
in the rail industry have significantly different characteristics from
larger carriers and shippers. Therefore, FRA has developed programs to
respond to compliance-related inquiries of small entities, and to
ensure proper handling of civil penalty and other enforcement actions
against small businesses. FRA inspectors provide training on the
requirements of all railroad safety statutes for new and existing small
businesses upon request. Also, it is FRA's policy to maintain frequent
and open communications with the national representatives of the
primary small entity associations and to consult with these
organizations before embarking on new policies that may impact the
interests of small businesses. Additionally, FRA has posted all of its
manuals electronically for compliance with the rail safety disciplines
at http://www.fra.dot.gov.
    FRA employs an enforcement policy that addresses the unique nature
of small entities in the imposition of civil penalties and resolution
of those assessments. Pursuant to appendix A to 49 CFR part 209, it is
FRA's policy to consider a variety of factors in determining whether to
take enforcement action against persons, including small entities, who
have violated the safety laws and regulations. In general, the presence
of both good faith and prompt remedial action on the part of the small
entity militates against taking a civil penalty action, especially if
the violation is an isolated event. Once FRA has assessed a civil
penalty, FRA may adjust or compromise the initial penalty claim based
on a wide variety of mitigating factors. The mitigating criteria that
FRA applies are found in the railroad safety statutes at 49 U.S.C. ch.
213 and in the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) (``SBREFA''); these factors include the severity
of the safety or health risk presented; the existence of alternative
methods of eliminating the safety hazard; the entity's culpability; the
entity's compliance history; the entity's ability to pay the
assessment; the impact an assessment might exact on the

entity's continued business; and evidence that the entity acted in good
faith. 49 CFR part 209, appendix C.
    FRA's enforcement policy with respect to small entities is flexible
and comprehensive, but FRA's first priority in its compliance and
enforcement activities is public and employee safety. FRA notes that an
accident on a small railroad could have the same consequences as an
accident on a large railroad. Therefore, small railroads are
responsible for compliance with the railroad safety statutes and
regulations.
    Finally, the Small Railroad Business Owners' Association of America
(``SRBOA'') commented that FRA's civil penalties were higher than those
used by the Federal Motor Carrier Safety Administration (``FMCSA'') for
enforcing commercial motor vehicle driver and trucking safety, and
suggested that FRA should impose civil penalties for smaller railroads
only if discussing the situation with them does not work first.
    As explained above, FRA's rail safety inspectors take into account
a variety of factors in determining whether to take enforcement
actions. They have the option of citing the railroads for defects,
which in their judgment do not merit civil penalties before citing them
for violations, which do carry civil penalty recommendations. Also, FRA
does not believe it is appropriate to compare FRA's rail safety
penalties to FMCSA's penalties for driver and trucking safety. The
safety considerations in the trucking and rail industries are very
different. An accident involving a train is potentially far more
catastrophic and costly than a similar accident involving a truck. For
example, one railroad tank car could contain many truckloads of
hazardous material, and one train could consist of many such railroad
tank cars.

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

    The Association of American Railroads (``AAR'') stated that, in
several cases, the penalties proposed in December 2006 are
disproportionate to the severity of the violation. Specifically, AAR
took exception to penalties proposed for noncompliance with 49 CFR
parts 222, 225, and 229.
    With regard to part 222 (the train horn rule), AAR contended that a
``D'' level penalty for a violation of Sec.  222.21(b) is
unsubstantiated, as the sounding of a horn for more than 20 seconds
will not increase the likelihood of an accident or incident.
    FRA provides that the train horn rule focuses on public and
community interests. To remain true to the intention of the rule, FRA
must take the interests of the community into account when determining
the penalty amount that a violation merits. FRA believes that it is
important that sufficient warning be provided to the motorist who needs
time to recognize the audible signal, understand its message, initiate
a reaction, and take appropriate action when at a grade crossing. See
71 FR 47618, Aug. 17, 2006. If the train horn is sounded more than 25
seconds before the train enters the train crossing, motorists might
well begin to doubt the credibility of the train horn as an indicator
of the train's immediacy to the grade crossing. As a result, motorists
will be more likely to take the risk of traveling through the crossing
even when the train horn is sounded.
    The rule text for Sec.  222.21(b) also provides a ``good faith''
exception for the required length of time that the horn is sounded. The
section permits additional flexibility by stating that the engineer
shall not be in violation of Sec.  222.21(b) if the engineer sounds the
horn not more than 25 seconds before the crossing, if in good faith the
engineer cannot precisely estimate the arrival time of the train at the
crossing. FRA has determined that the interests of avoiding an accident
or incident as well as the interests of the community have been taken
into account in assessing violations of Sec.  222.21(b) as a proposed
``D'' level penalty with the exception of ``failure to sound the horn
at least 15 seconds and less than \1/4\-mile before a crossing,'' which
is assessed as a proposed ``C'' level penalty.
    Additionally, AAR stated that routine sounding of the horn at a
grade crossing within a quiet zone, pursuant to Sec.  222.45, will not
increase the likelihood of an accident or incident.
    With regard to AAR's comment on Sec.  222.45, although sounding the
train horn in a quiet zone may not substantially increase the
likelihood of an accident the first time or the first few times, trains
that routinely sound their horns at quiet-zone grade crossings might
cause motorists to doubt the credibility of signs marking a grade
crossing as a quiet-zone grade crossing and whether a particular grade
crossing is actually a quiet-zone grade crossing. Therefore, if routine
violations of a quiet zone continue, motorists will begin to expect the
warning of a train horn when a train is preparing to enter quiet-zone
grade crossings where routine violations of the quiet zone occur. That
could predictably lead to fatal accidents.
    In addition, violations of Sec.  222.45 increase the annoyance
level of the communities surrounding the grade crossing. A fundamental
feature of this rule was to balance driver and pedestrian safety with
community noise concerns. Decreasing the civil monetary penalty would
reduce the incentive to comply with the part and potentially increase
noise for the surrounding communities. FRA maintains that the initial
and new proposed ``D'' level penalty for a violation of Sec.  222.45
sufficiently addresses the concerns that brought about the part 222
rulemaking. See 71 FR 47614, Aug. 17, 2006.
    AAR also argued that a ``B'' level penalty for a violation of 49
CFR 225.13 was unmerited, as a railroad's filing of a report one day
late would not be more likely to cause an accident or incident.
    FRA has taken into consideration AAR's comments involving FRA's
regulations on accident/incident reporting, 49 CFR part 225. FRA
acknowledges the merits in AAR's comments with regard to Sec.  225.13,
and FRA has revised the proposed penalty ranking for a violation of
Sec.  225.13 from a ``B'' to an ``E.'' Upon reevaluating how part 225
violations were ranked on the severity scale in the Initial Proposal,
FRA has lowered many of the proposed severity scale rankings for
violations of this part. For example, FRA has determined to change the
ranking of a Sec.  225.11 violation (failure to submit monthly report
of accidents/incidents) from a proposed ``B'' to a proposed ``D'' level
penalty. At the same time, FRA has determined that a violation of Sec.
225.9, failure to report certain accidents or incidents, immediately
via telephone to the National Response Center, would be more
detrimental to railroad safety, because the failure could prevent FRA
from learning about the event and deciding whether or not the agency
should commence an investigation. Even delayed notification could
compromise such an investigation and prevent FRA from obtaining
information that could identify safety problems that could cause future
accidents or incidents. FRA has, therefore, changed the penalty amount
from a proposed ``E'' to a proposed ``C'' level penalty.
    Finally, AAR stated that a ``C'' level penalty for a violation of a
provision of the Locomotive Safety Standards, 49 CFR 229.137(a)(3), was
uncalled for, as the lack of a toilet in the lead locomotive will not
``substantially increase the likelihood of an accident or incident.''
    When FRA promulgated the notice of proposed rulemaking for the
locomotive cab sanitation standards, FRA determined that serious health
consequences may result if railroad employees are exposed to unsanitary
conditions or lack access to facilities. In fact, it is widely known
that exposure to

human fecal matter or untreated sewage waste can lead to diarrheal
diseases such as amebiasis, giardiasis, shigellosis, and viral diseases
such as hepatitis. See 66 FR 137, Jan. 2, 2001. FRA notes that any one
of these mentioned conditions would fulfill the reporting requirements
under the definition of an ``occupational illness'' pursuant to 49 CFR
225.19(d) and therefore be considered an accident/incident within the
meaning of the initially proposed Severity Scale and the New Proposed
Severity Scale. FRA also notes that an engineer who contracts one of
those diseases on duty might well be unable to operate his or her train
safely.

C. Concerns Related to Respondents Who Are Cited as Individuals

    The Brotherhood of Locomotive Engineers and Trainmen (``BLET'') had
a number of comments on civil penalties against individuals for rail
safety violations. The BLET raised concern that FRA's conclusions on
the data indicate a ``lack of discipline by the workers.'' Also, the
commenter suggested that the December 2006 proposed statement of agency
policy suffers from ``the same infirmity as the railroad operating
rules NPRM (notice of proposed rulemaking).'' Overall, the BLET seemed
very concerned with the effect that a larger penalty would have on an
individual as opposed to a railroad.
    FRA responds that civil penalties assessed against individuals
pursuant to the rail safety statutes, regulations, and orders may be
assessed administratively only if FRA determines that the individual's
conduct was willful in nature. 49 U.S.C. 21304. ``FRA considers a
`willful' violation to be one that is an intentional, voluntary act
committed either with knowledge of the relevant law or reckless
disregard for whether the act violated the requirements of the law.''
49 CFR part 209, appendix A. FRA continues to hold that the higher
penalties for a willful violation serve to deter an individual from
engaging in this type of egregious behavior. Further, FRA assesses rail
safety civil penalties against railroads at a substantially higher
frequency than against individuals. As neither the Initial Proposal nor
the New Proposal addresses the issues covered in ``Railroad Operating
Rules: Program of Operational Tests and Inspections; Railroad Operating
Practices: Handling Equipment, Switches and Fixed Derails,'' FRA
declines to respond in this proposal to comments regarding that
rulemaking, in which a final rule was published on June 16, 2008. 73 FR
33888.

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

    The BLET also provided comments exhibiting a concern as to how the
proposed penalty schedule in the Initial Proposal would impact FRA's
Confidential Close Call Reporting Pilot Project (``Close Call
Project''). The Close Call Project involves encouraging employees from
its participating railroads to report ``close call'' incidents
voluntarily and anonymously. A ``close call'' is an event in which a
death, a personal injury, or property damage is narrowly averted. Thus,
a ``close call'' presents an opportunity to improve safety practices in
a situation or incident that has potential for more serious
consequences by allowing the people involved to report the event in
detail without fear of adverse consequences, thereby providing FRA with
vital data about precursors to accidents or incidents that FRA might
otherwise not receive. The information collected from the Close Call
Project provides an opportunity to identify and correct weaknesses in a
railroad's safety system before an accident/incident or other unsafe
event occurs. The system can also be used to monitor changes in safety
over time and to uncover hidden unsafe conditions that were previously
unreported.
    FRA does not agree with BLET's comment that the Initial Proposal
would nullify the incentive for voluntary submission of information in
this pilot program. The employees participating in the Close Call
Project are protected from carrier discipline, decertification, and FRA
enforcement action in the same manner regardless of whether the civil
penalties are increased. Before a Close Call Project may be initiated,
the employing railroad and the employees' union representatives sign a
memorandum of understanding (``MOU'') that specifies each party's
rights and responsibilities. Revising the Schedules would not impact
any MOU that has been implemented, and would not affect any MOU that is
to be implemented in the future, as they would not expand FRA's
enforcement authority.

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

    Commenters measured the change between the current penalties and
the initially proposed penalties in nominal terms. That is, commenters
calculated the price change between the initially proposed penalties
and the current penalties without first adjusting the current penalty
amounts for inflation. Inflation erodes the purchasing power of money
over time. As previously stated in this New Proposal, the enforcement
and deterrent effects of the current penalties have decreased over time
as they had not been increased line by line to account for the effects
of inflation. A better, ``apples-to-apples'' comparison would be to
compare the proposed penalties to the inflation-adjusted, or real,
current penalties. Adjusting for inflation allows comparison of the
penalties using dollars with the same purchasing power.
    Given that inflation-adjusted, current penalties serve as the
proper baseline for measuring change, it is significant that many of
the current penalties have not changed in nominal terms for many years.
    As previously stated, in undertaking this effort to revise the
Schedules comprehensively after many years, FRA is focusing on areas
that pose greater safety risks, and maintaining enforcement in other
regulatory areas per its authority to set penalty guidelines within the
minimum, ordinary maximum, and aggravated maximum statutory penalties.
With the New Proposal, some of the proposed penalty amounts if adopted
by FRA will indeed show large increases, even after adjusting for
inflation.\7\ However, as previously stated, some newly proposed
penalty amounts for violations would remain unchanged (e.g., 49 CFR
219.205(b), 222.49(b), 229.71, and 239.301(c)(1)). Again, the penalty
amounts in the New Proposal reflect the

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

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

List of Subjects

49 CFR Part 209

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

49 CFR Part 213

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

49 CFR Part 214

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

49 CFR Part 215

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

49 CFR Part 217

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 218

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

49 CFR Part 219

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

49 CFR Part 220

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

49 CFR Part 221

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 222

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

49 CFR Part 223

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

49 CFR Part 224

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

49 CFR Part 225

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

49 CFR Part 227

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

49 CFR Part 228

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

49 CFR Part 229

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 230

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 231

    Penalties, Railroad safety.

49 CFR Part 232

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 233

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 234

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

49 CFR Part 235

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

49 CFR Part 236

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 238

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

49 CFR Part 239

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 240

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

49 CFR Part 241

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

PART 209--[AMENDED]

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

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

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

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

Penalty Schedules: Assessment of Maximum Penalties

    As recommended by the Department of Transportation in its
initial proposal for rail safety legislative revisions in 1987, the
RSIA raised the maximum civil penalties for violations of the safety
regulations or orders. Under the Hours of Service Act, the penalty
was changed from a flat $500 to a penalty of ``up to $1,000, as the
Secretary of Transportation deems reasonable.'' Under all the other
statutes, the maximum penalty was raised from $2,500 to $10,000 per
violation, except that ``where a grossly negligent violation or
pattern of repeated violations has created an imminent hazard of
death or injury,'' the penalty was raised to a maximum of $20,000
per violation.
    The Rail Safety Enforcement and Review Act (RSERA), enacted in
1992, increased the maximum penalty from $1,000 to $10,000 and in
some cases, $20,000 for a violation of the hours of service laws,
making these penalty amounts uniform with those of FRA's other
regulatory provisions and orders. RSERA also increased the minimum
civil monetary penalty from $250 to $500 for all of FRA's regulatory
provisions and orders. The Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, note, as
amended by Section 31001(s)(1) of the Debt Collection Improvement
Act of 1996 (Pub. L. 104-134, 110 Stat. 1321-373, April 26, 1996)
(Inflation Act) required that agencies adjust by regulation each
minimum and maximum civil monetary penalty within the agency's
jurisdiction for inflation and make subsequent adjustments once
every four years after the initial adjustment. Accordingly, FRA's
minimum and maximum civil monetary penalties have been adjusted.
    In 2008, the Rail Safety Improvement Act of 2008 (RSIA of 2008)
was enacted raising

FRA's civil monetary ordinary and aggravated maximum penalties to
$25,000 and $100,000 respectively. FRA amended the civil penalty
provisions in its regulations so as to make $25,000 the ordinary
maximum penalty per violation and $100,000 the aggravated maximum
penalty per violation, as authorized by the RSIA of 2008, in a final
rule published on December 30, 2008 in the Federal Register. 73 FR
79700. The December 30, 2008 final rule also adjusted the minimum
civil penalty from $550 to $650 pursuant to Inflation Act
requirements. Id. A correcting amendment to the civil penalty
provisions in 49 CFR part 232 was published on April 6, 2009. 74 FR
15388.
    FRA's traditional practice has been to issue penalty schedules
assigning to each particular regulation or order specific dollar
amounts for initial penalty assessments. The schedule (except where
issued after notice and an opportunity for comment) constitutes a
statement of agency policy, and is ordinarily issued as an appendix
to the relevant part of the Code of Federal Regulations. For each
regulation or order, the schedule shows two amounts within the $650
to $25,000 range in separate columns, the first for ordinary
violations, the second for willful violations (whether committed by
railroads or individuals). In one instance--part 231--the schedule
refers to sections of the relevant FRA defect code rather than to
sections of the CFR text. Of course, the defect code, which is
simply a reorganized version of the CFR text used by FRA to
facilitate computerization of inspection data, is substantively
identical to the CFR text.
    Accordingly, under each of the schedules (ordinarily in a
footnote), and regardless of the fact that a lesser amount might be
shown in both columns of the schedule, FRA reserves the right to
assess the statutory maximum penalty of up to $100,000 per violation
where a grossly negligent violation has created an imminent hazard
of death or injury. This authority to assess a penalty for a single
violation above $25,000 and up to $100,000 is used only in very
exceptional cases to penalize egregious behavior. FRA indicates in
the penalty demand letter when it uses the higher penalty amount
instead of the penalty amount listed in the schedule.

PART 213--[AMENDED]

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

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

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

         Appendix B to Part 213--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section 2 3                  Violation         violation
------------------------------------------------------------------------
         Subpart A--General

213.4(a) Excepted track \2\.........            $9,500           $17,000
213.4(b) Excepted track \2\.........            13,000            20,500
213.4(c) Excepted track \ 2\........            13,000            20,500
213.4(d) Excepted track \2\.........            13,000            20,500
213.4(e):
     (1) Excepted track.............            13,000            20,500
     (2) Excepted track.............            13,000            20,500
     (3) Excepted track.............            13,000            20,500
     (4) Excepted track.............            13,000            20,500
213.4(f) Excepted track.............             5,500            10,000
213.7 Designation of qualified                   9,500            17,000
 persons to supervise certain
 renewals and inspect track.........
213.9 Classes of track: Operating               19,500            25,000
 speed limits.......................
213.11 Restoration or renewal of                 9,500            17,000
 track under traffic conditions.....
213.13 Measuring track not under                13,000            20,500
 load...............................

         Subpart B--Roadbed

213.33 Drainage.....................            13,000            20,500
213.37 Vegetation...................             9,500            17,000

      Subpart C--Track Geometry
213.53 Gage.........................            19,500            25,000
213.55 Alignment....................            13,000            20,500
213.57 Curves; elevation and speed              13,000            20,500
 limitations........................
213.59 Elevation of curved track;               13,000            20,500
 runoff.............................
213.63 Track surface................            13,000            20,500

     Subpart D--Track Structure

213.103 Ballast; general............             9,500            17,000
213.109 Crossties:
     (a) Material used..............             5,500            10,000
     (b) Distribution of ties.......            13,000            20,500
     (d) Sufficient number of                    9,500            17,000
     nondefective ties..............
     (f) Joint ties.................             9,500            17,000
     (g) Track constructed without               9,500            17,000
     crossties......................
213.110 Gage restraint measurement
 systems:
     (a) through (b) Notification...             9,500            17,000
     (c) Design requirements........            13,000            20,500
     (g) through (i) Exception                   9,500            17,000
     reports........................
     (j) Data integrity.............            13,000            20,500
     (k) Training...................             9,500            17,000
     (l) Remedial actions...........            19,500            25,000
     (m) PTLF.......................            13,000            20,500
     (n) Recordkeeping..............             9,500            17,000
     (o) Inspection frequency.......            19,500            25,000
213.113 Defective rails.............            19,500            25,000
213.115 Rail end mismatch...........             9,500            17,000
213.118(a) CWR plan in effect.......            13,000            20,500
213.118(b) CWR plan filed with FRA..            13,000            20,500
213.119 Continuous welded rail:

     (a) CWR installation/adjustment            13,000            20,500
     procedures.....................
     (b) CWR fastening requirements.            13,000            20,500
     (c) CWR joint installation/                13,000            20,500
     maintenance procedures.........
     (d) CWR rail temperature                   13,000            20,500
     requirements...................
     (e) CWR alinement..............            13,000            20,500
     (f) Procedures for controlling             13,000            20,500
     train speed on CWR track.......
     (g) CWR track inspections......            13,000            20,500
     (h) CWR joint bar inspections..            13,000            20,500
     (i) CWR training...............            13,000            20,500
     (j) CWR records................             9,500            17,000
     (k) CWR manual at job site.....             9,500            17,000
213.121(a) Rail joints..............            13,000            20,500
213.121(b) Rail joints..............            13,000            20,500
213.121(c) Rail joints..............            19,500            25,000
213.121(d) Rail joints..............            13,000            20,500
213.121(e) Rail joints..............            13,000            20,500
213.121(f) Rail joints..............            13,000            20,500
213.121(g) Rail joints..............            13,000            20,500
213.121(h) Rail joints..............            13,000            20,500
213.122 Torch cut rail..............            13,000            20,500
213.123 Tie plates..................             9,500            17,000
213.127 Rail fastenings.............            13,000            20,500
213.133 Turnouts and track                       9,500            17,000
 crossings, generally...............
213.135 Switches:...................
     (a) through (g)................            13,000            20,500
     (h) chipped or worn points.....            13,000            20,500
213.137 Frogs.......................            13,000            20,500
213.139 Spring rail frogs...........            13,000            20,500
213.141 Self-guarded frogs..........             9,500            17,000
213.143 Frog guard rails and guard              13,000            20,500
 faces; gage........................

   Subpart E--Track Appliances and
        Track-Related Devices

213.205 Derails.....................             9,500            17,000

        Subpart F--Inspection

213.233 Track inspections...........             9,500            17,000
213.235 Switches, crossings,                     9,500            17,000
 transition devices.................
213.237 Inspection of rail..........            13,000            20,500
213.239 Special inspections.........             9,500            17,000
213.241 Inspection records..........             9,500            17,000

Subpart G--Train Operations at Track
        Classes 6 and Higher

213.305 Designation of qualified                19,500            25,000
 individuals; general qualifications
213.307 Class of track; operating               19,500            25,000
 speed limits.......................
213.309 Restoration or renewal of               19,500            25,000
 track under traffic conditions.....
213.311 Measuring track not under               13,000            20,500
 load...............................
213.319 Drainage....................             9,500            17,000
213.321 Vegetation..................             9,500            17,000
213.323 Track gage..................            19,500            25,000
213.327 Alignment...................            19,500            25,000
213.329 Curves, elevation and speed             19,500            25,000
 limits.............................
213.331 Track surface...............            19,500            25,000
213.333 Automated vehicle inspection            19,500            25,000
 systems............................
213.335 Crossties:
     (a) Material used..............             9,500            17,000
     (b) Distribution of ties.......            13,000            20,500
     (c) Sufficient number of                    9,500            17,000
     nondefective ties, non-concrete
     (d) Sufficient number of                   19,500            25,000
     nondefective, concrete ties....
     (e) Joint ties.................            19,500            25,000
     (f) Track constructed without              19,500            25,000
     crossties......................
     (g) Non-defective ties                     19,500            25,000
     surrounding defective ties.....
     (h) Tie plates.................            19,500            25,000
     (i) Tie plates.................            19,500            25,000
213.337 Defective rails.............            19,500            25,000
213.339 Inspection of rail in                   19,500            25,000
 service............................
213.341 Inspection of new rail......            19,500            25,000
213.343 Continuous welded rail (a)              19,500            25,000
 through (h)........................
213.345 Vehicle qualification                   19,500            25,000
 testing (a) through (b)............
     (c) through (e)................            19,500            25,000
213.347 Automotive or railroad                  13,000            20,500
 crossings at grade.................
213.349 Rail end mismatch...........            13,000            20,500
213.351(a) Rail joints..............            19,500            25,000

213.351(b) Rail joints..............            19,500            25,000
213.351(c) Rail joints..............            19,500            25,000
213.351(d) Rail joints..............            19,500            25,000
213.351(e) Rail joints..............            13,000            20,500
213.351(f) Rail joints..............            19,500            25,000
213.351(g) Rail joints..............            19,500            25,000
213.352 Torch cut rails.............             9,500            17,000
213.353 Turnouts, crossovers,                   19,500            25,000
 transition devices.................
213.355 Frog guard rails and guard              13,000            20,500
 faces; gage........................
213.357 Derails.....................             9,500            17,000
213.359 Track stiffness.............            19,500            25,000
213.361 Right of way................             9,500            17,000
213.365 Visual inspections..........            19,500            25,000
213.367 Special inspections.........            19,500            25,000
213.369 Inspections records.........             9,500            17,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ In addition to assessment of penalties for each instance of
  noncompliance with the requirements identified by this footnote, track
  segments designated as excepted track that are or become ineligible
  for such designation by virtue of noncompliance with any of the
  requirements to which this footnote applies are subject to all other
  requirements of part 213 until such noncompliance is remedied.
\3\ The penalty schedule uses section numbers from 49 CFR part 213. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

PART 214--[AMENDED]

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

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

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

         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         violation
------------------------------------------------------------------------
   Subpart B--Bridge Worker Safety
              Standards

214.103 Fall protection:
    (i) Failure to provide fall                $13,000           $20,500
     protection.....................
    (ii) Failure to use fall                    19,500            25,000
     protection.....................
214.105 Standards and practices:
    (a) General:
        (1) Fall protection used for             9,500            17,000
         other purposes.............
        (2) Failure to remove from               9,500            17,000
         service....................
        (3) Failure to protect from              9,500            17,000
         deterioration..............
        (4) Failure to inspect and              13,000            20,500
         remove.....................
        (5) Failure to train........            13,000            20,500
        (6) Failure to provide for              13,000            20,500
         prompt rescue..............
        (7) Failure to prevent                   9,500            17,000
         damage.....................
        (8) Failure to use proper                9,500            17,000
         connectors.................
        (9) Failure to use proper                9,500            17,000
         anchorages.................
    (b) Fall arrest system:
        (1)-(17) Failure to provide              9,500            17,000
         conforming equipment.......
    (c) Safety net systems:
        (1) Failure to install close             9,500            17,000
         to workplace...............
        (2) Failure to provide fall             13,000            20,500
         arrest if over 30 feet.....
        (3) Failure to provide for              13,000            20,500
         unobstructed fall..........
        (4) Failure to test.........             9,500            17,000
        (5) Failure to use proper                9,500            17,000
         equipment..................
        (6) Failure to prevent                  13,000            20,500
         contact with surface below.
        (7) Failure to properly                 13,000            20,500
         install....................
        (8) Failure to remove                   13,000            20,500
         defective nets.............
        (9) Failure to inspect......            13,000            20,500
        (10) Failure to remove                   5,500            10,000
         objects....................
        (11)-(13) Failure to use                 9,500            17,000
         conforming equipment.......
214.107 Working over water:
    (a)(i) Failure to provide life              13,000            20,500
     vest...........................
        (ii) Failure to use life                13,000            20,500
         vest.......................
    (c) Failure to inspect..........             9,500            17,000
    (e)(i) Failure to provide ring              13,000            20,500
     buoys..........................

        (ii) Failure to use ring      ................            17,000
         buoys......................
    (f)(i) Failure to provide skiff.             9,500            17,000
        (ii) Failure to use skiff...  ................            17,000
214.109 Scaffolding:
    (a)-(f) Failure to provide                  13,000            20,500
     conforming equipment...........
214.113 Head protection:
    (a)(i) Failure to provide.......            13,000            20,500
        (ii) Failure to use.........            13,000            20,500
    (b) or (c) Failure to provide                9,500            17,000
     conforming equipment...........
214.115 Foot protection:
    (a)(i) Failure to require use of             9,500            17,000
        (ii) Failure to use.........             9,500            17,000
214.117 Eye and face protection:
    (a)(i) Failure to provide.......             9,500            17,000
        (ii) Failure to use.........             5,500            10,000
    (b) Failure to use conforming                9,500            17,000
     equipment......................
    (c) Use of defective equipment..             9,500            17,000
    (d) Failure to provide for                   9,500            17,000
     corrective lenses..............

Subpart C--Roadway Worker Protection
                Rule

214.303 Railroad on-track safety
 programs, generally:
    (a) Failure of a railroad to                19,500            25,000
     implement an On-track Safety
     Program........................
    (b) On-track Safety Program of a             9,500            17,000
     railroad includes no internal
     monitoring procedure...........
214.305 Compliance Dates:
    Failure of a railroad to comply              9,500            17,000
     by the specified dates.........
214.307 Review and approval of
 individual on-track safety programs
 by FRA:
    (a)(i) Failure to notify FRA of              2,500             5,000
     adoption of On-track Safety
     Program........................
        (ii) Failure to designate                2,500             5,000
         primary person to contact
         for program review.........
214.309 On-track safety program
 documents:
    (1) On-track Safety Manual not               9,500            17,000
     provided to prescribed
     employees......................
    (2) On-track Safety Program                  5,500            10,000
     documents issued in fragments..
214.311 Responsibility of employers:
    (b) Roadway worker required by              19,500            25,000
     employer to foul a track during
     an unresolved challenge........
    (c) Roadway workers not provided             9,500            17,000
     with written procedure to
     resolve challenges of on-track
     safety procedures..............
214.313 Responsibility of individual
 roadway workers:
    (a) Failure to follow railroad's  ................            25,000
     on-track safety rules..........
    (b) Roadway worker fouling a      ................            25,000
     track when not necessary in the
     performance of duty............
    (c) Roadway worker fouling a      ................            25,000
     track without ascertaining that
     provision is made for on-track
     safety.........................
    (d) Roadway worker failing to     ................            25,000
     notify employer of
     determination of improper on-
     track safety provisions........
214.315 Supervision and
 communication:
    (a) Failure of employer to                  19,500            25,000
     provide job briefing...........
    (b) Incomplete job briefing.....            13,000            20,500
    (c)(i) Failure to designate                 13,000            20,500
     roadway worker in charge of
     roadway work group.............
        (ii) Designation of more                 9,500            17,000
         than one roadway worker in
         charge of one roadway work
         group......................
        (iii) Designation of non-               13,000            20,500
         qualified roadway worker in
         charge of roadway work
         group......................
    (d)(i) Failure to notify roadway            13,000            20,500
     workers of on-track safety
     procedures in effect...........
        (ii) Incorrect information              13,000            20,500
         provided to roadway workers
         regarding on-track safety
         procedures in effect.......
        (iii) Failure to notify                 13,000            20,500
         roadway workers of change
         in on-track safety
         procedures.................
    (e)(i) Failure of lone worker to             9,500            17,000
     communicate with designated
     employee for daily job briefing
        (ii) Failure of employer to             13,000            20,500
         provide means for lone
         worker to receive daily job
         briefing...................
214.317 On-track safety procedures,
 generally:
    On-track safety rules conflict              19,500            25,000
     with this part.................
214.319 Working limits, generally:
    (a) Nonqualified roadway worker             13,000            20,500
     in charge of working limits....
    (b) More than one roadway worker            13,000            20,500
     in charge of working limits on
     the same track segment.........
    (c)(1) Working limits released              19,500            25,000
     without notifying all affected
     roadway workers................
        (2) Working limits released             19,500            25,000
         before all affected roadway
         workers are otherwise
         protected..................
214.321 Exclusive track occupancy:
    (b) Improper transmission of                 9,500            17,000
     authority for exclusive track
     occupancy......................
    (b)(1) Failure to repeat                     9,500            17,000
     authority for exclusive track
     occupancy to issuing employee..
        (2) Failure to retain                    5,500            10,000
         possession of written
         authority for exclusive
         track occupancy............
        (3) Failure to record                   13,000            20,500
         authority for exclusive
         track occupancy when issued
    (c) Limits of exclusive track               19,500            25,000
     occupancy not identified by
     proper physical features.......
    (d)(1) Movement authorized into             19,500            25,000
     limits of exclusive track
     occupancy without authority of
     roadway worker in charge.......
        (2) Movement authorized                 19,500            25,000
         within limits of exclusive
         track occupancy without
         authority of roadway worker
         in charge..................
        (3) Movement within limits              19,500            25,000
         of exclusive track
         occupancy exceeding
         restricted speed without
         authority of roadway worker
         in charge..................

214.323 Foul time:
    (a) Foul time authority                     19,500            25,000
     overlapping movement authority
     of train or equipment..........
    (b) Failure to repeat foul time              9,500            17,000
     authority to issuing employee..
214.325 Train coordination:
    (a) Train coordination limits               13,000            20,500
     established where more than one
     train is authorized to operate.
    (b)(1) Train coordination                    9,500            17,000
     established with train not
     visible to roadway worker at
     the time.......................
        (2) Train coordination                   9,500            17,000
         established with moving
         train......................
        (3) Coordinated train moving            13,000            20,500
         without authority of
         roadway worker in charge...
        (4) Coordinated train                   13,000            20,500
         releasing movement
         authority while working
         limits are in effect.......
214.327 Inaccessible track:
    (a) Improper control of entry to            13,000            20,500
     inaccessible track.............
        (5) Remotely controlled                 13,000            20,500
         switch not properly secured
         by control operator........
    (b) Train or equipment moving               13,000            20,500
     within inaccessible track
     limits without permission of
     roadway worker in charge.......
    (c) Unauthorized train or                   13,000            20,500
     equipment located within
     inaccessible track limits......
214.329 Train approach warning
 provided by watchmen/lookouts:
    (a) Failure to give timely                  19,500            25,000
     warning of approaching train...
    (b)(1) Failure of watchman/                 13,000            20,500
     lookout to give full attention
     to detecting approach of train.
        (2) Assignment of other                 19,500            25,000
         duties to watchman/lookout.
    (c) Failure to provide proper                9,500            17,000
     warning signal devices.........
    (d) Failure to maintain position            13,000            20,500
     to receive train approach
     warning signal.................
    (e) Failure to communicate                  13,000            20,500
     proper warning signal..........
    (f)(1) Assignment of                        13,000            20,500
     nonqualified person as watchman/
     lookout........................
        (2) Nonqualified person                  9,500            17,000
         accepting assignment as
         watchman/lookout...........
    (g) Failure to properly equip a              9,500            17,000
     watchman/lookout...............
214.331 Definite train location:
    (a) Definite train location                 13,000            20,500
     established where prohibited...
    (b) Failure to phase out                     9,500            17,000
     definite train location by
     required date..................
    (d)(1) Train location                       13,000            20,500
     information issued by
     unauthorized person............
        (2) Failure to include all              19,500            25,000
         trains operated on train
         location list..............
        (5) Failure to clear track              13,000            20,500
         10 minutes before earliest
         departure time of train at
         last station prior to work
         location, or failure to
         remain clear until such
         train passed...............
        (6) Train passing station               19,500            25,000
         before time shown in train
         location list..............
        (7) Nonqualified person                 13,000            20,500
         using definite train
         location to establish on-
         track safety...............
214.333 Informational line-ups of
 trains:
    (a) Informational line-ups of               19,500            25,000
     trains used for on-track safety
     where prohibited...............
    (b) Informational line-up                   19,500            25,000
     procedures inadequate to
     protect roadway workers........
    (c) Failure to discontinue                   9,500            17,000
     informational line-ups by
     required date..................
214.335 On-track safety procedures
 for roadway work groups:
    (a) Failure to provide on-track             19,500            25,000
     safety for a member of a
     roadway work group.............
    (b) Member of roadway work group            13,000            20,500
     fouling a track without
     authority of employee in charge
    (c) Failure to provide train                19,500            25,000
     approach warning or working
     limits on adjacent track where
     required.......................
214.337 On-track safety procedures
 for lone workers:
    (b) Failure by employer to                  19,500            25,000
     permit individual discretion in
     use of individual train
     detection......................
    (c)(1) Individual train                     13,000            20,500
     detection used by nonqualified
     employee.......................
        (2) Use of individual train             19,500            25,000
         detection while engaged in
         heavy or distracting work..
        (3) Use of individual train             19,500            25,000
         detection in controlled
         point or manual
         interlocking...............
        (4) Use of individual train             19,500            25,000
         detection with insufficient
         visibility.................
        (5) Use of individual train             19,500            25,000
         detection with interfering
         noise......................
        (6) Use of individual train             19,500            25,000
         detection while a train is
         passing....................
    (d) Failure to maintain access              19,500            25,000
     to place of safety clear of
     live tracks....................
    (e) Lone worker unable to                   19,500            25,000
     maintain vigilant lookout......
    (f)(1) Failure to prepare                    5,500            10,000
     written statement of on-track
     safety.........................
        (2) Incomplete written                   2,500             5,000
         statement of on-track
         safety.....................
        (3) Failure to produce                   2,500             5,000
         written statement of on-
         track safety to FRA........
214.339 Audible warning from trains:
    (a) Failure to require audible               9,500            17,000
     warning from trains............
    (b) Failure of train to give                 9,500            17,000
     audible warning where required.
214.341 Roadway maintenance
 machines:
    (a) Failure of on-track safety              19,500            25,000
     program to include provisions
     for safety near roadway
     maintenance machines...........
    (b) Failure to provide operating             9,500            17,000
     instructions...................
        (1) Assignment of                       13,000            20,500
         nonqualified employee to
         operate machine............
        (2) Operator unfamiliar with            13,000            20,500
         safety instructions for
         machine....................
        (3) Roadway worker working              13,000            20,500
         with unfamiliar machine....
    (c) Roadway maintenance machine             19,500            25,000
     not clear of passing trains or
     operation of machine component
     closer than four feet to
     adjacent track without
     procedural instructions........
214.343 Training and qualification,
 general:
    (a)(1) Assignment of roadway                13,000            20,500
     worker duties to employee that
     is not trained or qualified....
    (a)(2) Acceptance of roadway                13,000            20,500
     worker assignment by employee
     that is not trained or
     qualified......................
    (b)(1) Failure to provide                   13,000            20,500
     initial training...............

    (b)(2) Failure to provide annual             9,500            17,000
     training.......................
    (c) Failure to provide training             13,000            20,500
     to employee other than a
     roadway worker on functions
     related to on-track safety.....
    (d)(1) Failure to maintain                   9,500            17,000
     records of qualifications......
        (2) Incomplete records of                5,500            10,000
         qualifications.............
        (3) Failure to provide                   2,500             5,000
         records of qualifications
         to FRA.....................
214.345 Training for all roadway                   \3\               \3\
 workers............................
214.347 Training and qualification                 \3\               \3\
 for lone workers...................
214.349 Training and qualification                 \3\               \3\
 of watchmen/lookouts...............
214.351 Training and qualification                 \3\               \3\
 of flagmen.........................
214.353 Training and qualification                 \3\               \3\
 of roadway workers who provide on-
 track safety for roadway work
 groups.............................
214.355 Training and qualification                 \3\               \3\
 in on-track safety for operators of
 roadway maintenance machines.......

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

214.503 Good-faith challenges;
 procedures for notification and
 resolution:
    (a) Failure of employee to        ................            20,500
     notify employer that the
     machine or vehicle does not
     comply with this subpart or has
     a condition inhibiting safe
     operation......................
    (b) Roadway worker required to              19,500            25,000
     operate machine or vehicle when
     good-faith challenge not
     resolved.......................
    (c) Failure of employer to have             19,500            25,000
     or follow written procedures to
     resolve good-faith challenges..
214.505 Required environmental
 control and protection systems for
 new on-track roadway maintenance
 machines with enclosed cabs:
    (a) Failure to equip new                    19,500            25,000
     machines with required systems.
    (b) Failure of new or existing              19,500            25,000
     machines to protect employees
     from exposure to air
     contaminants...................
    (c) Failure of employer to                   9,500            17,000
     maintain required list of
     machines or make list available
    (d) Removal of ``designated                  9,500            17,000
     machine'' from list before
     retired or sold................
    (e) Personal respiratory                    19,500            25,000
     protective equipment not
     provided when ventilation
     system fails...................
    (f) Personal respiratory                    19,500            25,000
     protective equipment fails to
     meet required standards........
    (g) Other new machines with                 19,500            25,000
     enclosed cabs not equipped with
     operable heating and
     ventilation systems............
    (h) Nonenclosed station not                 19,500            25,000
     equipped with covering, where
     feasible.......................
214.507 Required safety equipment
 for new on-track roadway
 maintenance machines:
    (a)(1)-(5) Failure to equip new             19,500            25,000
     machine or provide protection
     as specified in these
     paragraphs.....................
    (a)(6)-(7) Failure to equip new             13,000            20,500
     machine with first-aid kit or
     operative and charged fire
     extinguisher...................
    (b) Position for operator to                19,500            25,000
     stand not properly equipped to
     provide safe and secure
     position.......................
    (c) New machine not equipped                13,000            20,500
     with accurate speed indicator,
     as required....................
    (d) As-built light weight not               13,000            20,500
     conspicuously displayed on new
     machine........................
214.509 Required visual illumination            13,000            20,500
 and reflective devices for new on-
 track roadway maintenance machines.
214.511 Required audible warning                19,500            25,000
 devices for new on-track roadway
 maintenance machines...............
214.513 Retrofitting of existing on-
 track roadway maintenance machines;
 general:
    (a) Failure to provide safe and             19,500            25,000
     secure position and protection
     from moving parts inside cab
     for each roadway worker
     transported on machine.........
    (b) Horn or other audible                   13,000            20,500
     warning device is missing,
     inoperable, or has noncompliant
     triggering mechanism...........
    (c) Illumination device or                  13,000            20,500
     portable light missing,
     inoperable, improperly secured,
     or incapable of illuminating
     track as required..............
214.515 Overhead covers for existing
 on-track roadway maintenance
 machines:
    (a) Failure to repair,                      19,500            25,000
     reinstall, or maintain overhead
     cover as required..............
    (b) Failure to provide written               9,500            17,000
     response to operator's request
     within 60 days.................
214.517 Retrofitting of existing on-
 track roadway maintenance machines
 manufactured on or after January 1,
 1991:
    (a) Failure to equip machine                19,500            25,000
     with change-of-direction alarm
     or rearward viewing device.....
    (b) Failure to equip machine                19,500            25,000
     with operative heater..........
    (c) Failure to display light                13,000            20,500
     weight of machine as required..
    (d) Failure to equip machine                19,500            25,000
     with reflective material,
     reflective device, or operable
     brake lights...................
    (e) Failure to install or                   19,500            25,000
     replace safety glass as
     required.......................
    (f) Failure to equip machine                19,500            25,000
     with turntable restraint device
     or warning light as required...
214.518 Safe and secure position for            19,500            25,000
 riders.............................
214.519 Floors, decks, stairs, and              19,500            25,000
 ladders for on-track roadway
 maintenance machines...............
214.521 Flagging equipment for on-              13,000            20,500
 track roadway maintenance machines
 and hi-rail vehicles...............
214.523 Hi-rail vehicles:
    (a) Failure to inspect hi-rail              19,500            25,000
     gear annually..................
    (b) Failure to maintain                      9,500            17,000
     inspection record or make
     record available to FRA........
    (c) Failure to equip new hi-rail            13,000            20,500
     vehicle with alarm and light or
     beacon as required.............
    (d)(2) Failure of operator to                9,500            17,000
     tag, date, or report
     noncomplying condition.........
    (d)(3) Failure to repair or                 13,000            20,500
     replace noncomplying alarms,
     lights, or beacons as required.
214.525 Towing with on-track roadway            19,500            25,000
 maintenance machines or hi-rail
 vehicles...........................
214.527 On-track roadway maintenance
 machines; inspection for compliance
 and schedule for repairs:
    (a) Failure of operator to check             9,500            17,000
     on-track roadway maintenance
     machine for compliance.........
    (b) Failure of operator to tag,              9,500            17,000
     date, or report noncomplying
     condition......................

    (c)(1)-(4) Failure to meet                  13,000            20,500
     requirements for operating on-
     track roadway maintenance
     machine with noncomplying
     headlights, work lights, horn,
     fire extinguisher, alarm,
     warning light, or beacon.......
    (c)(5) Failure to repair or                 19,500            25,000
     replace defective or missing
     operator's seat within required
     time period....................
214.529 In-service failure of                   19,500            25,000
 primary braking system.............
214.531 Schedule of repairs; general            13,000            20,500
214.533 Schedule of repairs subject
 to availability of parts:
    (a)-(c) Failure to order                    13,000            20,500
     necessary part(s), make
     repair(s), or remove on-track
     roadway maintenance machine or
     hi-rail vehicle from service as
     required.......................
    (d) Failure to maintain record               9,500            17,000
     or make record available to FRA
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. In addition, there are certain sections of the penalty
  schedule for which no penalty is listed in the ordinary violation
  column. These sections may only be cited as willful violations. The
  Administrator reserves the right to assess a penalty of up to $100,000
  for any violation where circumstances warrant. See 49 CFR part 209,
  appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.
\3\ See Sec.   214.343 (Training and qualification, general).

PART 215--[AMENDED]

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

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

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

         Appendix B to Part 215--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                             Willful
             Section \2\                  Violation         Violation
------------------------------------------------------------------------
         Subpart A--General

215.9 Movement for repair:            ................  ................
     (a), (c).......................               \1\               \1\
     (b)............................            $5,500           $10,000
215.11 Designation of qualified                  9,500            17,000
 persons............................

215.13 Pre-departure inspection.....             9,500            17,000

  Subpart B--Freight Car Components

          Suspension System

215.103 Defective wheel:
    (a) Flange thickness of:          ................  ................
        (1) \7/8\'' or less but more             9,500            17,000
         than \13/16\''.............
        (2) \13/16\'' or less.......            13,000            20,500
    (b) Flange height of:
        (1) 1\1/2\'' or greater but              9,500            17,000
         less than \15/8\''.........
        (2) \15/8\'' or more........            13,000            20,500
    (c) Rim thickness of:
        (1) \11/16\'' or less but                9,500            17,000
         more than \5/8\''..........
         (2) \5/8\'' or less........            13,000            20,500
    (d) Wheel rim, flange plate hub
     width:
        (1) Crack of less than 1''..             9,500            17,000
        (2) Crack of 1'' or more....            13,000            20,500
        (3) Break...................            19,500            25,000
    (e) Chip or gouge in flange of:
        (1) 1\1/2\'' or more but                 5,500            10,000
         less than 1\5/8\'' in
         length; and \1/2\'' or more
         but less than \5/8\'' in
         width......................
        (2) \15/8\'' or more in                  9,500            17,000
         length; or \5/8\'' or more
         in width...................
    (f) Slid flat or shelled
     spot(s):
        (1)(i) One spot more than                5,500            10,000
         2\1/2\'', but less than
         3'', in length.............
            (ii) One spot 3'' or                 9,500            17,000
             more in length.........
        (2)(i) Two adjoining spots               5,500            10,000
         each of which is more than
         2'' but less than 2\1/2\''
         in length..................
            (ii) Two adjoining spots             9,500            17,000
             both of which are at
             least 2'' in length, if
             either spot is 2\1/2\''
             or more in length......
    (g) Loose on axle...............            19,500            25,000
    (h) Overheated; discoloration
     extending:
        (1) More than 4'' but less               9,500           17,000(
         than 4\1/2\''..............
        (2) 4\1/2\'' or more........            13,000            20,500
    (i) Welded......................            13,000            20,500
215.105 Defective axle:
    (a)(1) Crack of 1'' or less.....             9,500            17,000
         (2) Crack of more than 1''.            13,000            20,500
         (3) Break..................            19,500            25,000

     (b) Gouge in surface that is                5,500            10,000
     between the wheel seats and is
     more than \1/8\'' in depth.....
     (c) End collar with crack or                9,500            17,000
     break..........................
     (d) Journal overheated.........            19,500            25,000
     (e) Journal surface has: A                  9,500            17,000
     ridge; a depression; a
     circumferential score;
     corrugation; a scratch; a
     continuous streak; pitting;
     rust; or etching...............
215.107 Defective plain bearing box:
 general:
    (a)(1) No visible free oil                   5,500            10,000
         (2) Lubricating pad dry (no            13,000            20,500
         expression of oil observed
         when pad is compressed)....
    (b) Box lid is missing, broken,              5,500            10,000
     or open except to receive
     servicing......................
    (c) Contains foreign matter that             9,500            17,000
     can be expected to damage the
     bearing or have a detrimental
     effect on the lubrication of
     the journal and bearing
215.109 Defective plain bearing box:
 journal lubrication system:
    (a) Lubricating pad has a tear..             5,500            10,000
    (b) Lubricating pad scorched,                9,500            17,000
     burned, or glazed..............
    (c) Lubricating pad contains                 9,500            17,000
     decaying or deteriorating
     fabric.........................
    (d) Lubricating pad has an                   9,500            17,000
     exposed center core or metal
     parts contacting the journal...
    (e) Lubricating pad is missing              13,000            20,500
     or not in contact with the
     journal........................
215.111 Defective plain bearing:
    (a) Missing.....................            19,500            25,000
    (b) Bearing liner is loose or                9,500            17,000
     has piece broken out...........
    (c) Overheated..................            19,500            25,000
215.113 Defective plain bearing
 wedge:
    (a) Missing.....................            19,500            25,000
    (b) Cracked.....................             9,500            17,000
    (c) Broken......................            13,000            20,500
    (d) Not located in its design                9,500            17,000
     position.......................
215.115 Defective roller bearing:
    (a)(1) Overheated...............            19,500            25,000
        (2)(i) Cap screw(s) loose...            13,000            20,500
            (ii) Cap screw lock                  5,500            10,000
             broken, missing or
             improperly applied.....
        (3) Seal is loose or                     5,500            10,000
         damaged, or permits leakage
         of lubricant...............
    (b)(1) Not inspected and tested             13,000            20,500
     after derailment
        (2) Not disassembled after               9,500            17,000
         derailment.................
        (3) Not repaired or replaced            13,000            20,500
         after derailment...........
215.117 Defective roller bearing
 adapter:
    (a) Cracked or broken...........             9,500            17,000
    (b) Not in its design position..            13,000            20,500
    (c) Worn on the crown...........             9,500            17,000
215.119 Defective freight car truck:
    (a)(1) A side frame or bolster              19,500            25,000
     that is broken.................
        (2)(i) Side frame or bolster             9,500            17,000
         with crack of: \1/4\'' or
         more, but less than 1''....
            (ii) 1'' or more........            13,000            20,500
     (b) A snubbing device that is               9,500            17,000
     ineffective or missing.........
    (c) Side bearing(s):
        (1) Assembly missing or                 19,500            25,000
         broken.....................
        (2) In contact except by                13,000            20,500
         design.....................
        (3), (4) Total clearance at
         one end or at diagonally
         opposite sides of:
            (i) More than \3/4\''                9,500            17,000
             but not more than 1''..
            (ii) More than 1''......            13,000            20,500
    (d) Truck spring(s):
        (1) Do not maintain travel               9,500            17,000
         or load....................
        (2) Compressed solid........             9,500            17,000
        (3) Outer truck springs
         broken or missing:
            (i) Two outer springs...             9,500            17,000
            (ii) Three or more outer            13,000            20,500
             springs................
    (e) Truck bolster-center plate              13,000            20,500
     interference...................
    (f) Brake beam shelf support                 9,500            17,000
     worn...........................

             Car Bodies

215.121 Defective car body:
    (a) Has less than \21/2\''                   9,500            17,000
     clearance from the top of rail.
    (b) Car center sill is:
         (1) Broken.................            19,500            25,000
         (2) Cracked more than 6''..             9,500            17,000
         (3) Bent or buckled more                9,500            17,000
         than \21/2\'' in any 6'
         length.....................
     (c) Coupler carrier that is                 9,500            17,000
     broken or missing..............
     (d) Car door not equipped with             19,500            25,000
     operative safety hangers.......
     (e)(1) Center plate not                    19,500            25,000
     properly secured...............
         (2) Portion missing........             9,500            17,000
         (3) Broken.................            19,500            25,000
         (4) Two or more cracks.....             9,500            17,000

     (f) Broken sidesill,                        9,500            17,000
     crossbearer, or body bolster...

            Draft System

215.123 Defective couplers:
    (a) Shank bent out of alignment.             5,500            10,000
    (b) Crack in highly stressed                 9,500            17,000
     junction area..................
    (c) Coupler knuckle broken or                9,500            17,000
     cracked........................
    (d) Coupler knuckle pin or                   9,500            17,000
     thrower that is missing or
     inoperative....................
    (e) Coupler retainer pin lock                5,500            10,000
     that is missing or broken......
    (f) Coupler with following                   9,500            17,000
     conditions: Locklift
     inoperative; no anticreep
     protection; or coupler lock is
     missing, inoperative, bent,
     cracked, or broken.............
215.125 Defective uncoupling device.             9,500            17,000
215.127 Defective draft arrangement:
    (a) Draft gear that is                       9,500            17,000
     inoperative....................
    (b) Yoke that is broken.........             9,500            17,000
    (c) End of car cushioning unit               9,500            17,000
     is leaking or inoperative......
    (d) Vertical coupler pin                    19,500            25,000
     retainer plate missing or has
     missing fastener...............
    (e) Draft key or draft key                  19,500            25,000
     retainer that is inoperative or
     missing........................
    (f) Follower plate that is                   9,500            17,000
     missing or broken..............
215.129 Defective cushioning device.             9,500            17,000

   Subpart C--Restricted Equipment

215.203 Restricted cars.............             9,500            17,000

        Subpart D--Stenciling

215.301 General.....................             5,500            10,000
215.303 Stenciling of restricted                 5,500            10,000
 cars...............................
215.305 Stenciling of maintenance-of-            5,500            10,000
 way................................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. Generally, when two or more violations of these regulations